Police powers of arrest

Disclaimer: this article is for general information. It is not intended to be used as legal advice. For information on how to get legal advice, please see our ‘I need a lawyer’ page.

What is an arrest?

An arrest is the police’s power to detain someone in order to investigate or prevent a crime. The police’s power to arrest is mainly regulated by the Police and Criminal Evidence Act 1984 (PACE) and the Codes of Conduct.

What can I be arrested for?

The police have five main powers of arrest. These are to:

1. arrest, without a warrant, anyone they suspect has committed, is committing, or is about to commit an offence (and they believe that an arrest is necessary)
2. execute arrest warrants issued by the court
3. arrest those who fail to answer or breach their bail conditions and those who breach the conditions of a Police Caution
4. arrest those who breach a court order or injunction
5. arrest those they suspect have ‘breached the peace’ or are threatening to do so.

What happens if I am arrested?

If you are arrested, the police must:

• tell you that you are being arrested and are not free to leave; and
• explain why they are arresting you.

If they do not give you this information as soon as is practicable, the arrest is unlawful.

After being arrested, you must be taken to a police station as soon as possible. When you arrive, the custody officer must also be informed of the reasons for your arrest. This custody officer must then review the facts and decide whether it is necessary to keep you in a police cell or whether you should be let go.

If you’re under 18:

• the police should only arrest you at school if it’s unavoidable. They must inform your headteacher of your arrest.
• the police must also contact your parents, guardian or carer as soon as possible after your arrival at the police station after being arrested.

If, after your arrest but before you reach the police station, the police officer believes there is no reason to keep you under arrest, you should be released (or ‘de-arrested’). In some cases you may be released on ‘street bail’. This means that you’re de-arrested now, but you’re required to go to the police station at another time. There might also be other conditions attached.

What is a caution?

When you’re arrested, you must be cautioned. It is important to note that this is not the same as accepting a police caution instead of being arrested. Although the same language it used, these are very different things:

• a police caution is an admission of guilt to a minor crime which does go on your criminal record. Further information on what a police caution is can be found on our ‘What is a police caution’ webpage.
• a caution before an arrest is a reminder of your right to remain silent.

The wording of the caution before you are arrested should be as follows:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something that you later rely on in Court. Anything you do say may be given in evidence.”

If there are minor variations in this wording, the caution is still valid.

However, the police do not have to caution you if your condition or behaviour make it impractical, or you’ve already been cautioned before the arrest (e.g. if you were questioned first and they cautioned you at that point).

What is a “breach of the peace” arrest?

A breach of the peace is defined as an act which:

1. harms a person, or
2. harms a person’s property in that person’s presence, or
3. is likely to harm a person or harm a person’s property in that person’s presence, or
4. makes someone fear such harm is about to happen.

Breach of the peace is not actually a criminal offence, and you cannot be charged with it. However, the police can arrest someone who has, or is about to, “breach the peace”. The grounds for the arrest must be based on removing the threat of this breach – they must release you once you no longer pose a “threat”.

If you have committed a breach of the peace, this might overlap with other offences (e.g. assault or criminal damage). You might therefore be charged with those other offences. If you were arrested only because the police believed that you were about to breach the peace, you cannot be charged for this.

However, you can be taken to a magistrates court and given a court order to keep the peace (most likely, to avoid whatever behaviour the police thought was a breach of the peace). If you breach that order, then you can be charged with contempt of court.

This is a strange area of law, and has been misused in the past by police officers. If you are arrested for breach of the peace, you may speak to a solicitor who specialises in actions against the police, who can advise you on whether this power of arrest was used appropriately.

Is an arrest necessary?

If you are arrested without a warrant because a police officer believes that you have committed, are committing or are about to commit an offence, the police must also reasonably believe that the arrest is ‘necessary’.

PACE sets out the six circumstances in which an arrest would be regarded as necessary:

1. To obtain your name

If you refuse to give the police officer your name, or they don’t believe that the name you have provided is your real name.

2. To obtain your home address

If you refuse to give the police officer your address, or they don’t believe that the address you have provided is your real address.

3. To prevent you from:

• causing physical injury to yourself or any other person e.g., if you’ve already been violent and it’s likely that you may assault others if you’re not arrested
• suffering physical injury yourself e.g., if your behaviour might provoke others to assault you, so you need to be arrested for your own protection
• causing loss or damage to property e.g., if you’ve been damaging property and it’s likely you may continue if not arrested
• committing an offence against public decency e.g., if you’re doing something lewd, obscene or disgusting in a place where the general public cannot avoid you
• causing an unlawful obstruction of the highway e.g., if you are unlawfully blocking the road and the police think it may continue if you are not arrested.

4. To protect a child or other vulnerable person from you

If the physical or mental health or welfare of a child or vulnerable person is likely to be harmed if you are not arrested. The officers should also check whether it is practical to make alternative arrangements to prevent you from having contact with the child or vulnerable person first, before they make an arrest.

5. To allow the prompt and effective investigation of the offence or of your conduct

If the officer believes that their investigation will be delayed unreasonably if you’re not arrested. For example, if they need to interview you or collect evidence from you, but don’t believe that you’ll come to the police station voluntarily.

6. To prevent the disappearance of someone suspected of committing an offence

If the officer believes that they won’t be able to find you later. For example, if the address you gave is temporary accommodation which you might leave before they get back in contact with you.

Can the police use force to arrest me?

Officers can use ‘reasonable’ force when making an arrest.

‘Reasonable force’ means using only as much force as they need to arrest you. It must be the minimum – no more.

Therefore, what is “reasonable” will depend on the facts of the case. If you are not resisting and are complying with what they are asking from you, then the use of handcuffs or any pushing might be considered unreasonable. However, in cases where people are physically resisting, the police officers might be able to say that the force that they used to hold someone down or handcuff them to prevent them from escaping or causing harm, was reasonable.

Can I be searched when arrested?

When you are taken to the police station (or if you are arrested there), the custody officer will ask you to hand over any property that you might have on you. If you refuse, they can search you.

If you‘ve been arrested anywhere other than at a police station, police officers can search you before you get there if they have reasonable grounds to believe you may be a danger to yourself or others. In this case they can search you for anything:

• you might use to escape, or
• might be evidence relating to an offence.

After you are arrested, the police also have the power to enter and search the premises you were in when you were arrested for any evidence relating to the offence without a warrant. They can also search any other property that you live in (e.g. your flat) or own (e.g. your business) for the same. The police must have reasonable grounds to believe that they will find evidence there.

However, they can only do this if the offence you’ve been arrested for is “indictable”. As a rule of thumb, “indictable” offences will be serious and able to result in a prison sentence of over six months. This is different to “summary only” offences, which tend to be more minor, and will be labelled as ‘summary only’ in the relevant legislation.

Police powers of arrest and your human rights

Your right to liberty is protected under Article 5 of the European Convention on Human Rights (ECHR), which is given effect in the UK through the Human Rights Act 1998 (HRA). This prevents people from detaining you in most circumstances, including the police.

However, Article 5 of the ECHR is a ‘limited’ right. This means you can be detained for certain purposes. This specifically includes lawful arrest.

This does mean that an unlawful arrest may be a breach of your right to liberty. Article 5 also requires the police (and the courts) to do certain things for anyone who is arrested or detained. It says:

• you must be told why you are being detained
• you must be brought before a judge promptly
• the lawfulness of your detention can be challenged
• you are entitled to compensation if you are wrongfully arrested or detained.

Similarly, the HRA:

• requires the police to act in a way that is compatible with your rights; and
• allows you to bring a claim in UK courts when your rights are violated.

For more information, take a look at our pages on how the HRA works, and how to use the HRA to challenge the police.

Police powers of arrest and discrimination

The power of arrest must be used without unlawful discrimination.

The Equality Act 2010 makes it unlawful for police officers to discriminate against, harass or victimise any person on the grounds of a ‘protected characteristic’. The protected characteristics are:

1. age;
2. disability;
3. gender reassignment;
4. marriage and civil partnership;
5. pregnancy and maternity;
6. race;
7. religion or belief;
8. sex; and
9. sexual orientation.

This means that the police can’t arrest you, or treat you poorly during an arrest, on the basis of any of these characteristics.

Article 14 of the ECHR also makes it unlawful for the police to discriminate against you in relation to your right to liberty. Article 14 also has a more open-ended category of protected characteristics. This means that some someone who is treated unfairly because of a characteristic which isn’t in the list above might be protected under Article 14 instead.

What should I do if I’ve been wrongfully arrested?

If you think you’ve been wrongfully arrested, you should contact a solicitor specialising in actions against the police who can advise you about a potential claim against the police’s conduct.

Even if the solicitor says you can’t bring a legal claim against the police, you can  make a police complaint.