Civilian Powers
Of Arrest by Adrian Maxwell
Introduction
The Serious and Organized Crime and Police Act 2005 (SOCAPA) s.110 [1]and schedule 7 significantly enlarge the citizen’s powers of arrest. The Police and Criminal Evidence Act 1984 s.24 is repealed and s.24A inserted by SOCAPA. Arrest (for both police and non-police) is now based on necessity rather than seriousness. The citizen’s power of arrest is restricted to indictable offences (IO).There are 16 distinct scenarios when ‘a person other than a police constable’ can arrest an alleged offender. These powers are clearly not aimed at the private citizen (exhorted not to have a go) but at the security industry. The way in which the industry responds will need careful consideration from the board room to operational policy. There may be serious knock on effects in terms of detention policy and facilities, training, staffing levels and obligations under Human Rights legislation.
When the SOCAP bill was going through the House of Lords,
Liberty submitted; ‘It is clearly intended that PCSOs, private security guards
and store detectives and other quasi-policing bodies will exercise these
powers’ [2]There is no record of the government suggesting this was not the intent.
Liberty was concerned that non professional police officers would be fulfilling
a police function. On 06/04/05 Baroness Scotland said the IO condition was
inserted (as the bill was passing through the HOL) to address concerns that
citizens would be allowed to arrest for minor offences [3]
The ‘clarification’ of general arrest powers was prompted by the 2002 Cabinet
Office PACE 1984 Review. However, whilst the review addresses civilian ‘police’
roles (e.g. applying for and executing search warrants, custody suite
management, conducting interviews and taking witness statements) but there is
no discussion of civilian powers of arrest [4]
Police numbers are at an all time high [5] The growing ‘extended police family’
includes 6214 Police Community Support Officers (25,000 by 2008), local
authority neighbourhood wardens and private sector security staff employed in
public areas e.g. in Westminster there are ‘Red Caps’ in Oxford Street and Regent Street, ‘Rangers’ in Piccadilly Circus,Trust Wardens in the Paddington Regeneration area and North
Paddington Neighbourhood Wardens in North Queen's Park. Home Office Community Safety Accreditation Schemes operate under the Police Reform Act 2002. The Railway Safety
Accreditation Scheme[6]allows South East Trains to roll out 60 Rail Enforcement Officers (REOs) and South West Trains has 56 ‘TrainSafe’ officers. The Traffic Management Act 2004 creates uniformed Highways Agency Traffic Officers with wide powers for traffic management on all roads. CIVILIAN POWER OF ARREST The previous narrow civilian powers of arrest lead to uncertainty
e.g. where CCTV control room staff would pass active information to a security
guard who, by the time he responded, would not witness the offence. PACE s.
24A [7]prescribes 16 distinct scenarios where civilian powers of arrest can operate.
Each arrest scenario has 2 primary conditions (1) the arrester must have
‘reasonable grounds for believing the arrest it is necessary’ for one or more 4
specified reasons, and (2) to the arrester ‘it appears that it is not
practicable for a constable to make the arrest instead’. The exact form of
these words is important. The specified reasons are D will; (1) physically
injure himself or others, (2) suffer physical injury, (3) cause loss or damage
to property, and (4) escape before a constable can assume responsibility. The
grounds contain a mixture of objective and subjective conditions which impact
on the lawfulness of the arrest. A person other than a constable may arrest
without a warrant; The Offence Stage[8]
Anyone committing an IO,
Anyone who the arrester has RG for suspecting to be committing an IO,
Anyone who is guilty of an IO, or
Anyone whom the arrester has RG to suspect is guilty of an IO, AND
The Protective Stage
The arrester has RG for believing that it is necessary to arrest D to prevent him;
causing physical injury to himself or another,
suffering physical injury,
causing loss or damage to property, or
making off before a constable can assume responsibility for him, AND
The Police Response Stage
It appears to the arrester that it is not reasonably practicable for a constable to make the arrest instead.
The Offence Stage
The 1st issue is that D must be in the act of committing an IO. This begs the complex legal question of when the act(s) of an offence are complete. If the act is complete the (potential) arrester has then to consider if (1) there are in fact reasonable grounds to suspect that D is committing an IO, and (2) that the arrester has those grounds in mind. Here, if it transpires that D was not in fact committing but that the arrester did in fact have reasonable grounds the arrest will still be lawful. However, a word of caution – compare the use of the phrase ‘reasonable grounds for suspecting’ with ‘reasonable grounds for believing’ in the protective stage. If D is not, in fact, committing the IO and the arrester does not have the reasonable grounds the arrester has then to consider if D is, in fact, ‘guilty’ of the offence. This is difficult word to construe. What if D is eventually acquitted at trial, is the arrest made unlawful? What if the acquittal is on a purely technical point, could the arrester or his employers defend a civil action by asserting guilt and effectively retrying the criminal matter on a balance of probability? If these issues are not difficult enough what does the final part of the Offence Stage mean ‘reasonable grounds to suspect D is guilty-.’?
The Protective Stage
The arrester must have reasonable grounds to ‘believe’ the necessity of the arrest to prevent D doing something or suffering physical injury caused by someone else. There seems a great deal of flexibility here given the ‘belief’ that the arrester must have. There is no qualification of the physical injury condition and what does the phrase ‘assume responsibility for him’ mean?
The Police Response Stage.
‘It appears to the arrester that it is not reasonably practicable for a constable to make the arrest instead’. What does ‘it appears to’ and ‘reasonably practicable’ mean in this context. Can the arrester make the assessment or judgement that it is not reasonably practicable? Can a colleague in the CCTV control room or a regional manager tell the arrester that police are delayed? What if the arrester genuinely believes it but is relying on wholly unreliable or unreasonable information? Can a security company base a policy on published police response times or local known shortages of police manpower?
The powers of arrest are for indictable offences only i.e. offences triable only on indictment in the Crown Court. [9] Whether or not an offence is Indictable can only be found by going to the legislation creating the offence. For an operational security guard that will not be practical. In the HOL debate Lord Wedderburn quoted Professor Spencer as saying ‘these have a go heroes will have to have a law degree’! Baroness Scotland did not address this point in her responses. At the one extreme murder or grievous bodily harm are obviously indictable offences but at the other extreme it may be difficult to know if criminal damage or public order offence is indictable. Another confusing element is that even the simplest theft is an indictable offence.
Those contemplating the operational use of these powers (and it is my view that the government wants the security industry to use these powers) will be concerned on 2 levels (1) a civil action for false imprisonment and / or assault, and (2) the admissibility of evidence in criminal proceedings. It is beyond the scope of this article to address these issues in detail. In criminal proceedings the lawfulness or otherwise of an arrest is generally only relevant when the charge itself is predicated on that lawfulness e.g. assault on police who must, at the time of the arrest, be in the execution of a duty. Obviously this does not apply to security guards – there being no offence of assaulting a security guard in the execution of his/her duty. The admissibility of evidence is governed by s.78 PACE where the criteria will simply be unfairness. It is unlikely in the extreme that a Judge would rule inadmissible evidence of the finding of a terrorist bomb on a person unlawfully arrested by a security guard - there is no Miranda provision in English law. [10]
CONCLUSION
It is clear that these wide powers of arrest are intended for use by the private sector. Why else revise the previous PACE powers at all? Yet there seems very little express government policy on the point. The CCTV Users Group has long lobbied on the specific issue of information passed to security guards by CCTV staff who witness ‘live’ offences. It remains to be seen if the security industry will embrace these powers as a proper development of the role of private sector security or see the powers as coercion to go further into the extended police family. A new PACE Code G, entitled ‘Framework for Arrest’ only refers to police. The Court of Appeal has ruled that private sector investigators must apply PACE Codes when interviewing suspects. The courts will increasingly see the whole PACE regime as applying to the private sector.
[1] In force 01/01/06.
[2] Liberty para 21 Briefing for the 2nd
reading in the HOL of the SOCAPA provisions.
[3] HOL Hansard 06/04/05 column 759.
[4] See Cabinet Office website
[5] 141,230 compared with
127,158 in 1997.
[6] Police Reform Act 2002 s.43.
[7] For the rather convoluted full text of the section see SOCAPA 2005 on the web.
[8] I have divided the arrest process into 3 stages. For the text of the amending s.110 SOCAPA 2005 see the web.
[9] Indictable includes either way offences.