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In response to last month's News Update (‘Maltby claims "victory" over Powers of Arrest', SMT, May 2006,), Adrian Maxwell examines the real world situation now facing private sector security officers and Police Community Support Officers (PCSOs).

More power to the people?

A fundamental change has taken place in the laws relating to Powers of Arrest. A change that is clearly aimed at engaging members of the security industry. The Serious and Organised Crime and Police Act (SOCAPA) 2005 and Schedule 7 have widened - quite considerably - the citizen's Powers of Arrest. In effect, the Police and Criminal Evidence Act 1984's Section 24 has been repealed and a new Section 24A inserted courtesy of the SOCAPA.

The act of arresting someone - whether that arrest is promulgated by police or non-police personnel - is now based on necessity rather than seriousness. The citizen's Powers of Arrest are restricted to indictable offences and, in all, there are 16 distinct scenarios when ‘a person other than a police constable' might arrest an alleged offender.

These upgraded powers are clearly not aimed at the private citizen, who is continually and constantly exhorted ‘not to have a go'. Rather, they are aimed squarely at the security industry. To this end, the way in which the security sector responds will demand careful consideration, from the Boardroom through to operational policy on the ground. There may well be serious knock-on effects in terms of detention policy and facilities, training, staffing levels and obligations dictated by the current Human Rights legislation.

When the SOCAP Bill was being presented in the House of Lords for its second reading, Liberty submitted the following statement: "It is clearly intended that Police Community Support Officers (PCSOs), private sector security officers and store detectives, as well as other quasi-policing bodies, will exercise these powers." There is no record of the Government suggesting this was not the intent. Liberty was concerned that "non-professional ‘police' officers" would be fulfilling a police function.

On 6 April last year, Baroness Scotland stated that the indictable offences condition was inserted - as the Bill was being passed through the House of Lords - to address concerns that citizens would be allowed to arrest for minor offences.

For its part, the ‘clarification' of general Powers of Arrest was prompted by the 2002 Cabinet Office PACE 1984 Review. However, while said review addresses civilian ‘police' roles (for example, applying for and then executing search warrants, custody suite management, conducting interviews and taking witness statements) there is no discussion of civilian Powers of Arrest.

Police numbers on the rise

Policing numbers are now at an all-time high, with 141,230 personnel deployed by the 43 forces in England and Wales (that same figure was 127,158 in 1997). The growing extended police family includes 6,214 PCSOs (with the Home Office suggesting there'll be 25,000 on patrol come 2008), local authority Neighbourhood Wardens and private sector security staff employed in public areas. For example, there are the Red Caps in London's Oxford Street and Regent Street, ‘Rangers' in Piccadilly Circus, Trust Wardens in the Paddington regeneration area and North Paddington Neighbourhood Wardens operational in North Queen's Park.

Home Office Community Safety Accreditation Schemes, of course, operate under the Police Reform Act 2002. The Railway Safety Accreditation Scheme, for instance, allows South East Trains to deploy 60 rail enforcement officers, while South West Trains boasts 56 ‘Trainsafe' officers.

Meantime, the Traffic Management Act 2004 created uniformed Highways Agency traffic officers with wide powers for traffic management on all roads. In short, there are a good many private sector security operatives now working in customer-facing roles.

Until now, the rather narrow definition of civilian Powers of Arrest had caused a great deal of uncertainty. How many cases have you heard on the security grapevine of CCTV Control Room operators passing on active information to security officers who, by the time they are able to respond, would not have witnessed an offence taking place?

As stated, the Police and Criminal Evidence Act 1984 Section 24A prescribes 16 different scenarios where civilian Powers of Arrest might operate. Each of the arrest scenarios has two primary conditions. First, the individual making the arrest must have ‘reasonable grounds for believing the arrest to be necessary' for one (or more) of four specified reasons. Second, to the arresting individual ‘it appears that it is not practicable for a constable to make the arrest instead'.

What if the acquittal is on a purely technical point? Could the arresting individual – or his or her employer – defend a civil action by asserting guilt and effectively retrying the criminal matter on a balance of probability?

Reasons for making an arrest

The exact form of these words is important. The four specified reasons for making an arrest would be that the person being apprehended will physically injure himself or herself (or others), suffer physical injury, cause the loss of - or damage to - property and/or escape before a police officer is able to assume responsibility for the situation at hand.

The grounds for believing an arrest is necessary contain a mixture of objective and subjective conditions which impact on the lawfulness of the arrest. At The Offence Stage of an arrest, a person ‘other than a police constable' may arrest without a warrant anyone committing an indictable offence, anyone who the arresting person has reasonable grounds for suspecting to be committing an indictable offence, anyone who's guilty of an indictable offence or anyone whom the arrester has reasonable grounds to suspect is guilty of an indictable offence.

At The Protective Stage, the arresting individual has reasonable grounds for believing that it's necessary to arrest an individual to prevent them from causing physical injury to themselves or other people, suffering physical injury, causing the loss of - or criminal damage to - property or making off before a police officer arrives on scene to deal with the situation.

Last but not least, at The Police Response Stage, a person ‘other than a police constable' may arrest an individual if it appears to them that it is not reasonably practicable for a constable to make the arrest instead.

The Offence Stage

At The Offence Stage, the first issue is that the person concerned must be in the act of committing an indictable offence. This begs the complex legal question of when the act of committing an offence is actually complete?

If the act is complete, the (potential) arrester has then to consider if there are in fact reasonable grounds to suspect the individual is committing an indictable offence, and that the former has those grounds firmly in mind. If it transpires that the person was not in fact committing an offence, but the arrester did in fact have reasonable grounds to believe he or she was, the arrest would still remain lawful.

However, a word of caution here. Compare the use of the phrase ‘reasonable grounds for suspecting' with ‘reasonable grounds for believing' in the protective stage. If the person concerned is not in fact committing an indictable offence, and the arrester doesn't have reasonable grounds, the arrester has then to consider if the individual is, in truth, ‘guilty' of the offence. What if the person is eventually acquitted at trial? Is the arrest then lawful?

What if the acquittal is on a purely technical point? Could the arresting individual - or his or her employer - defend a civil action by asserting guilt and effectively retrying the criminal matter on a balance of probability? As if these issues are not difficult enough, what does the final part of The Offence Stage mean... ‘reasonable grounds to suspect the individual concerned is guilty'?

The Protective Stage

The arrester must have reasonable grounds to ‘believe' the necessity of the arrest in order to prevent an individual from doing something or suffering physical injury caused by someone else. There seems to be a great deal of flexibility here, given the ‘belief' the arresting individual must have.

There is no qualification of the physical injury condition, and what exactly does the phrase …‘assume responsibility for him or her' actually mean?

At one end of the extreme, murder or grievous bodily harm are obviously indictable offences, but at the other extreme it may be difficult to know if criminal damage or a public order offence is, in truth, indictable

The Police Response Stage

‘It appears to the arrester that it is not reasonably practicable for a constable to make the arrest instead'... What do ‘it appears to' and ‘reasonably practicable' mean in this context? May the arresting individual make the assessment or judgement that it is not reasonably practicable?

Can a colleague in the CCTV Control Room - or perhaps a regional manager - inform the arrester that the police are delayed? What if the arrester genuinely believes it, but is forced to rely on wholly unreliable or unreasonable information? Might a security company base its policy on published police response times, or locally-known shortages of police personnel?

The Powers of Arrest are for indictable offences only (those that may be tried only on indictment in the Crown Court). Whether or not an offence is indictable can only be determined by proceeding to the legislation creating the offence. However, for an operational security officer that is simply not going to be practical.

In the House of Lords debate, Lord Wedderburn quoted Professor Spence as saying: "These ‘have a go Heroes' will have to have a law degree!" Alas, Baroness Scotland did not address this point in her responses.

At one end of the extreme, murder or grievous bodily harm are obviously indictable offences, but at the other extreme it may be difficult to know if criminal damage or a public order offence is, in truth, indictable. Another confusing element is that even the simplest of thefts is an indictable offence.

Those contemplating the operational use of these powers (and it is my firm belief that the Government wants the security industry to use these powers) will be concerned on two levels. First, a civil action for false imprisonment and/or assault and, second, the admissibility of evidence in criminal proceedings.

Although it is beyond the scope of this Briefing Paper to address these issues in detail, suffice to say that in criminal proceedings the lawfulness - or otherwise - of an arrest is (generally) only relevant when the charge itself is predicated on that lawfulness. For example, assault on police who must, at the time of the arrest, be in the execution of a duty. Obviously, this does not apply to security officers, there being no offence of assaulting a security officer in the execution of their duty.

It is unlikely that a Judge would rule inadmissible evidence in relation to the discovery of a terrorist bomb on a person unlawfully arrested by a security officer. There is no ‘Miranda provision' (the ‘fruit of the poisoned tree' doctrine enshrined in USA law) in English law.

Why else revise PACE?

These new Powers of Arrest are intended for use by the private sector. Why else revise the previous Police and Criminal Evidence powers at all? Yet there seems to be very little express Government policy on the point in question.

Only time will tell as to whether the private security industry embraces these Powers of Arrest as a development of its role in society, or views them as coercion to proceed further into the extended police family concept.

At present, the new PACE Code G - entitled ‘Framework for Arrest' - only refers to the police. Inevitably, the Courts will increasingly view the whole PACE ‘regime' as being applicable to the private sector.