Does the need to give a special warning satisfy the necessity test?

12 February 2020

Not reviewed after the date of publication

Question:

As a custody officer I am often quoted with the need to give a special warning as the only necessity grounds to arrest, is this correct or an abuse of process? 

Answer: 

Code G paragraph 2.9 outlines the statutory necessity criteria for an arrest, paragraph 2.9(e) states:

'2.9 When it is practicable to tell a person why their arrest is necessary … the constable should outline the facts, information and other circumstances which provide the grounds for believing that their arrest is necessary and which the officer considers satisfy one or more of the statutory criteria in sub-paragraphs (a) to (f), namely: …

(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: …

(i) interviewing the suspect on occasions when the person's voluntary attendance is not considered to be a practicable alternative to arrest, because for example: …

arrest would enable the special warning to be given in accordance with Code C paragraphs 10.10 and 10.11 when the suspect is found:

in possession of incriminating objects, or at a place where such objects are found;
at or near the scene of the crime at or about the time it was committed.'

Paragraphs 10.10 to 10.11 of Code of Practice C concern special warnings under the Criminal Justice and Public Order Act 1994 and allow adverse inferences to be drawn for the following:

Section 36 CJPOA - effect of accused's failure to account for objects, substances or marks.

Section 37 CJPOA - effect of accused's failure to account for presence.

A special warning is only required when the officer wants a suspect to account for the incriminating object, mark or substance, or their presence, and they fail or refuse to account for such. Special warnings should not be given in interview unless the requirements detailed above are satisfied.

We are of the opinion that as long as it is necessary to interview the person and the officer anticipates a special warning will need to be given (which can only be given to persons under arrest and not in voluntary interview), they are using the law correctly as stated in the code. However, if the necessity to arrest was questioned, it would ultimately be a matter for the courts to decide and the arresting officer would need to justify his / her actions, as per the necessity criteria outlined above.

For further guidance, see the links below to the Authorised Professional Practice guidance, provided by the College of Policing, and an ACPO position statement in relation to necessity to arrest:

https://www.app.college.police.uk/app-content/investigations/investigative-interviewing/#special-warnings

http://library.college.police.uk/docs/APPREF /ACPO-Position-Statement-Necessity-to-Arrest.pdf

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