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

The police power to arrest without warrant is conferred by section 24 of the Police and Criminal Evidence Act 1984 (“PACE”). That section was substantially amended with effect from 2005. Previously, separate provisions applied to “arrestable” and “non-arrestable” offences respectively. The new section 24 applies to all offences and introduces a new test of necessity.

The material parts of the section provide:

“(2)

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 of being guilty of it.

(3)

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

(a)

anyone who is guilty of the offence;

(b)

anyone whom he has reasonable grounds for suspecting to be guilty of it.

(4)

But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.

(5)

The reasons are—

(a)

to enable the name of the person in question to be ascertained (in the case where the constable does not know, and cannot readily ascertain, the person's name, or has reasonable grounds for doubting whether a name given by the person as his name is his real name);

(b)

correspondingly as regards the person's address;

(c)

to prevent the person in question—

(i)

causing physical injury to himself or any other person;

(ii)

suffering physical injury;

(iii)

causing loss of or damage to property;

(iv)

committing an offence against public decency (subject to subsection (6)); or

(v)

causing an unlawful obstruction of the highway;

(d)

to protect a child or other vulnerable person from the person in question;

(e)

to allow the prompt and effective investigation of the offence or of the conduct of the person in question;

(f)

to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.”

There is a Code of Practice, issued under PACE, which applies to the use of the statutory power of arrest (“Code G”). A failure to comply with the provisions of the code does not of itself, without more, render an arrest or detention unlawful although if its provisions are relevant they must be taken into account (ST v Chief Constable of Nottinghamshire [2022] EWHC 1280 (QB)).

Code G states inter alia:

“1.3

The use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Absence of justification for exercising the power of arrest may lead to challenges should the case proceed to court. It could also lead to civil claims against police for unlawful arrest and false imprisonment. When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner which is compatible with the Right to Liberty under Article 5. ...

…

1.6

The Notes for Guidance are not provisions of this code.

…

Necessity criteria

2.4

The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person. The criteria for what may constitute necessity are set out in paragraph 2.9. It remains an operational decision at the discretion of the arresting officer as to:

- what action he or she may take at the point of contact with the individual;

- the necessity criterion or criteria (if any) which applies to the individual; and

- whether to arrest, report for summons, grant street bail, issue a fixed penalty notice or take any other action that is open to the officer.

2.5

In applying the criteria, the arresting officer has to be satisfied that at least one of the reasons supporting the need for arrest is satisfied.

2.6

Extending the power of arrest to all offences provides a constable with the ability to use that power to deal with 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 a police station for the custody officer to decide whether the person should be placed in police detention.

2.7

The criteria below are set out in section 24 of PACE as substituted by section 110 of the Serious Organised Crime and Police Act 2005. The criteria are exhaustive. However, the circumstances that may satisfy those criteria remain a matter for the operational discretion of individual officers. Some examples are given below of what those circumstances may be.

2.8

In considering the individual circumstances, the constable must take into account the situation of the victim, the nature of the offence, the circumstances of the suspect and the needs of the investigative process.

[Paragraph 2.9 of Code G sets out the necessity criteria from section 24(5) with some illustrative examples.]

…

Notes for Guidance

…

2C For a constable to have reasonable grounds for believing it necessary to arrest, he or she is not required to be satisfied that there is no viable alternative to arrest. However, it does mean that in all cases, the officer should consider that arrest is the practical, sensible and proportionate option in all the circumstances at the time the decision is made. This applies equally to a person in police detention after being arrested for an offence who is suspected of involvement in a further offence and the necessity to arrest them for that further offence is being considered.

…

2F An officer who believes that it is necessary to interview the person suspected of committing the offence must then consider whether their arrest is necessary in order to carry out the interview. The officer is not required to interrogate the suspect to determine whether they will attend a police station voluntarily to be interviewed but they must consider whether the suspect’s voluntary attendance is a practicable alternative for carrying out the interview. If it is, then arrest would not be necessary. Conversely, an officer who considers this option but is not satisfied that it is a practicable alternative, may have reasonable grounds for deciding that the arrest is necessary at the outset ‘on the street’. Without such considerations, the officer would not be able to establish that arrest was necessary in order to interview.

…

2G … If a person who attends the police station voluntarily to be interviewed decides to leave before the interview is complete, the police would at that point be entitled to consider whether their arrest was necessary to carry out the interview. The possibility that the person might decide to leave during the interview is therefore not a valid reason for arresting them before the interview has commenced ... .”

I was told by counsel that notes 2F and 2G were introduced in 2012, after the decision of the Court of Appeal in Hayes to which reference is made below.

The lawfulness of an arrest under section 24 is tested by asking what have become known as the “Parker Questions” (see Parker v Chief Constable of Essex [2017] EWHC 2140 (QB) per Stuart-Smith J at [14] and Magee v Chief Constable of Derbyshire Police [2020] EWHC 3569 (QB) per Saini J at [44-46]):

“(1)

Did the arresting officer suspect that an offence had been committed? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

(2)

Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the Court.

(3)

Did the arresting officer suspect that the person who was arrested was guilty of the offence? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

(4)

Assuming the officer had the necessary suspicion, did the arresting officer have reasonable grounds for that suspicion? This is a purely objective requirement to be determined by the judge, if necessary on facts found by a jury.

(5)

Did the arresting officer believe that for any of the reasons mentioned in subsection 24(5) of PACE , it was necessary to arrest the person in question? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.

(6)

Assuming the officer had the necessary belief, were there reasonable grounds for that belief? This is a purely objective requirement to be determined by the judge, if necessary on facts found by a jury.

(7)

If the answer to the previous questions is in the affirmative, then the officer has a discretion which entitles him to make an arrest and in relation to that discretion the question arises as to whether the discretion has been exercised in accordance with Wednesbury principles.”

A lengthy but helpful summary of the relevant legal principles was set out by Cotter J in Alger v Commissioner of Police of the Metropolis [2023] EWHC 1582 (KB):

“58.

The arresting officer must honestly believe that arrest is necessary, for one or more of the reasons identified in section 24(5). In addition his decision must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds; see generally Hayes v Chief Constable of Merseyside Police [2012] 1 WLR 517, at 529.

59.

In R (L) v Chief Constable of Surrey Police [2017] 1 WLR 2047 , a Divisional Court of Lloyd Jones LJ and Jay J, emphasised that ‘the underlying concept in section 24(5) is that of necessity’ and this ‘cannot be envisaged as a synonym for “desirable” or “convenient”’ or I would add, given the submissions before me to gain ‘control’ of a person for a period of time.

60.

Whilst the expertise, knowledge and operational judgment of the police must be respected, the decision to arrest involves a deprivation of liberty, and demands ‘careful scrutiny’ by the Court and sets a ‘high bar’ : see generally R (B) v Chief Constable of NI [2015] EWHC 3691 (Admin) per Lord Thomas LCJ, and Commissioner of Police of the Metropolis v MR [2019] EWHC 888 (QB) . In Rashid v Chief Constable of West Yorkshire Police [2020] EWHC 2522 (QB) Lavender J drew attention to the fact that, whereas subsections 24(2) and (3) of PACE require reasonable grounds to suspect a person to be guilty of a crime, the requirement in subsections 24(4) and (5) ‘for reasonable grounds for believing that an arrest was necessary, imposed a comparatively high threshold’.

61.

In respect of the grounds the officer actively considered, in Alexander and others: Applications for Judicial Review [2009] NIQB 20 , Kerr LCJ observed …

‘15. Of perhaps greater pertinence in the present debate, however is the question whether having reasonable grounds to believe (just as having reasonable grounds to suspect) restricts the ambit of permissible review by the courts to an examination of the actual grounds considered by the arresting officer. After all, it is to the grounds which the officer had, as opposed to those that he might have considered, that the subsection directs one's attention. This suggests that one should concentrate on the specific grounds to which the constable had regard. As against that approach, however, a wilful refusal to take into account factors that might have led unmistakably to a contrary view as to the necessity to arrest surely cannot be ignored in any judgment on the reasonableness of the grounds on which the belief was formed.’

62.

The position was similarly explained by Jay J in R (L) v Chief Constable of Surrey Police [2017] 1 WLR 2047 at [39] :

‘…the court does not ask itself whether any police officer could rationally have made the decision under challenge; it directs itself to the particular decision maker and his grounds.’

Jay J went on to refer to the case of Edwards v DPP [1993] 97 Cr App R 301 which

‘supports the contention that the focus should be on the arresting officer's actual reasons for his arrest, not on those which might arise by inference or retrospective justification.’

63.

Similarly, in Rashid v Chief Constable of West Yorkshire Police [2020] EWHC 2522 (QB) Lavender J rejected the Chief Constable's reliance on an asserted reason for arrest on the basis that

‘there was no evidence from [the arresting officer] that this supposed difficulty formed any part of the grounds for believing that it was necessary to arrest the Claimant.’

64.

In Re Alexander's Application Kerr LCJ rejected the submission that the requirement for necessity of arrest means that there must be no feasible, or viable, alternative, or that arrest must in every case be a matter of last resort. He also considered and rejected the submission that in order to have reasonable grounds for believing arrest to be necessary, the officer must ask the suspect as to whether he will attend the police station voluntarily. He stated:

‘Given the scope of the decision available to a constable contemplating arrest, we do not consider that it is necessary that he interrogate a person as to whether he will attend a police station voluntarily. But he must, in our judgment, at least consider whether having a suspect attend in this way is a practical alternative. The decision whether a particular course is necessary involves, we believe, at least some thought about the different options. In many instances, this will require no more than a cursory consideration but it is difficult to envisage how it could be said that a constable has reasonable grounds for believing it necessary to arrest, if he does not make at least some evaluation as to whether voluntary attendance would achieve the objective that he wishes to secure.’

65.

In Hayes Lord Justice Hughes referred to this passage and continued:

‘The correct analysis is contained in the last four lines of the passage cited above. The relevance of the thought process is not that a self-direction on all material matters and all possible alternatives is a precondition to legality of arrest. Rather it is that the officer who has given no thought to alternatives to arrest is exposed to the plain risk of being found by a court to have had, objectively, no reasonable grounds for his belief that arrest was necessary. In the single case whose merits were considered, Farrelly, this was precisely the reasoning of the court. The officer in that case had adopted a predetermined decision to arrest and had not thought about any alternative. The court held that he had not, objectively viewed, had reasonable grounds for his belief that arrest was necessary: see para 24.’

He added:

‘The officer ought to apply his mind to alternatives short of arrest, and if he does not do so he is open to challenge. The code provides a sensible warning to that effect. But the challenge, if it comes, is not one which requires the officer's decision to be subjected to a full-blown public law reasons challenge. It is one which requires it to be shown that on the information known to the officer he had reasonable grounds for believing arrest to be necessary, for an identified section 24(5) reason.’

66.

As I set out in ST-v-The Chief Constable of Nottinghamshire [2022] EWHC 1280 (QB):

‘92. Consideration by an officer of the necessity for arrest or detention does not require consideration of all potentially relevant circumstances. So much is clear from the judgment of Lord Hughes in Hayes. There is no need for a self- direction as to all factors that weigh in favour of arrest and those that weigh against. Also a failure to comply with any provision of the code does not by itself, without more, render an arrest or detention unlawful. Rather if its provisions appear to be relevant to any question arising, it is to be taken into account.

93.

However, these principles are not, to use an apposite term a ‘get out of jail free card’ for an officer who has failed to properly evaluate the need for arrest or detention. The test of necessity is designed to protect the public from autocratic decisions and as explained by Lord Thomas LCJ in R (B) -v- Chief Constable of Northern Ireland [2015] EWHC 3691 the objective second limb of the test set out in Hayes encompasses the concept of Wednesbury reasonableness. Although not bound to take into account all considerations an officer should consider, to give at least some thought to, obviously material ones including any practical alternatives which are less intrusive than arrest. Were this not a requirement the test would be watered down so as to provide an inadequate safeguard. Code G 1.3 reminds the officers that the use of the power of arrest must be fully justified and in exercising the power they should consider if the necessary objectives can be met by other, less intrusive means. Arrest must never be used simply because it can be used (or is simply convenient for the progression of an investigation).’

And

‘113. I recognise that in evaluating the grounds for the decision to arrest the Judge had to allow sufficient room for individual judgment and the exigencies of policework. Ms White is correct that a Court must be careful to give due regard to matters of operational discretion.’”