Arresting developments

This article was originally published in the August 2024 edition of stronger, the ALARM journal. ALARM is a not-for-profit professional membership association that has supported risk management practitioners since 1991. They provide members with outstanding support to achieve professional excellence, including education, training, guidance and best practice, networking, and industry recognition for best practice across risk management. For more information, visit alarmrisk.com and follow @ALARMrisk on Twitter and LinkedIn. 

This article was written prior to August 2024, however the civil unrest across the UK in August 2024 has brought into sharp focus how the laws around arrest and detention should be applied.

Human Rights Act 1998

By virtue of the Human Rights Act 1998, the UK is a party to the European Convention on Human Rights (ECHR). As such the police and courts must read and enact our domestic legislation in a way that is compatible with it.

Under Article 5 ECHR, everyone has a right to liberty and security of person. No one shall be deprived of their liberty save in certain circumstances and in accordance with a procedure prescribed by law.

There are six circumstances when the detention of an individual is lawful:

1. Following conviction.
2. Failing to comply with a lawful court order.
3. Where there is suspicion that an individual has committed an offence or to prevent them from doing so.
4. For the purpose of educational supervision.
5. To prevent the spreading of diseases; of persons of unsound mind, alcoholics, drug addicts or vagrants.
6. To prevent unauthorised entry into a country.

Everyone who is arrested must be informed promptly of the reasons for the arrest and of any charges brought against them, and they must be brought before a court promptly. Under paragraph 5, anyone who has been the victim of arrest or detention in contravention of the provisions of Article 5 has a right to compensation.

Police and Criminal Evidence Act (PACE) 1984

The statutory requirements for lawful arrest in England and Wales are found in s24 PACE. Scotland is governed by The Criminal Justice (Scotland) Act 2016.

To perform a lawful arrest, a police constable must have in their mind reasonable grounds for suspecting a person has or is about to commit an offence and must also believe it is necessary to arrest them.

Reasonable grounds for suspicion

S24(2) PACE provides that 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 be guilty of it’.

In O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] it was held that the court need not look beyond what was in the mind of the arresting officer at the time of the arrest. The test is entirely subjective as to what the arresting officer knew at the time they exercised their power.

As stated in Parker v Chief Constable of Essex [2018], the arresting officer is not required to have a prima facie case for conviction. The threshold for reasonable grounds to suspect is low, and suspicion may be based on assertions that turn out to be wrong. There is then an objective element to the test which requires there to be reasonable grounds to suspect. However, the test does not go beyond what was in the officer’s mind at the time the power was exercised.

It is sufficient for the arresting officer to rely on information they have been told. However, it is not sufficient that they simply rely on an instruction to arrest without having formed in their own mind reasonable grounds to do so.

Necessity of arrest

S24(4) and (5) PACE provide that the power of summary arrest is exercisable only if the constable has reasonable grounds for believing that arrest is necessary.

The reasons are:

• To ascertain the name of the person in question.
• To ascertain the person’s address.
• To prevent the person in question:
  • Causing physical injury to himself of any other person
  • Suffering physical injury
  • Causing loss of or damage to property
  • Committing an offence against public decency
  • Causing an unlawful obstruction of the highway.
• To protect a child or other vulnerable person from the person in question
• To allow the prompt and effective investigation of the offence or of the conduct of the person in question.
• To prevent any prosecution of the offence from being hindered by the disappearance of the person in question.

The test for necessity is subjective to the extent that the arresting officer must honestly believe the arrest is necessary for one of the above reasons and whether objectively, that belief is reasonable (Hayes v Chief Constable of Merseyside Police [2011]).

Information to be given on arrest

Under s28 PACE an arrest is not lawful unless the person is told they are under arrest and the grounds of their arrest at the time, or as soon as reasonably practicable thereafter, even if it is obvious.

PACE Code C states that a person who is arrested must be cautioned unless it is impracticable to do so owing to their condition or behaviour at the time.

All arrests will be unlawful if the provisions of PACE are not complied with. It is also unlawful if the arrest is made for the wrong offence, even though a different offence was being committed. This is particularly relevant in the case of public order offences where there are subtle nuances between s4 and 5 of the Public Order Act 1986.

Wrongful arrests and public order

Police conduct at large gatherings and protests continues to receive much public interest and scrutiny. The police are faced with the difficult task of balancing an individual’s right to protest and assembly, and those of the public to safety.

The Supreme Court in DPP v Ziegler [2021] established the proportionality assessment to be carried out before the police can interfere with the protected rights of protesters. The assessment should be fact specific evaluating all the individual circumstances to establish if the interference of protected rights is necessary.

Relevant factors include:

• Prior notification and co- operation with the police.
• The intention of the protest.
• Any interference with the rights of others.
• The location and the importance of the protest.

In 2022 the High Court found that the Metropolitan Police had acted unlawfully by failing to carry out a proportionality assessment before banning the Sarah Everard Vigil.

On 2 February 2024 Greta Thunberg was found not guilty of breaking the law when she refused to follow police instructions to move on following the imposition of s14 POA 1986 conditions during a climate protest outside a hotel. The judge found there was no evidence of any offence being committed, adding that police attempted to impose ‘unlawful’ conditions at the time of her arrest. The conditions were said to be so unclear as to be unlawful. The judge noted there was no evidence the protest was causing any interference, that it was peaceful, civilised and non-violent

Greater powers

On 3 May 2023, just days before the Coronation of King Charles III, sections of the Public Order Act (POA) 2023 were passed to give police greater powers to respond to protestors.

On the morning of the Coronation there were protestor arrests in London which included the leader of anti-monarchy group, Republic. The officers say they believed the protestors were going equipped for ‘locking on’ and to cause serious disruption under the POA. The police said publicly their duty was to prevent disruption, which outweighed the right to protest.

It was said that the protest had been planned for many months between the group and the police and was largely peaceful, with many holding placards stating: ‘not my king’. They said it was not their intention to disrupt the Coronation.

Those arrested were held for almost 16 hours and released without charge. Two days later they were told that no further action would be taken. A personal apology was made to the leader of the group by officers. A judicial review is being pursued in the first test case of the POA.

At s34, the new Act defines serious disruption as that which prevents or hinders to more than a minor degree, any individual or organisation from carrying out their day-to-day activities, construction or maintenance works, or activities related to such works. It also includes causing a more than minor delay to time sensitive activities or preventing access to goods or services.

The campaign group Liberty took the Government to court because they said that lowering the threshold from serious disruption was unlawful, enabling the police to intervene in any protest or gathering causing more than minor disruption. On 21 May 2024 the High Court ruled that the Government had acted unlawfully in creating the legislation, which gave the police ‘almost unlimited’ powers to restrict protests. The High Court ordered the law be quashed.

The Government appealed the ruling to the Court of Appeal. In response, the High Court suspended the reversal of the measures until after the outcome of the appeal. Liberty has called for the police to refrain from using these powers until it is heard.

Damages for wrongful arrest and detention

The fact of the wrongful arrest, the extent of any assault and the length of any period of unlawful imprisonment determines the level of compensation of a successful civil claim. The case of Thompson v Commissioner of Police of the Metropolis [1997] provided guideline rates of £500 for the first hour in a straightforward case of wrongful arrest and imprisonment, with an additional sum to be awarded for each hour thereafter on a reducing scale thereby keeping damages proportionate to those paid in personal injury cases. The calculation recognises the initial shock of the arrest.

To take into account inflation, this translates in today’s figures to about £1,200 for the first hour of detention with a sliding scale thereafter up to 24 hours to around £6,500. In cases where it can be shown that the police behaved arbitrarily or oppressively, aggravated and/or exemplary damages may be awarded in addition.

The decision in Parker v Chief Constable of Essex [2018] may provide an argument that a claimant is only entitled to nominal damages in certain circumstances, such as when an arrest would have been lawful but for a technical error.

Officers often find themselves in situations where they have to make split second decisions when tensions are escalating. It is essential that officers only use their powers of arrest when policing public order events where there is evidence that serious disruption will ensue, or where there is a real threat of public disorder. Officers are required to carefully consider the use of their powers of arrest when policing public order events in light of the fundamental principles of articles 10 and 11 HRA.