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De-Arresting: How Does it Work?

About The Author

Francesca Norris (Solicitor Outreach)

Francesca is a trainee solicitor at a leading national firm, having undertaken the GDL subsequent to graduating with a Combined Honours in Arts from Durham. Her primary areas of interest are human rights, public law, clinical negligence, and criminal law.

We are accustomed to hearing news of people who have been arrested being taken into custody for questioning and later released without charge if there is no evidence that they are guilty of the offence in question. In contrast, it was reported last month that, Dean Farley, who ran into Prime Minister David Cameron as he left an event in Leeds, was de-arrested shortly after his initial arrest as police accepted his version of events that he had accidentally collided with the Prime Minister and his entourage. The idea of being de-arrestedsounds somewhat strange even to those familiar with criminal law and procedure, and it is likely that there is much confusion surrounding the use of the term. 

In fact, de-arresting a person is an entirely different procedure from releasing a suspect without charge. This article will examine the difference between the two and the legislation governing them, and consider situations where each is appropriate.

The legislation governing the initial arrest is the same no matter whether a suspect is charged or released. Arrests may be carried out in one of three ways:

  1. under a warrant, per part 18 of the Criminal Procedure Rules, for instance when a defendant fails to turn up for a court date and the court subsequently issues a warrant for their arrest;
  2. without a warrant under either the powers of arrest set out in s. 24 Police and Criminal Evidence Act 1984 (“PACE”); or
  3. under the common law power the police have to arrest for a breach of the peace.

S. 24 PACE is substantial and deals with a variety of situations in which police can exercise their power to arrest without a warrant, but ultimately sets out that police have the power to arrest a suspect of any criminal offence, no matter how minor. This is subject to the conditions in Practice Code G, the Code of Practice for the Statutory Power of Arrest by Police Officers, being satisfied. Code G paragraph 2.1 provides that a lawful arrest under s. 24 requires both the involvement, or suspected or attempted involvement, of the person arrested in the commission of a criminal offence, and reasonable grounds for believing that the arrest is necessary.

The common law power to arrest for a breach of the peace relies upon the judgment in R v Howell, which defines such breach as whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot or some other disturbance.

Whichever power governs the arrest of a suspect, procedure on arrival at the police station is the same. The suspect is presented to a custody sergeant, to whom the officer who made the arrest explains the grounds of the arrest and details of the potential case. If the arrest is considered valid then the suspects belongings are confiscated and stored, and details of their identity checked. It is at this stage that the difference between release without chargeand de-arrestingbecomes relevant.

Release Without Charge 

A suspect who is released without charge will have endured a (possibly quite lengthy) investigative process. The search and questioning of the suspect is, like the arrest of a potential suspect, governed closely by both legislation, PACE and the Criminal Justice Act 2003, and by other Codes of Practice supplementing PACE. Of particular note at this stage are Code C, the Code of Practice for the Detention, Treatment and Questioning of Persons by Police Officers, and Code D, the Code of Practice for the Identification of Persons. Police have quite extensive authority to search and question suspects at this point, subject to these Codes of Practice and also to certain statutory rights of the suspect, for instance the right to receive free and independent legal advice enshrined in s. 58(1) PACE.

Police only have a limited amount of time to question a suspect before deciding whether or not to charge them with an offence. The initial maximum period is 24 hours from either the time of the suspects arrest or the time the suspect arrives at the police station, subject to various conditions laid out in s.41 PACE. This maximum period can be extended to 36 hours under s.42 PACE if an officer of the rank of superintendent or above authorises the detention, having reasonable grounds to believe that: further detention without charge is necessary to secure or preserve relevant evidence; the offence in question is an either-way or indictable offence; and the investigation is being carried out expeditiously. In limited circumstance, ss. 43 and 44 provides that police may obtain a warrant from the Magistrates Court to extend initial detention without charge to a maximum of 96 hours.

If, after questioning a suspect, police find that the suspect did not commit the crime in question or that there is insufficient evidence to charge the suspect with that crime (and it is unlikely that further incriminating evidence will be forthcoming), the custody officer should release the suspect without charge and without imposing any conditions, such as the suspect returning to the police station for further questioning at a later date. At this point, the matter is closed from the suspects perspective, although if further evidence does come to light the police may re-arrest and re-question the suspect on the same charge.

De-Arresting

If, however, it becomes apparent at some point before the suspect is processed by the custody officer that the arrested person will have no case to answer, owing to, perhaps, mistaken identity coming to light or it becoming apparent that no crime was committed or that the arrested person could not have been involved, the arrested person will be released before they are technically detained for questioning. It is this timing that makes the difference between being de-arrestedand released without charge. S. 30 PACE sets out that de-arresting a suspect involves allowinga person who has been arrested under any act of law at a place other than a police station [to] be released before reaching a police station if a constable is satisfied that there are no grounds for keeping him under arrest.

However, being de-arrested does not rule out the possibility of re-arrest, albeit on different charges. This was widely publicised in 2006, when George Michael was arrested on suspicion of being unfit to drive when he was found dazed at the wheel of his car on a busy traffic junction. Moments after being de-arrested, the singer was re-arrested on suspicion of possession of class C drugs after Cannabis was found in his car.

Although arguably merely a technicality, the difference between the two procedures does have some tangible effect. Firstly, a person being ‘de-arrested’ necessitates that the record of the initial arrest be removed. A record of arrest could have lasting impact upon the arrested person when criminal record checks are made against them in the future, and such record being removed could also psychologically impact upon the individual, their friends and family by representing the erasingof the incident. Secondly, and further to the previous point, as pointed out in a 2006 article in the Guardian concerning de-arrest:

[De-arrest] sounds more exonerating than being released without charge”, which has about it a whiff of no-smoke-without-fire. Being de-arrested, by contrast, sounds like the sort of panicky about-face that Kelvin MacKenzie used to deploy when a particularly scandalous story in the Sun turned out, in fact, to be baseless; he referred to it as a "reverse ferret.

The implication when someone is de-arrested is often taken to be that the police made some error in arresting them, and for someone who is arrested for a crime they did not commit, this implication could seem crucial. It is not hard to imagine that being arrested for a crime you did not commit, or seeing an innocent loved one arrested, could be a traumatic experience, and such additional validation of innocence could be of psychological benefit to the innocent person and those around them.

Should de-arresting, therefore, be used more often, and: could it be? There are no available statistics regarding the number of de-arrests in the UK, for the obvious reason that, as mentioned above, when a person is de-arrested the initial arrest is not logged. It is to be hoped that the procedure is used by police officers in situations where it would be appropriate, as to take someone into custody when it has become apparent that they are not involved in any crime would stretch an already heavily burdened system unnecessarily. Both procedures, of de-arrest and of detaining a suspect for questioning, are needed as they serve distinct purposes within the criminal investigation process.

Instead, perhaps the process of arrest and detention, and indeed how it is reported in the media, should be considered. Obviously, arresting and detaining suspects form necessary parts of a police officers job, and rightly so. It is these powers that enable the police to investigate crimes and ultimately to bring the perpetrators to justice. It is also unavoidable that innocent people will, on occasion, be arrested for crimes they had nothing to do with in the course of such investigations. However, it is vital that these innocent people do not face unwarranted and long-lasting consequences as a result of these inevitable errors. Two concerns therefore arise at this point, which will be discussed in the remainder of this article: (i) the risk of innocent arrestees facing a media onslaught acting contrary to the notion of innocent until proven guilty, and (ii) the risk of the arrestee, if processed and detained for questioning, not being able to enforce their right to legal representation, as discussed in detail in the UKSCs judgment in Cadder v H M Advocate.

Arrest Anonymity

The first issue largely concerns publicity surrounding arrests, both in the mainstream media and on social media websites. There is an argument for arrest anonymity, i.e. that suspects should not be named in the media before they are charged. Frances Crook, Chief Executive of the Howard League for Penal Reform, argues that:

In this age of 24 hour [sic] news it is often easy to forget that news is not entertainment but reports the real lives of real people. While the nature of a public criminal justice system means that an individuals name cannot be kept from the press once they have been charged with a crime, we should limit any abuse of process before an individual is charged with a crime. 

In May 2013, Home Secretary Theresa May also voiced her support for such measures, stating in a letter to the College of Policing:

I believe that there should be a right to anonymity at arrest, but I know that there will be circumstances in which the public interest means that an arrested suspect should be named.

A parliamentary research report regarding suspect anonymity published in February 2014 notes these viewpoints, as well as the counter-argument that such anonymity would be an affront to the principle of open justice and akin to secret arrests”’. This view supports the medias argument that such information will be in the public interest, as mentioned by Theresa May in the statement above, which brings into play the ongoing balancing act between the right to respect for private and family life enshrined in Article 8 of the European Convention on Human Rights and the right to freedom of expression bestowed by Article 10.

New guidance regarding police relations with the media and the naming of arrested suspects, issued by the College of Policing in May 2013, requires the police to balance an individuals right to respect for a private and family life, the rights of publishers to freedom of expression and the rights of defendants to a fair trial. It might appear on the face of it that the rights to private life and a fair trial (vital for the proper administration of justice) would usually outweigh media rights to freedom of expression, but the volumes of case law concerning Articles 8 and 10 prove that striking the balance is far from simple.

Moreover, where the offence being investigated is particularly sensitive, such as in sexual offence cases, it has been suggested that there should be an automatic and uncompromised anonymity of the arrested suspects, and this idea was dealt with in a previous Keep Calm Talk Law article concerning the anonymity of rape defendants.

There are pros and cons to those suspected of involvement in crime being named in the media. Police appeals for information often rely upon naming suspects before arresting them and there will always be a degree of public interest in the identity of those suspected of being involved in a crime, and particularly a crime that has already come to the public’s attention. From a utilitarian perspective, therefore, it seems that the media should be able to name people who are arrested, even before they are charged. However, this naming process causes a shaming exercising upon the arrestee.

Following from the fundamental principle of innocence until proven guilty, the effects that such shaming could have upon an innocent person’s life means that naming arrestees in the media from, an individualist perspective, runs contrary to the very foundations of the justice system. Whilst the media could take steps to highlight the fact that a persons arrest does not necessarily foreshadow their conviction, there is always likely to be an element, as mentioned above, of no smoke without firein the public perception of such reports; arrest anonymity could go some way to preventing this pre-conviction of those arrested.

Access to Legal Advice

Proper access to legal advice and representation is of central importance to those arrested, whether they committed the crime they are suspected of or not. Whilst arguments could be put forward that an innocent person has nothing to fear during police questioning as they have nothing to hide,but between 1997 and 2014 there have been over 18,500 applications made to the Criminal Cases Review Commission alleging wrongful conviction, and at the present time there are around 800 such cases under review. Innocent people can be and are convicted of crimes, but access to a solicitor during the first police interviews should limit this to an extent as the solicitor can provide accurate and appropriate legal advice and perhaps prevent the suspect succumbing to police interrogation techniques.

It has recently been announced that legal aid contracts for on-call duty solicitors to attend police stations to assist suspects during police interviews are to but cut by almost two-thirds. Such measures will inevitably mean that those who cannot afford to pay for legal representation risk not being represented, as many firms will be forced to close despite government assurances that ‘those accused of a crime will have access to a lawyer'.

Conclusion

Although both procedures of de-arrest and release without charge have the same effect in that a person is not charged with the crime they were arrested for and is released to get on with their lives, there are prejudices attached to those who are arrested and as such an arrest can have devastating consequences even where there is no subsequent charge. These prejudices must be challenged and there is an inherent responsibility on the part of those reporting arrests to make it clear that a person having been arrested does not necessarily mean that they are guilty of the crime they are being questioned about, whether or not the report names the suspect. It is also vital that those who are arrested and questioned, rather than de-arrested prior to questioning, have access to a lawyer, to prevent justice from becoming a privilege rather than a right.

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Tagged: Criminal Law

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