When Is An Arrest?
| Date | 01 May 1991 |
| DOI | http://doi.org/10.1111/j.1468-2230.1991.tb00893.x |
| Published date | 01 May 1991 |
| Author | Glanville Williams |
When
Is
An Arrest?
Glanville Williams
*
Nursery riddle: What dogs have five legs? Answer:
No
dogs. No dogs have five
legs. (No dogs are dogs, because don’t we call them dogs?)
At
about the same level of puerility, but using adult language, consider this one.
When is an arrest not an arrest? Answer: When
it
is an illegal arrest. (An illegal
arrest is not an arrest, because
it
has none of the legal consequences of an arrest.
But
it
must be an arrest, because don’t we call
it
that? It is the kind of arrest known
as an illegal arrest. Yes, just as a five-legged dog is the kind of dog known as a
no-dog
.)
Before
1988
there was a sharp split of lordly opinion on this grave subject. Six
statements were made; three, which
I
will
make bold to call the silly ones, supported
the proposition about illegal arrests, while three, the sensible ones, rejected
it.
In
Murray
v
Ministry
ofDefence
(1988),’
Lord Griffiths, speaking for the Appellate
Committee, approved three of the six, these being all three of the silly ones, while
not mentioning the others.2
The chance of drawing these three concurring statements out of the recorded six
at random would have been one in
20.
So
the
likelihood is that some factor was
at work
in
making the selection. The factor, of course, is the time-honoured practice
of judges to choose from the available authorities only those that accord with their
own views.
For the purpose of discussion
it
is
enough to reproduce, as a representative of
the three favoured by Lord Griffiths, a remark of Viscount Dilhorne:
‘Arrest’ is an ordinary English word
.
.
.
Whether or not
a
person has been arrested depends
not
on
the legality
of
the arrest but
on
whether he has been deprived
of
his liberty
to
go
whcrc
hc
pleases.
If
this were
so,
every kidnapping would be an ‘arrest’ of the victim, not only
(in
the remarkable opinion of some of the Lords) according to the meaning of ‘an
ordinary English word’ but
in
law. Neither
in
lay nor
in
legal circles is such a
proposition acceptable.
It
is true that instances of the word ‘arrest’ may still occa-
sionally be found
in
its French sense of suddenly arresting a person’s words or
movement, or the arresting of a natural process like a disease; but to a lawyer, as
to the general public
in
the vast majority of contexts, the word means not any stopping
but only some kind of stopping of a person by authority of law.
The best statement of this position was that of Lord Edmund-Davies, carefully
reviewing the authorities and pointing out the absurdity of saying that a false
imprisonment can qualify as an arrest.3
A
suspect who resists or escapes from an
illegal purported ‘arrest’ could not possibly be charged
with
resisting or escaping
from
arrest, because
in
law he has not been arrested.
..
*Jesus
Collcgc, Cambridge.
I
2
I19881
I
WLR
692, 2
All
ER
521.
The judicial opinions were discussed by David
N.
Clarke and David Feldrnan in [1979] Crini LR
702;
cp
Lidstone in
[
19781 Crini
LR
332. They were expressed chiefly
in
the context of the blood-
alcohol legislation. wherc
a
distinction should be drawn betwcen an arrcst proper and a lawful detention;
sce later.
Slicer
v
Holt
119771 AC at
1005.
3
408
I?ic
Modrrti
IAW
Heview
5413
May 1991 0026-7961
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