POLICE POWERS (12)

The core tension: why police powers are a constitutional issue

Police powers sit right at the fault line between two competing values:

• The rights of citizens
  Everyone should be able to go about their daily life without arbitrary interference from the state—this links to rights like liberty, privacy, freedom of movement, and freedom from degrading treatment.

• The need for effective law enforcement
  The police must have real, usable powers to prevent and investigate crime, protect the public, and bring offenders to justice. If their powers are too weak, everyone’s safety is at risk.

The whole of PACE 1984 and its Codes of Practice are an attempt to balance these two sides:

Enough power for the police to do their job properly,
but enough safeguards to protect suspects and the public from abuse.

Why PACE 1984 was needed: the background

Before PACE, police powers were:

• Scattered across:

  • Old Acts of Parliament

  • Local by‑laws

  • Common law

  • Judicial directions

• Unclear and inconsistent

• Often unknown to the public and even to some officers

In the 1970s and early 1980s, several factors pushed reform:

• Miscarriages of justice – e.g. high‑profile wrongful convictions, often involving coerced confessions or unfair procedures

• Allegations of police abuse – heavy‑handed tactics, oppressive questioning, discriminatory stop and search

• Brixton riots (1981) and wider unrest – deep mistrust between police and minority communities

This led to the Royal Commission on Criminal Procedure (Philips Commission, 1978–1981).

The Philips Commission’s key themes

• There was a real risk of injustice under the existing system

• The law on police powers was unclear, fragmented and outdated

• There needed to be a clear, coherent framework for police powers

• Crucially, the Commission was explicitly told to strike a balance between:

  • The interests of the community (effective crime control)

  • The rights and liberties of the individual suspect

Its recommendations formed the basis of PACE 1984.

So PACE is not just a technical statute—it is a constitutional response to mistrust, abuse, and miscarriages of justice.

The structure of PACE: law + guidance

PACE is built on a two‑tier structure:

1. The Act itself (PACE 1984) – LAW

2. Codes of Practice – guidance, not law, but highly influential

You need to be very clear on the difference.

PACE – the Act (primary legislation)

• An Act of Parliament

• Creates legal powers and duties, mainly for the police

• Examples of what it covers:

  • Stop and search

  • Arrest

  • Detention in custody

  • Search of premises

  • Seizure of property

  • Treatment and questioning of suspects

When we refer to parts of the Act, we talk about sections (e.g. s.1 PACE, s.24 PACE).

These sections are binding law. If the police act outside these powers, they act unlawfully.

Codes of Practice – issued under s.66 PACE

• Issued by the Secretary of State under s.66 PACE

• They are not themselves law – they do not have the force of statute

• They do not create powers

• Instead, they explain how the powers in PACE should be exercised

They are effectively operational guidance for the police.

Each Code covers a specific area:

• Code A – Stop and search

• Code B – Search of premises & seizure of property

• Code C – Detention, treatment & questioning of suspects

• Code D – Identification

• Code E – Audio recording of interviews

• Code F – Visual recording of interviews

• Code G – Arrest

• Code H – Detention under the Terrorism Act 2000

• Plus: Code for detention etc. under National Security Act 2023 (s.27 & Sch. 6)

When we refer to parts of the Codes, we talk about paragraphs (e.g. Code C, para 11.1).

Legal status and effect of the Codes

Even though the Codes are not law, they are still very important:

• Police must have regard to them

• Courts can take breaches of the Codes into account when deciding:

  • Whether evidence should be excluded

  • Whether a confession is reliable

  • Whether a trial is fair

• Serious or systematic breaches can lead to:

  • Evidence being ruled inadmissible

  • Cases collapsing

  • Civil claims or disciplinary action

So in practice, the Codes have real bite, even though they are not statutes.

Consequences of breaching PACE or the Codes (overview)

You’ll go into this in more detail later, but at this stage you should understand the basic consequences:

1. For the evidence

   • Courts can exclude evidence obtained in breach of PACE or the Codes

   • For example, under s.76 PACE (confessions) and s.78 PACE (general discretion to exclude unfair evidence)

   • This is a key way of enforcing safeguards

2. For the police

   • Breaches can lead to disciplinary proceedings

   • Potential civil liability (e.g. false imprisonment, assault, trespass)

   • Damage to public trust and legitimacy

3. For the suspect

   • Breaches may support arguments that:

     • Their rights were violated

     • Their trial is unfair

     • Evidence should be excluded

PACE and the Codes are therefore not just “nice guidance”—they shape what evidence can be used and whether a prosecution can succeed.

Key areas of police powers under PACE (roadmap)

Your notes list the main areas you’ll study:

• Stop and Search Powers

  • Who can be stopped?

  • On what grounds?

  • What safeguards apply?

  • How do discrimination and profiling issues arise?

• Power of Arrest

  • When can someone be arrested without warrant?

  • What is the “necessity test”?

  • What must the officer tell the suspect?

• Search of Premises & Seizure of Property

  • With warrant vs without warrant

  • Entry to arrest, prevent serious harm, etc.

• Detention, Treatment & Questioning

  • Maximum detention times

  • Right to legal advice

  • Right to silence

  • Conditions in custody

• Identification & Recording of Interviews

  • Line‑ups, video IDs, fingerprints, DNA

  • Audio and visual recording of interviews

Each of these areas is governed by sections of PACE (law) and Codes of Practice (guidance).

Why PACE matters in public law and human rights

PACE is not just criminal procedure—it’s constitutional:

• It operationalises Article 5 ECHR (liberty), Article 6 (fair trial), Article 8 (privacy), and Article 3 (treatment in custody).

• It embodies the rule of law: police powers must be clear, accessible, and limited.

• It reflects the political constitution vs legal constitution theme:

  • Police are part of the executive

  • PACE and the Codes are part of the legal framework that holds them to account

Exam‑style summary

If you had to summarise PACE and the Codes in a few lines:

• PACE 1984 was introduced after miscarriages of justice and public unrest to clarify and regulate police powers.

• It aims to balance effective policing with the rights and liberties of individuals.

• The Act (sections) creates binding legal powers and duties.

• The Codes of Practice (paragraphs) are not law, but provide detailed guidance and are highly influential in court.

• Breaches of PACE or the Codes can lead to exclusion of evidence, discipline, and loss of public trust.

Why consequences matter

PACE creates legal powers for the police.
The Codes of Practice explain how those powers must be exercised.

So when analysing any factual scenario, you must ask:

1. Has there been a breach of PACE (the Act)?

2. Has there been a breach of a Code of Practice?

This order is essential because:

A breach of PACE creates legal liability.
A breach of a Code does not.

This distinction is examinable and absolutely crucial.

Consequences of a Breach of PACE (the Act)

PACE is law.
If the police act outside the powers in PACE, their actions are unlawful.

This can lead to:

(1) Civil Liability

If a police officer interferes with a person’s liberty or property without lawful authority, the officer (and the police force) may be sued in tort.

Possible civil actions include:

• False imprisonment – unlawful arrest or detention

• Assault or battery – unlawful use of force

• Trespass to land – unlawful entry/search of premises

• Trespass to goods – unlawful seizure of property

These are powerful remedies because they can result in damages.

(2) Criminal Liability (in extreme cases)

If excessive or unnecessary force is used, or property is damaged unlawfully, an officer may face criminal charges, such as:

• Assault

• Criminal damage

• Misconduct in public office (rare but possible)

This is unusual but not impossible.

(3) Right to Resist Unlawful Force

If the police use unlawful force, a person may use reasonable force to resist.

Case: Mustapha Osman v Southwark Crown Court [1999]
The court confirmed that a person may resist unlawful police action using reasonable force.

This is a narrow defence but important in principle.

(4) Complaint to the IOPC

A breach of PACE may lead to a complaint to the:

• Independent Office for Police Conduct (IOPC)
  (formerly the IPCC)

The IOPC can investigate:

• Misconduct

• Abuse of power

• Excessive force

• Discrimination

• Failure to follow legal procedures

(5) Disciplinary Action

Police officers may face:

• Warnings

• Suspension

• Dismissal

This is an internal police matter but still a consequence of breach.

(6) Breach of Human Rights

If the police act outside PACE, they may also breach:

• Article 5 ECHR – right to liberty

• Article 8 ECHR – right to private and family life

• Article 3 ECHR – treatment in custody

• Article 6 ECHR – fair trial rights

PACE is designed to be ECHR‑compliant, so acting outside PACE often means acting outside the ECHR.

(7) Exclusion of Evidence

This is the most important consequence in criminal trials.

Two key provisions:

s.76 PACE – Confessions

A confession must be excluded if obtained:

• By oppression

• In circumstances likely to render it unreliable

s.78 PACE – General discretion

The court may exclude any evidence if its admission would have:

“such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

This is the main tool for excluding evidence obtained unlawfully.

Consequences of a Breach of a Code of Practice

The Codes are not law.
They do not create legal powers or legal duties.

This means:

A breach of a Code does NOT create legal liability.

This is stated expressly in s.67(10) PACE.

BUT the Codes still matter.

Breach is admissible in evidence – s.67(11) PACE

Courts can take breaches of the Codes into account when deciding:

• Whether evidence is reliable

• Whether a confession should be excluded

• Whether a trial is fair

• Whether police acted reasonably

• Whether to exclude evidence under s.78

So although the Codes are not law, they have real evidential weight.

Complaint to the IOPC

A breach of a Code may justify a complaint, even if no law was broken.

Disciplinary Action

Officers may be disciplined for failing to follow the Codes.

Breach of Human Rights

If the police fail to follow the Codes, they may breach:

• Article 5 (liberty)

• Article 8 (privacy)

• Article 6 (fair trial)

The Codes are designed to ensure ECHR compliance.

Exclusion of Evidence

A breach of a Code can support an argument that evidence should be excluded under:

• s.76 (confessions)

• s.78 (general fairness)

This is often decisive in criminal trials.

Why the distinction matters (and why examiners penalise mistakes)

You must always identify:

1. Is there a breach of PACE (the Act)?

2. Is there a breach of a Code?

Because:

• Breach of PACE = legal liability

• Breach of Code = no legal liability, but evidential consequences

If you refer only to a Code when a section of PACE applies, you will be heavily penalised.

This is because:

• PACE is law

• Codes are guidance

Always start with the statute.

Human Rights Consequences

If the police act outside PACE or the Codes, they may breach:

Article 5 ECHR – Liberty

Covers:

• Arrest

• Detention

• Custody time limits

• Lawfulness of deprivation of liberty

Article 8 ECHR – Private life

Covers:

• Stop and search

• Search of premises

• Seizure of property

• Surveillance

• DNA/fingerprint retention

PACE is designed to be ECHR‑compliant, so acting outside PACE often means acting outside the ECHR.

Exam‑Ready Summary

Breach of PACE (the Act)

• Civil liability

• Criminal liability (rare)

• Right to resist unlawful force

• Complaint to IOPC

• Disciplinary action

• Human rights breach

• Exclusion of evidence (s.76, s.78)

Breach of a Code of Practice

• No legal liability (s.67(10))

• Breach admissible in evidence (s.67(11))

• Complaint to IOPC

• Disciplinary action

• Human rights breach

• Exclusion of evidence (s.76, s.78)

Golden Rule for Assessments

Always analyse breach of PACE first.
Only then consider breach of the Codes.

Exclusion of Evidence under PACE

PACE gives courts two main mechanisms for excluding evidence:

• Section 78 PACE – unfairly obtained evidence

• Section 76 PACE – confession evidence obtained by oppression or unreliability

These are central to ensuring fair trials, due process, and compliance with Article 6 ECHR.

Section 78 PACE – Unfairly Obtained Evidence

Statutory wording

The court may refuse to admit prosecution evidence if:

“…having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.”

Key features

• Discretionary – the court may exclude

• Applies to any type of evidence

• Focus is on fairness of the proceedings, not punishment of police

• Breach of PACE or a Code does not automatically lead to exclusion

• The court looks at the seriousness and consequences of the breach

When s.78 is used

• Unlawful stop and search

• Unlawful arrest

• Failure to caution

• Failure to allow legal advice

• Breach of Code C (interviewing)

• Breach of Code A (stop and search)

• Breach of Article 8 ECHR (privacy)

Case law

R v Khan (1996)

R v Khan (1996)

• Police secretly bugged Khan’s home without statutory authority

• Evidence was admitted

• HL held: although unlawfully obtained, it did not affect the fairness of the trial

Khan v UK (2001)

• ECtHR held the same bugging violated Article 8 (privacy)

• BUT this did not automatically make the trial unfair under Article 6

Exam point:

A breach of Article 8 does not automatically make evidence inadmissible under s.78.

Section 76 PACE – Confession Evidence

Section 76 is mandatory, not discretionary.

The court MUST exclude a confession if:

1. It was obtained by oppression, OR

2. It was obtained in circumstances likely to make it unreliable,
   unless the prosecution proves beyond reasonable doubt that it was not.

Oppression – s.76(8)

Includes:

• Torture

• Inhuman or degrading treatment

• Use or threat of violence

• Severe bullying or intimidation

R v Paris, Abdullah and Miller (1994)

• Miller had a low mental age

• Interviewed 19 times over 5 days

• Police bullied and harassed him

• Held: confession excluded – oppressive questioning

Unreliability

The court considers:

• Breaches of PACE or Codes

• Denial of legal advice

• Length of questioning

• Vulnerability of suspect

• Failure to caution

• Improper inducements (“you’ll go home if you confess”)

Important:

A breach of a Code does not automatically make a confession unreliable.
The court looks for a causal link between the breach and the confession.

Human Rights and Exclusion of Evidence

Breaches of PACE often overlap with breaches of:

• Article 5 ECHR – liberty

• Article 8 ECHR – privacy

• Article 6 ECHR – fair trial

If police act outside PACE, they often act outside the ECHR.

But:

A breach of Article 8 does not automatically require exclusion of evidence.

The key question remains: Is the trial fair?

Stop and Search – PACE s.1 and Code A

Stop and search is one of the most controversial police powers because it involves interference with liberty and privacy without arrest.

PACE s.1 and Code A regulate this power.

The Common Law Position Before PACE

Under common law:

• No duty to answer police questions

• No duty to accompany police

• No duty to identify yourself

Rice v Connolly [1966]
Lord Parker:

“Every citizen has a moral duty to assist the police, but no legal duty.”

PACE changed this by creating a statutory power to stop, detain and search.

The Power to Stop and Search – s.1 PACEs.1(2) – The core power

A constable may detain and search:

• A person

• A vehicle

• Anything in or on a vehicle

For:

• Stolen articles

• Prohibited articles (weapons, burglary tools, items for criminal damage, etc.)

Limitations on the Power(1) Location – s.1(1)

Search must take place in a public place.

(2) Private gardens – s.1(4)

Police may not search someone in a garden or yard attached to a dwelling unless they reasonably believe:

• The person does not live there, AND

• They are not there with permission

What can be searched?

• Person

• Vehicle

• Anything in or on a vehicle

• Outer clothing (inner clothing requires higher justification)

What can be searched for?

Defined in ss.1(7)–(9):

• Stolen goods

• Offensive weapons

• Tools for burglary

• Items for criminal damage

• Fireworks (in some circumstances)

• Articles for public order offences

Reasonable Grounds for Suspicion – s.1(3)

This is the most important safeguard.

Police must have reasonable grounds to suspect they will find stolen or prohibited articles.

Code A para 2.2 – Guidance

Reasonable suspicion must be based on:

• Objective factors

• Specific intelligence

• Actual behaviour

• Facts, not stereotypes

It cannot be based on:

• Race

• Age

• Appearance

• Generalisations

• Location alone

• Previous convictions alone

This is essential for preventing discriminatory policing.

What the Officer Must Communicate (Code A)

Before the search, the officer must give:

• Name (or warrant number)

• Station

• Legal power used (e.g. “I am using s.1 PACE”)

• Grounds for the search

• Object of the search

• Right to a record of the search

Failure to give this information can make the search unlawful.

How the Search Must Be Conducted

Code A requires:

• Respectful treatment

• Minimal intrusion

• Same‑sex officer for removal of clothing

• No removal of clothing in public except outer coat, jacket, gloves

• Written record offered

Failure to comply may lead to:

• Unlawful search

• Exclusion of evidence

• Civil liability

• Human rights breach

Exam‑Ready Summary

Section 78 PACE

• Discretionary

• Any evidence

• Focus on fairness

• Breach of PACE/Code relevant but not decisive

• Khan – unlawful bugging admitted

Section 76 PACE

• Mandatory exclusion

• Confessions only

• Oppression or unreliability

• Paris, Abdullah & Miller – oppressive questioning

Stop and Search (s.1 PACE + Code A)

• Must be in a public place

• Must have reasonable suspicion

• Must communicate name, station, grounds, power, object

• Must follow Code A procedures

• Breach may lead to exclusion under s.78

Stop and Search Powers under PACE 1984

Stop and search is one of the most intrusive police powers because it allows officers to interfere with a person’s liberty without arresting them.
PACE s.1 and Code A exist to ensure this power is exercised lawfully, fairly, and without discrimination.

The structure below follows the exact order you must use in a problem question:

1. Where the search must take place

2. What can be searched

3. What can be searched for

4. Reasonable suspicion

5. Information that must be communicated

6. How the search must be conducted

7. Human rights implications

Where the Search Must Take Place

Public place – s.1(1) PACE

A stop and search under s.1 must occur in a public place.

A public place includes:

• Streets

• Parks

• Public car parks

• Shops open to the public

Private gardens – s.1(4) PACE

A garden or yard attached to a dwelling is not a public place.

Police may only search there if they reasonably believe:

1. The person does not live at the dwelling; and

2. The person is not there with permission of someone who lives there.

If these conditions are not met, the search is unlawful.

What Can Be Searched? – s.1(2) PACE

A constable may search:

• A person

• A vehicle

• Anything in or on a vehicle

This includes bags, pockets, containers, etc.

What Can Be Searched For?

Under ss.1(7)–(9), police may search for:

• Stolen goods

• Prohibited articles, including:

  • Offensive weapons

  • Tools for burglary

  • Items for criminal damage

  • Articles for public order offences

  • Certain fireworks

This list is non‑exhaustive, but the officer must be searching for something specific.

Reasonable Suspicion – s.1(3) PACE

This is the central safeguard.

A search is only lawful if the officer has:

Reasonable grounds for suspecting they will find stolen or prohibited articles.

Code A para 2.2 – Two‑stage test

The officer must:

1. Genuinely suspect (subjective)

2. That suspicion must be objectively reasonable

The officer must be able to explain the suspicion by reference to:

• Specific intelligence

• Information received

• Observed behaviour

What cannot form reasonable suspicion?Code A para 2.2B

Suspicion cannot be based solely on:

• Physical appearance

• Race

• Age

• Stereotypes

• Generalisations

• “Being in a high‑crime area” alone

Code A para 2.9

Suspicion cannot be created retrospectively by questioning.

Code A para 2.11

Police cannot stop someone to find grounds for a search.

Reasonable suspicion must exist before the stop.

Information That Must Be Communicated – s.2 PACE

This is where most unlawful searches occur.

s.2(3) PACE – The officer must give:

• Name (or warrant number) – s.2(3)(a)

• Station – s.2(3)(a)

• Legal power used – s.2(3)(b)

• Object of the search – s.2(3)(b)

• Grounds for the search – s.2(3)(c)

• Right to a copy of the search record – s.2(3)(d)

Case lawR v Fennelly (1989)

Failure to give grounds makes the search unlawful.

Mustapha Osman v Southwark Crown Court (1999)

Failure to give name and station made the search unlawful.
Osman could not be convicted of assaulting a police officer “in the execution of his duty” because the officer was not acting lawfully.

Mnemonic: GO WISELY

• G – Grounds

• O – Object

• W – Warrant card (if in plain clothes)

• I – Identity (name/number)

• S – Station

• E – Entitlement to a search record

• L – Legal power

• Y – “You are detained for the purpose of a search”

If any of these are missing, the search is likely unlawful.

How the Search Must Be Conducted

s.2(9)(a) PACE

Police cannot require removal of more than:

• Outer coat

• Jacket

• Gloves

in public.

Code A para 3.1

Search must be carried out with:

• Courtesy

• Consideration

• Respect

Code A para 3.5

Police may:

• Put hands inside outer clothing pockets

• Feel around collars, socks, shoes

• Search hair

But may not:

• Remove clothing beyond outer layers in public

• Conduct intimate searches (requires separate powers)

Code A para 1.1 – General principles

Searches must be:

• Fair

• Responsible

• Respectful

• Non‑discriminatory

Human Rights and Stop & Search

Stop and search engages:

Article 8 ECHR – Private life

A search is an interference with privacy.

Gillan & Quinton v UK (2010)

• Stop and search can breach Article 8

• In that case, s.44 Terrorism Act 2000 violated Article 8 because it lacked safeguards

• PACE s.1 searches are less likely to breach Article 8 because PACE + Code A provide safeguards

Article 5 ECHR – Liberty

A stop and search may amount to a deprivation of liberty depending on:

• Duration

• Intrusiveness

• Physical restraint

Article 14 ECHR – Non‑discrimination

Relevant where racial profiling or stereotyping is alleged.

Consequences of an Unlawful Stop and Search

If any requirement is breached:

• The search is unlawful

• Evidence may be excluded under s.78 PACE

• The suspect may use reasonable force to resist (Osman)

• Police may face civil liability (false imprisonment, assault)

• Police may face disciplinary action

• There may be a human rights breach (Art 5, Art 8, Art 14)

Exam‑Ready Summary

A lawful stop and search requires:

• Public place (s.1(1))

• Correct object (stolen/prohibited articles)

• Reasonable suspicion (s.1(3), Code A 2.2)

• Full GO WISELY information (s.2)

• Proper conduct (s.2(9), Code A para 3)

• Respect for human rights (Art 5, 8, 14)

If any element is missing → search is unlawful.

Power of Arrest – PACE 1984

Arrest is one of the most serious interferences with individual liberty in the UK legal system. Because of this, the law imposes strict limits on when and how the police may arrest someone.

PACE 1984 and Code G govern arrest without a warrant.
Arrest with a warrant is governed by other statutory provisions.

What is an Arrest? (Common Law Definition)

PACE does not define “arrest”.
The definition comes from the common law.

Christie v Leachinsky [1947] AC 485

Lord Simonds:

“An arrest is the beginning of imprisonment.”

Meaning:

• An arrest occurs when a person is deprived of their liberty

• They are not free to leave

• It is a major interference with personal freedom

• Therefore all arrests are prima facie unlawful unless justified by a specific legal power

This is a foundational principle:

Arrest must always be justified.

Types of Arrest

There are two types:

(1) Arrest with a warrant

• A magistrate or judge issues a warrant

• Police execute it

• Legality depends on the warrant’s validity

(2) Arrest without a warrant

This is where PACE and Code G apply.

Arrest without warrant is only lawful if:

• A specific statutory power exists (e.g., s.24 PACE), OR

• The common law power to arrest for breach of the peace applies

Common law arrest – breach of the peace

R v Howell [1982] QB 416

A breach of the peace occurs when:

• Harm is done or likely to be done to a person or property, OR

• A person is in fear of being harmed

Police may arrest without warrant to prevent a breach of the peace.

Arrest and Article 5 ECHR

Arrest is a deprivation of liberty, so Article 5 ECHR applies.

Article 5(1) – Right to liberty

No one shall be deprived of liberty except in specific circumstances and:

“…in accordance with a procedure prescribed by law.”

Article 5(1)(c) – Arrest on suspicion

Allows:

“The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence.”

Key point:
If an arrest is not lawful under PACE, it is not lawful under Article 5.

Article 5(2) – Right to be informed

Everyone who is arrested must be informed:

• Promptly

• In a language they understand

• Of the reasons for their arrest

• And any charge against them

Failure to give reasons = unlawful arrest.

Arrest Without Warrant – PACE s.24

Although your notes haven’t yet listed s.24 in detail, here is the essential structure you must know:

Two‑stage test for lawful arrest under s.24 PACEStage 1: Reasonable suspicion

The officer must reasonably suspect that the person:

• Is committing,

• Has committed, or

• Is about to commit
  an offence.

This is similar to the reasonable suspicion test in stop and search.

Stage 2: Necessity test (Code G)

Even if reasonable suspicion exists, arrest is only lawful if it is necessary for one of the reasons in s.24(5), such as:

• To ascertain the person’s name

• To ascertain their address

• To prevent injury or damage

• To prevent disappearance

• To allow prompt and effective investigation

• To protect a child or vulnerable person

Necessity is the key safeguard.
If the necessity test is not met → arrest is unlawful.

Code G – The Statutory Guidance on Arrest

Code G provides detailed guidance on:

• What constitutes reasonable suspicion

• How the necessity test must be applied

• What information must be given to the suspect

• How the arrest must be carried out

Key principles of Code G

• Arrest is a serious intrusion

• It must be used fairly, responsibly, and proportionately

• Officers must consider less intrusive alternatives

• Arrest must not be used for convenience

Information That Must Be Given on Arrest

Under PACE s.28 and Article 5(2):

The officer must tell the suspect:

1. They are under arrest

2. The grounds for the arrest

3. The reasons why arrest is necessary

4. The offence they are suspected of

5. Caution (“You do not have to say anything…”)

Failure to give this information = unlawful arrest.

Consequences of an Unlawful Arrest

If the police fail to comply with PACE or Code G:

(1) Civil liability

• False imprisonment

• Assault

• Battery

• Trespass to person

(2) Criminal liability (rare)

• Assault

• Misconduct in public office

(3) Exclusion of evidence

Under s.78 PACE, evidence obtained following an unlawful arrest may be excluded.

(4) Human rights breach

• Article 5 (liberty)

• Article 8 (privacy)

• Article 3 (treatment in custody)

(5) Complaint to IOPC

Independent Office for Police Conduct.

(6) Disciplinary action

Internal police discipline.

Exam‑Ready Summary

Arrest is a deprivation of liberty

→ Must comply with PACE, Code G, and Article 5.

Arrest without warrant requires:

• Reasonable suspicion (s.24(2))

• Necessity (s.24(5), Code G)

Police must inform the suspect:

• That they are under arrest

• The grounds

• The necessity reasons

• The offence

• The caution

If PACE is breached:

• Arrest is unlawful

• Evidence may be excluded

• Civil liability arises

• Article 5 is breached

Power of Arrest – s.24 PACE 1984

Arrest is one of the most serious interferences with liberty in English law. Because of this, every arrest is prima facie unlawful unless justified by a specific legal power.

This principle comes from Christie v Leachinsky, where Lord Simonds said:

“An arrest is the beginning of imprisonment.”

PACE s.24 provides the main statutory power for arrest without a warrant.

The Two Elements Required for a Lawful Arrest (s.24 PACE)

To arrest lawfully under s.24, a constable must satisfy both:

(1) The power of arrest must have arisen

→ There must be involvement, suspected involvement, or attempted involvement in a criminal offence.

(2) The necessity test must be satisfied

→ There must be reasonable grounds for believing that arrest is necessary for one of the statutory reasons.

If either element is missing → the arrest is unlawful.

Element (1): Has the Power of Arrest Arisen?

PACE divides this into three situations:

A. Offences about to be committed or being committed – s.24(1)

A constable may arrest:

• Anyone about to commit an offence

• Anyone in the act of committing an offence

• Anyone reasonably suspected of being about to commit an offence

• Anyone reasonably suspected of being in the act of committing an offence

This covers immediate or imminent criminal activity.

B. Offences suspected to have been committed – s.24(2)

If a constable reasonably suspects that an offence has been committed, they may arrest:

• Anyone reasonably suspected of being guilty

This is the “suspected offence” category.

C. Offences actually committed – s.24(3)

If an offence has in fact been committed, a constable may arrest:

• Anyone who is guilty

• Anyone reasonably suspected of being guilty

This is broader because the offence is confirmed.

Exam Tip

Always identify which category applies:

• About to be committed? → s.24(1)

• Being committed? → s.24(1)

• Suspected to have been committed? → s.24(2)

• Has been committed? → s.24(3)

Then apply the correct subsection.

Reasonable Grounds for Suspicion

PACE does not define “reasonable suspicion”, but the courts have.

Dallison v Caffrey (1965)

Lord Diplock:

Would a reasonable person, knowing what the officer knew, suspect guilt?

Castorina v Chief Constable of Surrey (1988)

Two‑stage test:

1. The officer must honestly suspect

2. There must be reasonable cause for that suspicion

O’Hara v RUC (1997)

• Reasonable suspicion may be based on a briefing from another officer

• BUT a bare instruction (“go arrest him”) is NOT enough

• The arresting officer must have some factual basis in their own mind

Holgate‑Mohammed v Duke (1984)

• Once reasonable suspicion exists, the decision to arrest is an executive discretion

• Courts are reluctant to interfere unless the decision is irrational

Key principle

Reasonable suspicion must be in the mind of the arresting officer at the time of arrest.

Element (2): The Necessity Test – s.24(4)–(6) PACE + Code G

Even if the power of arrest has arisen, the officer must also show that arrest is necessary.

This is the main safeguard against arbitrary arrest.

Necessity reasons include:

• To ascertain the person’s name

• To ascertain their address

• To prevent:

  • Physical injury

  • Loss or damage to property

  • Public indecency

  • Obstruction of the highway

• To protect a child or vulnerable person

• To allow the prompt and effective investigation of the offence

• To prevent disappearance of the suspect

Code G emphasises:

• Arrest is a serious intrusion

• It must be used fairly, proportionately, and only when necessary

• Officers must consider less intrusive alternatives (e.g., voluntary interview)

If necessity is not established → arrest is unlawful.

Arrest and Article 5 ECHR

Arrest is a deprivation of liberty, so Article 5 applies.

Article 5(1)(c)

Allows arrest only if:

• It is lawful under domestic law (PACE), AND

• It is for the purpose of bringing the person before a legal authority, AND

• There is reasonable suspicion

If PACE is breached → Article 5 is breached.

Article 5(2)

The arrested person must be told:

• Promptly

• In a language they understand

• The reasons for their arrest

• And any charge

Failure to give reasons = unlawful arrest.

Consequences of an Unlawful Arrest

If s.24 or Code G is breached:

• Civil liability (false imprisonment, assault)

• Criminal liability (rare)

• Exclusion of evidence under s.78 PACE

• Human rights breach (Art 5, Art 8)

• Complaint to IOPC

• Disciplinary action

• Suspect may use reasonable force to resist (Osman)

Exam‑Ready Summary

A lawful arrest under s.24 requires:

1. Power of arrest has arisen

   • Offence about to be committed / being committed / suspected / actually committed

   • Reasonable suspicion (Dallison, Castorina, O’Hara)

2. Necessity test satisfied

   • One of the statutory reasons in s.24(5)

   • Code G: arrest must be proportionate and necessary

3. Information given

   • Grounds, reasons, offence, caution (PACE s.28 + Art 5(2))

If any element is missing → arrest is unlawful.

Arrest by a Constable – s.24 PACE 1984

Arrest is one of the most serious interferences with liberty in English law. Because of this, every arrest is prima facie unlawful unless justified by a specific legal power.

This principle comes from Christie v Leachinsky, where Lord Simonds famously said:

“An arrest is the beginning of imprisonment.”

PACE s.24 provides the main statutory power for arrest without a warrant.

To be lawful, two elements MUST be satisfied.

The Two Elements Required for a Lawful Arrest (s.24 PACE)

A constable may only arrest without warrant if BOTH:

(1) The power of arrest has arisen

→ There must be involvement, suspected involvement, or attempted involvement in a criminal offence (s.24(1)–(3)).

(2) The necessity test is satisfied

→ There must be reasonable grounds for believing that arrest is necessary for one of the statutory reasons (s.24(4)–(6)).

If either element is missing → the arrest is unlawful.

Element (1): Has the Power of Arrest Arisen?

PACE divides this into three categories. You MUST identify which applies.

A. Offences about to be committed or being committed – s.24(1)

A constable may arrest:

• Anyone about to commit an offence

• Anyone in the act of committing an offence

• Anyone reasonably suspected of being about to commit an offence

• Anyone reasonably suspected of being in the act of committing an offence

This covers immediate or imminent criminal activity.

B. Offences suspected to have been committed – s.24(2)

If a constable reasonably suspects that an offence has been committed, they may arrest:

• Anyone reasonably suspected of being guilty

C. Offences actually committed – s.24(3)

If an offence has in fact been committed, a constable may arrest:

• Anyone who is guilty

• Anyone reasonably suspected of being guilty

Exam Technique

Always identify:

• Is the offence about to be committed? → s.24(1)

• Is it being committed? → s.24(1)

• Is it suspected to have been committed? → s.24(2)

• Has it actually been committed? → s.24(3)

Then apply the correct subsection.

Reasonable Grounds for Suspicion

PACE does not define “reasonable suspicion”, but the courts have.

Dallison v Caffrey (1965)

Lord Diplock:

Would a reasonable person, knowing what the officer knew, suspect guilt?

Castorina v Chief Constable of Surrey (1988)

Two‑stage test:

1. The officer must honestly suspect

2. There must be reasonable cause for that suspicion

O’Hara v RUC (1997)

• Reasonable suspicion may be based on a briefing from another officer

• BUT a bare instruction (“go arrest him”) is NOT enough

• The arresting officer must have some factual basis in their own mind

Holgate‑Mohammed v Duke (1984)

• Once reasonable suspicion exists, the decision to arrest is an executive discretion

• Courts are reluctant to interfere unless irrational

Key principle

Reasonable suspicion must be in the mind of the arresting officer at the time of arrest.

Element (2): The Necessity Test – s.24(4)–(6) PACE + Code G

Even if the power of arrest has arisen, the officer must ALSO show that arrest is necessary.

This is the main safeguard against arbitrary arrest.

s.24(5) – The Necessity Reasons

Arrest must be necessary:

• To ascertain the person’s name

• To ascertain their address

• To prevent the person:

  • Causing physical injury to themselves or others

  • Suffering physical injury

  • Causing loss/damage to property

  • Committing an offence against public decency

  • Causing an unlawful obstruction of the highway

• To protect a child or vulnerable person

• To allow the prompt and effective investigation of the offence

• To prevent disappearance (i.e., suspect may abscond)

If none of these apply → arrest is unlawful.

Case Law on Necessity

Hayes v Chief Constable of Merseyside Police (2011)

Two‑stage test:

1. The officer must actually believe arrest is necessary

2. That belief must be objectively reasonable

Code G – Guidance on Necessity

Code G provides detailed guidance.

Para 2.4

Arrest is an operational discretion. The officer must decide:

• Which necessity criteria apply

• Whether arrest is the appropriate action

Para 2.5

At least one necessity criterion must be satisfied.

Para 2.6

Officer must examine and justify why arrest is needed.

Para 2.7

The criteria are exhaustive, but the circumstances that satisfy them are flexible.

Para 2.8

Officer must consider:

• Victim’s situation

• Nature of the offence

• Suspect’s circumstances

• Needs of the investigation

Examples in Code G

Arrest may be necessary where the suspect:

• Has made false statements

• Cannot verify their identity

• Has presented false evidence

• May destroy or hide evidence

• May contact co‑suspects

• May intimidate witnesses

• Needs to be questioned under caution

• Needs to be searched

• Needs fingerprints, DNA, photographs taken

• May abscond

Procedural Requirements for a Valid Arrest

Even if the power and necessity exist, the arrest is unlawful unless procedural rules are followed.

s.28(1) PACE – Fact of arrest

The suspect must be told they are under arrest.

s.28(3) PACE – Grounds for arrest

The suspect must be told the grounds for the arrest.

s.28(2) & (4)

This applies even if the reason is obvious.

Article 5(2) ECHR

The suspect must be informed:

• Promptly

• In a language they understand

• Of the reasons for arrest

• And any charge

Failure to give reasons = unlawful arrest.

Exam‑Ready Summary

A lawful arrest under s.24 requires:1. Power of arrest has arisen

• Offence about to be committed / being committed / suspected / actually committed

• Reasonable suspicion (Dallison, Castorina, O’Hara)

2. Necessity test satisfied

• One of the statutory reasons in s.24(5)

• Code G: arrest must be proportionate and necessary

• Hayes: officer must actually believe arrest is necessary AND belief must be reasonable

3. Procedural requirements

• Must tell suspect they are under arrest (s.28(1))

• Must give grounds (s.28(3))

• Must comply with Article 5(2)

If any element is missing → arrest is unlawful.

Article 5(2) ECHR – Information on Arrest

Article 5(2) ECHR requires that:

“Everyone who is arrested shall be informed promptly, in a language that he understands, of the reasons for his arrest and of any charge against him.”

This is a fundamental procedural safeguard.
It overlaps with s.28 PACE and Code G.

Key case lawFox, Campbell & Hartley v UK (1990)

Fox, Campbell & Hartley v UK (1990)

The ECtHR held:

The suspect must be told, in simple, non‑technical language, the essential legal and factual grounds for the arrest so they can challenge its lawfulness.

This means:

• Police do NOT need to give a legal lecture

• But they MUST give enough information so the suspect knows why they are being arrested

Clarke v Chief Constable of North Wales Police (2000)

Sedley LJ:

Technical or formal words are unnecessary.

Examples he gave:

• “You’re nicked for handling this gear”

• “I’m having you for twoc‑ing this motor”

These informal phrases are sufficient if the suspect understands the substance of the allegation.

Brooke LJ added:

• Saying “arrested on suspicion of possessing controlled drugs” is enough if the suspect understands what that means.

Alder v CPS (2013)

An off‑duty officer told someone they were being “detained” rather than “arrested”.

Held:

• This was sufficient

• The key question is whether the suspect understood that they were no longer free to leave and why

Exception to s.28 PACE – s.28(5)

Under s.28(5):

There is no requirement to give the fact or grounds of arrest if it is not reasonably practicable to do so.

Example:

• The suspect is violent

• The suspect is fleeing

• The suspect is unconscious

BUT:

DPP v Hawkins (1988)

• If the suspect is not told at the moment of arrest, they must be told as soon as practicable

• If they are not told once practicable → the arrest becomes unlawful from that point onward

• It does not become retrospectively unlawful

The Caution (Code G para 3.5 / Code C para 10.5)

The caution is NOT in PACE itself, but in the Codes.

Standard caution:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.”

Key points

• Exact words are not required, but the meaning must be preserved

• Should be given on arrest, unless impracticable

• If already given before arrest, it need not be repeated

• Failure to caution may lead to exclusion of evidence under s.78 PACE

Summary: How to Analyse s.24 PACE in an Exam

You MUST follow this order:

Step 1 — Has the power of arrest arisen?

Use the correct subsection:

• s.24(1) – offence about to be committed / being committed

• s.24(2) – suspected offence

• s.24(3) – offence actually committed

Apply reasonable suspicion using:

• Dallison

• Castorina

• O’Hara

Step 2 — Is arrest necessary? (s.24(4)–(6))

Identify the specific necessity reason under s.24(5):

• Name

• Address

• Prevent injury

• Prevent damage

• Prevent public decency offence

• Prevent obstruction of highway

• Protect vulnerable person

• Prompt and effective investigation

• Prevent disappearance

Apply Code G:

• Para 2.4 – operational discretion

• Para 2.5 – at least one criterion must apply

• Para 2.6 – officer must justify necessity

• Para 2.7 – criteria exhaustive

• Para 2.8 – consider victim, suspect, offence, investigation needs

Step 3 — Have the procedural requirements been met?s.28 PACE

• Must tell suspect they are under arrest

• Must give grounds

• Must give reasons

• Must comply with Article 5(2)

Caution

• Must be given unless impracticable

• Failure may lead to exclusion of evidence

Record of arrest

• Must be made as soon as practicable

Additional Powers Related to Arrest

These are essential for problem questions.

Section 29 – Voluntary Attendance

• A person attending voluntarily may leave at any time

• If police decide to arrest, they must tell them immediately

Section 30 – Taking to a Police Station

• If arrested elsewhere, the suspect must be taken to a station as soon as practicable

Section 32 – Search on Arrest

A constable may search the arrested person if they reasonably believe the person may:

• Present a danger

• Have items to escape

• Have evidence relating to the offence

Police may also enter and search premises where the arrest occurred or where the suspect was immediately before arrest.

Search must be:

• Reasonable

• Proportionate

• Limited to what is necessary to find the item

Section 117 – Use of Force

Where a PACE power does not require consent, a constable may use:

Reasonable force

This includes:

• Arrest

• Stop and search

• Entry and search

• Seizure

Excessive force → civil liability, criminal liability, disciplinary action.

Exam‑Ready Final Summary

To determine whether an arrest is lawful:

1. Power of arrest (s.24(1)–(3))

• Identify the correct subsection

• Apply reasonable suspicion case law

2. Necessity (s.24(4)–(6))

• Identify the specific necessity reason

• Apply Code G guidance

• Apply Hayes (officer must actually believe arrest is necessary AND belief must be reasonable)

3. Procedural requirements

• s.28 PACE – fact + grounds

• Article 5(2) – simple, non‑technical explanation

• Caution

• Record of arrest

4. Additional powers

• s.29 voluntary attendance

• s.30 taking to station

• s.32 search on arrest

• s.117 reasonable force

If ANY of these fail → arrest is unlawful.

Citizen’s Arrest – s.24A PACE

Citizen’s arrest is a high‑risk, narrow, and strictly limited power.
It is very different from a police arrest under s.24 PACE.

A citizen’s arrest is only lawful if every statutory requirement is satisfied.
If not → the arrest is unlawful, and the citizen may face civil liability, criminal liability, and the arrested person may lawfully resist.

What Offences Can a Citizen Arrest For? – s.24A(1)–(2)Only INDICATABLE offences

A citizen may arrest only for:

• Indictable offences (triable in the Crown Court)

• This includes either‑way offences

• NOT summary‑only offences

This is the first and most important limitation.

Will a citizen know?

Probably not.
This is why citizen’s arrest is risky and discouraged.

When Can a Citizen Arrest? – s.24A(1) and s.24A(2)

There are two separate powers, depending on whether the offence is happening now or has already happened.

s.24A(1) – Offence being committed

A citizen may arrest:

• Anyone in the act of committing an indictable offence

• Anyone they have reasonable grounds for suspecting is committing an indictable offence

s.24A(2) – Offence already committed

Where an indictable offence has been committed, a citizen may arrest:

• Anyone who is guilty

• Anyone they have reasonable grounds for suspecting is guilty

BUT:

Under s.24A(2), the offence must actually have been committed.

This is a crucial difference from police powers.

The R v Self Rule (1992)

R v Self [1992] 1 WLR 657

If a citizen arrests someone under s.24A(2) believing an indictable offence has been committed, but no such offence has in fact been committed, then:

• The citizen is not exercising a lawful power of arrest

• The arrest is unlawful

• The arrested person is entitled to resist

• The citizen may be liable for:

  • False imprisonment

  • Assault

  • Battery

This is why citizen’s arrest is dangerous.

No Power to Arrest for Offences “About to Be Committed”

Unlike police officers under s.24(1), citizens:

• Cannot arrest someone who is “about to commit” an offence

• Cannot arrest based on future risk

• Must wait until the offence is being committed or has been committed

This is a major limitation.

The Necessity Test – s.24A(3)–(4)

Even if the offence requirement is satisfied, the arrest must also be necessary.

s.24A(3)(a) – Necessity

The citizen must have reasonable grounds for believing arrest is necessary to prevent the person:

• Causing physical injury to themselves or others

• Suffering physical injury

• Causing loss of or damage to property

• Making off before a constable can assume responsibility

s.24A(3)(b) – Police impracticability

A citizen may only arrest if:

“It is not reasonably practicable for a constable to make the arrest instead.”

This is a strict requirement.

If the police could reasonably be called → citizen’s arrest is not lawful.

Comparing Necessity: s.24A vs s.24

Citizen’s arrest necessity is much narrower than police necessity.

Police (s.24(5))

• 9 broad necessity reasons

• Includes “prompt and effective investigation”

Citizen (s.24A(4))

Only 4 narrow reasons:

• Prevent injury

• Prevent damage

• Prevent escape

• Prevent suspect leaving before police arrive

No power to arrest for investigative purposes.

Procedural Requirements for Citizen’s Arrest

Citizen’s arrest must still comply with s.28 PACE:

s.28(1) – Fact of arrest

The person must be told they are being arrested.

s.28(3) – Grounds

They must be told the grounds for the arrest.

s.28(2) & (4)

These do not apply to citizens, so:

• If the reason is obvious, it need not be stated

• But best practice is to state it anyway

Reasonable force

A citizen may use reasonable force (Criminal Law Act 1967, s.3).

Handing over to police

The arrested person must be handed to police as soon as possible.

Failure to do so may make the arrest unlawful.

Summary: How to Analyse a Citizen’s Arrest

Use this structure in an exam:

Step 1 — Is the offence indictable?

If not → no power of arrest.

Step 2 — Which subsection applies?

• s.24A(1) – offence being committed

• s.24A(2) – offence has been committed

Step 3 — Has the offence actually been committed?

If relying on s.24A(2), apply R v Self.

Step 4 — Is arrest necessary?

Apply s.24A(3)–(4):

• Prevent injury

• Prevent damage

• Prevent escape

• Prevent suspect leaving before police arrive

Step 5 — Could a constable have made the arrest?

If yes → citizen’s arrest is not lawful.

Step 6 — Were procedural requirements followed?

• Fact of arrest (s.28(1))

• Grounds (s.28(3))

• Reasonable force only

• Hand over to police promptly

s.89 Police Act 1996 – Assaulting a Constable

This is relevant because:

• A person commits an offence if they assault a constable in the execution of his duty (s.89(1))

• BUT if the arrest is unlawful, the officer is not acting “in the execution of his duty”

• Therefore the suspect may be not guilty

This principle also applies to resisting unlawful arrest by a citizen.

Exam‑Ready Final Summary

Citizen’s arrest is only lawful if:

• The offence is indictable

• The offence is being committed (s.24A(1)) or has been committed (s.24A(2))

• The arrest is necessary (s.24A(3)–(4))

• It is not reasonably practicable for a constable to arrest

• The citizen gives fact + grounds of arrest

• Only reasonable force is used

• The suspect is handed to police promptly

If any element is missing → arrest is unlawful.

s.89(2) Police Act 1996 – Obstruction of a Constable

Section 89(2) creates the offence of:

“Resisting or wilfully obstructing a constable in the execution of his duty.”

This is a stand‑alone criminal offence.
It criminalises behaviour that would not be criminal if directed at an ordinary citizen.

It is therefore a special protection for police officers.

Elements of the Offence

To convict under s.89(2), the prosecution must prove:

1. The defendant resisted or wilfully obstructed

2. A constable

3. In the execution of his duty

If any element is missing → no offence.

What Counts as “Obstruction”?

Rice v Connolly [1966]

• Citizens have a moral duty to help the police

• But no legal duty

• Refusing to answer questions is not obstruction

This is a foundational civil liberties case.

Examples of obstruction:

• Physically blocking an officer

• Giving false details

• Running away when lawfully detained

• Interfering with an arrest

• Warning suspects of police presence (depending on circumstances)

Not obstruction:

• Remaining silent

• Refusing to accompany police voluntarily

• Lawfully resisting an unlawful arrest

“In the Execution of His Duty”

This is the key requirement.

If the officer is not acting in the execution of his duty, the offence cannot be committed.

Kenlin v Gardiner [1967]

• If the officer is acting unlawfully, he is not acting in the execution of his duty

• The citizen may use reasonable force to resist

This principle is also seen in Osman.

What Counts as “Execution of Duty”?

The courts interpret this broadly.

Coffin v Smith (1980)

A constable is acting in the execution of his duty when performing any function within his role as keeper of the peace, including:

• Preventing crime

• Protecting life

• Investigating offences

• Maintaining public order

• Stopping fights

• Responding to emergencies

This is a wide definition.