High Court rules that common practice of arresting voluntary attenders at police stations is unlawful unless there are clear reasons why the arrest is necessary  

> judgment

> 11/4/11 - Arrest of volunteer was unlawful (Times Law Report)

Background

The claimant was a teacher against whom an allegation of assault had been made by a pupil. Despite the parents not wanting to take the matter further, the police investigated and asked the claimant to come in for interview. He contacted his Union, the NASUWT, who in turn contacted their solicitors. The solicitor rang the police who indicated that a ‘local resolution’ would be appropriate. This would have involved an admission of wrongdoing but no proceedings. Because the claimant vehemently denied doing anything wrong he declined this informal disposal. The police then asked him to come in for interview which was arranged by appointment. He voluntarily attended with his solicitor whereupon he was arrested, despite the representations made that there was no necessity to arrest as required in Section 24, PACE. The claimant was interviewed and denied any wrongdoing. He was photographed, fingerprinted and had DNA samples taken, before being bailed two hours later. The police subsequently notified his solicitor that no further action was to be taken against him.

With the continuing support of the NASUWT the claimant took a claim against the police seeking a declaration that the arrest was unlawful, damages for false imprisonment and the amendment of the police records to show that the arrest should not have happened and the deletion and destruction of the fingerprint and DNA records.

Following trial, Slade J held that the arrest was unlawful because there was no evidence that it was necessary, and made the declaration and awarded agreed damages of £1,000. The judge declined to give the injunctive relief because this involved the Chief Constable making a further decision in light of the declaration that the record should be amended and the samples and data be deleted and destroyed. This further decision is now awaited.

Commentary

The case is of general importance because the fact of arrest will often show up on an enhanced criminal record certificate, required by everyone who works with children and vulnerable adults, and will be required to be disclosed on some visa applications, notably to the USA. The experience of the NASUWT was that 95% of complaints against their members did not lead to criminal proceedings, yet the fact of arrest would often bring the teacher’s career to an end. Many other workers are affected in a similar way, including fire fighters, prison officers, and other professionals.

The judgment is particularly significant for the guidance it gives in respect to the necessity for arrest, applying an adapted Castorina test; the police have to establish that (i) the arresting officer subjectively believed he/she had proper grounds for believing that arrest was necessary, and (ii) that the grounds were objectively reasonable. If they fail on either limb the arrest will be unlawful. If they establish both limbs the arrest can only be impugned on Wednesbury grounds.

This means that the police will no longer be able to rely on pro forma phrases to justify the necessity for arrest, and it appears that in the majority of cases where a suspect attends at the police station by appointment the necessity for arrest will not be made out. Given the widespread practice of arresting voluntary attenders for police interviews it seems that proper guidance is urgently needed for arresting officers to prevent such cases from recurring.

The claimant was represented by Pete Weatherby of GCN, and Nick Taylor and Dilaor Miah of Thompsons Solicitors , instructed by NASUWT.

Media coverage

> 30/3/11 - Landmark judgment on false arrest of teachers (NASUWT Press Release)

> 30/3/11 - Payout for Birmingham Teacher after unlawful arrest (BBC News)