The introduction began with an explanation of changes. In the early part of 2005 the Criminal Justice Act 2003 reformed the law governing (i) the admission of hearsay in criminal cases (ii) revised sentencing procedure and practice and (iii) introduced a unified procedural code for criminal cases through the Criminal Procedure Rules which can be accessed through the Department for Constitutional Affairs’ website at www dca.gov.uk.

The Serious Organised Crime and Police Act 2005 is the most significant recent development. Many of the Act’s provisions amalgamate and restructure the law enforcement agencies dealing with serious and organised crime such as the National Crime Squad and the intelligence work of H.M. Revenue & Customs. From 1st January 2006 SOCPA 2005 also revised many of the investigatory powers used by the police on a daily basis including (i) the classification of criminal offences for the purposes of arrest (ii) the powers of arrest (iii) stop and search (iv) the issue of search warrants.

A new Code of Practice, Code G, has been issued which deals with the practice and procedure on arrest. Revised Codes of Practice A-E also came into effect on 1st January 2006, although with only superficial revision.

No doubt further reforms will be introduced under CJA 2003 during 2006-07 by introducing a revised case allocation procedure and further changes to the courts’ sentencing powers. If implemented, I will bring them to your attention.
POWER OF ARREST BY A POLICE OFFICER
As a result of the amendments introduced by ss110 & 111 SOCPA 2005, PACE 1984 now classifies offences for the purposes of arrest as either “criminal” offences or “indictable” offences.

The former relates to summary matters, whilst indictable includes all either-way offences.

Formerly there were “arrestable” and “non-arrestable” offences.

Following the abolition of the term “arrestable offence”, the main powers of arrest without a warrant under s24(1-3) PACE 1984 are exercisable by a police officer in connection with any criminal offence on the following grounds.

The effect of the changes is that:

s24 PACE 1984 is fundamentally revised;
Code G Codes of Practice is introduced to deal with the practice and procedure on arrest;
s24A PACE 1984 is inserted; and
s25 PACE 1984 is repealed by s110(2) SOCPA 2005.

s24(1) PACE 1984:

A constable may arrest without a warrant:

anyone who is about to commit an offence; or
anyone who is in the act of committing an offence; or
anyone whom he has reasonable grounds for suspecting to be about to commit an offence; or
anyone whom he has reasonable grounds for suspecting to be committing an offence.

NOTE: the arrest is for any offence.

s24(2) PACE 1984:

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 being guilty of it.

s24(3) PACE 1984:

If an offence has been committed a constable may arrest without a warrant:

anyone who is guilty of the offence;
anyone whom he has reasonable grounds for suspecting to be guilty of it.

For the arrest to be lawful, in addition to satisfying one of the grounds above in s24(1-3) PACE 1984, the officer must also prove that he had reasonable grounds for believing that an arrest was NECESSARY for one or more of the reasons listed in s24(5) PACE 1984 (the NECESSITY TEST):

to enable the person’s name to be ascertained where the constable does not know and cannot readily ascertain the person’s name or has reasonable grounds for doubting the name given by the person is his real name; or
to enable the person’s address to be ascertained;
to prevent the person in question:

(i) causing physical injury to himself or another;
(ii) suffering physical injury;
(iii) causing loss or damage to property;
(iv) committing an offence against public decency; or
(v) causing unlawful obstruction of the highway; or

(d) to protect a child or vulnerable person from the person; or
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person;
(f) to prevent the prosecution for the offence from being hindered by the disappearance of the person in question.

Extending the power of arrest to all offences provides a constable with the ability to use that power in any situation. However, applying the necessity criteria requires the constable to examine and justify the reason or reasons why a person needs to be taken to the police station for the custody officer to decide whether the person should be placed in police detention. The test to decide whether the officer acted lawfully is whether he had reasonable grounds for believing that one of the criteria in s24(5) applied at the time the arrest was made. Some of those grounds, especially where an arrest is necessary to allow the prompt and effective investigation of the offence, are almost unchallengeable from a defence perspective and therefore reduce further the opportunity to challenge the prosecution case at trial in connection with police investigation of the offence.

The factors to be taken into account in deciding whether to exercise the power includes the nature of the offence, the circumstances of the offender and the needs of the investigation (para 2.8 Code G).
CITIZEN’S POWER OF ARREST - s24A PACE
s110 SOCPA 2005 repeals s25 PACE 1984 which provided a constable with the power to arrest a person without a warrant in connection with a non-arrestable offence where one or more of the general arrest conditions under s25 PACE 1984 applied.

A citizen’s power of arrest under s24A PACE 1984 may be made in the following circumstances.

s24A(1) PACE 1984:

A person other than a constable may arrest without a warrant:

anyone who is in the act of committing an indictable offence; or
anyone whom he has reasonable grounds for suspecting to be committing an indictable offence ..

s24A(2) PACE 1984:

Where an indictable offence has been committed a person other than a constable may arrest without a warrant:

anyone who is guilty of the offence; or
anyone whom he has reasonable grounds for suspecting him to be guilty of it.

s24A(3)(a) PACE also requires that the arrest will only be lawful if the citizen has reasonable grounds for believing that an arrest is necessary for one or more of the reasons listed in s24A(4). The section provides that the arrest is necessary to prevent the person:

causing injury to himself or any other person;
suffering physical injury; or
causing loss or damage to property; or
making off before a constable can assume responsibility for him.

In addition to satisfying the grounds above, the person making the arrest must believe that it is not reasonably practicable for a constable to make the arrest instead: s24A(3) PACE.

So, in summary:

the power can only be exercised in connection with an indictable offence;
one of four criteria must be satisfied before an arrest is lawful:

there is evidence that the suspect is committing an indictable offence;
there are reasonable grounds for believing that an indictable offence is being committed; or
the person is guilty of committing an indictable offence; or
there are reasonable grounds for believing that an indictable offence has been committed; and

the citizen has reasonable grounds for believing that an arrest is necessary to prevent the person from causing injury to himself or making off before a constable can assume responsibility for him; and
the citizen has reasonable grounds for believing it is not reasonably practicable for a constable to make the arrest instead.

This is the power of arrest that will be used by community support officers, store detectives and the rest of us.
THE “REASONABLE GROUNDS” TEST
The powers of arrest under s24 and s24A PACE 1984 may only be lawfully exercised where the police officer or the citizen has reasonable grounds for believing that a criminal offence (or an indictable offence under s24A PACE 1984) is at some stage of commission. It is unlikely that the test for determining whether reasonable grounds exist has changed under the revised law of arrest and therefore the House of Lords’ decision in O’Hara v Chief Constable RUC [1997] remains the most authoritative judicial guidance on the test:

The prosecution was brought under the Prevention of Terrorism (Temporary Provisions) Act 1984, which contained an identical provision to that in PACE 1984. The Act provided that a person could be arrested by a police officer applying the “reasonable grounds” test. On the instructions of a senior officer, O’Hara had been arrested by a policeman on suspicion of being a terrorist. O’Hara was later released without charge and sued the police on the basis that there had never been any suspicion on the part of the arresting officer that O’Hara was a terrorist and so there had been no lawful basis for the arrest. The House of Lords held that the test of reasonable grounds for suspicion fell into two parts. (i) there must be actual suspicion on the part of the arresting officer and, (ii) there must be reasonable grounds for that belief.

This test is judged objectively. It was not enough to say that the arresting officer was acting on instructions from his superior as the arresting officer must show “reasonable grounds for suspicion”. On the facts of O’Hara there was sufficient evidence to show that the officer had formed a genuine suspicion as a result of the briefing from his superior and that the suspicion was reasonable. The arrest had therefore been lawful.

Therefore, whilst the test of “reasonable grounds” is not defined, it implies both an objective and a subjective element. The subjective ground will be satisfied where, on the facts known to the officer and in the circumstances existing at the time of the arrest, the officer actually believed the suspect was at some stage of committing an arrestable offence or had committed an arrestable offence and, objectively, the reasonable person would also have formed the necessary reasonable grounds for suspicion. In O’Hara the House of Lords confirmed that the test was in two parts:

actual suspicion on the part of the officer (or member of the public) that an arrestable offence was at some stage of commission; and
there must be reasonable grounds for that suspicion.