Arresting to search with the intention of then de-arresting

11 September 2019

Not reviewed after the date of publication

Question:

Can a suspect be arrested in order to search and seize a phone, where that is the only necessity?

Can the suspect be arrested in order to perform the search and seize the phone and then de-arrested after the search, to allow for a voluntary interview at a later time?

Answer:

For an officer to effect a lawful arrest, the following two requirements must be present:

a person's involvement or suspected involvement or attempted involvement in the elements of a criminal offence; and

reasonable grounds for believing that the person's arrest is necessary.

The necessity grounds to justify an arrest are outlined by paragraph 2.9 of PACE Code of Practice G. Included within the grounds are the following sections which are relevant to this query -

‘2.9(e) To allow the prompt and effective investigation of the offence or of the conduct of the person in question … Examples of such actions include: …

(iv) when considering arrest in connection with any offence and it is necessary to search, examine or photograph the person to obtain evidence.’

Therefore, as long as the elements of arrest are satisfied, it is possible for an officer to carry out an arrest if it is necessary to search a person for evidence of an offence. However, Note 2H states that this necessity criteria does not allow for routine or speculative searching.

A de-arrest can take place if information comes to light indicating a suspect is not responsible for the offence for which they were arrested or the grounds of arrest otherwise cease to exist. Therefore, if an arrest is made in order to carry out a search and after the search, the arrest is no longer necessary (for example, if the person is willing to attend for a voluntary interview), then the decision may be made to de-arrest. This would need to be considered on a case by case basis, dependant on the full circumstances. However, having committed yourself to making an arrest, if you then decide to de-arrest, there will be a risk of the suspect failing to attend the arranged interview, in which case you would struggle to arrest them again without fresh evidence, and you would also lose the option to issue special warnings if they did attend for voluntary interview.

In conclusion, it is technically possible to arrest in order to carry out a search and then de-arrest after the search, and we are of the opinion that if an officer arrests to search, carries out the search, and then at that time (after the search), maybe based on the results of that search, decides to de-arrest, then that wouldn’t necessarily be an issue. However, it is our view that arresting and searching with the prior intention of de-arresting is likely to be challenged as an abuse of power, particularly if this becomes a regular occurrence.

The following options may be available to in order to lawfully seize the phone without the need to arrest:

Voluntary Submission of Evidence

The phone may be voluntarily provided to the police by the owner with consent for it to be examined. If this is done we would advise that consent is obtained in writing. However, it would not be unreasonable for the owner of the phone to refuse to hand their phone over to the police for a period of what might be some months, whilst they examine it.

Common Law

The common law power of seizure is explained in the case of Ghani v Jones 1969. This case states that in order to justify the taking of an article where no one has been arrested or charged –

  1. the police must have reasonable grounds for believing that a serious crime had been committed;
  2. they must have reasonable grounds for believing that the article was either the fruit of the crime or the instrument by which it was committed or was material evidence to prove its commission;
  3. they must have reasonable grounds to believe that the person in possession of the article had committed the crime or was implicated in it; and
  4. they must not keep the article or prevent its removal for any longer than was reasonably necessary to complete their investigations or preserve it for evidence (although since this case, powers of retention have been created within PACE – see below).

Please be aware that the police must have reasonable grounds for believing the points mentioned in 1 to 4 above in order for the common law power of seizure to be available.

Section 19 of PACE

Under section 19(3) of PACE, a constable who is lawfully on a premises,

‘may seize anything which is on the premises if he has reasonable grounds for believing –

(a) that it is evidence in relation to an offence which he is investigating or any other offence; and

(b) that it is necessary to seize it in order to prevent the evidence being concealed, lost, altered or destroyed.

The police must have reasonable grounds to believe the phones contain evidence of the offence and it is necessary to seize it. This is an assessment that must be made by the officer on a case by case basis, so depending on the full facts, if you deem that the requirements of the legislation are met, we are of the opinion that section 19 may be considered in order to seize the mobile phone. Please note this only allows constables to seize property on premises. It also provides no power to search for the phone. The power to retain the phone following seizure under this section is set out below.

Section 22 of PACE

Section 22 of PACE and the Criminal Procedure and Investigations Act 1996 Code of Practice deal with retention of property. Section 22 provides:

‘22(1) Subject to subsection (4) below, anything which has been seized by a constable or taken away by a constable following a requirement made by virtue of section 19 or section 20 above may be retained so long as is necessary in all the circumstances.’

Therefore, this applies to property seized under sections 19 or 20 of PACE and states that the property may be retained for use as evidence at trial for an offence or for forensic examination or for investigation in connection of an offence. 

However, please note section 22(4) of PACE, which states:

‘Nothing may be retained for either of the purposes mentioned in subsection (2)(a) above if a photograph or copy would be sufficient for that purpose.’

If it is possible to download the contents of the mobile phone and use that copy as evidence, without needing the phone themselves, the phone will need to be returned to the owner.

Our FAQ, ‘PACE – retention of exhibits and material’, may also be of interest to you.

To read more legislation about this subscribe to PNLD.

Back to Legal Questions