#16098 - Police Powers Preliminaries To Prosecution - BPC Criminal Litigation (formerly BPTC) 2024/2025

Police Powers & Preliminaries to Prosecution

PACE & Codes of Practice

• ‘constable’ is used in PACE to mean any police officer.

• Most police powers re investigating crim offences, are contained in PACE 1984 and Codes of Practice.

• The codes of practice:

  • Supplement the legislation & give a guide to best practice.

  • They are intended to safeguard the rights of suspects.

  • They are admissible as evidence in court, in crim or civil proceedings.

  • Breaches of the codes do NOT render evidence obtained as a result of the breach inadmissible per se; but MAY provide basis for an application to exclude evidence

  • Breach by a police officer does in itself render him liable to criminal or civil proceedings.

Arrest

• An arrest restrains the liberty of the person arrested

• Purpose of arrest is usually to facilitate the investigation of an offence by the police.

• Has a person been ‘arrested’?

  • Is a fact-sensitive question, is a question of degree & intensity.

  • Eg, taking hold of arm of a person to stop him falling over is not arrest.

  • A deprivation of liberty is required to constitute arrest.

    • Difference between a ‘deprivation’ of liberty (= an arrest) and a mere ‘restriction’ of movement.

  • Arrest is unlawful where: the arresting officer knows that there is no possibility of the arrest person being charged with an offence.

• Legal characteristics of arrest (D1.16):

  • There is no necessary assumption that an arrest will be followed by a charge.

  • An arrest for an offence will be unlawful where officer knows at time of arrest that there is no possibility of a charge being made (even if he has reasonable suspicion).

  • A constable may lawfully arrest a suspect where he hopes, by doing so, to obtain a confession.

  • If the lawfulness of an arrest carried out by an officer at the request of another, is challenged: it is for police to prove the officer who asked for the arrest to be made acted in good faith in making the request.

  • Burden of proof of showing lawful arrest is on the police:

  • But if an arrest is lawful, the burden of proving excessive force was used is on the complainant.

ARREST WITHOUT WARRANT

Powers of arrest without warrant:

• (1) S24: a police officer may arrest for any offence.

  • -> subject to a test of necessity.

• (2) S24A, civilian powers of arrest: a civilian may arrest only for an indictable offence

  • -> subject to a test of necessity.

• (3) Common law power to prevent breach of the peace every constable and civilian has a power to arrest to: prevent a breach of the peace; whether breach is being committed at the time or anticipated in immediate future.

• Powers of arrest are generally discretionary; if the conditions are satisfied the officer (or civilian) may arrest, but is not required to.

  • However, where a person has been arrested for an offence and is at a police station in consequence of that arrest, and it appears to the police that, if released, he would be liable to arrest for some other offence, the person must be arrested for that other offence.

(2) Common power arrest for breach of the peace

• Any person, whether constable or civilian, has a common-law power of arrest where:

  • (a) a breach of the peace is committed in his presence,

  • (b) the person effecting the arrest ‘reasonably believes’ that such a breach will be committed in the immediate future by the person arrested; OR

  • (c) a breach of the peace has been committed or the person effecting the arrest reasonably believes that a breach of the peace has occurred; and that a further breach is threatened.

• An arrest must be for the purpose of bringing the person before a competent legal authority (in order to comply with Art 5(1)(c) ECHR).

• A breach of the peace ‘occurs’ whenever harm is actually done, or is likely to be done to:

  • to a person

  • or, in his presence, to his property;

  • or where a person is in fear of being harmed through an assault, affray, riot, unlawful assembly or other disturbance.

• Reasonable belief is an objective requirement court must determine whether the belief was reasonable having regard to the circumstances as perceived by the person carrying out the arrest at the time.

• Where a reasonable apprehension of an imminent breach of the peace exists, the preventive action taken must be reasonable, necessary and proportionate.

(1) Most important arrest power = s24 PACE 1984:

• Must be:

  • (1) a GROUND for the arrest

  • AND

  • (2) a REASON why it is necessary to arrest the suspect.

• (1) GROUNDS—a constable may arrest without warrant anyone:

  • (a) who is about to commit an offence

  • (b) who is in the act of committing an offence

  • (c) whom he has reasonable grounds for suspecting to be about to commit an offence;

  • (d) whom he has reasonable grounds for suspecting to be committing an offence.

  • (2) If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant: anyone whom he has reasonable grounds to suspect of being guilty of it

  • (3) If an offence has been committed, a constable may arrest without a warrant

    • (a) anyone who is guilty of the offence;

    • (b) anyone whom he has reasonable grounds for suspecting to be guilty of it.

• Can only arrest for a ground above, IF has ‘reasonable grounds’ for believing that the arrest is necessary, for one of the following REASONs:

• (2) REASONS

  • (a) to enable the name of the person to be ascertained

    • (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);

  • (b) to enable the address of the person to be ascertained

  • (c) to prevent the person in question—

(i) causing physical injury to himself or any other person;

(ii) suffering physical injury;

(iii) causing loss of or damage to property;

(iv) committing an offence against public decency (subject to subsection (6):

(6) the above reason applies only where: members of the public going out their normal business cannot reasonably be expected to avoid the person.

(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;

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

‘Reasonable grounds for suspicion’:

• A number of police powers are premised on constable having ‘reasonable grounds’ for suspicion:

  • Eg Stop & Search under PACE.

  • Many of the grounds re powers of arrest under s24

• Reflects Art 5(1)(c) ECHR: deprived on liberty on ‘reasonable suspicion’

• NB contrast with phrase ‘reasonable grounds for believing’: as in PACE S24(4), re necessity.

• where these are required, there must be an objective basis for the suspicion based on known facts and information.

• It cannot be based on factors personal to the person arrested.

• Two-part test for ‘reasonable suspicion’:

  • (1) [[subjective test, a genuine suspicion]]: the constable carrying out the arrest must actually suspect;

  • (2) [[objective test, objective basis for suspicion]]: a reasonable person, in possession of the same facts as the constable at that time, would also suspect.

  • AND the arrest must be Wednesbury reasonable.

• ‘reasonable suspicion’ relates to facts, not law: thus a constable who arrest on the basis of a mistaken view of the law does not have reasonable suspicion, however reasonable his mistake as to the law is.

  • Though the constable does not have to have identified the precise legal power under which he acts.

• Constable need not have identified the specific offence of which he is suspicious; though he must reasonably suspect the existence of facts amounting to an offence of a kind of he has in mind.

• NB: the standard for ‘reasonable suspicion’ is a lower standing than that required to establish a prima facie case: ‘reasonable suspicion’ can take into account matters which are not admissible in evidence.

ARREST WITH WARRANT

• (1) Warrants issued by magistrates’ court:

• MCA 1980 s1: gives the magistrates’ court the power to issue an arrest warrant on basis of written information substantiated on oath that a person has committed an offence or is suspected of having committed an offence.

  • such a warrant may or may not be endorsed for bail.

  • If endorsed for bail, the warrant will (if relevant) specify the amounts in which any sureties are to be bound.

    • If bail is to be granted with sureties, the police must release the offender if the sureties approved by the officer enter into recognizances in accordance with the endorsement.

    • The person bailed is then obliged to appear before a magistrates' court at the time and place named in the recognizance

  • For m’ court to issue such a warrant, the offence concerned must be (a) indictable or (b) imprisonable or (c) address insufficiently established for summons to be served:

    • (a) indictable

    • or (b) punishable with imprisonment;

    • or (c) the person’s address must be insufficiently established for a summons to be served on him.

  • A warrant to arrest any person for non-appearance before a m’ court must not be issued unless:

    • the offence to which the warrant relates is also punishable with imprisonment;

    • OR where the court, having convicted D, proposed to impose a disqualification upon him.

• The m’ court also has power to issue a warrant for arrest of a person who:

  • (a) has failed to appear in answer to a summons

  • OR (b) a person who, having been granted bail, fails to surrender to custody having...