[Note that the power of the police to deprive a citizen of their liberty is a significant one. It is the front line of the powers of the State over citizens. Because most people consider arrests to be a good thing phew, they finally got that b***ard; this is often overlooked]
Following an Act of 1967, arrests without a warrant were permissible for offences that carried a maximum sentence of five years or more. This meant murder, treason and other serious crimes. However, there were also some other legacy justifications for arrest without warrant, that needed updating (e.g. for obliterating marks denoting that property in stores is HM property). A Royal Commission was established under Sir Cyril Phillips to update the powers of arrest without warrant.
According to Ewing and Gearty , the government of the time has fastidiously chosen from the menu of options offered by Phillips only those dishes that it thought most palatable. The real taste is disguised by the grandiose wording that accompanies them.
Although the new Act was introduced to replace the original hotch-potch of laws, not all of the old laws were repealed. The common-law right to arrest for breach of the peace was untouched, and other Acts defining other arrestable offences were not affected, notably the Prevention of Terrorism Act.
The 1984 Act defines arrestable offences as being those carrying possible prison sentences of five years or more, as did the 1967 Act. However, there is a long list of exceptions. Some are understandable, such as sexual offences and crimes against customs legislation and property. Conspiring to commit any arrestable crime is also arrestable. However, the Government also made arrestable offences under the Official Secrets Act, including the extraordinarily broad section 2 (in which almost any information that a government employee had might be considered a secret').
The Phillips Commission had held to the principle of necessity, that is to say that an offence had to be arrestable and it had to be necessary. Necessity would come about if, for example, the person refused to identify themselves, or if they were considered likely to fail to attend court, or likely to cause further damage to people or property.
The Act turns this necessity principle into another justification for arrest without warrant, in effect saying that arrest without warrant was justified if the offence was arrestable or if the arresting officer thought the person was giving false information as to their identity, unlikely to turn up at court etc. Note that the officer just has to have reasonable grounds for believing that a person is lying about their identity, or will cause damage to a person of property.
Note also that the Act also calls any offence arrestable if the name of the person is not known to the police officer, and he or she cannot readily ascertain it. Which means, in effect, that unless a citizen is carrying an identity card of some sort, any offence that an officer thinks that citizen is committing is arrestable.
As Ewing and Gearty point out, this leaves homeless people and those with unusual names in an extremely vulnerable position. They give an example [Nicholas v Parsonage 1987 RTR 199] in which a cyclist who refused to place both hands on the handlebars was eventually arrested for failing to give his name and address. The validity of this arrest was upheld.
Phillips argued for a 24 hour detention period before which a person had to go before a court. Allowances were made for a small minority of cases which were for grave offences, where, for example, the person might have to travel to a distant police station where the crime was being investigated, or where forensic evidence might have to be checked. Phillips did not say that the desire to interrogate longer was an adequate reason for extended interrogation. As a safeguard, Phillips recommended that a person be able to see a magistrate after 24 hours, and be legally represented at that point.
However, the Government did not follow this. I quote at length again from Ewing and Gearty:
The Government followed few of these suggestions…The police now (in 1990) have up to ninety-six hours, i.e. four days and nights, to detain people without charge. Nowhere is this said directly. The greatly increased power which flows from the Act is enshrouded in a mist of complicated statutory provisions. It is protected from public scrutiny by the technicality of its jargon. Words rarely mean what they seem to say. Grandiose guarantees of freedom are liable to be contradicted in a couple of discreet subparagraphs, loitering at the end of a page…It is a bureaucracy of incarceration beyond the dreams of the bleakest writer.
Some safeguards are placed on the up-to-four-day incarceration period. Firstly, the offence must be serious and arrestable, though serious is not tightly defined. Secondly the investigation has to be conducted diligently - again so vague as to be meaningless.
Day 1: The detainee has a fairy god mother officer who is supposed to keep an eye on their well-being. After prescribed intervals (six hours, fifteen hours and every nine hours thereafter), senior review officers are supposed to look in on the detainee to check that all is well. However, the test of whether the suspect can be released is very loose. If after a given period, the police do not have sufficient evidence to charge, then they should let the detainee go. Except if they need to preserve evidence relating to the arrest or wish to obtain such evidence by questioning. So in reality, if the police want to keep questioning a detainee they can. Oh, and any such review by a senior officer can be delayed if it is not practicable.
The detainees solicitor can make representations about the continuing detention, but the police do not have to listen to them if they decide the suspect is unfit.
Day 2/3: If the police wish to keep detaining a person, they must get a warrant from a magistrate. If the police wish to continue interrogating the detainee, that is considered sufficient reason. There does not have to be any evidence that a crime had even been committed, only that the police have reasonable suspicion.
Day 3/4: If the police go to the magistrates again, they can get another 36 hours of detention. The suspect must appear this time, and may be legally represented. However, the police need no further reason to detain the person other than the desire to continue questioning. The magistrate decides whether the warrant is justified. In London in 1986, 101 warrants were asked for by police. 100 were granted.
|2.||K.D. Ewing and C.A. Gearty||Freedom under Thatcher: Civil liberties in Modern Britain||OUP, 0198254148
out of print
© magnacartaplus.org 13 May 2001
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