Unlawful arrest claims often turn on a critical question that many people do not think to ask at the moment they are detained: were the Police legally entitled to arrest me in the first place? In this blog post, I explain why a Police officer’s failure to provide sufficient information at the time of arrest can render that arrest unlawful, even where the officer otherwise had reasonable suspicion. As a solicitor specialising in actions against the Police, I regularly encounter cases where this basic legal safeguard has been ignored.
Contrary to popular belief, an arrest is not invalid simply because an officer fails to “read you your rights” or give the standard Police caution. Instead, the true legal requirement is found in Section 28 of the Police and Criminal Evidence Act 1984 (PACE), which mandates that a person must be told both that they are under arrest and the specific grounds for that arrest. As this post explains, “grounds” means more than naming the offence—it requires clear, non-technical details such as when and where the alleged offence occurred, so that the arrested person can understand why their liberty is being taken and respond immediately if there is a mistake.
This article demonstrates how breaches of Section 28 PACE can form the basis of a successful claim for wrongful arrest and false imprisonment. If you or someone you know has been arrested without being properly informed of the legal and factual grounds, this post explains why that failure matters—and how, in both ancient common law and modern statute, the remedy remains the same: to sue.
Content Authenticity Statement
100% of this week’s blog post was generated by me, the human.
Can the Police Lawfully Arrest You Without Properly Explaining Why?
Last week on this blog, I addressed one of the questions that is most frequently put to me – about whether or not the Police are right to say that civil claims against them must be “put on hold” pending the resolution of an associated disciplinary / misconduct complaint.
The answer is that they’re not – but that you may well be best advised to await the complaint outcome before proceeding, in any event. My role as an expert in suing the Police is to help you make the wisest decision, on the individual facts of your case.
This week, I will address one of those questions which I think people don’t ask themselves enough, when they are arrested – have the Police given me sufficient information to make my arrest, and the deprivation of my liberty, legal?
Do the Police Have to “Read You Your Rights” for an Arrest to Be Legal?
Miranda Rights vs the UK Police Caution: A Common and Costly Misconception
It is a common misconception amongst the public on both sides of the Atlantic (probably because of TV dramas causing the hybridisation of British and American law in the popular imagination) that a Police arrest can be invalidated if the Officer does not read the suspect their “rights”; what are known as “Miranda” rights in the US and what, here, is the statutory “Police caution” in the form of words set down in the Police & Criminal Evidence Act 1984 (PACE) Code C (para 10.5)
“You do not have to say anything. But, it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
Why Failing to Give the Police Caution Does Not Invalidate an Arrest
The important thing to be aware of is that this ‘caution’ is the notification of your right to silence (in subsequent interview), and although a failure to say it to you might have implications for any future criminal proceedings, that failure would not invalidate your arrest.
The Real Legal Requirement for a Lawful Arrest: Section 28 of PACE Explained
What Information Must the Police Give You at the Moment of Arrest?
However, there is crucial information which must be given in UK law to those being arrested, immediately upon arrest unless extreme circumstances (such as an immediate escape attempt!) prevent this, and without which the arrest is invalid, your detention unlawful, and you can sue for damages.
The provision of this information to the arrestee is mandated by Section 28 of PACE in the following terms:
Information to be given on arrest
(1) Subject to subsection (5) below, where a person is arrested, otherwise than by being informed that he is under arrest, the arrest is not lawful unless the person arrested is informed that he is under arrest as soon as is practicable after his arrest.
(2) Where a person is arrested by a constable, subsection (1) above applies regardless of whether the fact of the arrest is obvious.
(3) Subject to subsection (5) below, no arrest is lawful unless the person arrested is informed of the ground for the arrest at the time of, or as soon as is practicable after, the arrest.
(4) Where a person is arrested by a constable, subsection (3) above applies regardless of whether the ground for the arrest is obvious.
(5) Nothing in this section is to be taken to require a person to be informed—
(a) that he is under arrest; or
(b) of the ground for the arrest,
if it was not reasonably practicable for him to be so informed by reason of his having escaped from arrest before the information could be given.
Why “Grounds for Arrest” Means More Than Naming the Offence
Legal and Factual Grounds for Arrest: What the Law Actually Requires
“Ground of Arrest” is not just the name of the offence for which you are being “nicked”. It is short but specific details which would, for example, allow a person being arrested for an assault to know who it was he was alleged to have assaulted and when.
This is not only so as to enable the arrestee to understand why they are being deprived of their liberty, it also serves the very practical purpose of allowing them the immediate opportunity to assert their innocence and/or to spontaneously offer any alibi which they might have.
Taylor v Thames Valley Police: The Leading Case on Grounds of Arrest
This principle was cogently enshrined in the judgment delivered by the Court of Appeal in Taylor v Thames Valley Police [2004] EWCA Civ 858:
Lord Justice Clarke ruled as follows:
• The underlying rationale of this approach is that a person is entitled to know why he is being arrested… “the arrested man is entitled to be told what is the act for which he is arrested.” (Paragraph 21)
• The question is whether, having regard to all the circumstances of the particular case, the person arrested was told in simple, non-technical language that he could understand, the essential legal and factual grounds for his arrest. (Paragraph 26)
When Vague Arrest Grounds Make Detention Unlawful
In Taylor itself, simply telling the Claimant that he was under arrest for violent disorder would not have been lawful. The arrest was only lawful because the officer specified the location (Hillgrove Farm) and the date (18 April).
This was contrasted with Murphy v Oxford (CA, 15 February 1985), where an arrest was held unlawful because the individual was only told he was suspected of burglary in “Newquay”, without being told which premises or when the offence was alleged to have occurred.
Using Section 28 PACE to Win a Claim for Wrongful Arrest
A Real Case Study: Compensation for Arrest Without Proper Grounds
Some years ago, I represented a man who was wrongly suspected of being involved in the rape of a young woman in his local area. He had been misidentified by a witness (not the victim herself) on the basis of CCTV footage and was arrested by Derbyshire Constabulary at his home address.
Whilst his innocence was established in due course, my client could not succeed in a claim for wrongful arrest on the basis that the Police initially had reasonable suspicion, owing to the witness identification. His actual innocence did not retrospectively invalidate that suspicion.
However, it became clear that upon his arrest, my client had only been informed of the type of offence – “rape” – and no details as to when, where or against whom it was said to have been committed.
This breach of Section 28 of PACE allowed me to secure a substantial award of damages and costs. The judge acknowledged that my client was “denied the opportunity to give his account straight away.”
To my mind, this was no exploitation of a loophole, but fair restitution and a moral victory for a man who had endured the ordeal of being arrested for a rape he had not committed.
An Ancient Common Law Right Reinforced by Modern Statute
I have written many times before about how much that is good in modern civil liberties law owes its origins to the ancient traditions of the Common Law.
The rules governing arrest in Section 28 of PACE are no exception. I leave the final word to Viscount Simon in Christie v Leachinsky [1947] AC 573, quoted with approval in Taylor:
“A citizen is entitled to know on what charge or on suspicion of what crime he is seized… The matter is one of substance… a person is, prima facie, entitled to his freedom.”
In Old Times and New: When the Police Get It Wrong, the Answer Is to Sue
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Contact the Expert Police Misconduct Solicitor
Iain Gould is a solicitor specialising in complaints, claims and civil actions against the Police. With over 30 years of experience and a national reputation, he has successfully sued all 43 police forces in England and Wales challenging abuse of power and securing rightful compensation.
If you believe you may have been the victim of Police misconduct, please contact Iain Gould here for advice.
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