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8. Police Powers of Arrest

8.1 Overview

Police arrest powers are governed by the following:

• Section 24 PACE
• Section 25 PACE
• Statutory power of arrest within the act itself
• At common law to prevent a breach of the peace

8.2 Section 24 PACE Arrestable Offences

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.

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”.

Firstly it states that any offence is arrestable if the sentence is fixed by law - eg murder. There are very few of these and they are of little relevance to activists. Section 24 then states that any offence is arrestable if it is punishable by 5 years’ imprisonment or more upon first conviction. Finally it lists a set number of about 25 offences which are also arrestable, even though they do not fit either of the above criteria. 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

• Criminal damage
• Theft
• Burglary
• Violent Disorder

Examples of non-arrestable offences are:

• Sections 3, 4, 4A, 5, 12,14 of the Public Order Act 1986
• Section 68 Criminal Justice and Public Order Act 1994 (aggravated trespass)
• Section 42 Criminal Justice and Police Act 2001 (home demos)

Points to Note

• If an offence is not "arrestable" under Section 24 PACE, there may still be other powers of arrest available - see below.
• If you are arrested for an "arrestable offence", then the police have the power to search your home for evidence, although this will usually only happen in serious cases. The longest you can be held is 36 hours from arrival at the police station, and this can be extended further in serious cases. In practice you will usually be detained for a much shorter period than this.

8.3 Statutory Powers of Arrest

Many non-arrestable offences do carry a limited statutory power of arrest, however, 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 and the offence is not arrestable under Section 24 PACE (above), police powers of arrest are limited to the general power under Section 25 PACE or at common law to prevent a breach of the peace.

Points to Note

• Here is an illustration of how police powers of arrest are limited where they only have a statutory power of arrest. You shout abuse at a vivisector driving out of HLS, 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. They cannot arrest you under Section 24 PACE as the offence committed is not arrestable, and they have no power to arrest for breach of the peace as there is no violence taking place or about to occur. They 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 - see below.
• 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”.They can only hold you for a maximum of 24 hours from arrival at the police station, although in the case of minor public order offences, you will usually only be held for a few hours in any case.
• The above may seem very confusing and contradictory at first. 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 over time 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.

8.4 SECTION 25 Pace General Power of Arrest for Non-Arrestable Offences

The usual procedure for prosecution of non-arrestable offences is by way of a summons to appear before magistrates. But where the police reasonably suspect you of committing or having committed a non-arrestable offence, then they may arrest you if they believe that the service of a summons in impractical because any one of the general arrest conditions under Section 25 of PACE is satisfied.

These conditions are as follows:
(1) They cannot establish your name or they think you have given a false one, OR
(2) They cannot establish an address suitable for the service of a summons or they think you have given a false one, OR
(3) They have reasonable grounds to believe arrest is necessary to prevent you from doing any of the following:
(i) causing physical injury to yourself or any other person, OR
(ii) suffering physical injury; OR
(iii) causing loss of or damage to property; OR
(iv) committing an offence against public decency, OR
(v) causing an unlawful obstruction of the highway.

Points to note

• 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.
• 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 the police 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. If you have no means of identifcation and it looks as though the police are going to arrest you under Section 25, you could give them a phone number of someone you know - eg a solicitor - who can confirm your identity.
• You DO NOT have to give the police your date of birth unless you are the driver of a vehicle.
• You only need give a "satisfactory address for the service of a summons". So you could give someone else's address if they agreed to it. The law entitles you to specify someone else to accept the service of a summons for you.
• 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.
• Some of the general arrest conditions under Section s25(3)tend to be overlooked by activists. Note that they are all preventive powers, exercisable by the police if they reasonably believe arrest is necessary to prevent you committing any of the offences. The important ones to note are:
  i) causing physical injury,
  ii) causing loss or damage to property, and
  iii) obstructing the highway.
  These are something of a catch-all the police use to cover their backs in situations where they're not sure whether they've got grounds to arrest you. Next time you see a police officer's statement explaining why he made an arrest, note how many of the s25 provisions he throws in just to be on the safe side. Note as usual that the police must have reasonable suspicion. The police would have to justify the arrest with reasons, in order to avoid being sued for false arrest and imprisonment.
• As part of the “zero-tolerance” strategy being operated in the course of 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 summons you for such an offence after you have only committed it once, and may demand your name and address in order to do so.

• Section 25 PACE only applies to non-arrestable offences. So the police cannot use it in order to obtain your name and address if they suspect you of an arrestable offence - eg criminal damage.

8.5 Power of Arrest for Breach of the Peace

The police may threaten you with arrest for breach of the peace when their other powers of arrest are inadequate. 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. If you take a look at the case law on breach of the peace, you'll see that the courts regard any action which involves infringing someone elses's private rights - eg trespass - as unreasonable and therefore provocative.

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 taking place inside as well as outside premises. http://www.freebeagles.org/articles/legal_booklet_v3.html#ag

Points to Note

• In recent years judges have considered the importance of the articles of the European Convention on Human Rights - and in this case Article 10, Freedom of expression - 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. A recent government consultation paper let slip that 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 – over the years the police have been sued on countless occasions, particularly by hunt saboteurs, for wrongful arrest for breach of the peace.
• 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. Eg 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 cannot arrest you for breach of the peace if you simply refuse to leave the premises and there is no likelihood of violence. But they 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 also be liable for wilful obstruction of a police officer (see below) Nowadays you would be more likely to be arrested for aggravated trespass in this situation.
• 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. But 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.
• If you do appear in court, you will be offered a “bind-over” 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 bind over is not a criminal conviction. The police cannot take your fingerprints and DNA if you are arrested merely for breach of the peace as it is not a “recordable offence”, but they can take your photograph.
• The prosecution may sometimes offer a bind-over in court as an alternative to charges for a minor public order offence – eg Section 5 Public Order Act 1986.Some will not accept this on principle as they see it as an admission of guilt, whereas for others it is a chance to get the case over with and to avoid the risk of a criminal conviction.