Richardson v The Chief Constable of West Midlands Police [2011] EWHC 773 (QB)

[2011] EWHC 773 (QB)Case No 0BM90089IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISIONVenue AT BIRMINGHAM DISTRICT REGISTRYDate 29/03/2011
Before
THE HONOURABLE MRS JUSTICE SLADE DBE
Between
Mark RichardsonClaimantThe Chief Constable of West Midlands PoliceDefendant
Pete Weatherby (instructed by Thompsons) for ClaimantJason Beer (instructed by JM Kilbey, West Midlands Police Authority) for DefendantHearing Hearing dates: 8 th-9 th December 2010
Judgment
[1]The Claimant, a thirty-nine year old teacher of good character, claims that he was unlawfully arrested and detained on 16th December 2009. He asserts that following an allegation that he had assaulted a pupil he was wrongfully arrested and that his detention thereafter was unlawful. He had attended a police station voluntarily to be interviewed. It is said that his arrest was unlawful because the arresting officer had no or no reasonable grounds for considering that his arrest was necessary: a precondition imposed by the Police and Criminal Evidence Act 1984 (‘PACE’) Section 24(4) by an amendment effective from 1st January 2006. The Claimant claims damages for false imprisonment. The Claimant also seeks mandatory injunctions requiring the Defendant to destroy DNA samples, fingerprints and photographs taken as a consequence of his arrest and to delete or amend the entry of his arrest on the Police National Computer (‘PNC’).[2]This case raises the issue of the proper interpretation and application of the necessity requirement in PACE Section 24(4). These proceedings are brought with the support of the National Association of Schoolmasters and Women Teachers (‘NASUWT’) as it raises issues of general concern to teachers. They can be subject to allegations of assault on pupils which are properly investigated by police. There was unchallenged evidence, also given to a House of Commons Select Committee, whose report was published on 16th July 2009, that such teachers attend police stations voluntarily for questioning, are arrested, released without charge and notwithstanding that no further action is taken may have the fact of their arrest noted on the record kept on the PNC. This is likely to blight their future employability and may adversely affect their current employment.

The relevant facts

[3]Save for the reason why the Claimant was arrested, the relevant facts are not in dispute.[4]In early December 2009 the Claimant was told by police that an allegation had been made against him that he had assaulted a pupil at the school where he was a teacher. He contacted his union who put him in touch with a solicitor. The Claimant had given a contemporaneous account to the school of the incident on 26th November 2009 which gave rise to the allegation. He said that when standing in a doorway directing students:
“someone kicked the door hitting me in the back. I turned around and put my arm up to protect myself from a repeated blow by the door. [X] walked forward into my outstretched arm and hand which connected with him at neck height.”
No marks were seen on the boy. The Claimant was suspended from the school. The school obtained accounts from the boy, other pupils and the Claimant. Police interviewed the boy and his family. By 22nd December 2009 at the latest it was clear the boy’s parents did not want to pursue a complaint with the police. The school were going to take the allegation through their disciplinary process and the governors were to meet to consider it.[5]A witness investigation log compiled by the officer in charge of the case, PC Downie, records that on 4th December 2009 she spoke to the Claimant on the telephone and informed him about the possibility of a ‘local resolution’ between him and the pupil. After further exchanges of telephone calls, the Claimant’s solicitor telephoned PC Downie on 9th December 2009 to inform her that the Claimant would not accept a local resolution. An appointment was made with PC Downie for the solicitor and the Claimant to attend Bloxwich police station.[6]On 16th December 2009 the Claimant and his solicitor attended Bloxwich police station by appointment. The solicitor, Mr Miah, and the Claimant gave evidence. PC Downie neither gave oral evidence nor made a statement for the purpose of these proceedings. If he accepted a ‘local resolution’ the Claimant would have had to accept that he had assaulted the pupil. He did not accept that he had assaulted the pupil and therefore refused a ‘local resolution’. It is not in dispute that PC Downie informed the Claimant that if he did not accept a local resolution he would have to be arrested and interviewed. Mr Miah protested that an arrest was unnecessary. PC Downie’s log confirms that the Claimant was prepared to have a voluntary interview. Mr Miah asked to speak to a sergeant. DS Smith confirmed to Mr Miah that the Claimant would be arrested. As the custody block at Bloxwich police station was closed, Mr Miah and the Claimant were asked to and did travel to Walsall police station. PC Downie met them there and arrested and cautioned the Claimant. Her log shows that this was done at 17.35. PS Rees’ entry in the custody record gives the time of arrest as one hour earlier, 16.35.[7]PS Rees, the custody sergeant at Walsall police station made a statement on 23rd September 2010 and gave evidence. He wrote that: “3. At 16.37 hours I was aware that the Claimant…had been arrested at Walsall police station by PC 20275 Downie… 4. I was also informed that the arrest had been made to allow the prompt and effective investigation of the offence or of the conduct of the person in question. 5. I considered the necessity of the arrest and detention and believed that the Claimant’s detention was required in order to obtain evidence by questioning because:(1) the allegations as presented to me were serious in that they related to a Child Protection investigation of an incident where a person in a position of trust was alleged to have taken hold in anger of the throat of a child of 11 or so – a vulnerable individual and so should be thoroughly investigated.(2) it was important to the investigation that the Claimant should be interviewed to the best effect.(3) although I considered whether a voluntary interview would achieve the same objective, I concluded that the practical and sensible option was arrest and detention of the Claimant since: (i) whether he said he would stay or not, Police and Criminal Evidence Act 1984 provided that he was entitled to leave at will unless arrested and the Codes attached provided that he should be reminded of that from time to time whilst at the station; (ii) his arrest and detention were little more than a formality, causing little or no interference with his liberty if he did intend to stay throughout the questioning; (iii) if he changed his mind as to staying, or was advised by his solicitor who accompanied him, that he was free to leave part-way through the interview, there would be confusion about his status and difficulty about his then being arrested which might prejudice the investigation”. (1) the allegations as presented to me were serious in that they related to a Child Protection investigation of an incident where a person in a position of trust was alleged to have taken hold in anger of the throat of a child of 11 or so – a vulnerable individual and so should be thoroughly investigated. (2) it was important to the investigation that the Claimant should be interviewed to the best effect. (3) although I considered whether a voluntary interview would achieve the same objective, I concluded that the practical and sensible option was arrest and detention of the Claimant since: (i) whether he said he would stay or not, Police and Criminal Evidence Act 1984 provided that he was entitled to leave at will unless arrested and the Codes attached provided that he should be reminded of that from time to time whilst at the station; (ii) his arrest and detention were little more than a formality, causing little or no interference with his liberty if he did intend to stay throughout the questioning; (iii) if he changed his mind as to staying, or was advised by his solicitor who accompanied him, that he was free to leave part-way through the interview, there would be confusion about his status and difficulty about his then being arrested which might prejudice the investigation”.[8]PS Rees completed the custody record in which he wrote:
“16/12/09 – 16:52hrs – Solicitor log entry made on 16/12/09 at 16:47GMT to Thompsons Solicitors 15/12/09 – 17:11hrs – Representations made by solicitor that as the male is attending voluntarily should be interviewed under caution and not arrested. Also states that this matter was to be locally resolved and PIC only arrested when resolution declined. I have explained that where local resolution is not appropriate for whatever reason then that does not preclude a criminal justice route. I have also stated that with a statement under caution then the PIC would be under no obligation to remain for the duration of an interview. Clearly should he attempt to leave he would be arrested and therefore as per PACE where officers think that a person would not be allowed to leave but would be arrested then they should be arrested. In my opinion this is a prompt and effective investigation.”
[9]PS Rees explained in his oral evidence that as custody officer his role was to make sure that the arrest was justified. He had to be satisfied that there was a reasonable suspicion that the person detained has committed an offence. PS Rees confirmed that Mr Miah raised the question of necessity for arrest with him. He recorded the representations made and his response in the Custody Record. Nothing was left out. In response to Mr Miah’s points, he considered that as someone attending voluntarily the Claimant could leave an interview at any time. The interview would stop and he would have to be arrested and transported to a custody suite. This would disrupt the free flow of the interview. Mr Rees considered that in the circumstances the option of arrest ‘was the right way forward’. He said in oral evidence that he took the view that arrest was appropriate because of the seriousness of the allegation and that it involved a person in a position of trust. Such a person should be formally interviewed. ‘As a matter of routine’ such a matter ‘should be dealt with in the custody environment’. However PS Rees said that he did not review the evidence. He also said that if the Claimant were arrested bail conditions could be set for his release.[10]PS Rees said that he was not aware that the Claimant had attended Bloxwich police station voluntarily and had travelled to Walsall. The Claimant had travelled in his own transport. PS Rees was given no indication that the Claimant would not remain during his interview. He agreed that an interview would be conducted under caution and would have the same evidential value whether or not the Claimant was arrested.[11]The custody record shows that at 17.14 the Claimant went to the fingerprint room. He gave evidence that his fingerprints and a DNA sample were taken and he was photographed. He signed to indicate his consent before these were taken but said that he did not really register the word ‘consent’. He had the impression that giving fingerprints and DNA was part of being arrested. He thought he did not have a choice.[12]The Claimant was in the interview room between 17:26 and 18:03. At interview he denied assaulting the boy. The upshot of the interview was summarised in the custody record as follows:
“PIC stated that on 26/11/09 he was standing in the corridor at…comprehensive when a door in the corridor was swung open and hit him in the back. He reacted by putting his arm out. PIC couldn’t give any reason for this. He confirmed that it connected with a boy’s neck. When he realised that it was touching his neck he put his arm down. He took the child to one side and told him off for his conduct.”
At 18.47 the Claimant’s DNA was taken. He was bailed and released at 18:47. A condition of bail was not to go to the school unless by prior appointment to see the head teacher.[13]On 12th January 2010 the Claimant was informed by Mr Miah that the police had decided to take no further action.[14]The Claimant gave evidence that the thought of being arrested caused him considerable distress. He is very concerned as to the effect disclosure of the arrest may have on his current employment and on future employers should he decide to change jobs. He said that he was quite distressed at having his fingerprints and samples taken at the police station.[15]The Claimant doubts whether he would be able to gain promotion due to a record of arrest on his Enhanced Criminal Records Bureau (‘CRB’) check. He is obliged to provide his employer with a CRB check every 3 years. He is also concerned as to the effect of the record of his arrest on his future employability.[16]An indication of the importance attached by his school to the fact of the Claimant’s arrest is shown by an entry in the record of a strategy meeting of the Walsall Safeguarding Children Board on 15th December 2009. The head teacher of the Claimant’s school is recorded as saying of the internal disciplinary process:
“Before coming to a decision the Governors would most likely want to know if Mark Richardson had been arrested or not.”
[17]A CRB record received on 9th September 2010 made no reference to his arrest but the Defendant has not assured the Claimant that it will not be referred to in future. The Defendant contends that he must subsequently decidewhether to remove arrest histories from his records and to destroy samples.[18]Jim Quigley, National Officer (Legal and Casework) of the NASUWT gave evidence that the problem facing the Claimant is commonplace for teachers. He stated that:
“A teacher who has been arrested is left virtually unemployable because disclosure on Enhanced CRB disclosures is generally fatal to an application.”
In the experience of the Union:
“…only around 5% of our members have further action taken against them following arrest therefore no further action is taken against the remaining 95%. Nevertheless the 95% are faced with a ‘black spot’ against their name because the fact of the arrest can be disclosed.”
[19]Mr Quigley referred to the House of Commons Children, Schools and Families Committee published on 19th July 2009 on Allegations against School Staff.

The statutory background

[20]For the background to the current statutory provisions concerning a constable’s powers of arrest I gratefully adopt the summary of the equivalent legislation in Northern Ireland given by Lord Chief Justice Kerr in Alexanderand others: Applications for Judicial Review [2009] NIQB 20 adapted to refer to the English legislation. Before Section 110 of the Serious Organised Crime and Police Act 2005 amended PACE Section 24(4) with effect from 1st January 2006:
“[3]…offences were classified as arrestable and non-arrestable. With the enactment of the new provision this classification ceased to exist for all practical purposes and the concept of an arrestable offence was abolished. A constable now has the power to arrest without warrant anyone who is, or whom he has reasonable grounds for suspecting to be, about to commit, or in the act of committing, an offence. Where an offence has been committed, or the constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone who is or whom he has reasonable grounds for suspecting to be, guilty of that offence. All offences, therefore, are now arrestable without warrant, subject to the requirement that the arresting officer must have reasonable grounds for believing that the arrest is necessary for any of the reasons specified in [Section 24(5)].”
[21]PACE provides by Section 24: (3)If an offence has been committed, a constable may arrest without a warrant— … (b)anyone whom he has reasonable grounds for suspecting to be guilty of it. (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. In his pleaded case, the Defendant in effect relied upon Section 24(5)(e) which provides: (5)The reasons are— (e)to allow the prompt and effective investigation of the offence or of the conduct of the person in question. (b)anyone whom he has reasonable grounds for suspecting to be guilty of it. (e)to allow the prompt and effective investigation of the offence or of the conduct of the person in question.[22]PACE Section 29 provides for voluntary attendance at police stations and other locations as follows: 29. Where for the purpose of assisting with an investigation a person attends voluntarily at a police station or at any other place where a constable is present or accompanies a constable to a police station or any such other place without having been arrested—(a) he shall be entitled to leave at will unless he is placed under arrest;(b) he shall be informed at once that he is under arrest if a decision is taken by a constable to prevent him from leaving at will. (a) he shall be entitled to leave at will unless he is placed under arrest; (b) he shall be informed at once that he is under arrest if a decision is taken by a constable to prevent him from leaving at will.[23]PACE Section 67(11) provides: 67(11) In all criminal and civil proceedings any…code shall be admissible in evidence; and if any provision of…a code appears to the court or tribunal conducting the proceedings to be relevant to any question arising in the proceedings it shall be taken into account in determining that question.[24]Code G to PACE (a Code of Practice for the statutory power of arrest by police officers) was issued pursuant to Section 67 of PACE with effect from 1st January 2006. Code G provides: G:2.1 A lawful arrest requires two elements: A person’s involvement or suspected involvement or attempted involvement in the commission of a criminal offence; AND reasonable grounds for believing that the person’s arrest is necessary. G:2.2 Arresting officers are required to inform the person arrested that they have been arrested, even if this fact is obvious, and of the relevant circumstances of the arrest in relation to both elements and to inform the custody officer of these on arrival at the police station. … G:2.4 The power of arrest is only exercisable if the constable has reasonable grounds for believing that it is necessary to arrest the person. The criteria for what may constitute necessity are set out in paragraph 2.9. It remains an operational decision at the discretion of the arresting officer as to:• what action he or she may take at the point of contact with the individual;• the necessity criteria (if any) which applies to the individual; and• whether to arrest, report for summons, grant street bail, issue a fixed penalty notice or take any other action that is open to the officer. … G:2.6 Extending the power of arrest to all offences provides a constable with the ability to use that power to deal with any situation. However, applying the necessity criteria requires the constable to examine and justify the reason or reasons why a person needs to be taken to a police station for the custody officer to decide whether the person should be placed in police detention. … G:4.1 The arresting officer is required to record in his pocket book or by other methods used for recording information:• the nature and circumstances of the offence leading to the arrest;• the reason or reasons why arrest was necessary;• the giving of the caution;• anything said by the person at the time of the arrest. … G:4.3 On arrival at the police station, the custody officer shall open the custody record…The information given by the arresting officer on the circumstances and reason or reasons for arrest shall be recorded as part of the custody record. Alternatively, a copy of the record made by the officer in accordance with paragraph 4.1 shall be attached as part of the custody record. G:2.1 A lawful arrest requires two elements:• what action he or she may take at the point of contact with the individual;• the necessity criteria (if any) which applies to the individual; and• whether to arrest, report for summons, grant street bail, issue a fixed penalty notice or take any other action that is open to the officer.• the nature and circumstances of the offence leading to the arrest;• the reason or reasons why arrest was necessary;• the giving of the caution;• anything said by the person at the time of the arrest.

G:2.1 A lawful arrest requires two elements:

[25]Code C (a Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers) provides: C:3.21 Anybody attending a police station voluntarily to assist with an investigation may leave at will unless arrested. …If it is decided they shall not be allowed to leave, they must be informed at once that they are under arrest and brought before the custody officer, who is responsible for making sure they are notified of their rights in the same way as other detainees.[26]The duties of a custody officer before charge are set out in PACE Section 37: 37(1)Where— (a) a person is arrested for an offence— (i) without a warrant; the custody officer at each police station where he is detained after his arrest shall determine whether he has before him sufficient evidence to charge that person with the offence for which he was arrested and may detain him at the police station for such period as is necessary to enable him to do so. … (2) If the custody officer determines that he does not have such evidence before him, the person arrested shall be released either on bail or without bail, unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him. (3) If the custody officer has reasonable grounds for so believing, he may authorise the person arrested to be kept in police detention. (4) Where a custody officer authorises a person who has not been charged to be kept in police detention, he shall, as soon as is practicable, make a written record of the grounds for the detention.

(a) a person is arrested for an offence— (i) without a warrant;

[27]The Police Act 1997 provides by Section 113B:(1) The Secretary of State must issue a criminal record certificate to any individual who— (a) makes an application…, and (b) pays in the prescribed manner any prescribed fee.(2) The application must– (a)be countersigned by a registered person, and (b)be accompanied by a statement by the registered person that the certificate is required [for the purposes of an exempted question asked] for a prescribed purpose. …(3) An enhanced criminal record certificate is a certificate which— (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or (b) states that there is no such matter of information. …(4) Before issuing an enhanced criminal record certificate the Secretary of State must request the chief officer of every relevant police force to provide any information which, in the chief officer’s opinion- (a)might be relevant for the purpose described in the statement under subsection (2), and (b)ought to be included in the certificate. (a) makes an application…, and (b) pays in the prescribed manner any prescribed fee. (a) gives the prescribed details of every relevant matter relating to the applicant which is recorded in central records and any information provided in accordance with subsection (4), or (b) states that there is no such matter of information. (a)might be relevant for the purpose described in the statement under subsection (2), and (b)ought to be included in the certificate.

The contentions of the parties

[28]Mr Weatherby for the Claimant did not challenge the decision of the Defendant that he should be interviewed. An allegation that he had assaulted a pupil at his school had been made and it was appropriate to examine the Claimant’s account of what happened. It is a necessary but not sufficient condition for a lawful arrest for the arresting officer to establish that the reason for the arrest falls within PACE Section 24(5), in this case Section 24(1)(e) ‘to allow the prompt and effective investigation of the offence or of the conduct of the person in question.’ However it was submitted that there is no evidence to establish whether and if so why PC Downie considered that it was necessary for her to arrest the Claimant. Further it was submitted that in any event there were no reasonable grounds for considering that it was necessary to arrest the Claimant.[29]The arresting officer PC Downie did not give any evidence in these proceedings. Mr Weatherby submitted that unless the arresting officer has the belief themselves that the arrest is necessary that is an end of the matter. Necessity is a jurisdictional precondition for a lawful arrest. The decision to arrest has to be lawfully grounded when the arrest is made.[30]Mr Weatherby submitted that the three stage approach of Woolf LJ in Castorina v Chief Constable of Surrey [1996] LG Rep 241 at page 24 should be adapted and applied to the question of whether the necessity precondition for a lawful arrest is satisfied. Thus the following questions are to be asked in the circumstances of this case: “(a) Did the arresting officer believe that it was necessary to arrest the Claimant to allow the prompt and effective investigation of the offence or of the conduct of the person in question; (b) were there reasonable grounds for that belief; (c) did the officer exercise her discretion to make an arrest in accordance with Wednesbury principles.” (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223).[31]Mr Weatherby submitted that it is the belief of the arresting officer which is material not that of the custody officer or any other ex post facto justification of the arrest. In this case there was no evidence whatsoever that the Claimant was not intending to answer all questions put to him. He had attended Bloxwich police station with his solicitor by appointment. After being told he was going to be arrested if he did not accept a local resolution he travelled to Walsall police station to be interviewed knowing that he would be arrested. He attended both police stations voluntarily to answer questions. There was no evidence that the Claimant would do anything other than remain co-operative.[32]The only evidence as to the reason for the arrest was that PS Rees, the custody officer, who recorded that PC Downie told him which of the statutory criteria in Section 25(5) was relevant to the Claimant’s arrest – the prompt investigation of the offence or the conduct of the person in question.[33]Mr Weatherby submitted that if the initial arrest was unlawful it could not be cured by the custody officer’s reasons for authorising detention. This case is to be distinguished from Lewis and Evans v the Chief Constable of the South Wales Constabulary [1991] 1 All ER 206 in which an appeal from a finding that whilst their initial arrests were unlawful because the appellants were not told the reasons for them they became lawful when they were given the reasons at the time of their presentation to the custody officer. In this case the defect in the arrest was substantive not technical. The arresting officer and the custody officer performed different functions. The facts to be considered by the custody officer for exercising his statutory duty are not the same as those to be taken into account by the arresting officer.[34]Further, Mr Weatherby submitted that the oral reasons given by PS Rees for considering arrest to be appropriate were ex post facto rationalisation. There was no suggestion in the pleaded Defence that there should be an arrest so that bail conditions could be set. Nor was there any suggestion that the Claimant was arrested to put additional pressure on him: a reason found to be legitimate in Holgate Mohammed v Duke [1984] AC 437. The reason recorded by PS Rees as to why he considered arrest to be appropriate was that as the Claimant was attending voluntarily he could leave at any time and that “as per PACE where officers think that a person would not be allowed to leave but would be arrested then they should be arrested.”[35]Mr Weatherby pointed out that the phrase ‘practical and sensible option’ used by PS Rees in his witness statement to describe the arrest and detention of the Claimant was a phrase which appeared to have been borrowed from Alexander. Alexander was the only authority of which counsel was aware in which the meaning and application of the new ‘necessity’ requirement of an arrest had been considered and determined. The Court observed at paragraph 8 that:
“an obvious alternative to arrest for the purpose of interview is to invite a subject to attend a police station voluntarily.”
The Court did not hold that ‘necessary’ in context meant indispensable or essential or that there is no viable alternative to arrest. At paragraph 18 Kerr LCJ held:
“Rather, it means that he [the arresting officer] should consider that this is the practical and sensible option.”
[36]Mr Weatherby contended that the facts of this case are materially indistinguishable from the case of Farrelly, one of the cases before the Court in Alexander. The Court held that the necessity requirement for an arrest had not been satisfied in Mr Farrelly’s case.[37]In the Claimant’s case the custody officer’s contemporaneous note suggests that he considered that the statutory criteria for detention were met when the investigating officer thought that a person attending voluntarily would not be allowed to leave part way through the interview. If that were so, Mr Weatherby submitted that arrest would be justified in every case where the individual attended voluntarily for interview.[38]The Claimant seeks damages for unlawful detention. Having regard to the fact that the detention lasted for about 2 hours and that he is a teacher of good character who was considerably distressed by the arrest, having regard to Thompson and Hsu v Metropolitan Police Commissioner [1998] QB 498 damages in the sum of about £1,250 were sought.[39]The Claimant also seeks a mandatory injunction requiring the Defendant to amend police records to show that he should not have been arrested. Mr Weatherby submitted that in accordance with guidance in the Retention Guidelines for Nominal Records on the PNC 2006 (ACPO), the Claimant’s record would show ‘CJ arrestee’ as well as the fact that the allegation was of assault on a child. Such a record may be disclosed on an enhanced criminal record certificate pursuant to Section 113B(4) of the Police Act 1997 as amended. Such a record may also have other effects such as on the issue of a visa to the USA.[40]The Claimant also seeks mandatory orders to require the destruction of his fingerprints, DNA and photographs to put him in to the position he would have enjoyed had the arrest not taken place.[41]Mr Beer for the Defendant as did Mr Weatherby for the Claimant submitted that the judgment of the Divisional Court in Northern Ireland in Alexander is of persuasive precedent value to this Court. He pointed out that the Divisional Court was composed of three Lord Justices of Appeal. Mr Beer relied upon Alexander for the proposition which Mr Weatherby did not dispute that the requirement that the arresting officer should believe that an arrest is necessary does not signify that he has to be satisfied that there is no viable alternative to arrest. The phrase ‘the practical and sensible option’ adopted by Mr Beer as the meaning of ‘necessary’ in PACE Section 24(4) is taken from Alexander.[42]Mr Beer submitted that, as is stated in PACE Code G:2.4, the decision whether to arrest ‘remains an operational decision at the discretion of the arresting officer’ having regard to matters including ‘whether to arrest, report for summons, grant street bail, issue a fixed penalty notice or take any other action that is open to the officer’. Accordingly whether an arrest is necessary is a matter of discretion.[43]Mr Beer submitted that the Court should only interfere with the exercise of discretion by an arresting officer on what are, effectively, Wednesbury grounds. In this regard he relied upon the judgment of the Court of Appeal in Wilding v the Chief Constable of Lancashire (unreported 22nd May 1995) in which Beldam LJ held in relation to detention and the duties of a custody officer:
“It seems to me, therefore, that a court, in deciding whether or not a person has been unlawfully detained, should ask itself the question, in circumstances like this, 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.”
[44]Mr Beer relied upon R (on the application of ‘C’) v(1) Chief Constable of ‘A’ and(2) ‘A’ Magistrates Court [2006] EWHC 2352 (Admin) as the only reported English case in which PACE Section 24(4) has been considered since its amendment to illustrate the nature of the review to be conducted by a court in determining whether an arrest was necessary. The nature of the review of compliance with Section 24(4) was to be that appropriate to Section 24(6). Underhill J held:
“26. The terms of s-s. (5) are new and there is no authority on their effect. The previous s. 24 (6) provided simply that where a constable had reasonable grounds to suspect a person of having committed an arrestable offence he had a power to arrest without a warrant. The limits on the exercise of that power, and the extent of its reviewability, have been considered in a number of cases – of which I was referred in particular to Holgate-Mohammed v. Duke [1984] 1 AC 437 , Cumming v. Chief Constable of Northumbria [2003] EWCA Civ 1844 and Al Fayed v. Commissioner of Metropolitan Police [2004] EWCA Civ 1579 . In Al Fayed Auld LJ, at para. 83, noted that the earlier authorities established that the exercise of the discretion was reviewable only on Wednesbury principles.”
However Underhill J did not determine whether the arrest of the applicant was necessary as the relevant evidence was not before him.[45]Mr Beer contended that it is for the Claimant to establish that the exercise of discretion to arrest was unreasonable.[46]Holgate-Mohammed and Cumming were referred to by Mr Beer to illustrate that it has been held permissible to arrest a suspect to bring additional pressure to bear on them in interview to achieve a confession.[47]Mr Beer contended that the contemporaneous record that PS Rees made on the Custody Record shows that consideration was given to whether it was necessary to arrest the Claimant. Further, Mr Beer wrote in his skeleton argument:
“In any event, once it had been decided that the Claimant would be arrested if he tried to leave the police station, the officers were required to arrest him.”
[48]Mr Beer submitted that the Claimant’s case was distinguishable from that of Farrelly. In Farrelly the arresting officer had not applied his mind at all to the circumstances. In this case the decision to arrest and to authorise detention were co-terminous. The authorisation of detention came 6 minutes after the arrest. Mr Beer suggested that it was really PS Rees’ decision which is challenged. He submitted that no evidence is required to show that the Claimant would leave an interview if he had not been arrested to conclude that it is necessary to arrest for that reason. Mr Beer suggested that sometimes people say ‘I have had enough’ and walk out.[49]Mr Beer recognised that the evidential status of an interview under caution was the same whether or not the suspect had been arrested.[50]As for the injunctions sought, Mr Beer submitted that the Claimant’s concern that arrest is a trigger for an entry on the CRB record is misplaced. It is the allegation which is the trigger for an entry. It is a matter for the Chief Constable depending upon the circumstances of the enquiry as to whether and what information should be given under the Police Act 1997 Section 113B(4). Decisions on entries on records and on removal of DNA, fingerprints and PNC records are taken in accordance with the following guidelines: Retention Guidelines for Nominal Records on the PNC, 2006 (ACPO) and the Exceptional Case Procedures for Removal of DNA Fingerprints and PNC Records (ACPO). Mr Beer contended that the Chief Constable would make a decision in accordance with the applicable guidelines if the Claimant were held to have been unlawfully arrested and detained. Such decisions could then be challenged by way of judicial review if necessary.

Discussion and Conclusion

[51]PACE Section 24 sets out the conditions to be satisfied for a lawful arrest. If a constable has reasonable grounds for suspecting that an offence has been committed, pursuant to Section 24(3)(b) he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. However by Section 24(4) that power is exercisable only if the constable has reasonable grounds for believing that for any of the reasons set out in Section 24(5) it is necessary to arrest the person in question.

(e) :

“to allow the prompt and effective investigation of the offence or of the conduct of the person in question.”
Thus where a constable suspects that an offence has been committed, in order for the arrest of an individual to be lawful a) the constable must have reasonable grounds for suspecting the person to be guilty of it; b) the grounds for arrest must be one of those listed in PACE Section 24(5) and c) the constable must have reasonable grounds for believing that it is necessary to arrest the person in question.[52]It is accepted in this case that condition a) is satisfied. PC Downie had reasonable grounds to suspect that the Claimant was guilty of an offence. It is also accepted that b) is satisfied in that it was reasonable to interview the Claimant to test his account of how and why he came into physical contact with the complainant. Although the arresting officer, PC Downie did not give evidence, the statutory arrest reason is recorded by PS Rees on the custody record as:
“INVESTIGATION – to allow the prompt and effective investigation of the offence or of the person in question.”
[53]The missing element in the trilogy of prerequisites of a lawful arrest is c); that the arresting officer had reasonable grounds for believing that in order to interview the Claimant it was necessary to arrest him. There is simply no evidence as to whether and if so why PC Downie considered it necessary to arrest the Claimant. The only evidence of her reasons for arrest are that at Bloxwich police station she told the Claimant that if he did not accept a local resolution he would be arrested and the entry in the custody record of the statutory reason for arrest which was within PACE Section 24(5)(e). PC Downie recorded in her log the fact of but not the reason for the Claimant’s arrest.[54]When questioned by Mr Miah as to why as the Claimant attended the police station voluntarily he was not interviewed under caution without being arrested, the custody record shows that PS Rees:
“also stated that with a statement under caution then the PIC would be under no obligation to remain for the duration of an interview. Clearly should he attempt to leave he would be arrested and therefore as per PACE where officers think that a person would not be allowed to leave but would be arrested then they should be arrested. In my opinion this is a prompt and effective investigation.”
[55]I draw the inference from this contemporaneous note made by PS Rees that the reason why he considered arrest to be appropriate was that set out in PACE Code C:3.21. There is no contemporaneous evidence that PS Rees took into account any other reasons why the Claimant’s arrest was necessary.[56]Without suggesting that these were reasons PC Downie gave for arresting the Claimant, PS Rees gave oral evidence nearly a year after the event that he considered that by reason of the fact that the Claimant was in a position of trust who was alleged to have assaulted a pupil he should be formally interviewed. He stated that as a matter of routine ‘this is the sort of matter which should be dealt with in the custody environment’. As justification for arrest PS Rees also referred to the power of setting bail conditions which would be available only after arrest.[57]I do not accept Mr Beer’s contention that PS Rees’ reasons for detaining the Claimant should be regarded as curing any defect in the arrest of the Claimant. The duties of a custody officer are different from that of the arresting officer. The duties of a custody officer under PACE Section 37 only arise after a person has been arrested. He does not decide whether a person should be arrested. His duty is to consider whether a person detained after arrest should be charged or should otherwise be detained. If the custody officer determines that he has insufficient evidence to charge him he shall release him on bail “unless the custody officer has reasonable grounds for believing that his detention without being charged is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him.” A summary of these grounds are entered as ‘Detention Grounds’ on the custody record. The custody officer considers whether detention is necessary not whether arrest is necessary.[58]Lewis and Evans relied upon by Mr Beer to the effect that an omission at the time of arrest can be made good at the time of presentation before the custody officer is distinguishable from the Claimant’s case. In Lewis and Evans there was no challenge to the grounds for the original arrest. The default of which complaint was made was not informing the person at the time of the arrest what those grounds were. In this case there is no evidence as to whether and if so on what grounds the arresting officer considered arrest to be necessary.[59]The reasons why an officer believes it necessary to arrest a suspect are material to a consideration of whether PACE Section 24(4) is satisfied. The grounds on which the officer formed the belief that arrest was necessary are then tested against objective criteria to determine the reasonableness of the belief. A court will only interfere with the operational discretion given to a police constable to arrest a suspect on Wednesbury grounds. Kerr LCJ observed in Alexander:
“15. Of perhaps greater pertinence in the present debate, however, is the question whether having reasonable grounds to believe (just as having reasonable grounds to suspect) restricts the ambit of permissible review by the courts to an examination of the actual grounds considered by the arresting officer. After all, it is to the grounds which the officer had, as opposed to those that he might have considered, that the subsection directs one’s attention. This suggests that one should concentrate on the specific grounds to which the constable had regard. As against that approach, however, a willful refusal to take into account factors that might have led unmistakably to a contrary view as to the necessity to arrest surely cannot be ignored in any judgment on the reasonableness of the grounds on which the belief was formed. 16. We consider that where a police officer is called upon to make a decision as to the necessity for an arrest, the grounds on which that decision is based can only be considered reasonable if all obviously relevant circumstances are taken into account. In particular, it is necessary that he make some evaluation of the feasibility of achieving the object of the arrest by some alternative means, such as inviting the suspect to attend for interview.”
[60]In my judgment it is useful to consider the Claimant’s challenge to the lawfulness of his arrest by adapting and applying the Castorina questions to the prerequisite of belief in the necessity of arrest within the meaning of PACE Section 24(4). In my judgment a useful approach to determining whether the necessity requirement is satisfied may be to adapt the approach to these questions used by Auld LJ in Al Fayed and others v Commissioner of Police and others [2004] 1 Pol LR 370 at page 385 paragraph 83 as follows:(1) In determining satisfaction of the ‘necessity’ requirement the state of mind is that of the arresting officer, subjective as to the first question, the fact of belief that arrest was necessary and objective as to the second and third questions, whether he had reasonable grounds for it and whether he exercised his discretionary power of arrest in Wednesbury reasonably.(2) It is for the police to establish the first two requirements, namely that an arresting officer believed that the arrest of the Claimant was necessary for one of the Section 24(5) reasons and that he had reasonable grounds for his belief. Whether the officer had that belief and reasonable grounds for it is a question of fact for the Court to determine (see also Holgate-Mohammed v Duke [1984] 1 AC 437 per Lord Diplock page 442F-443A and Plange v Chief Constable for Humberside Police [1992] The Times 23rd March per Parker LJ)(3) If the police establish those requirements the arrest is lawful, (all other preconditions being satisfied) unless the Claimant can establish on Wednesbury principles that the arresting officer’s exercise of his power of arrest was unreasonable. (Holgate-Mohammed page446A-D, Plange and Cumming v Chief Constable of Northumbria Police [2003] EWCA Civ 1844 per Latham LJ at paragraph 26).[61]The Court in Alexander observed at paragraph 21 that:
“An examination of what motivated a police officer to decide that an arrest was necessary is self-evidently better conducted in proceedings where the opportunity arises for the constable to give oral evidence.”
The only English case referred to by counsel in which the ‘necessity’ element of an arrest in PACE Section 24(4) arose was R (‘C’ and ‘A’) v the Chief Constable of ‘A’ Police [2006] EWHC 2352 (Admin). However Underhill J did not base his judgment on Section 24(4). He held at paragraph 29:
“On balance I do not think I ought to decide the question. I would have done so if I had been satisfied that the evidence was clear and reasonable complete and that there were strong reasons why the question had to be urgently determined.”
[62]In my respectful view ‘necessity’ in PACE Section 24(4) is an ordinary English word which can be applied without paraphrase. The meaning ascribed to ‘necessity’ by the distinguished Court in Northern Ireland in Alexander of ‘the practical and sensible option’ may be useful in some circumstances but should not be used instead of the statutory language. The decision as to whether an arresting officer’s belief that an arrest is necessary is challengeable on Wednesbury grounds will be fact sensitive. However due regard should be paid to the observation of the Court in Alexander at paragraph 19 that the arresting officer “…must, in our judgment, at least consider whether having a suspect attend [a police station voluntarily] …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”[63]Of the case of Farrelly the Court held:
“23. ….The applicant had attended the police station voluntarily. He had waited for some time before the investigating officer, Constable Letson, was ready to see him. He was fully co-operative at all times. Significantly, the constable has said that he felt that it was inappropriate to bring an individual in for police inquiries ‘as a voluntary attender’ where, if that person sought to leave before inquiries were completed, he would inevitably be arrested. 24. It is clear, therefore, that the constable did not consider any alternative to Mr Farrelly’s arrest at any stage. It was his intention to arrest, whatever the circumstances. It appears to us that he thereby took up a pre-determined attitude to the arrest of the applicant. No consideration of a possible alternative to arrest was undertaken. The officer’s invariable practice was to arrest where he considered that a voluntary attender would have to be arrested if he sought to leave. This inevitably involved a pre-emptive conclusion that all voluntary attenders at the police station would have to be arrested if questioning was to be undertaken. The constable’s stance precluded any evaluation as to whether voluntary attendance would achieve the objective that the constable wished to secure. In our judgment this arrest cannot be said to have been based on reasonable grounds for believing that it was necessary. For the reasons that we have given above, we consider that some consideration of the feasibility of obtaining the same result by having the suspect questioned as a voluntary attender is a prerequisite to a tenable conclusion that it is necessary to arrest.”
[64]In my judgment the facts of this case are materially indistinguishable from those in Farrelly. The Claimant not only attended one but two police stations voluntarily. He was fully co-operative at all times. PS Rees noted on the custody record that “PIC arrive calm and compliasnt [sic].”[65]There was no evidential basis for a belief that the Claimant would interrupt his interview and leave the police station. He had travelled to Walsall police station from Bloxwich police station in the expectation that he would be arrested and interviewed there.[66]In the absence of any evidence from the arresting officer or from PS Rees that PC Downie had considered whether the Claimant’s arrest was necessary or if she did the reason she so concluded, the Defendant has failed to establish the fundamental prerequisite of showing that the ‘necessity’ requirement of PACE Section 24(4) was satisfied in the Claimant’s case.[67]In paragraph 9 of the Defence the Defendant relies on the reason why PS Rees, the custody officer, considered it necessary to arrest the Claimant. Even if the decision to arrest had been that of PS Rees, in my judgment on the evidence the reason he considered arrest to be appropriate was that as a voluntary attender at the police station the Claimant would be free to leave his interview and would be arrested if he did so. PS Rees considered that PACE required that in those circumstances the suspect ‘should be arrested’ as he noted on the custody record. In reaching such a conclusion there is no evidence that PS Rees took into account the circumstances in which the Claimant was attending voluntarily at the police station. There is no evidence that he made any assessment of the likelihood that the Claimant would leave an interview. He reached his view based on general propositions and Code C:3.21 without taking into account the facts of the particular case.[68]Whilst in general, arrests to apply pressure to a suspect to obtain a confession may be lawful (Holgate-Mohammed) or to be able to impose bail conditions, reasons referred to by PS Rees in his oral evidence, in my judgment there is no evidence that these were the reasons why PC Downie believed it was necessary to arrest the Claimant. Such reasons would be inconsistent with the pleaded Defence. Further an arrest so that bail conditions could be imposed would also be inconsistent with the statutory arrest reason entered in the custody record. PS Rees in his written statement for these proceedings gave his reason for considering that ‘the practical and sensible option was arrest and detention’. This was that as a voluntary attender the Claimant would be free to leave part way through the interview and “there would be confusion about his status and difficulty about his then being arrested which might prejudice the investigation.” I find that the reason recorded by PS Rees on the custody record which was reflected in his written statement was the reason why he thought the arrest and detention of the Claimant was appropriate. Other reasons mentioned by him in oral evidence may in other circumstances be reasons for arrest and detention but there is no evidence that they were the reasons why the Claimant’s arrest and detention were believed to be necessary.[69]If the reason for believing that the arrest of the Claimant were that recorded by PS Rees in the custody record, it displays in the words of Kerr LCJ in Alexander a pre-emptive conclusion that all voluntary attenders at the police station would have to be arrested if questioning was to be undertaken. It would have resulted from the application of Code C:3.21 without a consideration of the circumstances of the particular case.[70]There was no evidence that an evaluation was made of the need to arrest the Claimant taking into account all the relevant circumstances of his case including his voluntary attendance at two police stations, travelling to Walsall knowing that he would be arrested before being interviewed. No evidence was adduced on which an officer could conclude that the Claimant would be likely to leave his interview before the end. In my judgment on the evidence before me a belief that the Claimant’s arrest was necessary would have been Wednesbury unreasonable.[71]For the reasons given I make a declaration that the arrest of the Claimant on 16th December 2009 was unlawful. His claim for false imprisonment consequent upon the unlawful arrest succeeds.[72]I did not, by agreement of the parties, hear submissions as to the quantum of damages. The parties instead agreed damages for false imprisonment in the sum of £1,000 and that is the sum that I award.[73]The Claimant consented to have his fingerprints and DNA samples taken and to be photographed. He stated that he thought that this was part of the process of being arrested. To a certain extent he was right. Pursuant to PACE Section 61(3)(a) and Sections 63(2A)(2B) and(2C), fingerprints and samples can be taken without consent from a person who is arrested and detained. Entitlement to destruction of samples and fingerprints is only given by Section 64(3) to those who are not suspected of committing an offence. In other cases a request must be made to the relevant Chief Constable who should make a decision as to whether to delete such records. Guidance is given by ACPO in its paper dated 24th April 2006 ‘Exceptional Cases: Procedures for Removal of DNA, Fingerprints and PNC Records’. It is stated that exceptional cases justifying the removal of records:
“…might include cases where the original arrest or sampling was found to be unlawful.”
In this case the arrest has been found to be unlawful.[74]The record of the Claimant’s arrest is retained on the Police National Computer (‘PNC’). The Police Act 1997 Section 113B(4) as amended requires the Secretary of State, before issuing an Enhanced Criminal Record Certificate (‘ECRC’), to request the Chief Officer of every relevant police force to provide:
“…any information which, in the Chief Officer’s opinion- (a) might be relevant for the purpose described in the statement under subsection (2), and (b) ought to be included in the certificate.”
Section 119(2) obliges the Chief Officer of police to comply with the request. (a) might be relevant for the purpose described in the statement under subsection (2), and (b) ought to be included in the certificate.”[75]I accept the propositions advanced by Mr Beer in his skeleton argument at paragraphs 35 and 36:
“35. The trigger for a disclosure of information (other than records of convictions and cautions, which are dealt with separately as Criminal Records Certificates under s113A of the 1997 Act) in not whether the subject of the request has been arrested for an offence. The trigger is whether, in the chief officer of police’s opinion, the information which it is proposed to disclose might be relevant and ought to be included with the certificate. What is relevant is the allegation made against the person that might be relevant to their current or future employment (not their arrest). 36. So, a disclosure may be made (and often is made), by chief officers of police where the subject was not arrested. Indeed, in the leading case on the operation of the ECRC regime, R (L) v Commissioner of Police of the Metropolis [2009] 3 WLR 1056, the Appellant had not been arrested and the disclosure made by the police related to concerns over her neglect of her son: see p1064A-C. There are many other examples of this. In short, whether a person is arrested or not is no indication of whether a disclosure will subsequently be made by a chief officer of police to the Secretary of State for the purposes of an ECRC.”
[76]In the circumstances I decline to make the orders sought in relation to fingerprints, samples and the arrest record.

(f) of his Defence:

“Once this Court has made its decision, the Defendant will take it properly into account when making any decision as to a request by the Claimant for destruction/removal.”
[77]I grant a declaration that the arrest of the Claimant by the Defendant on 16th December 2009 was unlawful. The Claimant is awarded damages in the sum of £1,000 for false imprisonment. The claim for injunctive relief fails.

Cited in 6 later judgments