ON APPEAL FROM Liverpool County Court
His Honour Judge Gore QC
Strand, London, WC2A 2LL
B e f o r e :
Lord Justice Richards
Lord Justice Hughes
| Scott Hayes
|- and -
|The Chief Constable of Merseyside Police
WordWave International Limited
A Merrill Communications Company
165 Fleet Street, London, EC4A 2DY
Tel No: 020 7404 1400, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Jason Beer QC (instructed by Weightmans LLP) for the Respondent
Hearing dates : 05/07/2011
Crown Copyright ©
Lord Justice Hughes :
"I would like to retract my statement of complaint. I will not assist the police with their investigation. I will not attend court with regard to this matter."
It did not say that the original allegation was false.
i) the original arrest was unlawful because, it is said, PC Priestley did not actively consider all possible alternatives to arrest but simply formed the view arrest was necessary; and
ii) in any event, the detention became unlawful once the custody sergeant was informed that the complainant Mooney did not wish to pursue the allegation, as he was before PC Priestley went to Mooney's home to speak to him.
The statutory power of arrest
"(1) Did the arresting officer suspect that the person who was arrested was guilty of the offence ? The answer to this question depends entirely on the findings of fact as to the officer's state of mind.
(2) Assuming that the officer had the necessary suspicion, was there reasonable cause for that suspicion ? This is a purely objective requirement to be determined by the judge, if necessary on facts found by the jury.
(3) If the answer to the two previous questions is in the affirmative then the officer has a discretion which entitles him to make an arrest and in relation to that discretion has been exercised (sic) in accordance with the principles laid down by Lord Greene MR in Associated Provincial Picture House v Wednesbury Corporation."
"24(4) But the power of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question."
Subsection (5) then sets out exhaustively the reasons for which it can be judged necessary to arrest a suspect. The first four reasons derive substantially from the old general conditions previously contained in section 25. Subsection 24(5)(e) is new:
"(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question."
There is also a new reason (f) which is not relevant to the present case.
(i) that PC Priestley had reasonable grounds for suspecting that an offence had been committed and that Mr Hayes was guilty of it: S 24(2); and
(ii) that he had reasonable grounds for believing that it was necessary to arrest him to allow the prompt and effective investigation of the offence or of the conduct of Mr Hayes: s 24(4) and (5)(e).
(a) he must apply his mind to section 26(4) and (5), that is to say he must understand that he must believe arrest to be necessary for one of the specified reasons and he must in fact believe this; and
(b) he must actively consider all possible courses of action alternative to arrest; he must have taken into account all relevant considerations and have excluded all irrelevant ones; and
(c) he must make a decision which a constable acting reasonably could have reached.
(i) that the constable actually believed that arrest was necessary, and for a subsection (5) reason; and
(ii) that objectively that belief was reasonable.
He accepts that even if a constable believes arrest to be necessary, there remains a discretion not to carry it out, but he contends that except for this residual situation the concept of discretion, which was previously a distinct stage in the legality of arrest, is for all material purposes subsumed within the new statutory test.
The evidence in this case
"Q: Do you agree that to ask him voluntarily to attend at the police station would have been a less intrusive way of dealing with Mr Hayes ?
A: No, your Honour.
Q: Well, if he had voluntarily attended he wouldn't necessarily have been arrested, would he ?
A: No, your Honour, at that time my intention was to arrest the defendant, your Honour.
Q: But you had the option not to arrest him ?
A: Not in this instance, your Honour, no.
Q: So you didn't turn your mind at all to a situation where you might not have to arrest him ?
A: No your Honour."
A little later in the same passage there occurred the following question and answer:
"Q: You gave no thought at all to him voluntarily attending at the police station to answer questions ?
A: No your Honour."
"Q: So that would have been less intrusive in terms of restriction on his liberty ?
A: It would have, your Honour, but I believed it would have hampered my investigation."
" In my judgment, despite the fact that PC Priestley said in evidence to me that he did not consider the alternatives and despite the fact that there were alternatives available, namely the voluntary attendance at the police station for the purpose of interview, in my judgment the decision was within the range of choices from which he was entitled to choose and his decision was therefore lawful…..
…….I do not understand the logic of reliance on the lack of consideration of other options by PC Priestley as evidence of lack of justification for arrest. Clearly PC Priestley subjectively believed in the necessity, which is why it was the only option that he considered."
"….due to the nature of the text calls and the kidnaps we did discuss voluntary attending and what could happen and we decided the most proportionate way to deal with it was by arrest."
Mr Jones also gave additional reasons why non-arrest was not appropriate and arrest was necessary. First, given the apparent complaint of threats to the complainant Mooney, it would be likely to be necessary when Hayes was released, after confronting him with Mooney's complaint, to protect Mooney by imposing bail conditions designed to prevent contact between the two. That could not be done unless Hayes had been arrested. Secondly, the officers had no address for Hayes: he did not live with his mother.
The correct test for arrest
"Given the scope of the decision available to a constable contemplating arrest, we do not consider that it is necessary that he interrogate a person as to whether he will attend a police station voluntarily. But he must, in our judgment, at least consider whether having a suspect attend in this way is a practical alternative. The decision whether a particular course is necessary involves, we believe, at least some thought about the different options. In many instances this will require no more than a cursory consideration, but it is difficult to envisage how it could be said that a constable has reasonable grounds for believing it necessary to arrest if he does not make at least some evaluation as to whether voluntary attendance would achieve the objective that he wishes to secure."
"unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence….or to obtain such evidence by questioning him."
As can be seen, this provision is couched in exactly the same form of reasonable grounds for believing in necessity as is the modern section 24(4) which we have to consider. In Wilding v Chief Constable of Lancashire (22 May 1995) this court held (i) that attempts to define, or to provide synonyms for, 'necessary' should be avoided and (ii) that in asking whether further detention was lawful or unlawful the court should ask itself whether the decision of the custody sergeant was unreasonable in the sense that no custody officer, acquainted with the ordinary use of language and applying his common sense to the competing considerations before him, could reasonably have reached that decision. I agree that Parliament must, on ordinary principles of statutory construction, be taken to have assumed this state of the law in adopting the same formulation in the new section 24(4). That is consistent with Mr Beer's formulation of the test, and not with Mr Blaxland's.
"1.3 The use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Arrest must never be used simply because it can be used. Absence of justification…may lead to challenges should the case proceed to court…."
"The protection of the subject lies in the nature of the test which has to be applied in order to determine whether the requirement that there be reasonable grounds for the belief is satisfied."
Lord Justice Richards:
Lord Justice Ward: