How the Police Can Further Reduce Unlawful Arrests

Recent Government statistics confirm the continuing decline in the number of arrests carried out by Police in England and Wales.  In the year ending March 2015, there were 950,000 arrests carried out by Police, a fall of 7% on the previous year and continuing the downward trend since a peak of 1.5 million arrests in year ending 2007. 

What is the explanation for this decline? Some would argue that the drop off is attributable to the fact that less crime is being committed generally.  Others, like Hampshire Police Federation Chairman John Apter put the drop off down to the reduction in serving Police Officers; “The reduction of numbers clearly shows the consequences of losing so many officers”.  

An alternative explanation is a gradual change in Police culture away from arrest now, investigate later to actively considering alternatives to arrests and in particular, to investigate by way of voluntary interview.  Such alternatives to arrest both spares the suspect the ordeal and distress of incarceration (for example, householders who use reasonable force in self defence against burglars and teachers/school staff facing allegations connected with their employment) and the Police the expense of keeping that individual in Custody (of particular interest in these lean days of austerity) and is of course particularly appropriate when dealing with low level criminality. 

This shift in culture away from seeing the sheer number of arrests made as a sign of success (for example see the Evening Standard’s report “Make more arrests or face punishment Police Officers told” has been encouraged by changes to Code G of PACE (implemented by the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, G and H) Order 2012 (SI 2012 No. 1798) implemented in November 2012. 

Code G contains the following provisions under the section headed ‘Introduction’ 

1.2       The exercise of the power of arrest represents an obvious and significant interference with the Right to Liberty and Security under Article 5 of the European Convention on Human Rights set out in the Human Rights Act 1998. 

1.3       The use of power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.  Absence of justification for exercising the power of arrest may lead to challenges should the case proceed to court.  It could also lead to civil claims against police for unlawful arrest and false imprisonment. When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner which is compatible with the Right to Liberty under Article 5. 

Then the section headed ‘Elements of Arrest under Section 24 PACE’ at paragraph 2.1: 

2.1       A lawful arrest requires two elements: 

A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; 

AND 

Reasonable grounds for believing that the person’s arrest is necessary. 

·         Both elements must be satisfied, and

·         It can never be necessary to arrest a person unless there are reasonable grounds to suspect them of committing an offence. 

2.2       The arrested person must be informed that they have been arrested, even if this fact is obvious, and of the relevant circumstances of the arrest in relation to both the above elements.  The custody officer must be informed of these matters on arrival at the police station…

 Necessity criteria 

2.4       The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person.  The statutory criteria for what may constitute necessity are set out in paragraph 2.9 and it remains an operational decision at the discretion of the constable to decide: 

·                     Which one or more of the necessity criteria (if any) applies to the individual; and

·                     If any of the criteria do apply, whether to arrest, grant street bail after arrest, report for summons or for charging by post, issue a penalty notice or take any other action that is open to the officer…

 2.8       In considering the individual circumstances, the constable must take into account the situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process. 

2.9       When it is practicable to tell a person why their arrest is necessary, the constable should outline the facts, information and other circumstances which provide the grounds for believing that their arrest is necessary and which the officer considers satisfy one or more of the statutory criteria in sub-paragraphs (a) to (f), namely: 

(a)    To enable the name of the person in question to be ascertained …. 

(b)   Correspondingly as regards the person’s address …. 

(c)    To prevent the person in question: 

(i)                 Causing physical injury to himself or any other persons…

(ii)               Suffering physical injury ……

(iii)             Causing loss or damage to property ……….

(iv)             Committing an offence against public decency ……..

(v)               Causing an unlawful obstruction of the highway ……… 

(d)   To protect a child or other vulnerable person from the person in question ……. 

(e)    To allow the prompt and effective investigation of the offence or of the conduct of the person in question.

This may arise when it is thought likely that unless the person is arrested and then either taken in custody to the police station or granted ‘street bail’ to attend the station later, further action considered necessary to properly investigate their involvement in the offence would be frustrated, unreasonably delayed or otherwise hindered and therefore be impracticable.  Examples of such actions include:

 (i)                 Interviewing the suspect on occasions when the person’s voluntary attendance is not considered to be a practicable alternative to arrest, because for example: 

·      It is thought unlikely that the person would attend the police station voluntarily to be interviewed.

·      It is necessary to interview the suspect about the outcome of other investigative action for which their arrest is necessary, see (ii) to (v) below

·      Arrest would enable the special warning to be given in accordance with Code C paragraphs 10.10 and 10.11 when the suspect is found:

Ø  In possession of incriminating objects, or at a place where such objects are found;

Ø  At or near the scene of the crime at or about the time it was committed.

·      The person has made false statements and/or presented false evidence;

·      It is thought likely that the person:

Ø  May steal or destroy evidence;

Ø  May collude or make contact with, co-suspects or

Ø  May intimidate or threaten or make contact with, witnesses. 

(ii)               When considering arrest in connection with the investigation of an indictable offence (see Note 6), there is a need: 

·      To enter and search without a search warrant any premises occupied or controlled by the arrested person or where the person was when arrested or immediate before arrest;

·      To prevent the arrested person from having contact with others;

·      To detain the arrested person for more than 24 hours before charge.

 (iii)             When considering arrest in connection with any recordable offence and it is necessary to secure or preserve evidence of that offence by taking fingerprints, footwear impressions or samples from the suspect for evidential comparison or matching with other material relating to that offence, for example, from the crime scene.

 (iv)             When considering arrest in connection with any offence and it is necessary to search, examine or photograph the person to obtain evidence.

 (v)               When considering arrest in connection with an offence to which the statutory Class A drug testing requirements …….. apply, to enable testing when it is thought that drug misuse might have caused or contributed to the offence.

 (f)    To prevent any prosecution for the offence from being hindered by the disappearance of the person in question.

 

By way of illustration of the importance of considering alternating to arrest, and how a failure to use a reasonable alternative can render an arrest unlawful, let me set out the facts of a case I have recently settled.

 Mr G was a 75 year old retired gentleman of exemplary character.  He lives in a bungalow in rural Suffolk and had done so for the previous 8 years.

 At the rear of Mr G’s property is an area of land belonging to the District Council in which pine trees grow.

 Throughout the period that Mr G had lived at his address, he had experienced difficulties with the trees at the rear of his property, specifically the mass shedding of needles, which collected in and around his garden and caused associated problems such as blockage of drains.  Mr G was of the opinion that the mass shedding was attributable to ivy that was allowed to grow on the trees.

 Mr G made a number of complaints spanning several years to the District Council, as regards the problems he was experiencing with the trees, but on each occasion the Council failed to act upon his complaints.

 On or around 1 April 2015, Mr G received an unsolicited visit from a local “odd job man” offering his services.

 Mr G agreed to pay for the male to carry out some work at the rear of his address specifically requesting that the male cut and trim the ivy off the Pine Trees.

 Mr G made it extremely clear to the male that no work should go beyond the cutting of the ivy, so as to protect the integrity of the trees.

 Unbeknown to Mr G, the District Council received information as regards the maintenance work on the trees. 

 On or about the 17 May 2015, Mr G was visited at home by a PCSO who was making enquiries as to the work on the trees.

 Mr G openly accepted that he had paid for work to be carried out on the trees.

 On the morning of the 10 June 2015, 2 Police Officers attended Mr G’s address and arrested him on suspicion of criminal damage.

 As a result of the arrest, a search under Section 32 of the Police and Criminal Evidence Act 1984 was carried out and a number of items received/seized including Mr G’s laptop, mobile phones and chainsaw.

 Mr G who was still in his pyjamas was allowed to change his clothes and was then transported to and detained at Bury St Edmunds Police Station.

 The circumstances of arrest were recorded in the Custody Record as “Detained Person is alleged to have cut some trees down at the rear of his address between 1 April and 8 May 2015, which belong to the District Council”.

 The reason to arrest was said to be “To allow the prompt and effective investigation of the offence or of the conduct of the detained person”.

 The reason for detention was said to be “to obtain evidence by questioning”.

 The grounds for detention were on the basis that there was “insufficient evidence to charge.  Detention necessary to obtain evidence by way of questioning and then to decide on the best means of disposal”.

 Mr G was searched and subjected to a risk assessment and he was then obliged to provide his fingerprints and DNA sample.  Mr G was then taken to a cell.  He was aware of a camera on the ceiling of the cell and a slot in the cell door but no window.   Mr G was particularly upset at being treated like a common criminal.  The stress exacerbated his asthma which was aggravated further because the Police refused to allow him to have the inhaler in his cell and having to ring the bell when he needed it to use it.

 Mr G was subsequently interviewed under caution, whereupon he denied any responsibility for criminal damage.  At the conclusion of the interview, the interviewing officer advised Mr G that the interview was “simply to gain an account from yourself as to what happened”. 

 As a result of an evidential review, a decision that no further action would result was eventually reached and after 8 hours, Mr G was released from custody. 

 Following his return home, he found he was initially unable to sleep and spent the majority of his time thinking about his arrest and the injustice of what had happened.

 Mr G carried out a search on the internet and having established my credentials instructed me to pursue an action on his behalf.

 Whilst it appeared to me that the Police might be able to establish that the Officers had a reasonable suspicion that an arrestable offence had been committed, I could not for the life of me understand how they could argue that there was any necessity to arrest, as opposed – for example – simply inviting Mr G to attend a voluntary interview at the police station.

 I intimated a claim.  True to form, the Police denied liability leaving my client no alternative but to issue Court proceedings.

 Following issue, the Police filed a Defence, again denying liability.

 Notwithstanding this repeated denial, the Police made an offer to settle.  Following negotiations, I settled Mr G’s claim for £10,500.

 So, my own experience, as demonstrated by this case, is that despite the revision of Code G and the statistical evidence of fewer arrests occurring, there still remains ingrained in Police culture a strong tendency to arrest without consideration of other options.  Therefore, it is imperative that Police Officers be trained (or re-trained) to highlight the law as it stands, and perhaps equally important that when mistakes are made, both individual officers and their Force generally learn from their mistakes.  Hopefully, thanks to both less crime being committed generally and increased compliance with Code G (and hence unnecessary arrest being avoided) we will continue to see arrest figures decline in years to come.

Author: iaingould

Actions against the police solicitor (lawyer) and blogger.