Policy, Practicalities, and PACE s. 24: The Subsuming of the Necessity Criteria in Arrest Decision Making by Frontline Police Officers
| Author | Geoff Pearson,Mike Rowe,Liz Turner |
| Published date | 01 June 2018 |
| DOI | http://doi.org/10.1111/jols.12087 |
| Date | 01 June 2018 |
JOURNAL OF LAW AND SOCIETY
VOLUME 45, NUMBER 2, JUNE 2018
ISSN: 0263-323X, pp. 282±308
Policy, Practicalities, and PACE s. 24: The Subsuming of the
Necessity Criteria in Arrest Decision Making by Frontline
Police Officers.
Geoff Pearson,* Mike Rowe,** and Liz Turner***
PACE, as amended by the Serious Organised Crime and Police Act
2005, establishes a complex framework of factors that police officers
must consider during arrest decision making. Officers must possess a
reason to arrest, it must be necessary to arrest for that reason, and they
must give at least a `cursory consideration' to alternatives. Based on a
four-year ethnographic study of frontline officers from two forces in
Northern England, we argue that the 2005 reforms have not achieved
their aims. The new regime tasks officers with undertaking a complex
legal assessment prior to arrest, but officers are often confused about
the necessity criteria which, moreover, is typically a minor con-
sideration in contrast to demanding practical and policy pressures.
This means that unlawful and non-human-rights-compliant arrests
continue to be regularly made and, equally significantly, many
suspects are escaping the criminal justice system because officers
are not considering arrest alternatives.
282
*University of Manchester, School of Law, Williamson Building, Oxford
Road, Manchester M13 9PL, England
geoff.pearson@manchester.ac.uk
** University of Liverpool, Management School, Chatham Street, Liverpool
L69 7ZH, England
mikerowe@liverpool.ac.uk
*** University of Liverpool, School of Law and Social Justice, Eleanor
Rathbone Building, Bedford Street South, Liverpool L69 7ZA, England
lizt@liverpool.ac.uk.
The authors would like to thank the editor and anonymous reviewers for their helpful and
constructive comments on an earlier draft of this article.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
INTRODUCTION AND METHODOLOGY
The current law on arrest necessity is set out in s. 24 of the Police and
Criminal Evidence Act 1984 (PACE), as amended by the Serious Organised
Crime and Police Act 2005.
1
Whether or not to arrest is `an operational
decision at the discretion of the constable'.
2
The importance of officers being
able to justify the coercive
3
trespass to a person which is an inevitable factor
in any arrest is a longstanding principle of the law of England and Wales.
4
The 2005 Act reformed police powers for arresting suspects without a
warrant, scrapping the previous rules which had distinguished between
`arrestable' and `non-arrestable' offences and significantly extending powers
of arrest for minor offences.
5
However, forces run the risk of being subject to
legal challenge for wrongful arrest, so a clear understanding of the rules
amongst frontline police officers and custody sergeants is essential. Further,
the requirement that the police service comply with Article 5 of the
European Convention on Human Rights (ECHR) and do not arbitrarily or
unnecessarily detain individuals means that when arrests (leading almost
inevitably to some period of detention) can and cannot be made requires
analysis, particularly following such a major legislative reform.
6
More than
ten years after the changes (and over thirty years since PACE came into
force), confusion amongst officers as to what establishes a necessary and
lawful arrest remains. Additionally, requiring frontline officers to both
understand and apply such complex legal assessments reveals a lack of
understanding from policy makers about the pressures of modern police
work and the ability of the law to drive police reform.
Given the legal and constitutional significance of the subject and the scale
of the reforms, there is relatively little case law or academic commentary on
the post-2005 regime. Our current understanding of the law is primarily
guided by the Court of Appeal in Hayes v. Chief Constable of Merseyside
7
which has already received criticism for extending the powers beyond those
intended by parliament.
8
This article analyses the amended s. 24 PACE in
action. It considers whether frontline officers understand the tests and are
correctly applying the powers when determining whether to make a
summary arrest. It investigates why officers make the decision to arrest
283
1 Serious Organised Crime and Police Act 2005, s. 110.
2 PACE Code G 2.4.
3 A. Sanders et al., Criminal Justice (2010, 4th edn.) 141.
5 For a historical overview of the development of arrest powers pre-2005, see Sanders,
op. cit., n. 3.
6 R. Austin, `The New Powers of Arrest: Plus cËa Change: More of the Same or Major
Change?' [2007] Criminal Law Rev. 439.
7Hayes v. Chief Constable of Merseyside [2012] 1 W.L.R. 517.
8 E. Cape, `Arrest: Power of Summary Arrest ± Reasonable Grounds for Believing
that Necessity to Arrest Person in Question' [2012] Criminal Law Rev. 35.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
To continue reading
Request your trial