Court in the Act: Procedural Progression in the Law of Arrest,Detention and Failure to Answer to Bail

Introduction

After the defeat of the Labour Government in the 2010 General Election, the formation of the Conservative Coalition Government precipitated a crusade of legal change, redefining itself through the introduction of a ‘Freedom Bill’. This commitment was originally made in The Coalition: Our Programme for Government (‘the Coalition Programme’), published on 20 May 2010. This argued that:

the British state has become too authoritarian, and that over the past decade it has abused and eroded fundamental human freedoms and historic civil liberties. We need to restore the rights of individuals in the face of encroaching state power, in keeping with Britain’s tradition of freedom and fairness. ¹

The Programme went on to say that the Government would ‘implement a full programme of measures to reverse the substantial erosion of civil liberties and roll back state intrusion’. ² The Protection of Freedoms Act 2012 (hereafter ‘PoFA 2012’) gives effect to the government’s commitment to reduce more than 1300 existing Powers of Entry (PoEs), which enable state officials to enter and inspect homes and businesses to carry out their regulatory duties. ³ However, the ensuing reform has meant a dichotomy has since developed between PoEs pursuant to ss 39–53 of PoFA 2012, and the introduction of the Policing and Crime Act 2017 ⁴ (hereafter ‘PCA 2017’). Section 72 of the latter amended s. 17 of Police and Criminal Evidence Act (PACE) 1984 ⁵ by inserting new text—and the effects of this demonstrate how the early background of commitment to reduce existing PoEs, detention and bail may have been lost. The prosaic fashion of this executive programme of reform could thus be described as having no cohesion of vision but for a display of different views.

Section 17 of PACE makes provision for the circumstances in which the police may exercise statutory authority, if necessary using force to enter premises in order to effect an arrest. ⁶ Despite the inherent necessity of safeguards in the exercise of power, practitioners and those subject to traversing the mixture of arrest and detention are reminded how important and necessary it remains for the police and other agencies to have the tools that allow for the necessary enforcement of regulations, which enable the effective investigation of offences and facilitate the protection of the public from harm. ⁷

Arresting Matters: Powers of Arrest

This section of the article is on three main aspects of the interaction between police officers and suspects, namely: (a) pre-arrest and arrest, (b) caution and legal rights and (c) detention.

The powers of the police in England and Wales are defined mainly by statute law, principally the PACE 1984, the Police Act 1996 and the Serious Organised Crime and Police Act 2005 (SOCPA) ⁸ —wherein police powers were greatly reformed in relation to arrest and the powers available to constables following an arrest. Section 24 of PACE ⁹ provides the power of arrest for a constable without a warrant. There have to be ‘grounds’ for the arrest as well as a ‘reason’ why the constable finds it necessary to arrest a suspect. ¹⁰ Furthermore, there is a statutory requirement to explain, and where practicable, to supply information for the arrest and caution. ¹¹ On the other hand, arrest with a warrant is pursuant to s. 1 of the Magistrates Act 1980. ¹² Arrest can also follow voluntary attendance at a police station, or at another such place where a constable is present, if the arresting constable feels it is necessary, and there are sufficient ground and reasons to arrest. ¹³ As long as the constable adheres to the correct procedure, ¹⁴ then arrest can take place at the police station. For any arrests made other than at a police station, ¹⁵ the suspect must be brought to a police station as soon as practicably possible. However, there is no legal requirement that a suspect must be taken to the nearest police station. ¹⁶

The arrest procedure commonly consists of the following four steps:

Arrest (‘I’m arresting you on suspicion of…’);

In Safe Custody? Power of Detention

There are three different types of detention: detention without arrest, detention after arrest (pre-charge) and detention after charge. A common question is that of whether the police in England and Wales have a power to ‘detain’ suspects without having made a formal arrest? The simple answer is that they cannot. This was made clear in the case of Walker v The Commissioner of Police of the Metropolis, ¹⁹ as per the elaboration of Rix LJ ²⁰ : ‘a Police Officer has no greater powers than a member of the public does to detain another person’. ²¹ The case highlights the potential scope for police misconduct regarding PACE 1984, including wrongful arrest, and detention prior to arrest.

The authority to detain and question a suspect is regulated in Part IV and V PACE 1984 and Code of Practice C—which set out the criteria to which the police must adhere, regarding the safeguards for the person detained. As mentioned above, detention can be without arrest only in limited circumstances, with detention being more commonly encountered after arrest. ²² Code C also applies to persons in a police station as a place of safety. ²³

Law Commission Consultation: Entry and Search Without Warrant

A Consultation Paper on Search Warrants, released by the Law Commission on 5 June 2018, may yield yet further points. ⁴² ‘Arrest’ is not defined by PACE 1984, or other legislation—and there is some inconsistency in the case law. ⁴³ Section 24 of PACE 1984 outlines the police’s power to arrest without a search warrant. ⁴⁴ Arrests can also be executed with a search warrant (ss 15 and 16 PACE 1984). In 2017, the Law Commission started its review of the law and procedure governing search warrants. The review broadly considers the law regulating the procedures when applying for, issuing, executing and challenging a search warrant. ⁴⁵ In Chapter 3 of the Consultation Paper, the Law Commission provisionally proposes that ss15 and 16 PACE should apply to all search warrants that relate to a criminal investigation, irrespective of who is making the application and who is carrying out the search. ⁴⁶ The Commission identified 176 search warrant provisions (which are listed in Appendix 1of their paper). ⁴⁷

Entry ⁴⁸ for the purpose of arrest ⁴⁹ does not necessarily need challenging, as an officer, with consent, can search a premises. ⁵⁰ Other than the PoE to deal with or prevent a breach of peace, all common-law powers of a constable to enter premises without a warrant were abolished by the introduction of PACE 1984. ⁵¹ However, the concept of ‘preventive policing’, especially regarding breach of the peace, is fast becoming part of normal police practice. The lawfulness of such strategies has been considered in a number of legal challenges, the most recent ⁵² of which being when the Supreme Court held that ‘pre-emptive’ arrests before the wedding of Prince William and Kate Middleton in 2011 were not in breach of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR 1950). ⁵³ It remains to be seen what recommendations Consultation Responses may make.

Entry Extended: Section 72 of the PCA 2017

There have been a number of recent changes to the law of arrest, detention and bail. Section 72 of PCA 2017 has amended s. 17 of PACE 1984, integrating elements of the Bail Act 1976 and the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO 2012). Section 17 of PACE 1984 provides the police with the power to enter and search premises for the purposes of arrest. The new amendment now provides the police with the PoE to premises, to exercise their existing power to make an arrest for breach of bail (whether pre- or post-charge), under any of the powers set out in the Section. ⁵⁴ Section 72 of PCA 2017, in amending s. 17 of PACE 1984, has thus made significant changes to the law of entry to premises for the purposes of arrest.

Following the amendment, in addition to the pre-existing powers, officers can now enter and search any premises:

To execute an arrest without a warrant, pursuant to s. 30(D)(1) or (2A);

or:

The overall rationale of Part 4 of PCA 2017 was to build public confidence in policing; to strengthen the protections for persons under investigation by, or who come into contact with, the police—and to ensure that the police and other law enforcement agencies have the powers they need to prevent, detect and investigate crime; and to further safeguard children. ⁶⁰ In addition, it sought to improve the efficiency and effectiveness of police forces, including through closer collaboration with other emergency services. ⁶¹

However, what now exists is a situation presenting a multiplicity, with too many imponderable legislative powers of arrest, detention and bail—to the extent that, even by candlelight, the division between piecemeal progress and statutes only completes the uncertainty.

Keeping Up with the PACE: Concluding Comments on the Case for Change

There have been a number of changes to the law of arrest, detention and bail. Section 72 of the PCA 2017 has amended s. 17 of PACE, to integrate elements of the Bail Act 1976 and the LASPO 2012. Section 17 of PACE provides the police with the power to enter and search premises for the purposes of arrest. The new amendment provides the police with the PoE to premises to exercise their existing power to make an arrest for breach of bail (whether pre- or post-charge), under any of the powers set out in the section. ⁶² As explained, the overall rationale of Part 4 of the PCA 2017 was said to have been to build public confidence in policing; strengthen the protections for persons under investigation by, or who come into contact with, the police; ensure that the police and other law enforcement agencies have the powers they need to prevent, detect and investigate crime; and further safeguard children. ⁶³ It also aimed to improve the efficiency and effectiveness of police forces, including through closer collaboration with other emergency services. ⁶⁴

However, there are too many imponderable legislative powers of arrest, detention and bail. Even on candlelight-close examination, the division between statutes and the vast array of piecemeal fragments of common law only serves to complete the uncertainty. This is a situation which is not likely to improve any time soon, as the provisions of the new Act will inevitably require clarification and interpretation at common law.

It is necessary to also address the practices regarding the contemporary use of bail. One opinion on this area would be that the contemporary use of bail has a double objective—namely that the recent and incremental amendments made to various statutes, and the array of available criminal offences (including those to do with bail) all inevitably imbue the suspect as more likely now than ever to fall foul of breach of bail—even inadvertently. Subsequently, the Magistrates’ Court will corroborate or increase the bail conditions sought—or, in many such cases, may instead opt to remand the suspect in custody until the date of their trial. The reasoning process applied by individual Benches of Magistrates may not always bear a great degree of standardisation or similarity, despite such consistency being prevailingly encouraged across the criminal justice system.

However, for a remanded suspect (who remains legally innocent unless and until they are found to be otherwise by the court’s verdict), the prison experience can be devastating. Remand often places those with little or no prior ‘prison experience’ in a situation which they are ill-equipped to handle—and means they are removed from their daily lives for a period of weeks, months, or, in some cases, years. The resultant effects can be as devastating, if not more so, than their experience of imprisonment—frequently involving the breakdown of their family, possible loss of their children, ⁶⁵ loss of employment and loss of respect—with the resultant effects on their surrounding communities. The list here could go on—but the fact that this can also affect those who are innocent, in its indiscriminate application, is an indictment of the very notion of justice.

The faithful followers of contemporary bail discussion may here suggest that the further acts of arrest, detention and bail derive from the suspect’s own conduct—and so that it is, in a sense, just deserts. However, as discussed above, decades of ‘progression’ in this area has arguably had a pronounced tendency to make breach of bail incrementally more likely—not less. The issue is compounded by the abstemiousness of public awareness of much detail on pre-charge bail, and its criteria. This innocent ignorance can inflict an austerity of living—with the ardent desire to prove one’s innocence curtailed.

Nevertheless, the inducement to passing more criminal laws remains a creature prone to appear whenever called, with its appearance being heralded in the public arena with the fanfare of success. The caprice of legislative inhibition is just one consequence of a public largely insulated from personal experience of the criminal justice system, who may be increasingly keen on society being ‘tough on crime, and tough on the causes of crime’. Originally introduced under the Labour era, the attributes of this largely unchallenged mantra, and its additional powers in this area, has been passed onto the current administration, in spite of popular public perceptions of their political polarity.

Section 72 of the PCA 2017 is, in many respects, the latest apprentice. Certain aspects of the Act also fit, in a magnetically tessellating fashion, with other statutes, such as PACE 1984, the Bail Act 1976 and the LASPO 2012. It could be said that the first object of s.17 may have been to expose how the police and courts required additional legislative powers to arrest for failure to answer to bail. However, the arrest powers within s. 17 seem to carry an electric current of assumption that all pre-charge bailees are guilty—when this is frequently incorrect. Nevertheless, such philosophical jurisprudential truths remain unlikely to be welcomingly received by any Police Custody Suites—unlike suspects.

This is a conflict which has only been exacerbated by the latest increase in police powers to arrest for failure to adhere to pre-charge bail conditions. Following the asceticism of the changes introduced in Part 4 of the PCA 2017, the perception of pre-trial innocence (let alone pre-charge innocence) has been impeded by the new powers—and the golden thread of suspects remaining ‘innocent until proven guilty’ ⁶⁶ would seem to be at risk of abandonment, at least in the perception of the public. In this sense, recent reforms may be at risk of being less of a requirement, and more of a rapine of suspects’ rights. To conclude, as Kafka once noted, caution is now necessary to ensure that it does not become ‘an essential part of the justice dispensed here that you should be condemned not only in innocence but also in ignorance’. ⁶⁷