Police Powers to Arrest:
Approach of ECHR and UK Courts to the Requirement of Necessity of Arrest
Article 5(1) of the European Convention on Human Rights (the Convention) states that everyone has the right to liberty and security of person. Sub-Article (c) provides that no one shall be deprived of his liberty save in ‘the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so’. Reading Article 5(1) together with Article 6(2) of the Convention that states that ‘everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law’, gives the accused the right to stay free throughout the trial and continue as such unless they are convicted.
Because of this suspected persons are not arrested unless there is a reasonable belief that their arrest is necessary. This principle is stated in Section 24 of the Police and Criminal Evidence Act 1984, as substituted by section 110 of the Serious Organised Crime and Police Act 2005, which provides that there are two elements for lawful arrest:
First: A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; and
Secondly, reasonable grounds for believing that the person’s arrest is necessary.
The Code of Practice for the statutory power of Arrest by Police Officers which forms an integral part of PACE and applies to any arrest made by a police officer states the necessity criteria
While implementing those Convention and statutory provisions, the European Court and the UK Courts made important interpretations for the criteria of necessity. In this essay, the approach of the courts to the issue of necessity will be examined to find out how case law added to clarifying this...