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Everyone should carry a copy of this case, Richardson v Chief Constable West Midlands 2011. It makes plain that on a voluntary attendance the police cannot presume to arrest. They must consider a voluntary interview. PACE clearly states that the police need to establish the necessity for an arrest. Without a compelling reason there is unlikely to be such a necessity and voluntary attendances should be dealt with by way of a voluntary interview.

Its worth noting that this case was brought by Dilhor Miah who is a member of Our job matters and we can make a big difference.


In Richardson v West Midlands Police 2011 a teacher was alleged to have assaulted a pupil and voluntarily attended two police stations. On his arrival at the second police station he was arrested by the investigating officer 'to allow the prompt and effective investigation of the offence.

The court found that the suspect had fully co-operated, and had attended the second police station knowing that he would be arrested and interviewed. There was no basis on which the investigating officer could have concluded that he might leave before the conclusion of the interview. The court held that the arrest had been unlawful.

It is not permissible to operate a blanket policy whereby everyone voluntarily attending a police station to be interviewed has to be arrested; instead, the decision whether or not to arrest must involve a consideration of the facts of the particular case; a conclusion that a suspect might leave before the conclusion of an interview must be based on evidence, taking into account the relevant circumstances, rather than on general propositions; where there is no such evidence, such a conclusion is not warranted and cannot be used to justify arrest; and if the arrest cannot be so justified, then in the absence of any other grounds justifying arrest it will be unlawful.


The High Court ruled that common practice of arresting voluntary attenders at police stations is unlawful unless there are clear reasons why the arrest is necessary. The Richardson case relates to a teacher who was arrested depite attending for a voluntary interview. The police have to establish that: the arresting officer subjectively believes they have proper grounds for believing that arrest was necessary, and 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.

In Alexander Bull Farrelly and Fox [2009] NIQB 2, the court held that, when carrying out a criminal investigation, every officer must consider if it is necessary to make an arrest and have regard to all relevant circumstances. There must be some evaluation of the feasibility of achieving the object of an arrest by alternative means. It does not require that there is no viable or practical alternative.

An officer who therefore arrests as a matter of course will be acting unlawfully and strong representations should be made.

The Serious Organised Crime and Police Act 2005 substitutes the powers of arrest found in section 24 and 25 of PACE and makes all classes of offence 'arrestable' if the 'necessity criteria' applies.

PACE CODE G PACE Code G governs powers of arrest. The need for the code is to balance individual rights and the need for investigative powers by the police. The use of powers of ‘arrest must be fully justified’ and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.

The exercise of arrest powers is subject to a test of necessity based around the nature and circumstances of the offence and the interests of the criminal justice system. Arrest must never be used simply because it can be used.

When the power of arrest is exercised it is essential that it is exercised in a non discriminatory and proportionate manner. Prior to making an arrest police Officers need to be satisfied that there are reaonable grounds and that the arrest is necesary s24(5). Code C 10.3 states that a person who is arrested must be informed as soon as practicable after their arrest of the fact of their arrest and the grounds for it. The Note for Guidance 10B clarifies that this means that the suspect must be informed of the nature of the suspected offence, when and where it was committed and the reasons why arrest is considered necessary. 1.1 This Code of Practice deals with statutory power of police to arrest persons suspected of involvement in a criminal offence. 1.2 The right to liberty is a key principle of the Human Rights Act 1998. The exercise of the power of arrest represents an obvious and significant interference with that right. 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 for exercising the powers of arrest may lead to challenges should the case proceed to court.


In the case of Lord Hannigfield v Essex Police 2013 the judge says summary arrest was never going to have any impact on the prompt and effective investigation of Lord Hanningfield's council expenses. In his decision, Mr Justice Eady said he had considered whether the arrest was necessary 'to allow the prompt and effective investigation'.

'The prospect of Lord Hanningfield attempting to 'bully' any of the police officers visiting his home that morning does seem somewhat remote. It was further mooted that, unless he was arrested, Lord Hanningfield might seek to destroy or conceal evidence relating to his expenses. It seems that the officers were under the mistaken impression, for example, that he was still in possession of a council computer.' Mr Justice Eady said he felt the police officer concerned believed the arrest was necessary. But he said: 'I have come to the conclusion that the requirement of 'necessity' as laid down by Parliament has not, on any realistic interpretation of the word, been met.'


Hayes v Chief Constable of Merseyside Police 2011 established a two stage test to determine the validity of an arrest. The meaning of PACE s24(4)-(5) was also consdidered.

The case involved an action for false imprisonment. The claimant was alleged to have been a drug dealer who had intimidated a drug user on the street and had thereby committed a common assault. A police officer arranged to meet the claimant at a railway station and arrested him upon arrival, stating that the arrest was necessary in order to obtain his mobile telephone, to detain him for further questioning and to impose bail conditions upon his release. Subsequently, the complainant withdrew his complaint and the claimant was released by the custody officer. The court rejected the claimant’s argument that the arresting officer had to have considered and rejected every possible alternative to arrest.

The relevant consideration when deciding if an arrest is lawful is what was in the mind of the arresting officer. The arresting officer must subjectively believe that the arrest is necessary.

In addition, the arresting officer’s decision to arrest 'must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds'This does not mean that the arresting officer has to actively consider all possible courses of action – taking into account all relevant considerations and excluding all irrelevant considerations. However, the arresting officer should give at least a 'cursory consideration' to options other than arrest, but only because 'the officer who has given no thoughts to alternatives to arrest is exposed to the plain risk of being found by a court to have had, objectively, no reasonable grounds for his belief that arrest was necessary.'

By the same token, if an arresting officer fails to consider PACE Code G 1.3 ('officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means') this does not automatically make the arrest decision unlawful. Such a failure merely acts as an indicator that the officer did not have objectively reasonable grounds for concluding that the arrest was indeed necessary.

The language of s24(4) provides a straightforward reasonableness test. If the Officer believes an arrest is necessary, clear reasons should be documented in the Pocket Book and on the Custody Record. Simply reciting 'Prompt and effective investigation' is insufficient, specific reasons must be identified.

When a person attends the police station voluntarily to be interviewed by arrangement, their arrest on arrival at the station prior to interview would only be justified if new information has come to light after the arrangements were made which indicates voluntary attendance has ceased to be a practical alternative, their arrest is necessary and it was not reasonably practicable for the person to be arrested before they attended at the station.

The powers of arrest do not enable officers to arrest all suspects in all circumstances.

The court laid down a two stage test for assessing the legality of an arrest in each case: Did the arresting officer actually believe that the arrest was necessary for an identified s.24(5) reason? If he did, was that belief objectively reasonable?

In applying this test, the relevant facts for considering the reasonableness of the officer’s belief are the facts known to that officer at the time of making the arrest: facts which, had he been aware of them, would have justified the arrest are not relevant.


The decisions in Richardson and Hayes prompted the Government to revise Code G and issue fresh guidance in order to ensure that the police comply with these guidelines. The following principles relating to the arrest of voluntary attendees emerge from that guidance: An officer intending to interview a suspect must consider whether voluntary attendance is a practical alternative to arrest, and, if it is, arrest will not be necessary When making arrangements for voluntary attendance, the officer should tell the suspect that his arrest will not be necessary if he attends a police station voluntarily to be interviewed When the suspect attends the police station voluntarily for interview, his arrest prior to interview will only be justified where new information has come to light since the interview arrangements were made which indicates that voluntary attendance has ceased to be a practical alternative, but it was not reasonably practicable to arrest him before he attended; and If a suspect decides to leave before the conclusion of an interview, the position can be reconsidered, but the possibility that he might decide to do so is not a valid reason for arresting him before the interview has started. This fresh guidance should now make it clear to the police that it is unacceptable to justify the arrest of a volunteer interviewee purely on the basis that the interviewee may leave the interview before its conclusion.


If you think about it nothing has changed. PACE always said it was unlawful to arrest someone who attended voluntarily. These cases merely clarify what we all had been arguing for years. The real question is what would amount to a sufficient, reasonable, necessity to arrest a volunteer? That is hard to say, but perhaps some new evidence turning up at the very last minute like DNA or fingerprints at the scene of a crime. Even then the defendant should really be asked to provide the evidential samples first rather than being arrested. It would have to be some new evidence that was pretty compelling.

The important lesson to take from all this is that if a client who attends voluntarily is subsequently arrested you should immediately make representations. Simply invite the custody officer to note your representations. No song an dance simply ask him to consider Richardson and Hayes. Ask custody for the reason for the arrest and then point out that a necessity has not been established. Clients can sue for wrongful arrest. Clients tend to be very happy when the police pay for a holiday in Florida!

voluntary_interviews.txt · Last modified: 2018/01/15 10:56 by frescom