Is arrest always necessary ?

A person’s arrest is often considered inevitable if they are suspected of involvement in the commission of a criminal offence.

However, arrest is the removal of a person’s liberty and whereas for some who are subject to a police investigation it is inevitable it shouldn’t be considered a forgone conclusion. Often arresting someone under suspicion of a crime isn’t necessary even if the allegations are unpleasant or extremely serious.

Arrest involves:

  • The removal of a person’s liberty and being detained in police custody.
  • The suspect’s DNA, photograph and fingerprints being taken and placed on police databases.

If police wish to interview you and they can be persuaded to do so without arresting you, there are obvious advantages, namely you can leave the police station at anytime – which can often be a great comfort and provides a greater sense of ease – but also samples and photographs are not automatically taken.

How can the police be persuaded not to arrest a suspect during a police investigation?

The law is clear, there must be reasonable grounds for believing a person’s arrest is necessary.

What is considered necessary is clearly defined in the Police and Criminal Evidence Act. Examples of when it can be considered necessary to arrest are when the name or address of the suspect needs to be ascertained; to prevent the suspect causing physical injury to himself or others; to prevent causing loss or damage to property or to allow the prompt and effective investigation of the offence or the conduct of the person suspected.

Even if the police believe arrest is necessary Solicitors can often, by reference to the law and facts of the case, demonstrate otherwise.

The use of the power to arrest has to be justified and consideration must be given to whether the objectives of the investigation can be met by less intrusive means.

This issue is particularly relevant to criminal allegations where there is no physical evidence to secure or preserve and where a person who is subject to investigation is willing to be interviewed under caution voluntarily. Another ground used to necessitate arrest is in order to obtain evidence by questioning. Of course, if a person is willing to be interviewed voluntarily, the necessity to arrest has been eliminated.

Although there are a number of ways a police officer can justify their decision to arrest the necessity test should never be overlooked and arguments can be advanced against police using their power of arrest or continuing to detain unnecessarily.

Solicitors will often consider this issue, discuss with the police the use of the power to arrest and make the necessary representations if the power is used inappropriately.