Is no locality condition. If the object is to apprehend someone unlaw-

fully at large, it is necessary that there is reasonable suspicion that the

person is, or is about to be, in the area.

Once a road check is authorised, the police may stop any vehicle,

and, seemingly, at random. By implication, the motorist is under a

duty to remain stationary for a reasonable period. The provision does

not allow a subsequent search or other action, but where necessary

such power will be available elsewhere (e.g. a search under s. 1). The

stopped motorist is entitled, within 12 months, to obtain a written

record of the reasons for the road check. Statistics concerning checks

within each police area must be compiled and included in the police

authority’s annual report (s. 5 (1) (b)). In this way the frequency and

results of road checks can be monitored.

Under s. 24 an ‘arrestable offence’ is either an offence where the

sentence is fixed by law (e.g. murder); or one for which a person may

theoretically, on first conviction, be sentenced to a term of imprison-

ment of five years or more for the offence; or one which is specific-

ally designated by statute as arrestable. Recent additions to the list

include harassment (Protection from Harassment Act 1997), failure to

comply with a police request to remove a mask, and certain offences of

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Police Powers of Arrest and Search in the Investigation of Crime

obscenity and indecency (Criminal Justice and Public Order Act 1994),

a racially aggravated violent offence (Crime and Disorder Act 1998),

carrying an offensive weapon (Offensive Weapons Act 1996), kerb

crawling and failing to stop and report a road traffic accident (Crimi-

nal Justice and Police Act 2001). The definition of arrestable offence

extends also to conspiracy or attempts to commit such an offence as

well as the aiding and abetting of these offences (s. 24 (3)). The number

of arrestable offences will undoubtedly continue to increase.

A ‘serious arrestable offence’ is either one listed in Schedule 5

(e.g. murder, manslaughter, rape and kidnapping) or an arrestable

offence which has led, or is intended or threatened to lead, to certain

consequences (s. 116). The relevant consequences are serious harm to

the state, serious interference with the administration of justice or

criminal investigation, death or serious injury, substantial financial

gain to any person or serious financial loss to any person. As regards

the last, in R. v. Samuel (1988) an offence of burglary was elevated to a

serious arrestable offence because of the loss caused to the householder.

This subjective assessment might entail that the theft from a home-

less person be regarded as a serious loss.

It should be appreciated that the concept of a serious arrestable

offence has resonance beyond road checks and is relevant to search

warrants, detention beyond 24 hours, the taking of intimate and non-

intimate samples, delaying notification of detention to a third party,

and delaying access to legal advice.

21.4.5 Special stop and search powers

In addition to the general power conferred by s. 1–3, there are number

of independent statutory powers of stop and search. These are listed in

Code A: Annex A, and include powers relating to drugs, firearms,

poaching and terrorism. The Terrorism Act 2000, for example, gives

wider powers of stop and search, particularly at ports and borders.

The Act also allows the police to cordon off areas for purposes of a

terrorist investigation and impose parking restrictions in order to

prevent terrorist activity. The Criminal Justice and Public Order Act

1994 s. 60 gives the power to stop and search a person or vehicle for

offensive weapons or dangerous instruments even without grounds

for suspecting that the person is carrying them. This power applies only

where a senior officer reasonably believes that violent incidents may

take place and authorises the power to be exercised for a period of

not more than 24 hours. The Act also allows a uniformed constable

to require any person to remove any item worn for the purpose of

526 General Principles of Constitutional and Administrative Law

concealing identity and to seize such item, a power extended by the

Anti-Terrorism Crime and Security Act 2001 s. 90. These powers are

regulated by the proprieties contained in PACE and Code A. In DSS

v. Avery (2001), for example, a constable asked a demonstrator to

remove a mask under the 1994 Act. It was held that the officer was not

obliged to give his name, police station and reasons for the request.

This was because the removal of a mask did not amount to a search.

21.5 Arrest

21.5.1 Meaning of arrest

The status of the suspect is crucial when determining the powers of the

police and the corresponding rights of the individual. Lawful arrest is

an exception to the right of liberty under Art. 5 of the ECHR. Of par-

ticular importance is the distinction between a volunteer (i.e. someone

‘helping the police with their enquiries’) and the person under arrest.

Although he need not be told of this right unless cautioned, a volunteer

can leave a police station at will (s. 29), whereas the arrested person

cannot. Although there is no statutory definition of ‘arrest’, at com-

mon law it is the physical restraint by compulsion of the freedom of

the individual. Accordingly, taking someone by the arm and saying

‘You are under arrest’ is a sufficient restraint (DPP v. Hawkins (1988)).

As Lord Devlin explained in Hussein v. Chong Fook Kam (1970):

‘An arrest occurs when a police officer states in terms that he is arrest-

ing or when he uses force to restrain the individual concerned. It occurs

also when by words or conduct, he makes it clear that he will, if

necessary, use force to prevent the individual from going where he may

want to go.’ Where words alone are used, the person must submit under

the threat of compulsion (Nichols v. Bulman (1985)). The legal compli-

cations tend to arise, however, in the context of whether a power to

arrest has arisen and, moreover, whether it is exercised lawfully.

21.5.2 Powers of arrest

An arrest for any offence may be authorised by the issue of a warrant

by a single magistrate under s. 1 of the Magistrates’ Courts Act 1980

this being a directive to the police, requiring the arrest of the named

person in order to compel him to attend court. The normal procedure is

that the police present and swear an information to a magistrate that a

particular person has, or is suspected of having, committed an offence.

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Police Powers of Arrest and Search in the Investigation of Crime

The warrant must specify the person to be arrested and the offence,

and, moreover, may be ‘backed for bail’ (which entails that the arrested

person must then be released on bail) or not (in which case the arrested

person must be brought before the court as soon as is practicable). The

warrant will normally be issued only in relation to an arrestable offence

and need not be in the possession of the officer when the arrest is made.

In such case, however, it must be shown subsequently on request and as

soon as is reasonably practicable (s. 125 Magistrates Court Act 1980 as

amended by s. 33 of PACE).

The police also enjoy wide powers to arrest without a warrant

(i.e. summary arrest). In addition to a general power in s. 24 of PACE

relating to an arrestable offence (see 21.4.4), there remain a large

number of specific powers which allow arrest without a warrant. These

relate to offences which are thought sufficiently important to require a

power of arrest without the restrictions which apply to the more gen-

eral powers. They are listed in Schedule 2 of PACE. They include

powers under, for example, the Bail Act 1976 and the Prevention of

Terrorism legislation. Non-listed statutory powers of summary arrest

are repealed but only in the case of powers granted exclusively to the

police. In Gapper v. Avon and Somerset Constabulary (1998) the Court

of Appeal held that a power of summary arrest of a ‘vagabond’ under

s. 6 of the Vagrancy Act 1824 still survived because it conferred a

power of arrest on a private citizen. The Act also preserves the com-

mon law power to arrest for a breach of the peace (s. 25 (6); see Albert

v. Lavin (1982)). Note that Art. 5 (1) (c) of the ECHR authorises arrest

to prevent the commission of an offence, but not in order merely to

preserve peace and general order: Ireland v. UK (1978).

PACE itself offers three avenues whereby a summary arrest can be

made. These are as follows.

(i) For an ‘arrestable offence’

An officer, and a private citizen, is empowered to arrest anyone

who is committing an arrestable offence (s. 24 (4)). For this purpose it

is not necessary to enter into an analysis of exactly when the offence

is completed for, according to the Court of Appeal, to do so would

deter public-spirited citizens from making arrests (Stanley v. Benning

(1996)). In addition, an officer, but not a private citizen, may arrest a

person who is about to commit an arrestable offence or is suspected, on

reasonable grounds, to be about to commit such an offence (s. 24 (7)).

This is an unusual power as it caters for acts preparatory to the

commission of an offence which fall short of an attempt to commit it.

The other arrest grounds are where there is reasonable suspicion that

528 General Principles of Constitutional and Administrative Law

the person has committed an offence or reasonably considered neces-

sary to prevent escape after committing an offence. The officer can

arrest where he has reasonable grounds for suspecting both that an

arrestable offence has been committed and that it was committed by the

person arrested (s. 24 (6)). The private citizen enjoys a similar power,

but this is more curtailed than that vested in the police: s. 24 (5). The

major difference is that an arrest by a citizen, after an offence has

allegedly been perpetrated, will be unlawful unless an arrestable offence

has actually been committed, whether it be by the suspect or someone

else (see Walters v. W.H. Smith (1914); R. v. Self (1992)).