530 General Principles of Constitutional and Administrative Law

constable may arrest him without a warrant. This power extends only

towards a person who has been either convicted of, cautioned for or

warned and reprimanded (under the Crime and Disorder Act 1998) in

relation to a ‘recordable offence’ (i.e. all offences punishable by im-

prisonment and a few other statutory offences) and where fingerprints

have not previously been taken. The later rule gives way, however,

when the fingerprints previously taken are either an incomplete set or

are of unsatisfactory quality. The request to attend the station must be

made within one month of the conviction and the person must be given

at least seven days in which to co-operate. The requirement can be

made only on the authority of an officer of inspector rank (or above)

and provided that there exist, reasonable grounds for suspecting the

individual’s involvement in a criminal offence and that fingerprints will

tend to prove or disprove that involvement. If an arrest is then made,

the fingerprints may be taken without consent (s. 61 (6)).

21.5.3 Method of arrest

For a lawful arrest to occur (whether by the police or a citizen) it is

necessary both that the power of arrest has arisen and that its exercise

is proper (Murray v. Ministry of Defence (1988)). It is also a require-

ment that the suspect be cautioned upon arrest (C: 10.3), but this

strikes at the admissibility of evidence rather than the lawfulness of

the arrest.

As regards the exercise of the power, s. 28 (1), (3), (5) of PACE

requires certain information to be given to the arrested person. This

need not, however, be given by the arresting officer himself. The per-

son must be told of the fact of arrest and the ground for the arrest,

either ‘at the time’ of the arrest or within a short but reasonable time

afterwards (Nicholas v. Parsonage (1987)), or, if met with immediate

resistance or the person escapes after the arrest, for example, as soon as

is practicable afterwards (see Lewis v. Chief Constable of South Wales

(1991)). If the information is not supplied when it becomes practicable

to do so, the arrest from that stage becomes unlawful, but this does not

invalidate previous acts (see DPP v. Hawkins (1988)). Similarly, an

unlawful arrest may become lawful once the information is provided:

Wilson v. Chief Constable of Lancashire Police (2001). These details

must be furnished even if it is obvious that an arrest has been made

and upon what basis (s. 28 (2), (4)). The underlying rationale of this

provision is as explained by Viscount Simon in Christie v. Leachinsky

(1947): ‘[It is] the elementary proposition that in this country a person

is prima facie entitled to his freedom and is only required to submit to

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Police Powers of Arrest and Search in the Investigation of Crime

restraints on his freedom if he knows in substance why it is claimed

that his restraint should be imposed.’ In Clarke v. DPP (1997) it was

unclear whether the arrest was for common assault (non-arrestable) or

assault occasioning actual bodily harm (arrestable). The arrest was

therefore unlawful. The minimum obligation, therefore, is to give the

suspect sufficient information as to the nature of the arrest and to

allow the suspect the opportunity to respond.

In the main, s. 28 reiterates the old common law approach (see

Christie v. Leachinsky (1947)). But the information need not be ex-

pressed in technical terms: ‘I am arresting you on suspicion of burglary’

was insufficient in R. v. Telfer (1976) because the police should have

informed the suspect of the particular burglary he was being arrested

for. In Murphy v. Oxford (1985) the view was taken that the details

should be such as to allow the detainee to explain his innocence. There,

the words ‘You are wanted on suspicion of burglary in Newquay’

spoken to a person arrested in Liverpool were also held insufficient.

As Donaldson MR explained: ‘He [the detainee] is entitled to much

fuller details in order that he may be able to deny the charge, if he is

innocent, with conviction.’ The information should have included the

date and more exact geographic location of the offence. In Ireland v.

UK (1978), it was not enough to tell the individual that he was being

detained under emergency legislation. All turns on the facts of each

case, and whether sufficient information has been given is for the jury

to decide. For example in R. v. Green (1996) the arrest was unlawful

because the accused was told only that ‘you are wanted on a warrant

and I am arresting you’. If, moreover, the wrong ground is provided,

the arrest is unlawful (Edwards v. DPP (1993)) and continues to be so

until the correct reason is stated (Lewis v. Chief Constable of South

Wales (1991)).

Article 5(2) of the ECHR emphasises that an arrested person is to be

promptly informed, in a language which he speaks, of the reason

for the arrest in straightforward terms. This, seemingly, adds nothing

to the common law.

21.5.4 Treatment of arrested persons

Unless released, the arrested person should normally be taken to a

‘designated’ police station, that is, one with suitable facilities for the

detention of suspects (ss. 30, 35). This should be done as soon as is

practicable, but delay may be justified in order to take the suspect else-

where ‘in order to carry out such investigations as it is reasonable to

carry out immediately’ (s. 30 (10)). Although a matter of degree, this

532 General Principles of Constitutional and Administrative Law

would cover the situation where, for example, a constable takes an

arrested person to an address in order to verify an alibi (Dallison v.

Caffrey (1965)). It does not, however, give the officer carte blanche to

carry out interrogation which ought properly to occur at the police

station (R. v. Khan (1993)). This is also recognised in Code C (11.1)

which expressly states that a suspect must not be ‘interviewed’ except at

a police station unless a delay would lead to certain consequences, such

as hindering the recovery of property. The aim of s. 30 is to ensure that

the arrested person benefits from the various safeguards (e.g. access

to a solicitor) which operate only on arrival at the police station

(R. v. Keane (1992)). The Code does not apply to an interview carried

out before the interviewee became a suspect (R. v. Mellor (1996)).

The problem that has emerged concerns how to distinguish an

‘interview’ from other forms of questioning (see R. v. Cox (1993)). The

answer appears to be that an ‘interview’ is a question-and-answer

session which relates to the involvement of the suspect with an offence

(R. v. Oransaye (1993)).

As with the exercise of any power bestowed by the Act, the police

officer (or citizen) can use ‘reasonable force’ in its lawful exercise

(s. 117). What constitutes ‘reasonable force’ will clearly depend on the

circumstances and is a question of fact (see Sturley v. Metropolitan

Police (1984)). In Pollard v. Chief Constable of West Yorkshire Police

(1998) a police dog bit a suspect on the ear. Although the crime con-

cerned criminal damage amounting only to £18, the dog was assisting in

the arrest and its actions did not constitute unreasonable force. In con-

trast, in Murgatroyd v. Chief Constable of West Yorkshire Police (2000)

the use of a police dog to disable a potentially suicidal person was

unreasonable force. The purpose of the police dog was to protect the

police from harm rather than to counter a mere risk that a person will

self-inflict harm. If there had been an immediate threat of harm,

however, it is possible that the court would have felt the force to be

reasonable. In any case the use of undue force does not render the arrest

unlawful (Simpson v. Chief Constable of South Yorkshire (1991)).

21.6 Search Before and Following Arrest

The police are given a specific statutory power (PACE s. 17 (1)), in

addition to any other legislative provision and common law right, to

enter and search premises without a warrant in order either to arrest

someone for an arrestable offence; to recapture a person unlawfully at

large who is in the process of being pursued (D’Souza v. DPP (1992)), to

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Police Powers of Arrest and Search in the Investigation of Crime

save life or limb, or to prevent serious damage to property (see generally

Chapman DPP (1988)). Except for the life/limb condition, the require-

ment is that the constable must have reasonable grounds for believing

that the person sought is actually on the premises. There is no power

of search if the person is arrested on the driveway to, or front step of,

the property: R. v. Commissioner of Police for the Metropolis (2001).

As acknowledged in O’Loughlin v. Chief Constable of Essex (1998)

an attempt is made to ‘balance’ the incommensurables of the public