Friday, December 23, 2005

I Am Going To Arrest You Even Though I Do Not Have A Power Of Arrest

My office received a telephone call from a person today asking if we could attend at the Police Station with them as they had been asked to attend for an interview about an alleged assault. I went off to the Police Station to deal with the matter.

One thing that really annoyed me about this particular Police Station attendance was that whilst I was en route on a train far under the streets of London the Police decided that there was not enough room in one custody suite to interview my Client so they decided they would take my Client to another Police Station! I only found out about the change of venue as I arrived at the first Police Station!

I eventually got to the Police Station and then discovered that my Client had been arrested under section 25 of the Police and Criminal Evidence Act 1984. This is what the current version of s. 25 states:

25 General arrest conditions
(1) Where a constable has reasonable grounds for suspecting that any offence which is not an arrestable offence has been committed or attempted, or is being committed or attempted, he may arrest the relevant person if it appears to him that service of a summons is impracticable or inappropriate because any of the general arrest conditions is satisfied.

(2) In this section the relevant person means any person whom the constable has reasonable grounds to suspect of having committed or having attempted to commit the offence or of being in the course of committing or attempting to commit it.

(3) The general arrest conditions are
(a) that the name of the relevant person is unknown to, and cannot be readily ascertained by, the constable;
(b) that the constable has reasonable grounds for doubting whether a name furnished by the relevant person as his name is his real name;
(c) that
(i) the relevant person has failed to furnish a satisfactory address for service; or
(ii) the constable has reasonable grounds for doubting whether an address furnished by the relevant person is a satisfactory address for service;
(d) that the constable has reasonable grounds for believing that arrest is necessary to prevent the relevant person
(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; or
(v) causing an unlawful obstruction of the highway;
(e) that the constable has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person from the relevant person.

(4) For the purposes of subsection (3) above an address is a satisfactory address for service if it appears to the constable
(a) that the relevant person will be at it for a sufficiently long period for it to be possible to serve him with a summons; or
(b) that some other person specified by the relevant person will accept service of a summons for the relevant person at it.

(5) Nothing in subsection (3)(d) above authorises the arrest of a person under sub-paragraph (iv) of that paragraph except where members of the public going about their normal business cannot reasonably be expected to avoid the person to be arrested.

(6) This section shall not prejudice any power of arrest conferred apart from this section.

My Client was being investigated for an allegation of common assault, and until 1st January 2006 the Police generally cannot arrest a person for an allegation of common assault that has already taken place, and where the incident is no longer going on. As soon as I discovered that my Client had been arrested under this flimsy provision I kicked off in the custody suite. My Client had been contacted by telephone and had originally attended at the Police Station as a volunteer. The Ofdealingelaing with the case relied upon s. 25(3)(a) to (c) to justify the arrest. My Client had been compliant at all times with the Officer nad had furnished satisfactory informtion about their address and name. I told the Officer that he was abusing his powers and I complained to the Custody Sergeant too - of course they ignored my representations and agreed with each other that an arrest was justified under s. 25.

There is little point taking this issue further. The Serious Organised Crime and Police Act 2005 and other legislation has changed the Police power of arrest from a list of specific offences that carry a power of arrest to a general power of arrest. Code G of the Police and Evidence Act 1984 Codes of Practice has now created a new power of arrest:

A lawful arrest requires two elements:

A persons involvement or suspected involvement or attempted involvement in the
commission of a criminal offence;


Reasonable grounds for believing that the persons arrest is necessary.

If I had been successful in arguing my point with the Police today I may well have advised my Client to leave the Police Station before an interview took place - but if we had walked out the Police may well have decided to pay my Client a visit after 00.01 am on 1st January 2006 to exercise their new power of arrest.


Unknown said...

You don't elaborate on exactly which provision of S25 was used, making it difficult to support your point. I will be blogging on SOCA soon - and they thought the terrorist provisions were draconian!

Gavin said...

They applied s. 25(3)(a) to (c).

Unknown said...

Ah. My only defence left is that the role of the custody officer is not to establish whether the arrest is lawful, merely whether there are sufficient grounds to detain. (Weak point I know.)
I have recently blogged on the subject of solictors and had an interesting response from 'Tom Paine' who was a criminal solicitor. I would appreciate your views. (Apologies for the blatant advertising plug)

Anonymous said...

Going to arrest your client @ 00.01 hrs on 1st of Jan 2006 I doubt it. We'll be far too busy arresting you some new clients! ;o)


Anonymous said...

People look at me in amazement when I say I have given up crime because crime doesn't pay. The truth is more complex.

You struggle out of hours with difficult custody officers in awkwardly located police stations. My only such out of hours struggles take place over the telephone with High Court Judges. Custody officers couldn't care less. High Court Judges know their decisions will be scrutinised by the Court of Appeal; never mind that the application for permission to appeal is refused - they start mounting up, and start being granted.

I'd readily give up a couple of days a month to do crime unpaid, but I'm damned if I'm going to crawl out of my pit in the middle of the night, travel to some Police Station in the middle of nowhere, and have some grinning custody sergeant deliberately flout the law because he knows there's damn all I can do about it.

I'd rather have my head torn off by the presiding Lord Justice in the Court of Appeal and exhibited on a stake outside his Court as a warning to other uppity solicitor-advocates - and I know; I've endured both.

Anonymous said...

Far be it for me to suggest but if Sec.25 a-c did not apply, then do you not have grounds for unlawful arrest and detention? Regardless whether SOCAP was coming in, the grounds at the time for arrest would seem unlawful and your client should be advised as to what action they would consider appropriate. Or is it in the too difficult to deal tray. Officially complain and sue?

Gavin said...

If the grounds were not satisifed for s. 25 then yes it should be an unlawful arrest. I have told the Client that we will consider the position when the Police make a decision on whether they are to be prosecuted or not.

Anonymous said...

Could've just arrested for attempted ABH and avoided all this bother.

Gavin said...

That is the usual course of action. The problem was that the Police had already taken a statement from the 'victim' and they did not complain of injuries other than reddening. It is hard to make out ABH on just reddening.

Anonymous said...

It is all academic now, but I agree with 'anonymous' to a certain extent;
has been defined as 'any hurt which interferes with health or comfort but not to a considerable degree.'
Therefore the person should have have been arrested on suspicion of causing ABH due to the reddening of the skin and there would have been no problem with the power of arrest? This is where officers used to get confused about Sec 39 and 47 and powers of arrest. CPS charging guidelines would be to arrest for 47 and dependant on evidence charge with Sec. 39? With SOCAPA there is no problem now.

Gavin said...

You are right that police would arrest in the past for s. 47 but usually only charge for s. 39 where reddening was concerned.

SOCAP 2005 has changed it all, roll on the litigation on the power of arrest!

Anonymous said...

What would anyone on here think about a young man of exemplary character who is attacked in his own room by a fellow student in student accom and who defends himself by pushing the assailant away but catches his spectacles causing a tiny graze to the bridge of the nose. The 'victim' complains to Police he has been assaulted. A few days later the Police 'invite' the student (who pushed him away) to a police station "to give his version of events". He arrives at 6pm, is immediately arrested and put in cells for 3 hours. He cooperates throughout but placed back in the cells until after midnight then interviewed from about 12.30am to 2.30am by which time he is exhausted and being asked the same questions time after time after time. Solicitor finally protests and he is bailed about 4am. He has to re-attend police station 6pm the following evening and is again arrested and interviewed for about 2 hours and bailed about 9pm. Having given his version of events at the earliest opportunity he is berated by the OIC as telling lies. Does this amount to oppressive conduct, unlawful detention etc and is it in breach of HR law?