Making an arrest in order to activate PACE entry and search powers: The Law Commission and a missed opportunity for clarification
| Published date | 01 October 2021 |
| Date | 01 October 2021 |
| DOI | http://doi.org/10.1177/00220183211034085 |
| Subject Matter | Case Notes |
Case Note
Making an arrest in order
to activate PACE entry and
search powers: The Law
Commission and a missed
opportunity for clarification
Neil Parpworth
Leicester De Montfort Law School, UK
Keywords
Arrest, necessity, consequential entry and search powers, law commission, uncertain legal
position
Introduction
In October 2020, the Law Commission published a voluminous report marking the culmination of its
project on search warrants.
1
As might be expected, the report contains many recommendations. For
present purposes, however, the focus of the discussion relates to a matter which was less significant in
the context of the project as a whole, but of no little practical importance; whether an arrest under s 24 of
the Police and Criminal Evidence Act 1984 (PACE) can ever be necessary solely for the purpose of
activating a consequential power of search under either s 18 or s 32(2)(b) of PACE. This grey area of the
law was specifically drawn attention to by the Commission in its consultation document.
2
It will be
argued in the discussion which follows that it ought to have been clarified as a by-product of the
Commission’s project. This is not simply because ambiguity in the law is undesirable as a matter of
general principle. Rather, it is primarily due to the fact that legal uncertainty is troubling when it relates
to the availability of coercive and intrusive police powers which impact upon fundamental human rights,
in particular liberty, property and privacy.
Corresponding author:
Neil Parpworth, Leicester De Montfort Law School, De Montfort University, The Gateway, Leicester, LE1 9BH, UK.
E-mail: njp@dmu.ac.uk
1. See ‘Search warrants’ Law Com No 396, HC 852; The Report runs to 20 chapters and two appendices, making a total of 587
pages.
2. See ‘Search Warrants’, Law Commission Consultation Paper No.235 (5 June 2018), at paras 4.100–4.117.
The Journal of Criminal Law
ªThe Author(s) 2021
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DOI: 10.1177/00220183211034085
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2021, Vol. 85(5) 394–402
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