Correct on the date of publication - 17 August 2026
Question:
What might constitute an unlawful arrest? Could merely taking hold of someone and restraining them amount to an arrest?
Answer:
There are numerous cases which illustrate what might amount to the unlawful arrest / detention of a person.
Walker v Commissioner of Police of the Metropolis (2014) where it was held that an officer unlawfully detained and imprisoned a male in a doorway for a few seconds when the officer blocked him in with the intention of conducting further enquiries.
Kenlin v Gardiner (1967) - taking hold of someone featured in this case. The circumstances of the case were that two teenagers aroused the suspicions of two plain clothes officers by reason of them calling on a number of premises.
The officers approached the boys. Upon concluding that they were not genuine constables, one of the boys made off but was caught by one of the officers who took hold of his arm. A struggle ensued which resulted in the pair being charged with assault on police; of which they were convicted. Allowing their appeals against conviction, the Queen's Bench Division held that when the officer took hold of the youth's arm, he was not lawfully arresting him, but detaining him in order that he could pose a question to determine whether in fact a power of arrest existed and therefore the officer was not acting in the execution of their duty, because he was not empowered to detain him for such purpose.
Ludlow and others v Burgess (1971) - one of the defendants kicked a constable, used obscene language and walked away. The constable put his hand on the defendant's shoulder, not to arrest him, but to detain him for further questioning and enquiries. This prompted the defendant to struggle with the officer and kick him again. Again, it was held that any detention against the will of that person, without arrest, was unlawful and, therefore, at the time of the second assault the constable was not acting in the execution of his duty.
R v McKoy (2002) - the issue of a constable laying a hand on an individual was central in this case. During a domestic incident an officer laid a hand on the defendant. In evidence, the officer stated that at that time he was not arresting McKoy. A struggle took place during which the constable was forced against a window and he then fell through it.
McKoy was charged with assault occasioning actual bodily harm and criminal damage. At his Crown Court trial, McKoy stated that he believed, albeit mistakenly, that he was being arrested. In this regard the trial judge directed the jury that if indeed the accused had held such a belief, this did not entitle him to use reasonable force to escape the restraint.
In the judgment of the Court of Appeal, it was held that the trial judge had misdirected the jury on the grounds that:-
- not being an arrest, the restraint exercised by the officer was unlawful; and
- the fact that McKoy was mistaken in his belief that he was being arrested, had no impact on his right to resist such an unlawful restraint.
Unless when applying force to prevent the commission of a crime, (in accordance with section 3 of the Criminal Law Act 1967), the McKoy case underlines the point that only in rare and exceptional circumstances will it be lawful to apply physical force to a person otherwise than by arresting him. One such specific occasion may be seen in McMillan v CPS 2008, where an officer was using 'generally acceptable standards of conduct' to guide a drunk out of a private garden where she might have fallen on some steps.
One circumstance which can cause confusion is the power to ask for a roadside breath test. There is no power to detain someone to take the test, but if he/she fails to co-operate, without a reasonable excuse, then he/she can be arrested for an offence under section 6(6) of the Road Traffic Act 1988.
View the full Legal Q&A document here, with links to related and similar legal questions.
For quick and easy access in the future, click the pin icon from the top right of any document to save it to 'My Documents'.
