Powers of Arrest by the Police

notes on powers of arrest by the police for application Unit

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  • Created by: Jem
  • Created on: 05-05-13 10:55


Police don’t have a general right to detain a person in order to question if they haven’t arrested them.

S.29 PACE: A person that voluntarily accompanies an officer to the police station/any other place to assist investigations and hasn’t been arrested;

shall be entitled to leave at will unless he is placed under arrest’ and ‘shall be informed at once that he is under arrest if a decision is taken by a constable to prevent him leaving at will’.

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The only way to force a suspect to remain in police custody is to follow the official procedure of arrest

PACE: No definition of arrest.  Common Law: Arrest= Spicer v Holt: A person is under arrest when he is not at liberty to go as he pleases.


There are several different powers of arrest found under PACE, and also power to arrest under the common law for breach of the peace.

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Arrest for Breach of the Peace

A Common Law power of arrest (so has been created by judges)

Howell: Breach of the Peace=’Breach of the Peace will arise if violence to persons or property either actual or apprehended (anticipated) occurs

Any person can arrest where actual/anticipated breach of the peace is evident.  But, if breach ceases, you can’t arrest unless you have a reason to believe it may be renewed.

Foalkes v Chief Constable of Merseyside

Power to arrest for an anticipated breach of the peace arises only where that anticipated breach is imminent.

Laporte v Gloucestershire Constabulary:

Power should be used proportionately; if there is another way to avoid disturbance other than arrest then that action should be taken.

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Arrest Under PACE

  • Arrest With Warrant
  • Arrest Without Warrant
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Arrest With Warrant(rare)

S.1  Magistrate Court Act 1980: If the police know the identity of an individual to be arrested, they will give the  info to a magistrate who may subsequently issue a warrant for arrest.  This warrant may also be backed for bail, allowing individual to be released after arrest and charge.

  • Warrants for arrest may only be issued where:
  • Offence is triable on indictment or punishable with imprisonment; OR
  • Suspect’s address isn’t sufficiently established in order for the summons procedure to be followed.
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Arrest Without Warrant

S.24 PACE as amended by Serious Organised Crime and Police Act, or SOCPA: Allows the Police to arrest a person for an offence as long as it satisfies 2 stage test.

2 Stage Test:     

            1. There must be Suspicion related to a criminal offence; AND

            2. The arrest must be necessary (there must be a reason for the arrest

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Suspicion in Relation to a Criminal Offence

Police can arrest without warrant:

·          Anyone about to/ in act of or has committed an offence; OR
·         There are reasonable grounds for suspecting 1 of these occurences

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Is there a reason for arrest? Is it necessary?

  • Even if there is suspicion relating to a crime, police can only arrest where there is one or more reasons to.  This prevents misuse of power by police.
  • S.24(5) PACE: Reasons for arrest:
  • To ensure name and address of person can be ascertained
  • To prevent person:
  • Causing physical injury to self or another person
  • Suffering physical injury
  • Causing loss or damage to property
  • Committing an offence against public decency
  • Causing an unlawful obstruction of the highway
  • To protect a child/vulnerable person from the suspect
  • To allow prompt and effective investigation of the offence (most common reason)
  • To prevent any prosecution for offence being hindered by disappearance of suspect
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Case Law

Castorina v Chief Constable of Surrey: established 2 stage test:

1  1.  Did the PC suspect the arrested person was guilty of the offence? (Subjective)

2   2. Did the PC have reasonable proof of that suspicion? (Objective)

    3.  If answer to both is ‘yes’ then test is met

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Code of Practice G

Code of Practice governing power of arrest; has given further guidance to reasons for arrest being necessary.  Where arrest is to ‘allow prompt and effective investigation of the offence’; may include cases where there’re reasonable grounds to believe:

  • The person has made a false statement
  • Person has made statements that cannot be verified
  • Person has presented false evidence
  • Person may steal or destroy evidence
  • Person may intimidate/threaten/make contact with witnesses
  • Where it is necessary to obtain evidence through questioning
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Code of Practice G

If offence is indictable, could include need:
·         To search any premises under S.32
·         To prevent any contact with others
·         To take fingerprints, footwear impressions, samples or photographs of the suspect
Wood v DPP: If a PC restrains a person without arresting them, it constitutes assault.

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Power of Police to arrest under Terrorism Act

S.41  Terrorism Act 2000: Gives police power to arrest anyone they ‘reasonably believe to be a terrorist’, also power to detain suspect.  No need to prove arrest was necessary as under S.24(5) PACE.  An easier power to use.

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Procedural Requirements; S.28

  • S.28 PACE: Contains procedural requirements that must be followed for an arrest to be lawful.
  • S.28(1): Police Officer must signify in clear words that the person is under arrest at the time of the arrest or as soon as is practicable.
  • S.28(3): Police Officer must signify in clear words the reason for arrest
  • S.28(5): Must be done as soon as is practicable
  • No need to use particular form of words/say precise legal nature of offence
  • Reasonable detail must be given so arrestee can give a convincing denial

Alderson v Booth: Shows arrest must be clear; ‘I must ask you to come to the police station’ is not sufficiently obvious.  ‘I arrest you’ is simple and unambiguous.

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Power of Citizens Arrest

S.24A PACE as amended by SOCPA 2005: contains power of citizens arrest.

Requires that there is an indictable offence; SOCPA: ‘indictment’= both serious and triable either way offences; any offences that will be heard in the crown court.

Same 2 stage process for citizen arrest as is for police; With the addition that citizen arrest can only be used where there’re reasonable grounds to believe is necessary AND is not reasonably practicable for a constable to perform arrest.

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