Power of arrest

The police will conduct an investigation and have a power of arrest whenever a work related death occurs and there is a possibility that an individual may have committed manslaughter. The police also have those powers where a criminal offence, other than a health and safety offence, has been committed, such as death by careless driving while in the course of work.

Section 24 of the Police and Criminal Evidence Act 1984 (PACE) sets out that before a police officer can make an arrest they have to consider whether an arrest is necessary. Could voluntary attendance at a police station achieve the police's required objectives?

Arrest on agreeing to attend a voluntary interview under caution

If a person has agreed to submit to an interview under caution voluntarily, is it right and lawful for them to be arrested prior to the interview taking place? Can it sensibly be argued that it is necessary in such circumstances to arrest that person? During the course of the interview circumstances may change and an arrest may be warranted, but that is a different matter. Similarly, arresting someone who has no intention of attending a voluntary interview or someone who has not been asked to attend is understandable.

Up until the case of Richardson v Chief Constable of West Midlands (2011), there was very little judicial guidance on the legality of this police practice, save for a few reported cases from Northern Ireland.

Mr Richardson was a teacher of good character. There was an allegation of assault from a pupil. Mr Richardson attended the police station voluntarily to be interviewed under caution, and was arrested on arrival. He subsequently brought a claim for unlawful imprisonment. The High Court held that the arrest was unlawful as the arresting officer had no reasonable grounds for considering that the arrest was necessary in accordance with Section 24(4) of PACE.

So why is this important?

Quite apart from the emotional trauma that an arrest in these circumstances can have, the effects of arrest can be far more wide reaching. Pursuant to PACE, on arrest, finger prints and DNA samples can be required by the police. In addition, the record of arrest is retained on the Police National Computer (PNC). This can have devastating consequences for an individual's current and future professional life, not to mention their reputation and social life. Imagine, if you work in a profession that requires, for example, a Criminal Records Bureau check (for example teachers/care professionals). Unfortunately, the case of Richardson has not dealt with this issue.

Protection of Freedom Bill - will it help?

Yes and no. The Protection of Freedom Bill, will be presented to Parliament in October 2011. Although not yet in force, it aims, among other things, to make provision in respect of the retention and destruction of records containing finger prints, footwear impressions and DNA samples, together with individual profiles taken in the course of a criminal investigation. It is proposed, for example, that in relation to serious arrestable offences, DNA profiles can only be retained for three years. After this time, the Chief Police Officer must apply to a district judge for a single two year extension.

The problem is that even where an individual's profile is removed, there is no requirement for the actual record of arrest to be deleted from the PNC. In the past, PNC records were removed automatically after 42 days for an individual not subsequently convicted. However, the practice since 2006 has been to hold arrest records indefinitely on the basis that the police need to be able to determine whether an individual has previously submitted a DNA sample.

Currently about eight percent of the UK population are on the DNA profile database. Despite that percentage being relatively low, the UK's DNA database is by far the largest in the world. Internationally, since 2007, EU member states have been able to share reciprocal access to each other's national database. An individual's information is therefore widely available.

Practical tips

  • If requested to attend an interview under caution, it is imperative that attendance is made in the presence of legal representation. Ideally, prior to attendance, an assurance should be sought from the police that no arrest will be made prior to the interview commencing.
  • If an arrest takes place before the interview begins, then the custody officer in charge should be left under no illusion that unless they overturn the decision to arrest then and there, consideration will be given to making a judicial review application, not to mention a claim for unlawful arrest and imprisonment.
  • Judicial review aside, currently under PACE, an individual arrested in these circumstances can only make a request to the relevant Chief Constable to remove any DNA profile from the DNA database. In turn, the Chief Constable should make his decision regarding whether to remove those records or not, based on all the evidence. However, the record of arrest remains on the PNC.