25 October 2019
Written by: Nicola Robinson, PNLD Legal Adviser
Not reviewed after the date of publication
PNLD regularly receives queries in relation to a person’s arrest, both on a warrant and for an offence, often asking what options are available and how the custody clock is affected. Nicola Robinson, Legal Adviser at PNLD, has outlined some of the possible scenarios, below.
Wanted on a warrant after being arrested for an offence
If a person is initially arrested for an offence / PACE matter, and it is then discovered there is a warrant for the person’s arrest, then the execution of the warrant can be delayed until the PACE matter has been dealt with. Section 31 of PACE sets out the procedure to be followed when a person has been arrested for an offence, is at a police station in consequence of that arrest, and it appears that if he were released, he would be liable to arrest for some other offence. However, the procedure within section 31 only applies in relation to two arrests for offences, and therefore would not apply to a situation involving one arrest for an offence, and one arrest under a warrant.
Except for the provisions of section 31 and arrests effected under the authority of a warrant; there is no statutory duty imposed on police to arrest anyone. As held in O'Hara v Chief Constable of the Royal Ulster Constabulary 1996, no one can direct a constable who to arrest, or when to arrest. The fact that police officers have discretion when to arrest people in custody, who are outside the scope of section 31 of PACE, was confirmed in the case of Henderson v Chief Constable of Cleveland Constabulary 2001. For further information regarding this, see our FAQ 'Arrest - timing of breach of bail/warrant arrest when other investigation in progress'.
Dealing with an offence after an arrest on a warrant
For the reasons set out above, If a person is arrested on a warrant, and then it is subsequently discovered that he is wanted for an offence, or suspected that he has committed an offence, there is no obligation to arrest for the offence. From a practical point of view, there is also no need to arrest in this situation. The suspect is already in police detention following arrest on the warrant and there is nothing to prevent you interviewing and investigating the offence while he is in detention.
However, please note the case of R v Kirk 1999, which held that a suspect must be told in clear terms the true nature of the offence for which he is being interviewed:
'. . . . ..where the police, having made an arrest, propose to question a suspect or to question him further in relation to an offence which is more serious than the offence in respect of which the arrest was made, they must, before questioning or questioning further, either charge the suspect with the more serious offence, as envisaged by section 37 of the 1984 Act, or at least ensure that he is aware of the true nature of the investigation. That is the thrust and purport of paragraph 10.1 of Code C . . . . . '
As the suspect has been arrested on the warrant, he will need to be put before the next available court. If it is not possible to charge for the offence before the suspect is taken to court, you could ask the court to remand the suspect back to police custody in order to progress the investigation further.
Arrested both on a warrant and for an offence
As explained above, it is preferable to delay the arrest on the warrant where the arrest for the offence has already taken place, or to not arrest for the offence and interview / investigate while the person is in detention following arrest on the warrant. However, in some queries that we receive, an arrest has already been made, both on the warrant and for the offence. This makes the situation more complex.
Circumstances where a person is under arrest on a warrant and for an offence, at the same time, are not specifically dealt with in the legislation. However, it is our view that in these circumstances the warrant takes primacy – once actioned, the terms / wording of the warrant must be followed and the suspect must be put before the next available court.
If an arrest has been made for both a PACE matter and a warrant, we recommend that the PACE matter be dealt with whilst the person is awaiting court, in order to remain within the spirit of PACE and deal with the offence diligently and expeditiously. Please note however, that as an arrest has been made, the PACE clock will apply, with the relevant time being the time of arrest.
Options at court following arrest on a warrant and for an offence
If it is not possible to charge the person for the offence before he attends court under the warrant, the following options could be considered -
1. If the suspect is likely to be released by the court, you could consider bailing in relation to the offence, then allowing the suspect to answer that bail before dealing with the matter further, at which time the custody clock would restart. In such circumstances, the suspect should not be questioned about the offence following the bail being granted; if he is questioned, the clock should continue.
2. If the person is unlikely to be released by the court and will therefore be unable to answer bail, or if the requirements for bail are not satisfied, and the court has the power to remand, then you could allow the clock to run (and end) while the suspect attends court in relation to the warrant and then request that the court remand the suspect back to police custody under section 128(7) of the Magistrates’ Courts Act 1980, in which case the length of any further detention will be determined by the court, rather than the custody clock.
3. Alternatively, if the person is remanded to prison, you could request the production of the suspect from prison - see Schedule 1, Part 1, of the Crime (Sentences) Act 1997.
If a suspect is bailed (under option 1, above) but then the court remands the suspect back to police custody (as referred to in option 2, above), this will make the situation more complex. The clock will not continue as the custody of the suspect is then authorised and determined by the court, not the custody officer / custody clock. However, it is likely to be deemed unjust and against the spirit of PACE to use that time authorised by the court, and also keep the remainder of the clock for later use if he is able to answer bail at a later date. In this case, we would advise that you cancel the bail, disregard any time left on the clock, and use the time allocated by the court instead.
As can be seen from the information above, the options available will depend on the circumstances in each case and what action, if any, has already been taken. Officers need to be cautious when dealing with such scenarios and be fully aware of any outstanding warrants or offences, as an early decision at the time of arrest can impact on how the investigation progresses, in particular, how much time is subsequently available to interview and investigate.