Update | PACE: necessity of arrest, 17-year-olds in custody and police retention of data

Defence practitioners have long struggled to persuade police officers that the "necessity" test for arrest in section 24(4) Police and Criminal Evidence Act 1984 (PACE) has not been met in circumstances where a suspect is able and willing to be interviewed under caution on a voluntary basis.

On 12 November 2012, Code G to PACE was amended with the effect that it is now much more difficult for the police to justify an arrest in such circumstances. In particular, a new Note for Guidance 2F was inserted, in the following terms:

"An officer who believes that it is necessary to interview the person suspected of committing the offence must then consider whether their arrest is necessary in order to carry out the interview. The officer is not required to interrogate the suspect to determine whether they will attend a police station voluntarily to be interviewed but they must consider whether the suspect's voluntary attendance is a practicable alternative for carrying out the interview. If it is, then arrest would not be necessary. Conversely, an officer who considers this option but is not satisfied that it is a practicable alternative, may have reasonable grounds for deciding that the arrest is necessary at the outset 'on the street'. Without such considerations, the officer would not be able to establish that arrest was necessary in order to interview."

This new guidance was expressly referred to in the case of Lord Hanningfield of Chelmsford v The Chief Constable of Essex Police [2013] EWCA 243 (QB), notwithstanding the fact that it was not in force at the relevant time. In this case, reported on 15 February 2013, Lord Hanningfield sought damages for what he claimed to be his unlawful arrest and detention by the police on suspicion of an expenses fraud upon Essex County Council. He had been released from prison only a few days earlier, having served a sentence for false accounting in relation to various expenses claims made as a member of the House of Lords.

The critical issue in the case was whether the arrest was "necessary", under section 24(4) PACE, for one of the six reasons set out in section 24(5). The police case was that the arrest was necessary for the prompt and effective investigation of the offence.

The defendant put forward a number of arguments, including the risk that, had the claimant not been arrested, he may have sought to conceal or destroy evidence, or to interfere with witnesses. They also made reference to the claimant's bullying nature and the attendant risk that he may have become uncooperative when confronted with the allegations.

The claimant argued that his arrest was not necessary. First, he had known of the police interest in the new allegations for three months prior to the arrest. While the court acknowledged that prior knowledge was not always determinative of the issue, it considered the fact that no bail conditions were ultimately imposed to be of significance in this case. Second, the claimant was 71-years of age and suffered from depression and high blood pressure. Third, he had established a good "track record" in cooperating with the original expenses investigation, having attended for a voluntary interview at that time.

The court applied the two-part test set out in Hayes v Chief Constable of Merseyside Police [2012] 1 WLR 517. The court was satisfied that the arresting officer actually believed that the arrest was necessary, but did not consider that this belief was "objectively reasonable in the light of what he then knew". The Honorable Mr Justice Eady concluded that: "the requirement of 'necessity' as laid down by parliament has not, on any realistic interpretation of the word, been met. Summary arrest was never going to have any impact on 'the prompt and effective investigation' of Lord Hanningfield's credit card expenses. It is not for a judge to second guess the operational decisions of experienced police officers, but in the circumstances of this case I cannot accept that there was any rational basis for rejecting alternative procedures, such as those adopted successfully by the Metropolitan Police. There were simply no solid grounds to suppose that he would suddenly start to hide or destroy evidence, or that he would make inappropriate contacts. There was only the theoretical possibility that he might do so. I can, therefore, see no justification for bypassing all the usual statutory safeguards involved in obtaining a warrant."

Defence practitioners will wish to have a copy of this judgment to hand when making any representations against arrest on behalf of their clients. Since the introduction of the "necessity" test in 2006, it has seemed that a glib reference to "prompt and effective investigation" combined with often fanciful conjectures regarding interference evidence has been all it has taken to satisfy the test. This judgment, and the revised Code G, signal a welcome return to the plain meaning of section 24(4). However, the impact on police policy and practice remains to be seen.

Juveniles in detention

The case of R (on the application of HC) v The Secretary of State for the Home Department and The Commissioner of Police of the Metropolis [2013] EWHC 982 (Admin) (25 April 2013) attracted a huge amount of media interest. It was an application for judicial review of the Home Secretary's decision not to exercise her power, subject to the approval of parliament, to amend Code C of PACE so as to allow 17-year-olds held in police custody to be treated as juveniles rather than as adults.

PACE defines a juvenile as a person "who appears to be under the age of 17" (section 37(15)). PACE confers certain obligations upon the police in relation to juveniles held in custody, including the requirement to inform a parent or guardian of the juvenile's arrest as soon as is practicable (section 57), and to arrange for the attendance of an appropriate adult to safeguard the juvenile's interests (Code C). No such obligations exist in respect of detainees aged 17 or over.

The claimant, who was 17-years-old at the time of his arrest, was treated consistently with PACE and the Codes and, accordingly, given none of the protections which are afforded to juveniles.
He was not permitted to contact his mother - the right of an adult in custody to have someone informed of his arrest is, unlike that of a child, subject to limitations - and no appropriate adult was appointed to assist him. 12 hours after his arrest, he was released without charge.

The court held that it was inconsistent with the rights of the claimant and his mother, as enshrined in Article 8 of the European Convention of Human Rights, for the Secretary of State to treat 17-year-olds as adults when they are in detention, and that the failure of the Secretary of State to amend Code C was in breach of the Human Rights Act 1998 and hence unlawful.

The Home Office has confirmed that it will not appeal against the decision. It is therefore now incumbent on Theresa May to revise PACE and Code C in order to comply with the law and to extend the protections afforded by statute to 17-year-olds. This will bring PACE into line with the rest of our criminal justice system, which recognises 17-year-olds as juveniles, as well as bringing the UK into compliance with its international obligations.

Disproportionate and unjustifiable

Two very different appeals, with a common theme, came before the Court of Appeal in R (on the application of Catt) v Association of Chief Police Officers of England, Wales and Northern Ireland; and R (on the application of T) v Commissioner of Police of the Metropolis [2013] EWCA Civ 192 (both 14 March 2013).

The first appeal concerned an activist who regularly attended public protests and, despite never having been convicted of any offence, had certain personal details about him recorded on the National Domestic Extremism Database. The court agreed that, in this instance, the inclusion of such data constituted an interference with his right ?to respect for his private life under ?Article 8 which was disproportionate ?and unjustifiable.

The second appeal related to the retention of a police information notice (or "harassment warning") on police systems in respect of an allegation of harassment by one neighbour against another. The court considered the relevant guidance in some detail before concluding that Article 8 was again engaged and that the retention of such material for more than a year was disproportionate and unjustifiable.
The court observed that "since harassment requires a course of conduct, it is difficult to see how the retention of the letter or the CRIS report for a period of more than a year or so at the most could possibly be of any assistance in connection with a prosecution for that offence." Both appeals were allowed.