Answers
Thread 8
What legally was Inspector Green doing when he said ‘Doing a spot
of burglary eh? Come on let’s go down and discuss this at the police
station?’
There are two alternative explanations of this scenario.
The first is that Inspector Green is asking Dave to attend the police station voluntarily to answer some questions. This is often referred to colloquially as “Helping the Police with their Inquiries."
It is well established that nobody can be forced to attend a police station to answer questions unless they are under arrest ( see Lemsatef [1977] 2 All ER 835.) Here Inspector Green might try to argue that Dave was a voluntary attender. However the fact that he was bundled into the car whilst trying to talk to the officers would suggest that he is not attending voluntarily.
The second explanation is that Inspector Green is trying to arrest Dave for the offence of burglary under s.9 Theft Act 1968. For this to be lawful, two conditions must be satisfied: (1) the existence of an arrest power and (2) the carrying out of proper arrest formalities.
The first condition would seem to be satisfied: s.24(2) states:
‘If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.’
And additionally it is permissible to arrest somebody who was leaving the scene :
‘ to prevent prosecution being hindered by the suspect’s disappearance’(s.24(5)(f) PACE)
The issue is not as clear when the second condition is considered. Under s.28 PACE, a person who is to be placed under arrest must be told both that he is under arrest (s.28(1)) and why (s.28(3)) as soon as is reasonably practicable.
No set form of words need be used and colloquial language is permitted. The important point is that the person must understand he is under police compulsion and is not free to leave (Alderson v Booth [1969] 2 QB 216) and why this has happened. The language used here is ambiguous. It is arguable that Dave knows what is happening but it is equally arguable that the officer has not been clear enough and s.28 has not been complied with. This would render the arrest unlawful even if the power to arrest has legitimately arisen and been exercised. This would in turn lead to a breach of Article 5 European Convention on Human rights and potential suit in tort or under the Human Rights Act 1998.
Note that should Dave be later told of his arrest and the reason for
it, the arrest becomes valid from that point and damages could still be
claimed for the period of time between being detained and the formalities
of arrest being properly adhered to (see Lewis v Chief Constable of
South Wales [1991] 1 All ER 206.)