Necessity to arrest and searching premises

12 April 2021

Not reviewed after the date of publication


Please can you advise in relation to a question around necessity to arrest for a search?

According to R v Chief Constable of Surrey Police 2017 the courts appear to be of the opinion that a search warrant and then subsequent c+3 or arrest e.g. so special warnings can be given, is preferable over an arrest and then search, but would appreciate your thoughts.


With regard to the case of R v Chief Constable of Surrey Police 2017an arrest on the grounds of necessity to interview, search or impose bail conditions was held unlawful where there was a delay in arresting. In this case the person arrested had agreed to be interviewed voluntarily, had not interfered with the complainant prior to arrest and there was nothing to indicate that a search warrant could not have been obtained in the circumstances.

Whether an arrest is necessary is a matter for the investigating officer to determine based on the facts of the investigation. To assist with your decision we have outlined the relevant legislation and guidance on the issue you have raised below:

Code of Practice G requires an officer to have considered whether the suspect's voluntary attendance is a practical alternative to arrest.

As you are aware a lawful arrest under section 24 of the Police and Criminal Evidence Act 1984 (PACE) requires reasonable grounds for believing the arrest is necessary. The necessity criteria is set out in paragraph 2.9 of Code of Practice G and is exhaustive, however the circumstances that may satisfy those criteria remain a matter of operational discretion of individual officers.

Paragraph 2.9(e) of Code G outlines the need for a prompt and effective investigation. This may arise when the officer believes that unless the suspect is arrested the investigation of a suspect's involvement in the offence would be frustrated, unreasonably delayed or otherwise hindered and therefore be impracticable.

2.9(e)(ii) confirms an arrest can only be made in order to search a premises if the offence is indictable. An arrest could be considered under 2.9(e)(i) when a person's voluntary attendance is not considered to be a practicable alternative to arrest, in which the Code gives the following examples:

it is thought unlikely that the person would attend the police station voluntarily to be interviewed.

it is necessary to interview the suspect about the outcome of other investigative action for which their arrest is necessary, see (ii) to (v) below.

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.

the person has made false statements and/or presented false evidence;

it is thought likely that the person:

may steal or destroy evidence;

may collude or make contact with, co-suspects or conspirators;

may intimidate or threaten or make contact with, witnesses.

We do not of course have the full facts of the investigation, however if these offences are dated and the investigation has been ongoing for some time, could a search warrant have been obtained in this time? It was outlined in R v Chief Constable of Surrey that the police should have obtained a search warrant in this instance. Given the delays that had accumulated, it could not be said that the matter had been so urgent that a warrant could not reasonably have been obtained. The defendant would have had to show that the risk of destroying evidence arose in the short period during which a search warrant would or could have been sought and obtained, and it could not sensibly be said that there had been such a risk.

The same questions should be considered here; would the risk of destroying evidence arise in the short period during which a search warrant could have been obtained? It is our opinion that to arrest on the basis the suspect may destroy evidence when you are of the opinion s/he may have known about the police investigation for some time, may not be considered necessary by the courts.

Ultimately, the justification of any arrest is the decision of the relevant officer and if an arrest is called in to question, it would be a matter for the courts to decide. It would be prudent to have numerous grounds for arrest outlined, therefore should one fall or cease to exist the arrest would still be considered lawful.

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