30 August 2021
Not reviewed after the date of publication
A car is stopped by the police and the male driver refuses to give details. Following checks on the car it shows it is registered and insured to a female.
The officer therefore wants to arrest for no insurance and theft of the vehicle but they refuse to get out.
What power is available to enter the car/break the window to get to the driver to effect the arrest?
For summary offences such as using a mobile phone or no insurance etc. there is no power of entry under PACE or the Road Traffic Act to arrest. How an officer dealt with such a matter would very much depend on the circumstances but in our opinion the main options would be those described below. In providing these options, officers must consider the circumstances and make a judgement as to what they feel is an appropriate course of action.
In some cases, the provisions of section 17 of PACE may apply where the driver of a vehicle refuses to provide the police officer with information and as such the power of entry for the purpose of arrest under this section may be used. Where a police officer reasonably suspects that the driver has stolen the vehicle, we would emphasise that the officer must evaluate the circumstances; in particular the grounds for their suspicion of theft under section 1 of the Theft Act 1968. Theft is an either way offence and therefore indictable and as such allows the use of the powers under section 17 PACE; as opposed to taking a motor vehicle or other conveyance without authority under section 12 of the Act which is a summary imprisonable offence– thus precluding the use of the power under section 17.
The police officer could take the registration number of the vehicle and, depending on the offence, a requirement under section 172 of the Road Traffic Act 1988 could be sent to the registered keeper to provide information as to the identity of the driver at the time. Failing to provide such information is an offence.
The offence of ‘obstruct police’ under section 89(2) of the Police Act 1996 may be considered but as this is a summary offence, there is no power of entry for the purposes of arrest for this offence. There is however, also an offence under common law ‘obstruct police – perverting the course of public justice’. This is an indictable offence and therefore s17 would apply. In order for the police to pursue a prosecution for this offence, the police would need to justify using this common law indictable offence over the statutory summary offence. The courts have previously commented on the use of this for minor offences and we believe that it should be very rarely used.
Use of force
Section 3(1) of the Criminal Law Act 1967, provides that a person may use such force as is reasonable in the circumstances in the prevention of crime, or to lawfully arrest or assist in the lawful arrest of offenders, suspected offenders or persons unlawfully at large.
Section 117 Police and Criminal Evidence Act 1984, provides that where any provision of the Police and Criminal Evidence Act 1984 confers a power on a constable (includes arrests and searches), and does not provide that it may only be exercised with the consent of some person other than a police officer, the officer may use reasonable force, if necessary, in the exercise of that power.
In our opinion, the use of force to deal with a summary offence such as using a mobile phone/no insurance etc. may not be appropriate. However, this may not be the case if the officer genuinely suspected the vehicle had been stolen.
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