The power of the police to arrest any person without warrant, as provided for by s24 of the Police & Criminal Evidence Act 1984, is one that is important to allow for the administration of justice, but which amounts to a severe deprivation of liberty.

When a person is arrested they are generally taken into custody, where the police have the power to take their DNA and fingerprints (and store it to be searched against in relation to future crimes), and the fact of the arrest will go on their record on the Police National Computer.  Although an arrest is not finding of fact or guilt, but simply a procedure by which the police can lawfully detain a suspect for questioning, merely the fact that a person has been arrested can have a devastating impact on that individual.  The arrest will show up on an Enhanced Criminal Record Check, making it potentially difficult for that person to get a job in the future.  Further, that person may no longer be eligible to travel to certain places as freely as they could have previously; the US immigration authorities require arrests for offences of ‘moral turpitude’ to be disclosed and individuals are not eligible for the VISA waiver scheme to travel to the US, for example.

Thus, the power of arrest is a significant one and must be exercised within well-defined boundaries, which are set out in s24 and its accompanying guidance, Code G and, in particular, when an arrest is ‘necessary’.   There has been an increasing trend for police to arrest suspects even in circumstances where it is clearly not necessary, for example where an individual has attended a police interview as a volunteer.

As of midnight on 12 November 2012, Code G changed for the first time since 2005. This follows a number of recent decisions in which the courts have somewhat clarified the law on the necessity of arrest, in response to arrests which have been criticised and, in some cases, found to be unlawful.

The most significant of those cases, in terms of reforming the way that the police consider arrest, was the case of Richardson, in which the High Court decided that Mr Richardson’s arrest had been unlawful, and in doing so clarified the law on necessity of arrest.  The amendments to Code G essentially codify the decision in Richardson and other recent cases such as Hayes and Hicks.  It is a good deal longer than its predecessor, primarily because it seeks to provide clarification in respect of the various necessity criteria by providing examples, and the guidance notes are significantly longer as the Code seeks to be explicit about how the necessity criteria should be applied.

The crucial changes are as follows:

  • In relation to some of the necessity criteria, the police should now consider warning a suspect that if they do not cease their behaviour or provide the police with certain information, the police will find it necessary to arrest them
  • Where an officer needs to interview a suspect, he must now consider whether a voluntary interview would be practicable.  If a voluntary interview would be possible, an arrest would be unlawful
  • The Code confirms that an arrest may not be made purely to take routine fingerprints or samples.  There must be reason for the officer to believe that taking such samples would provide evidence of the person’s involvement in the offence, or help determine their identity.

The new Code therefore serves to clarify that the necessity criteria are not there to be paid lip service to; they must be considered carefully.  Since they codify existing law, the changes are not ground-breaking, but the new requirement for police to consider the practicability of a voluntary interview is significant.

The general tone of the new Code is to make it clear that the decision to arrest is a serious one.  The suggestion is that alternatives to arrest should be considered where possible.  One hopes that this will create a small cultural shift whereby arrest will not be seen as an essential part of any criminal investigation, but the practical effect will remain to be seen.