FreeB.E.A.G.L.E.S.: Legal Advice for Activists (v4)

It is important for activists to be able to distinguish between arrestable and non-arrestable offences. If an offence is “arrestable” then you may be arrested for it afterwards if the police have reason to suspect you. And the police enjoy certain powers of search which they cannot use for non-arrestable offences. So whether or not an offence is arrestable will determine not only the power of arrest, but the power to search your house and your ability to sue afterwards for false imprisonment as well.

11.3 Definition of Arrestable Offence

Many minor public order offences only carry a limited power of arrest, and are not strictly speaking “arrestable offences”, as defined by Section 24 PACE. This section defines what is meant by the term “arrestable offence”. It states that any offence is arrestable if it is punishable by 5 years’ imprisonment or more upon first conviction. On top of this it lists a set number of offences that are also arrestable. This list is periodically added to, and it includes some fairly minor offences, eg refusal to remove a face mask. Examples of arrestable offences are:

11.4 Statutory Powers of Arrest

Many non-arrestable offences do, however, carry a limited statutory power of arrest, namely where the police officer suspects that you are actually committing the offence at the time. This statutory power only exists where it has been actually inserted in to the law itself.

For example, s4 (3) Public Order Act 1986 states:
A constable may arrest without warrant anyone he reasonably suspects is committing an offence under this section. Where there is no such power inserted in to the act, police powers of arrest without warrant are limited to the general power under Section 25 PACE or at common law to prevent a breach of the peace.

Here is an illustration of the above point. You shout abuse at a vivisector driving out of an animal testing laboratory, and you are recorded on the security camera. The police arrive half an hour later, view the camera and decide you have breached Section 4A of the Public Order Act 1986. They have no power to arrest you for this offence as it is no longer taking place, and can only ask that you give your name and address, so that they can serve you with a summons for having committed a non-arrestable offence. If you fail to comply, then you could be arrested under Section 25 PACE.

If you are lawfully arrested at the time of the offence for a “non-arrestable offence” eg for Section 4A intentional harassment, the police have no power to carry out a search of your home. They only have the power to search your home if you have been arrested for an “arrestable offence”. They cannot delay your right to see a solicitor or to have someone informed of your arrest. They may only do this if you are under arrest on suspicion of having committed a “serious arrestable offence”.

The distinction between “arrestable” and “non-arrestable” offences may well seem very confusing and contradictory. However there is a practical reason explaining why the police sometimes have a power of arrest for “non-arrestable” offences, namely in order to maintain public order. It used to be the case that only indictable offences carried a power of arrest and summary offences could only be prosecuted by way of a summons. Then Parliament began to confer statutory powers of arrest on police officers for fairly minor public order offences. The justification for this is that the police would be hindered in their ability to control public order if they could not arrest people as they were actually committing the offence.

11.5 Section 25 PACE - General Power of Arrest for Non-Arrestable Offences

Where the police reasonably suspect you of committing or having committed a non-arrestable offence, then they may only arrest you if they believe that the service of a summons is impractical because any one of the general arrest conditions under Section 25 of PACE is satisfied.

(1) The police cannot establish your name or they think you have given a false one, OR
(2) The police cannot establish an address suitable for the service of a summons or they think you have given a false one, OR
(3) The police have reasonable grounds to believe arrest is necessary to prevent you from doing any of the following:

This power is most commonly used on demos where your name and address cannot be established or to prevent an unlawful obstruction of the highway.

11.6 Notes on Section 25 PACE

The main point to note is that this power is only triggered where the police reasonably suspect that you are committing or have committed a non-arrestable offence. Where they are seeking to establish your name and address, they will use a number of methods to check it out. First they will check it on the police national computer and the electoral register. If it is not on there then they may use a number of other techniques to establish your details. They might ask you for a friend’s phone number who will confirm your identity, and they will normally ask for some means of identification. You do not have to provide any of these but if they cannot establish your name and address then you could be arrested. They will usually ask you for your date of birth - you do not have to give them this.

The police will sometimes cite Section 25 simply in order to get your details. You should be able to tell whether they are blagging or whether they genuinely mean to arrest you if you don’t give your details. A situation often encountered is when the police pull your car as you arrive for a demo. They will get the driver’s details and ask for all the passengers’ details as well – in this situation a passenger would definitely not have to give their name and address.

The police will sometimes use Section 25 to get your details even when they could arrest you. There are obvious practical reasons for this – eg on demos when arresting you would mean at least two officers having to leave the scene leaving the police short on numbers.

As noted earlier (section 2), you only have to give the police an address suitable for the service of a summons, which need not necessarily be your residential address. If you give the police the phone number of a solicitor, for example, who is prepared to confirm that his address can be used, then this ought to be acceptable to the police.
As part of the “zero-tolerance” strategy being operated against certain animal rights campaigns, the police will sometimes demand your details in order to summons you for breach of Section 5 of the Public Order Act 1986 (disorderly conduct). Normally you can only be arrested for this if you are warned and then commit an offence again a short time later. But the police can actually begin a prosecution against you for just one such offence, and may demand your name and address in order to do so.

11.7 Arrest under Warrant

Under Section 1 (1) of the Magistrates’ Courts Act 1980 the police may apply to a magistrate for an arrest warrant. The offence alleged must be punishable by imprisonment or the accused’s address must be insufficiently established for the service of a summons.

In the case of minor offences, the police would usually apply for a summons rather than an arrest warrant. They do occasionally use this power to arrest activists, however, as a vindictive measure, where they have no other grounds to make an arrest.

11.8 Common Law Arrest for Breach of the Peace

11.8.1 Introduction

The police may threaten you with arrest for breach of the peace when their other powers of arrest are inadequate. This is an ancient “common law” power that pre-dates Parliament. The police can exercise it if they reasonably believe that you are using or about to use violence against persons or, in their presence, against their property.

The police can also arrest you for breach of the peace, if they reasonably believe that by your actions you are provoking or will provoke the use of violence by others. This boils down to property rights according to the courts. If you take part in a hunt sab, or are occupying office premises, then according to current case law your arrest for breach of the peace could be lawful. This is because you will be deemed to be interfering with the legitimate property rights of others and thus by your actions provoking the use of violence by others. If, by contrast, you are engaged in peaceful leafleting outside a shop, an arrest for breach of the peace would probably be unlawful - even if people find your leaflets offensive - so long as the leaflets do not provoke violence.
The police have often threatened activists with arrest in the past for occupying private property – eg banks, offices - during the course of a protest. They are more likely to use the new power of arrest for “aggravated trespass” which has now been amended to include activity occurring inside as well as outside premises – see section 21.

Where no violence has previously occurred then the police must suspect that violence is about to take place or imminent before making an arrest.

Don’t forget that the police will usually warn you first before they arrest for breach of the peace. For example, if you’re occupying private premises, the police will usually ask you to leave and tell you that you will be arrested for breach of the peace if you go back in. The police are entitled to act as agents of the landowner and use reasonable force to eject you from the premises. If you resist you could then be arrested for causing a breach of the peace and you could also be charged with wilful obstruction of a police officer. Nowadays you would be more likely to be arrested for “aggravated trespass” in this situation.

11.8.2 Breach of the Peace and Human Rights

In recent years judges have considered the importance of the ECHR in determining the various police powers of arrest. Now that the convention has been incorporated in to UK law by the Human Rights Act 1998 this is even more likely to be the case in the future. The police will no longer be able to abuse their common law powers of arrest to stifle fundamental human rights. Many police forces are no longer keen on using this power of arrest, because of the difficulty in establishing reasonable suspicion that violence was imminent. One force in particular – we do not know which – has a policy not to arrest for breach of the peace. This comes as no surprise - the police have been sued on countless occasions for false arrest for breach of the peace.

11.8.3 Arrest Procedure

If you are arrested for breach of the peace, the police will either let you go after a “cool-down” period, usually of up to 6 hours, or you will be kept overnight and brought before a court the next day to be charged. If the police decide to charge you with causing a breach of the peace, normal practice is to hold you overnight to appear in court the next day. However, a recent High Court decision ruled that this is unlawful unless there is a genuine suspicion that you will cause a breach of the peace shortly after release.

11.8.4 Bindovers

If you do appear in court, you will be offered a “bindover” which you can either accept or refuse. If you refuse, a date will be set for a hearing where the prosecution would have to establish that by your actions you caused or provoked the likelihood of imminent violence. If you are “bound over” to keep the peace you have to agree not to cause a further breach within a specified period. If you cause a further breach within that period, you are liable to pay part or all of a fixed sum to the court – anything up to £100 usually. If you refuse to agree to the bind over following a hearing you can be sent to prison for a few weeks.

A bindover is not a criminal conviction and the police cannot take your fingerprints and DNA if you were arrested merely for breach of the peace, as it is not a “recordable offence”. The prosecution may sometimes offer a bindover in court as an alternative to charges for a minor public order offence

This article is for information purposes only; its aim is to let people to know their full rights under UK law. Nothing on these pages is absolute as the law is always changing; if in doubt contact a trusted solicitor for further advice. We do not encourage you to break the law.

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LEGAL ADVICE FOR ACTIVISTS

11. Police Powers of Arrest

Contents

11.1 Overview

11.2 Section 24 PACE –Arrestable Offences