Is an arrest necessary?
Is an arrest necessary?

The following Corporate Crime practice note provides comprehensive and up to date legal information covering:

  • Is an arrest necessary?
  • Lawful arrest—human rights
  • Lawful arrest—the test
  • Reasonable belief
  • Necessity of the arrest
  • Making representations not to arrest a volunteer
  • Pre-emptive detention for breach of the peace
  • Cross-border powers of arrest

Lawful arrest—human rights

The right to liberty is a fundamental principle of the Human Rights Act 1998 (HRA 1998), which itself gives effect to the rights contained in the European Convention on Human Rights (ECHR) (see Practice Note: An introduction to the Human Rights Act 1998). The exercise of the power of arrest is a significant interference with that right. If a person is detained unlawfully it is a trespass and constitutes false imprisonment. The lawfulness of an arrest is based on strict statutory criteria.

Lawful arrest—the test

Before 1 January 2006, the test was whether the person was suspected of having committed an arrestable offence. This was a two stage test, requiring a determination of:

  1. whether the offence was serious enough to be an arrestable offence, and

  2. whether it was a reasonable belief

The test for reasonableness was the Wednesbury unreasonableness test.

This test was changed by the Serious Organised Crime and Police Act 2005 (SOCPA 2005), which replaced sections 24 and 24A of the Police and Criminal Evidence Act 1984 (PACE 1984). It replaces the concept of seriousness with one of necessity and requires two elements:

  1. a person's involvement or suspected involvement in the commission of a crime, and

  2. reasonable grounds for believing that arrest is necessary

Reasonable belief

Under PACE 1984, s 24(2), an officer must have reasonable grounds (a) for suspecting that an offence has

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