From Law wiki, the wiki for law research

This article summarises who is allowed to arrest whom, and for what. It also discusses the legal remedies available to those who have been unlawfully arrested. Note that even if there is a power of arrest, an arrest may be unlawful if the proper procedures have not been followed (Arrest procedure).

Although there remain common-law powers of arrest, particularly in respect of behaviour liable to cause a breach of the peace, this area of law in now mostly controlled by legislation. Most relevant is the Police and criminal evidence act (1984) -- usually abbreviated to 'PACE'.

Powers of arrest: overview

Anybody may lawfully arrest another person in the following circumstances:

• if he belives the other person to have committed an 'arrestable offence' (as described below), or
• if he belives the other person is currently committing such an offence,
• if there is a specific statutory power of arrest (e.g, of a person who has broken bail).

In addition, a constable may arrest a person

• if he believes that person is about to commit an arrestable offence, or
• the person is reasonably suspected of having committed an arrestable offence, or
• if he belives that person has committed a non-arrestable offence, but the constable cannot obtain the suspect's name and address, or
• if the person presents a danger to the public or to himself, or
• where there are specific statutory powers of arrest (e.g., to obtain fingerprints after a conviction), or
• under the authority of an Arrest warrant.

Powers of arrest available to anyone In summary, these powers relate to (i) 'arrestable offences' (described below), (ii) specific statutory provisions, and (iii) breaches of the peace. (i) Section 24 of PACE indicates that anybody can lawfully arrest a person whom he reasonable believes has committed, or is in the act of committing, an arrestable offence. 'Anybody' means exactly that -- even a member of the public having no connection with law enforcement. So what is an 'arrestable offence'? According to s.24 of PACE it is one that falls into any of these categories:

• murder (technically, serious offences with a mandatory penalty, of which murder is the only important one), or
• offences where the maximum penalty for an adult is at least five years' imprisonment (which includes manslaughter, serious and indecent assaults, rape, criminal damage, arson, and most theft-related offences), or
• a long list of specific offences in s.24(2), including taking a conveyance, ticket touting, carrying an offensive weapon, failing to remove identity-concealing headgear in an area to which extended Stop and search powers have been applied, etc., etc., or
• an attempt or conspiracy to any of the above.

So far as a 'citizen's arrest' is concerned, it is lawful to arrest a person who has committed, or is committing, an arrestable offence. There is no power of arrest available to the public for circumstances in which

• an arrestable offence has been committed, and
• the person arrested is likely to have commited it, or there are good reasons to suspect that a person will commit an arrestable offence.

The line between (lawfully) arresting a person where there are reasonable grounds for believing that he has commited an offence, and (unlawfully) arresting a person who is likely to have committed an offence is obviously a narrow one. The problem is particularly acute because in such a 'citizen's arrest', somebody is guilty of an offence. Either the suspect is guilty of the offence, or the arrestor is guilty of, e.g., false imprisonment, or assault. In summary, one must be very sure indeed that the person to be arrested is really guilty of an arrestable offence.

This problem does not apply with such force to police officers, because there are additional power of arrest for such cases. (ii) In addition to the arrestable offences, PACE (s.26) provides a long list of persons whose actions do not constitute arrestable offences, but where there is nevertheless the power to arrest. These include deserter from the armed forces, bail breakers, and drunk drivers. (iii) Anyone has a power to arrest a person who is committing a Breach of the peace, or whom he has good grounds to believe will do so imminently. Because the person arrested need not be committing any offence, the use of this power to arrest is open to abuse. Therefore, the Court of Appeal has ruled that for such an arrest to be lawful:

• there must be a significant risk of a breach of the peace, probably involving a provocation of violence,
• the person arrested is likely to be responsible for it, and
• the arrested person's behaviour must be unreasonable.

Powers of arrest available to constables without warrant In addition to the powers available to anyone, the police have additional powers in respect of (i) arrestable offences and (ii) non-arrestable offences, and (iii) other situations covered by PACE. (i) In addition to the general powers of arrest, PACE (s.24) indicates that a constable may arrest a person

• if an arrestable offence has been committed, and there is good reason to suspect that person of committing it.
• if the constable has good grounds for believing that the person will commit such an offence imminently.

The first of these provisions reduces the likelihood that the police are guilty of false imprisonment if they apprehend someone on suspicion of an offence, and he later turns out to be innocent. Remember that any other member of the public is guilty of an offence if he apprehends a person without a firm belief that the particular person committed the specific offence. The latter is just a common-sense provision; it covers situations such as where someone is lurking about the back yard of a house at might, in an area where there have been a spate of burglaries, and can't account for himself.

(ii) Section 25 of PACE indicates that a constable may arrest a person for a non-arrestable offence in certain conditions, which can essentially be divided into two categories:

• situations in which the offender refuses to supply his name and address, or there are reasons for thinking that this information is not reliable, and
• situations in which the offender presents a danger to himself of others. A particularly important case is where the offender is judged to be a threat to a child.

The rationale for providing a power of arrest in the first category is that, while perpetrators of less serious offendences should ideally be brought to account by means of a summons, a summons cannot readily be issued to a person whose identity is unknown. Those interested in civil rights should be aware that there is no general power to arrest merely for failing to supply a name and address (except in certain well-defined offences) to a constable; the person arrested must be believed to be guilty of a criminal act.

(iii) Section 27 of PACE allows a constable to arrest a person who has been convicted of a Recordable offence for fingerprinting if he will not offer himself for fingerprinting voluntarily. This power may only be exercised if the offender has never been in custody; it is assumed that if he has been in custody, the police should have exercised the right at the appropriate time.

Powers of arrest under warrant When an Information has been laid before a magistrate detailing criminal charges, the most desirable next step -- if the information is sound -- is the issuing of a Summons. This demands that the suspect present himself at court to answer the charges.

A magistrate may, however, issue a warrant of arrest in the following circumstances:

• the offence is indictable (see: Indictment), that is, must be tried before a jury, or is punishable by imprisonment; or
• a summons could not be served, usually because the suspect's address is not properly established.

An arrest warrant remains in force until it is either executed or withdrawn. The issuing of arrest warrants is controlled by legislation in the Criminal justice act (1967).

Unlawful arrest A person (constable or otherwise) making an arrest must be able to justify that action. In the absence of justification the arrest will be unlawful. In such a case the person being arrested has the right to

• (i) resist the arrest, using reasonable force, or
• (ii) submit to the arrest and then persue a case for damages in the civil courts, or
• (iii) submit to the arrest and use the unlawfulness of the arrest to undermine the prosecution case, or
• (iv) apply for a writ of habeus corpus.

These remedies may be used in combination. (i) It is lawful to resist an illegal arrest, and this resistance may be accomplished by reasonable force. However, this is not usually advisable except in clear cases. If the victim of the arrest is subsequently convicted of the offence, then he is likely to be guilty of another offence as well. For example, if the resistance involves only a struggle, he may be found guilty of assaulting a constable in the execution of his duty (s.89 of the Police act (1994)). If the resistance leads to injury, then he may be convicted of an offence under the Offences against the person act (1861). Of course, a person resisting arrest will not be guilty of any of these offences if the arrest does not lead to a conviction -- provided the force was reasonable, but in many cases it is not worth the risk. There are complex issues relating to whether an arrest is lawful, or not, particularly when the person arrested uses force to resist. An interesting case in this regard is Gv DPP (1989). (ii) Although they have become less extravagent in recent years, damages awarded by civil courts for false imprisonment are still often substantial. This reflects the repugnance that society feels towards such a misuse of police powers. A case for malicious prosection may also succeed. (iii) Defendants have sometimes attempted to use the illegality of arrest as a means to undermine prosecution. This has rarely been successful because under English law illegally obtained evidence is not necessarily inadmissible. However, courts do have a discretion under s.78 of PACE to exclude evidence whose value as evidence is outweighed by the unfairness it introduces. Courts have often used this rule to quash convictions where suspects have been denied proper legal representation. In addition, Article 6 of the European Convention on Human Rights grants the right to a fair trial, so prosecutors need to be increasingly careful about this. For a more detailed analysis of the current legal position, see: Slapper and kelley,2001 (p411). (iv) Where a person believes he is being detained unlawfully, he may apply to a judge for a writ of Habeus corpus. If granted, this demands that the arresting authority (which may not necessarily be the police, but perhaps a secure hospital) present the detainee in court and justify the detention. Like any form of arrest, detention is unlawful unless such a justification can be presented.