KA-2024-000208 - [2025] EWHC 1964 (KB)

As I have said, the test of necessity was introduced by amendment when the power of arrest without warrant was extended to all offences. As the case law recognises, the relevant rules and principles operate as important constitutional safeguards in the exceptionally important area of the liberty of the subject.

If those rules and principles are to provide real safeguards, then they must be applied.

Take, for example, the provisions of Code G. A breach of the Code by itself does not establish unlawfulness. So, on its facts, a breach may not be sufficiently serious to make an arrest unlawful. Or there may have been a good reason for it, or it may be offset by some other factor. But where it is serious or important, and not explained or offset, then it may well be a weighty factor, or even the only factor, which leads to the conclusion that an arrest was unlawful on a proper analysis of all the facts of a case.

Similarly the need for the legal test to set a high bar (Alger paragraph 60) must be given a practical meaning. It is linked with the principle that “necessary” does not mean simply “desirable” or “convenient” (Alger paragraph 59). If the police cannot show that there were objective grounds to satisfy that exacting test, the Court must find an arrest unlawful.

The Court must also be rigorous in confining its examination to the arresting officer’s actual reasons for the arrest and in excluding any hypothetical reasons which were not thought of at the time (Alger paragraph 62). Without that rigour, the rule ceases to be a rule.

Similarly, if arresting officers do not give any thought to a realistic alternative to arrest – including voluntary attendance at the police station where that is a realistic alternative – they are “exposed to the plain risk” of liability (Alger paragraph 65). That “risk” cannot be merely abstract. If it is a real risk, then it will sometimes eventuate in a Court making a finding of an unlawful arrest.

In my judgment, on a proper analysis of the evidence at trial, the police did not show that there was an objective basis for the belief that it was necessary to arrest either claimant.

In both cases the alternative of voluntary interview is the crux of the case. The police were bound to consider whether it was a practical alternative (Alger paragraph 64). There was no evidence that they gave this any real thought, and therefore they were “exposed to the plain risk” of liability, as the Judge said in respect of PC Bell at [62].

What, then, were the countervailing factors which might enable them to avoid that risk?

The Judge found that PC Bell had in mind a “significant risk” to the children and a need for “urgent protection” from the claimants (about whom she knew little or nothing), and “the general risk in this type of case of collusion between the parents and of potential interference with the children’s evidence”.

He concluded that “if the alternatives, which were not at all straightforward, were considered then no reasonable officer could have come to a different conclusion than to arrest”.

In the case of PC Havers the Judge noted what the second claimant knew about the allegations, and found that if there was no arrest “there would have been the same risks as those relating to the First Claimant”.

Essentially the Judge concluded that the facts of this case as they were known at the time of the arrests – allegations of assault on and neglect of ABD, the first claimant being at home with the two siblings, the second claimant coming to collect ABD from the Centre, the possibility that the parents would collude and/or influence any evidence from the children – provided a rational basis (or, as he found, an overwhelming basis) to conclude that voluntary interview was not an option.

With great respect to the Judge, I am unable to agree.

Notes 2F and 2G to the Code are not part of the Code. However, they are published by the Home Office to assist officers (and others) in understanding the Code. They cannot be ignored. Following the case of Hayes those new notes advised officers that voluntary attendance for interview must be considered (a conclusion which can be inferred from the provisions of the Code itself) and that the “possibility that the person might decide to leave during the interview is … not a valid reason for arresting them before the interview has commenced”.

In the present case, no reason has been identified which actually explains why voluntary interviews were not a viable alternative. In the light of note 2G, the Judge’s conclusion that that option was “not at all straightforward” is unsupported by reasons.

The fact is that taking the claimants to the police station would have prevented them from speaking to the children or harming them, and I know of no reason why they could not have been prevented from speaking to each other. If at any time they ceased to co-operate they could have been arrested. Note 2G makes that clear and, as long as the police are open with a suspect about what to expect at the police station, there is no reason for any accusation of “subterfuge”.

Paragraph 2.8 of the Code required consideration of circumstances including the situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process. In this case the alleged victim was safe, in the presence of police officers and a social worker. The second claimant in particular was not accused of any contact offence but rather of a failure to intervene. The suspects were being entirely co-operative with both the police and the child protection authorities.

For those reasons this is not one of the many cases where police will have an “operational” justification for an arrest at the time, even if it later seems harsh. The situation was under control. It was easy to arrange for the children to be cared for but in any event the local authority, present in the person of the social worker, provided a safety net. The suspects were co-operative and able to engage in constructive dialogue with the police, as can be seen from the interactions with the first claimant when PC Bell arrived at her home.

None of this means that police officers are entitled to special treatment when they find themselves suspected of an offence. But the police must assess the circumstances and make rational decisions as to whether coercive measures are needed or not. The relevant “circumstances of the suspect” commonly include previous good character, and their personal background may or may not be relevant depending on the facts.

I conclude that in this case, the “plain risk” of liability following from the officers’ omission to consider alternatives to arrest has eventuated. Merely referring to the need to protect children and to protect the integrity of the investigation was not and is not enough.

It follows that the arrests were unlawful and the claims should have succeeded.