Making an arrest in order to activate PACE entry and search powers: The Law Commission and a missed opportunity for clarification

Introduction

In October 2020, the Law Commission published a voluminous report marking the culmination of its project on search warrants. ¹ As might be expected, the report contains many recommendations. For present purposes, however, the focus of the discussion relates to a matter which was less significant in the context of the project as a whole, but of no little practical importance; whether an arrest under s 24 of the Police and Criminal Evidence Act 1984 (PACE) can ever be necessary solely for the purpose of activating a consequential power of search under either s 18 or s 32(2)(b) of PACE. This grey area of the law was specifically drawn attention to by the Commission in its consultation document. ² It will be argued in the discussion which follows that it ought to have been clarified as a by-product of the Commission’s project. This is not simply because ambiguity in the law is undesirable as a matter of general principle. Rather, it is primarily due to the fact that legal uncertainty is troubling when it relates to the availability of coercive and intrusive police powers which impact upon fundamental human rights, in particular liberty, property and privacy.

The Necessity of an Arrest

As a result of reforms made to police powers of arrest by the Serious Organised Crime and Police Act 2005, where a person is about to commit, is committing or has committed an offence, or a police officer has reasonable grounds for suspecting this to be the case, they may exercise their discretion ³ to make an arrest provided that they have reasonable grounds for believing that it is necessary to do so. ⁴ The reasons which may render an arrest necessary are listed in s 24(5) of PACE. They include matters relating to the name or address of the suspect, ⁵ and what have been referred to as the ‘preventive reasons’, ⁶ that is, where an arrest is necessary in order to prevent the suspect causing physical injury to himself or another, ⁷ suffering physical injury, ⁸ causing loss of or damage to property, ⁹ committing an offence against public decency ¹⁰ or causing an unlawful obstruction of the highway. ¹¹ The s 24(5) list largely reflects what were formerly the ‘general arrest’ conditions under the now repealed s 25 of PACE. ¹² These applied in respect of what PACE originally referred to as ‘non-arrestable offences’, that is, less serious criminal offences. In removing what it termed the ‘gateway of seriousness’ in the context of the polices’ statutory power of arrest, and substituting instead the requirement that an arrest must be necessary for the power to be exercisable, ¹³ the Home Office ¹⁴ made two additions to what had been the ‘general arrest’ conditions. The broadest of these is to be found in s 24(5)(e) of PACE. It provides that an arrest may be necessary ‘to allow the prompt and effective investigation of the offence or of the conduct of the person in question’.

When the Serious Organised Crime and Police Bill was progressing through Parliament, some concerns were expressed in relation to what became s 24(5)(e) of the 2005 Act. Thus, for example, Dominic Grieve MP observed during the Bill’s Committee stage that the provision had something of a ‘catch-all’ nature in the sense that it provided ‘an open door to arrest on fairly trivial grounds’. ¹⁵ While in principle such a criticism is not without foundation, the reported decisions on s 24(5)(e) suggest something of a mixed record in terms of the lawfulness of an arrest for this reason. ¹⁶ In one particular case, R (L) v Chief Constable of Surrey, ¹⁷ a novel point arose for consideration; whether the operational advantages to the police of being able to use the post-arrest search power under s 18 of PACE entitled them to reasonably believe that an arrest was necessary for the purpose of s 24(5)(e). The point was of practical importance because in the absence of an arrest, the police would have otherwise required a warrant to search the premises. Since Jay J concluded that on the facts, the officers ‘did not have reasonable grounds for believing that it was necessary to arrest the claimant in order to exercise their summary powers under s 18 of PACE’, ¹⁸ he refrained from deciding the point of principle. He did note, however, that if the desire to activate the s 18 search power could be the sole reason for an arrest under s 24(5)(e), it would mean that the police were able to bypass the safeguards relating to the issue and execution of a search warrant provided for in Part II of PACE.

The safeguards, which are to be found in ss 15 and 16 of the Act, relate to search warrants issued to the police under any enactment, ¹⁹ which is in itself a reflection of their importance. They include the requirement that an application for a warrant must specify each set of premises which the police wish to enter and search, ²⁰ that an officer must answer on oath any question put to them when the application is heard ²¹ and that the occupier of the relevant premises must be supplied with a copy of the warrant at the time of entry. ²² The latter safeguard is particularly important since it confirms to the occupier that a person independent of the police investigation, a magistrate or judge, has authorised what amounts to an interference with their privacy and property rights. Where a full copy of the warrant has not been supplied, the courts have been swift to hold that an entry and search was therefore unlawful. ²³

Jay J did not expressly state in R (L) v Chief Constable of Surrey that the point of principle was a matter which might be addressed by the Law Commission. This is in contrast to what other judges had previously remarked in different contexts. ²⁴ Nevertheless, the law reform body is very well placed to undertake the ‘thorough exploration’ of the differences between ss 8 and 18 of PACE to which he referred. Those differences caused Jay J to describe s 8 as being a ‘narrower power’ ²⁵ than s 18. That narrowness arose from a number of factors. They include the need for judicial authorisation, that the material searched for must not only be likely to be relevant evidence but must also be likely to be of substantial value to the investigation, ²⁶ and that a warrant issued under s 8 does not authorise a search for items subject to legal privilege, ²⁷ or excluded ²⁸ or special procedure material. ²⁹

The Law Commission’s Consultation

In the consultation paper ³⁰ which was published as part of its search warrants project, ³¹ the Law Commission noted, among other things, that ‘stakeholders expressed concern regarding the interplay between sections 18, 32 and the search warrant procedure’. ³² It had been suggested to it, for example, that there may be a tendency for the ‘more time-consuming procedures involved when applying for a search warrant’ to be side-stepped by making an arrest and thereby activating a consequential statutory power of entry and search. Moreover, concerns were expressed that by carrying out a search under either ss 18 or 32, the police are able to look for journalistic material ³³ which amounts to ‘special procedure material’, and which is therefore subject to tighter safeguards. ³⁴

The Law Commission understandably drew attention to the decision in R (L) v Chief Constable of Surrey, in particular to the observations made by Jay J after he had indicated that it was neither necessary nor desirable for him to determine the point of principle. These included that previous case law had come close to determining the issue, and that if a search warrant application were refused, ³⁵ there was considerable force in the argument that it would be unlawful to circumvent the refusal by making an arrest so as to activate the s 18 power instead. ³⁶ Jay J had also opined that there were no linguistic or textual reasons which prevented a search being part of a prompt and effective investigation for the purposes of s 24(5)(e) of PACE. ³⁷ It was noted by the Commission, therefore, that as a result of these obiter observations, ‘it remains unclear whether the intention to search premises on its own can constitute a lawful motive for arrest’. ³⁸

Of the three observations, the first is the most significant in the present context. The previous case law to which Jay J referred was the decisions in Hayes v Chief Constable of West Midlands Constabulary ³⁹ and Lord Hanningfield of Chelmsford v Chief Constable of Essex Police. ⁴⁰ Of the two cases, Lord Hanningfield came closer to deciding the point of principle. ⁴¹ Thus towards the end of his judgment, Eady J remarked that while it was ‘not for a judge to second-guess the operational decisions of experienced police officers’, nevertheless on the facts, there was ‘no justification for bypassing all the usual statutory safeguards involved in obtaining a warrant’. ⁴² It is important to note, however, as Jay J did, ⁴³ that Eady J’s observation was confined to the circumstances of the case before him. Thus, it did not amount to a more general assertion that the statutory safeguards could never be bypassed by making an arrest for the purpose of activating the s 18 power. As such, it stopped some way short of endorsing counsel for the claimant’s submission that ‘considerations germane to section 18 can never by themselves constitute a ground of necessity for arrest’. ⁴⁴

As one might expect of a body whose raison d’etre is to make recommendations concerning law reform, the Law Commission felt that it was ‘unsatisfactory that a definitive answer cannot be gleaned from the current law’ ⁴⁵ in relation to the present issue. It therefore offered up to consultees three potential options for resolving the ambiguity: (i) to provide that in the absence of other motives, the intended search of premises can never constitute a lawful ground for an arrest; (ii) conversely, to provide that even in the absence of other motives, the intended search of premises can always constitute a lawful ground for an arrest; or (iii) to provide that ‘the intended search of premises, absent other intentions, can constitute lawful grounds for arrest provided that there are reasonable grounds for believing that it is not practicable to obtain evidence through other means’. ⁴⁶ In order to arrive at the belief that evidence could not be obtained by other means, alternatives such as obtaining a search warrant or seeking the voluntary production of the items sought would need to be considered. ⁴⁷ If in the circumstances such a belief was not objectively reasonable then, as the Law Commission noted, an arrest would be unlawful. ⁴⁸

In publishing its consultation paper, the Law Commission’s provisional view was that option (iii) was preferable. ⁴⁹ Thus it felt that ‘the normal procedure should be by way of search warrant, and an arrest for the purpose of search should only be made if using a warrant would be impracticable’. ⁵⁰ The attraction of such an approach is that it would prevent the search warrant regime and its safeguards ⁵¹ from being too easily bypassed. It would also accord due weight to the privacy and property rights of the individual, ⁵² while at the same time recognising that depriving a person of their liberty ⁵³ is a significant step which ought not to be taken lightly. The latter is a particularly important consideration, especially when it is remembered that arresting a person may cause ‘psychological upset’ as well as having other potential consequences. ⁵⁴

The Final Report

The Law Commission’s consultation paper left consultees in little doubt that it regarded the present legal uncertainty relating to whether the intention to undertake a post-arrest search of premises fell within the scope of s 24(5)(e), as being undesirable. Indeed, it went so far as to suggest that it was ‘confusing and should be clarified’. ⁵⁵ It is notable, therefore, that by the time that the Commission published its final report, its position on this issue had changed. Thus, while it remained of the view that it is ‘unsatisfactory that no definitive answer can be gleaned from the current law’, ⁵⁶ it opted not to follow through with its provisional proposal. Instead, it expressed itself as being ‘hesitant to recommend reform in this area’ on the basis of its acceptance that any change ‘may have a wide-ranging impact on police powers of arrest’. ⁵⁷ It also suggested that since this was a ‘peripheral issue’ with regard to its terms of reference, it was unnecessary for the Commission ‘to seek to resolve it in a report concerning search warrants’. ⁵⁸

This volte-face on the part of the Law Commission comes as a surprise. If the issue was indeed ‘peripheral’, then it is open to question why consultees were being asked to comment on it in the first place. ⁵⁹ Although the Commission undertook the review of the law and practice relating to search warrants at the request of the Home Office rather than on its own initiative, following ‘comments made by senior members of the judiciary suggesting that the law governing search warrants is unnecessarily complex, liable to give rise to challenges and in need of reform’, ⁶⁰ the terms of reference of the review ⁶¹ included ‘identifying and addressing pressing problems’. ⁶² While it might be argued that these were implicitly confined to search warrants, the issue relating to whether the need for a post-arrest search of premises falls within s 24(5)(e) of PACE is a ‘pressing problem’. It is also clearly connected to the review since, as was noted previously, it constitutes a means by which the search warrant regime can be circumvented. Given the comprehensive scale of the review of search warrants which the Law Commission undertook, it therefore seems a little hollow to contend at such an advanced stage of the process that it was a ‘peripheral issue’ which need not be resolved.

In the Law Commission’s defence, the responses which it received relating to its provisional view on the present issue were neither numerous ⁶³ nor united. Thus, less than half of those who responded agreed that option (iii) was preferable, and nearly a third of respondents ‘expressed other views’. ⁶⁴ The Law Society, which disagreed with the proposal, argued among other things that its effect would be to enable the police to arrest a person who was in control of the relevant property, but who was unconnected with the offence under investigation. Such a view is, however, at odds with the wording of s 24 of PACE. This makes it clear that a person can only be arrested where they have committed, are committing or are about to commit an offence, or it is reasonably suspected that this is the case. ⁶⁵ Other objections had greater merit, especially those based on concerns that otherwise unnecessary arrests would be made in order to activate the search of premises. ⁶⁶ It was also contended by several respondents that the Law Commission’s proposal may ‘bring about a fundamental change to police powers’ with potentially ‘wide-ranging’ consequences and that in the light of this, there was a need for ‘further analysis’ to be carried out. ⁶⁷

There may be an argument that reform in relation to this aspect of police powers ought to be the product of a ‘more detailed and extensive consultation’ ⁶⁸ than has occurred hitherto, and that any changes which are championed ought to have received widespread support. It may be counter-argued to this that the narrowness of the issue makes it unlikely that it will be addressed as a discrete Law Commission project in the future. ⁶⁹ If this is correct, it could be some years before a suitable wider project is undertaken which can incorporate a consultation on this issue. In the meantime, the uncertain legal position regarding the relationship between s 24(5)(e) and ss 18 and 32(2)(b) of PACE persists.

Conclusion

In contrast to the position in relation to the police powers of stop and search and arrest, where official figures as to their use are kept by each of the 44 police forces in England and Wales and reported to and published by the Home Office on an annual basis, ⁷⁰ police records relating to the use of entry and search powers under ss 18 and 32 of PACE are not published. The research evidence relating to their usage is dated. However, studies undertaken in respect of different police forces by Lidstone ⁷¹ and Bottomley et al ⁷² revealed that not long after PACE had entered into force, s 18 searches were commonplace and were occurring far more often than searches under warrant. Indeed, as Professor Zander notes, the Bottomley et al study found that s 18 accounted for two-thirds of all recorded searches whereas searches under warrant only constituted one-eighth of the total. ⁷³ While these studies are at least 30 years old, it seems unlikely that police practice will have changed considerably in the intervening period. Thus, as the Law Commission has itself noted, ss 18 and 32(2)(b) ‘are important powers, which are routinely used’. ⁷⁴

They empower the police to enter and search premises which are either ‘occupied or controlled’ ⁷⁵ by a person under arrest for an indictable offence, ⁷⁶ or which was where a person was at the time of their arrest for an indictable offence, or immediately prior to their arrest. ⁷⁷ In the case of the s 18 power, therefore, there needs to be a direct connection between the premises to be entered and searched and the person under arrest, even though PACE fails to define the phrase ‘occupied or controlled’. ⁷⁸ Where the s 32(2)(b) power of entry and search applies, although such a connection may exist, it is not a prerequisite. Accordingly, under the power the police may enter and search ⁷⁹ the home of an entirely innocent third party.

Safeguards do exist in relation to the s 18 power. Thus, for example, an entry and search requires prior written authorisation from an officer of the rank of inspector or above. ⁸⁰ However, this oversight need not occur where the presence of the arrestee at a place other than a police station is necessary for the effective investigation of the offence. ⁸¹ Where the exception applies, a senior officer must simply be informed that a search has been undertaken as soon as practicable thereafter. ⁸² In the case of the s 32(2)(b) power, however, there is no corresponding safeguard. This is significant, especially since it enables the police to enter and search premises occupied by a person who may not be a suspect. In practice, therefore, an arresting officer is able to exercise a discretion in the matter which is not subject to any prior oversight whatsoever. With this in mind, it would not be surprising if an officer’s decision to make an arrest so as to activate the s 32(2)(b) power is preferred to the alternative of seeking a search warrant, which takes time and may result in the application being refused.

Given the frequency with which s 18 of s 32(2)(b) powers are used, and that they authorise what would otherwise be a trespass, it is regrettable that the Law Commission has decided not to adopt a firm position on the issue. Its preferred option, that ‘the intended search of premises, absent other intentions, can constitute lawful grounds for arrest provided that there are reasonable grounds for believing that it is not practicable to obtain evidence through other means’, represents the middle ground between the more absolute approaches reflected in options (i) and (ii). It is consistent with the wording of s 24(5)(e) of PACE in that a post-arrest search of premises may well be a necessary course of action for the ‘prompt ⁸³ and effective investigation of the offence, or of the conduct of the person in question’. At the same time, it respects the fact that the search warrant procedure and ss 18 and 32(2)(b) are ‘distinct powers, with distinct criteria’, ⁸⁴ and that PACE itself does not specify that one form of authority has priority or precedence over the other. Furthermore, the requirement that an officer must have given thought to other means of obtaining evidence, and ruled them out as being impracticable, would have ensured that the search warrant regime did not become bypassed as a matter of course.

The Commission’s preferred option ought to have crystallised into a recommendation in its final report, and it could have been effected by a change to the wording of s 24(5) of PACE. This could have been accomplished by the Police, Crime, Sentencing and Courts Bill which is presently before Parliament. ⁸⁵ The fact that it ‘has a bit of everything’, ⁸⁶ including a provision which already seeks to turn a Law Commission recommendation into law, ⁸⁷ suggests that such an amendment would not have been out of place in the Bill. Neither would it have been likely to have attracted the opposition which other clauses have encountered. ⁸⁸ An alternative to legislating would have been to make a suitable revision to the guidance contained in PACE Code of Practice G when it was next updated. ⁸⁹ In its current form, Code G identifies the need to enter and search premises under either s 18 or s 32(2)(b) as being one of a number of reasons which may render an arrest necessary under s 24(5)(e). An amendment to the guidance could clarify that an officer must also have considered, and rejected as impracticable, alternative means of obtaining evidence, for example, obtaining a search warrant, before making an arrest in order to activate ss 18 or 32(2)(b).

As things currently stand, however, it remains unclear whether a person can be arrested solely for the purpose of activating statutory powers of entry and search in preference to applying for a search warrant. This uncertainty in the law requires clarification. The necessity of an arrest serves as an important safeguard against the random or arbitrary use of the power. It is undermined, however, by the present uncertainty relating to an aspect of one of the ‘reasons’ for an arrest. The matter ought not to continue to be left to individual officers to decide for themselves. Neither should clarification have to wait for the point of principle to be directly at issue before the appeal courts.