Is a threat of arrest to encourage a voluntary interview unlawful?

08 April 2020

Not reviewed after the date of publication

Question:

An officer encounters a person who they wish to interview, however they are unsure if the necessity criteria is satisfied. The officer asks the suspect to accompany them to the police station for an interview, however the suspect requests if it can take place later. The officer refuses and states that if the suspect does not accompany them to the station they will be arrested. The person unwillingly accompanies the officer to the station.

Is this to be considered unlawful?

Answer: 

Section 29 of PACE outlines the rights of voluntary attendees, stating that such persons are entitled to leave at will unless they are placed under arrest. To place a voluntary attendee under duress in circumstances where the necessity criteria under PACE Code G has not been satisfied would be at risk of being viewed by the courts as an unlawful threat against a person's liberty and a blurring of the lines between what are intended to be clearly defined and separate processes under PACE.

In circumstances where an officer has concluded that an arrest is not necessary or proportionate for the purposes of carrying out an interview, it is our opinion that it would be pragmatic to initially attempt to arrange another time for the suspect to attend a voluntary interview in circumstances where they have a justified reason that prevents them attending at the initial suggested time. Prior to doing so, it would be prudent to remind that person of the factors outlined in Paragraph 2F of PACE Code G which state as follows:

'When making arrangements for the person's voluntary attendance, the officer should tell the person:

that to properly investigate their suspected involvement in the offence they must be interviewed under caution at the police station, but in the circumstances their arrest for this purpose will not be necessary if they attend the police station voluntarily to be interviewed;

that if they attend voluntarily, they will be entitled to free legal advice before, and to have a solicitor present at, the interview;

that the date and time of the interview will take account of their circumstances and the needs of the investigation; and

that if they do not agree to attend voluntarily at a time which meets the needs of the investigation, or having so agreed, fail to attend, or having attended, fail to remain for the interview to be completed, their arrest will be necessary to enable them to be interviewed.'

Giving a person this opportunity to re-arrange the appointment would ensure that the values and rights of voluntary attendees outlined in section 29 PACE are honoured and also, ensures that the spirit and principles underpinning PACE Code G are demonstrated as having been complied with.

However, if the refusal to attend at the initial time is of concern to officers because for example, the individual has a previous history of failure to attend - circumstances may differ slightly. It may be that in such a case, the facts of the matter thereby justify an arrest being necessary under section 24(5)(e) of PACE to allow for the prompt and effective investigation of the offence because there is a risk that allowing a person to leave – would likely frustrate the investigative process. Such considerations are confirmed in paragraph 2G of Code G which states:

'If a person who attends the police station voluntarily to be interviewed decides to leave before the interview is complete, the police would at that point be entitled to consider whether their arrest was necessary to carry out the interview'.

However, we would draw attention to the fact this section also states:

'The possibility that the person might decide to leave during the interview is therefore not a valid reason for arresting them before the interview has commenced'

Therefore, this is clearly a consideration that must be finely balanced by any officer who finds themselves in such a situation and it is worth noting that were an officer ever to be questioned regarding such a decision (whether by supervision or the courts) it is solely their responsibility to justify any of the actions taken and the relevant grounds of necessity which were in existence at the relevant time.

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