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10 April 2000

“I have here a warrant to beat you up“

Our present laws on arrest are intimidating and oppressive and pander to the most authoritarian elem

By Richard Colbey

Being arrested is humiliating, embarrassing and sometimes physically painful. It requires the victim to submit to the physical control of the arrester, usually a police constable. Resisting is a criminal offence, and may be countered with “reasonable force”. Joy Gardner, allegedly an illegal immigrant, died after police used “reasonable force” against her in 1993.

Arrest is subject to little judicial control. The ease with which it can be abused was a striking (though little commented upon) feature of the fiasco when a coachload of Romanian refugees was sent to Glasgow. The city council believed that staff responsible for the welfare of the refugees had been threatened with arrest by Home Office immigration officers if the refugees were not returned to London immediately.

The Home Office denies that such threats were made, and the legal basis for such an arrest would indeed be tenuous. But that would not have been of much comfort to a bemused social worker who feared being held in the cells overnight for doing his job. Had the Home Office really intended to prosecute Glasgow staff, it could have served summonses on them to appear before a court to answer the charge. This more civilised process is the normal way of proceeding against minor miscreants, the vast majority of whom are motorists.

So why does the law allow the state such ready abuse of power? A leading textbook on such matters, Salmond on Torts, said as long ago as 1969 that the law relating to arrest “is complex and badly in need of reform”. This has been repeated in five subsequent editions. The only change to the law came in 1984 and gave the police even greater powers, now frequently used against beggars, when it became possible for them to arrest anyone committing an offence, however trivial, if their name and address could not be readily established.

The primary basis on which the police can arrest without a warrant is if they reasonably suspect someone of having committed a crime for which the maximum penalty is more than five years in prison. This includes all thefts, criminal damage and possession of cannabis. The offence does not need to be committed at the time of the arrest. Other, less serious statutory offences, such as drink-driving and public order matters, specifically provide for arrest.

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It is rarely necessary for the police to obtain an arrest warrant. That would, in theory, require a magistrate to consider the merits of the proposed course of action, though many happily rubber-stamp whatever the police ask them to do. This contrasts with the much more circumscribed power to enter private property, when a search warrant is usually required.

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The power to make a “citizen’s arrest” is much more limited and, historically, is one of the few areas where civil liberties seem to prevail over property rights. Not only does there have to be reasonable suspicion, but an offence actually needs to have been committed. In 1914, the manager of W H Smith’s news-stand at King’s Cross Station was detained by the company’s senior management. Substantial stock shortages had been found at the stall. It was known that the manager’s wife owned a newsagent in Staines. A marked copy of a magazine supplied to the King’s Cross stall was found for sale at the Staines shop. He was eventually tried and acquitted, on the grounds that he had not been dishonest in taking the magazine because he intended to pay for it. He was subsequently awarded substantial damages for wrongful arrest.

The striking contrast between police – effectively state – powers and others with a legitimate but private interest in preventing crime is perhaps most easily justified on the basis that the socially necessary task of policing would be virtually impossible without a blanket power of arrest.

However, that power is not used exclusively as a means of bringing offenders to justice, but as a means of punishment in itself. In recent dawn raids, more than a hundred people were arrested on suspicion of racially motivated offences. Two days later, only 18 of them had been charged and, in the majority of cases, the police released them on bail. It is likely that some of those arrested are wholly innocent, perhaps possessing the same name as someone legitimately suspected. If the police felt that there was a real danger of those released fleeing, they would presumably have asked the court to remand them in custody.

It is hard to see how the police could claim that most of those arrests were inherently reasonable. A cynic might suggest that the action was primarily a publicity stunt, intended to dispel illusions that the police are not as tough on racist crime as they should be. There is no requirement for the police to justify the reasonableness of an arrest, beyond the reasonable suspicion of an offence. So the power is often used for reasons other than preventing the escape of a criminal. That, in even more invidious form, is what has happened in the case of the former MI5 officer, David Shayler. He is effectively exiled by the knowledge that he will be arrested as soon as he re-enters the UK, for revealing official “secrets” that his former employers claim are an invention on his part.

The paradox of any action against Shayler – that he may have breached the Official Secrets Act only if what he is saying about how the security forces operate is true – makes a successful prosecution inconceivable. He may be an attention-seeking fool, but that is not an offence. The threat of the extrajudicial punishment of arrest is the only hold the state has over such an irritant. The threat may deter others, and it may make Shayler regret his actions, but it is still unpleasantly totalitarian.

A more commonplace example of inappropriate arrest is that of the two young Leeds United footballers accused of a serious assault that may have been racially motivated. Both voluntarily went to the police station. Their professional circumstances make it inconceivable that they will not submit to the court process, and it is hard to believe that they could be stupid enough to get into a situation where they might be involved in a similar incident. If they are convicted, the punishment, judicially and professionally, is likely to be severe. If acquitted, it is axiomatic that there is nothing to punish them for. To arrest them, when they were already co-operating with the police, was totally unnecessary.

However, had they not been arrested, it would have been said that they were being treated more favourably than the hundreds of welders, hairdressers and clerks accused of equally serious matters. But if the police were allowed to arrest only when it is reasonable to do so in all circumstances, a high proportion of suspects would not be arrested. Punishment, detention and humiliation would then be reserved until the proper time: after conviction.

The Human Rights Act, which will implement the European Convention on Human Rights from October, may well force the long-overdue reform. Except for cases where an offender is caught red-handed, the convention allows arrest only for the purpose of bringing people before the competent legal authority. If a person is clearly willing to appear before that authority anyway, it would be hard for the state to argue that the arrest was necessary. The arresters would also have to show that they acted reasonably in making the arrest. Reasonable grounds might include hot pursuit, the allegation being so serious as to make flight likely, the suspect’s refusal to co-operate and a fear that the suspect may himself be in danger. However, the present powers of arrest pander to the sloppiest and most authoritarian in our law enforcement agencies, and are not compatible with any concept of natural justice.

The writer is a barrister