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Significance of the Term
Although now all but obsolete in terms of official usage in English law, 'arrestable offence' remains conceptually significant and is still widely used in theoretical discussions about the law. This is due, no doubt, to the intuitive appeal of the term and the various different categories of offence conceptually associated with it. It is likely also the product of 'old habits dying hard', especially with stiff-necked old lawyers more accustomed to the former mode of classification. In any event, it is certainly the case that those wishing to examine the law, particularly criminal law, with a deeper, more theoretical, or even philosophical, lens will find it quite necessary to grasp fully the meaning of this term and its firmly established conceptual significance, something that even an Act of Parliament cannot easily undo.
From 'Arrestable Offence' to Simply 'Offence==
In England & Wales, the legal category 'arrestable offence' ceased to exist with the advent on 1 January 2006 of the Serious Organised Crime and Police Act.
Conceptually, an 'arrestable offence' is an offence for which a suspect may be arrested without a warrant. The Police And Criminal E v idence Act (1984) (PACE) defines 'arrestable offence' principally as one that carries a sentence of five years' imprisonment or more. However, PACE also specifies certain situations where it is lawful to arrest a suspect without warrant, even though the infraction does not (normally) fall under the heading 'arrestable offence'.
According to PACE, the following categories offences are designated 'arrestable offence':
(i) Any offence for which the sentence is fixed by law. An obvious example is murder, which carries a sentence of life imprisonment.
(ii) Any offence for which a person, 18 years old or older, who had not perveiously been convicted, could be sentenced to a term of imprisonment for at least five years. Under this heading is found the vast majority of 'arrestable offences', including theft, serious assault, burglary and criminal damage. Note that in addition to major offences involving violence or dishonesty, there are some relatively minor ones included here as well, e.g. shoplifting.
(iii) Any offence listed in Schedule 1A of PACE, all of which carry sentences that either are or can be (for example, if tried summarily) less than five years imprisonment. These include: (a) offences under Section 12(1) Theft Act 1968 (e.g. taking a motor vehicle without consent); (b) offences under Section 3 Theft Act 1978 (e.g. making off without payment); (c) offences under Section 1 of the Protection of Children Act 1978 (e.g. indecent photographs of children); (d) the offence of possessing cannabis or cannabis resin under the Misuse of Drugs Act 1971
An arrest for an act falling under this broad category of may be performed by a police officer or private citizen (performing a 'citizen's arrest') against either of the following: (i) an individual in the act of committing, or reasonably suspected to be in the act of committing, an arrestable offence; (ii) where an arrestable offence has been committed, an individual who is guilty, or reasonably suspected to be guilty, of being the perpetrator of that offence. In addition, a police officer alone may arrest: (i) an individual reasonably suspected to be about to commit an arrestable offence; (ii) an individual reasonably suspected of having committed an arrestable offence, even if the arresting officer has no certain or prior knowledge that the offence was actually committed.
Note that the standard of 'reasonable suspicion' necessary here requires that the person performing the arrest genuinely suspects the arrested party regarding the relevant offence (whether committed, in the process of being committed, or about to be committed), and rest this suspicion on reasonably justifiable grounds. Even if the person carrying out the arrest is acting on official instructions, he must be provided sufficient information to conclude in his own mind that the grounds for suspicion of the arrested party are indeed reasonable. This matter, of course, will always be a question of fact in the particular circumstances. Nevertheless, it does provide the arrested suspect with a way to challenge the lawfulness of his arrest (however rare such a challenge might be).
Serious Arrestable Offence
PACE identifies a second category of offence, namely the 'serious arrestable offence'. Although the powers of arrest under this heading remain the same as for the previous one, the powers of detention in this instance are rather more draconian. For example, some of the measures warranted by a serious arrestable offence include: (i) the suspect's detention without charge for up to 96 hours; (ii) denial of access by the suspect to a solicitor; and (iii) delay of notification regarding the suspect's detention to a family member or friend for up to 36 hours.
The list of serious arrestable offences includes:
(i) Treason, murder, manslaughter, rape, kidnapping, incest or intercourse with a girl under 13, buggery with a boy under 16, indecent assault constituting gross indecency, causing an explosion likely to endanger life or property, certain offences under the Firearms Act 1968, causing death by dangerous driving, hostage taking, torture, various drug-related offences, ship hijacking, Channel Tunnel train hijacking, taking indecent photographs of children, and publication of obscene matter.
(ii) Any purely arrestable offence whose commission has led to, was intended to lead to, is likely to lead to, or is threatened to lead to, any of the following consequences: (a) serious harm to the security of the State or to public order; (b) serious interference with the administration of justice or with the investigation of an offence; (c) the death or serious injury (including disease or impairment) of any person; or (d) substantial financial gain on the part of the suspect or serious financial loss on the part of a victim.
With an ever-increasing number of newly-created offences being added to Schedule 1A of PACE (thereby being made 'arrestable'), Parliament felt it wise to abolish the category of 'arrestable offence' and replace PACE's 'complex' structure of multi-category offences with a (critics might say equally 'complex') single category of offences. This it achieved through enactment of the Serious Organised Crime and Police Act 2005. As a result, the key question presently for police authorities contemplating an arrest is whether it is 'necessary' to take such action, this necessity determined by criteria specified in the 2005 Act.
According to the Serious Organised Crime and Police Act 2005, the general criteria for an 'offence' that warrants a 'necessary' arrest are as follows:
(ia) The name of the relevant person is unknown to, and cannot be readily ascertained by, the police official. (ib) The police official has reasonable grounds for doubting whether a name furnished by the relevant person as his name is his real name.
(iia) The relevant person has failed to furnish a satisfactory address for service; or (iib) The police official has reasonable grounds for doubting whether an address furnished by the relevant person is a satisfactory address for service.
(iii) The police official has reasonable grounds for believing that arrest is necessary to prevent the relevant person: (a) causing physical injury to himself or any other person; (b) suffering physical injury; (c) causing loss of, or damage to, property; (d) committing an offence against public decency; or (e) causing an unlawful obstruction of the highway.
(iv) The police official has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person from the relevant person.