When the Serious Organised Crime and Police Act  (SOCPA) was passed last year, much attention was given to the creation of the Serious Organised Crime Agency, the horrors of human trafficking and other international organised crime.  However, it was only when s110 of the Act came into force, on 1 January 2006, that changes to the police powers of arrest – and their consequences – came under more detailed scrutiny.

Section 110 amends s24 of the Police and Criminal Evidence Act (PACE) 1984 - which dealt with arrest without warrant for arrestable offences - by substituting new provisions.  Under these, police officers can arrest people without a warrant where someone is about to commit an offence, is in the act of committing an offence, or where the officer has reasonable grounds for suspecting either of these is the case.  Constables can also arrest, without a warrant, someone whom they have reasonable grounds to suspect has committed an offence.  The distinction between ‘arrestable’ and ‘serious arrestable’ offences has been abolished, and the power of arrest now applies to all offences, however minor.

These provisions give the police greater powers of arrest than ever before.   In the past, the power of arrest was seen as one that generally had to be justified by reference to the seriousness of the offence involved.  This principle of proportionality has now been removed from the statutory powers and relegated to the code of practice. 

As a safeguard against unjustified use, s110 sets out the proviso that such powers must only be exercised where a constable has reasonable grounds for believing that arrest is necessary for specified reasons.  However, it is a moot point as to whether, in practice, the ‘necessity’ ground will indeed provide much by way of a safeguard.  Included in the list of specified reasonable grounds justifying arrest is the provision: ‘to allow the prompt and effective investigation of the offence or of the conduct of the person in question’ (s110(5)(e)).  This gives an officer a great degree of discretion and, in practice, may well become a catch-all justification for use of the new single arrest power. A new PACE Code G gives guidance for its use, stating, for example,  that an arrest may take place if there are reasonable grounds to believe someone has made statements ‘which cannot be readily verified’, or may intimidate or contact witnesses. It does not however define ‘reasonable’.

It is not clear on what ground this extension of police (and related civilian) powers of arrest is seen to be necessary.  From a police point of view, it clearly makes their job much easier in practical terms, dispensing with the need to know the difference between non-arrestable,  arrestable and serious arrestable offences. Previously, the Home Office and Cabinet Office have called for a ‘definitive list’ of arrestable offences, and better training for police,  but Home Office minister Hazel Blears, speaking in December 2005, justified the current change in terms of modernising and simplifying police powers.

However, arresting a person has serious consequences, and not only in relation to immediate deprivation of liberty.  It enables the police to activate further powers, for which the arrest is a trigger.  For example:

These are not trivial encroachments on civil liberty.  And while government ministers may seek to justify them on the basis that innocent people have nothing to fear, there must - and should  - be concern about how the increased police powers will be used. Back in the bad old days of ‘sus’ laws, police powers of stop and search were used disproportionately against black people.   Giving the police greater powers of arrest will inevitably lead to a higher number of arrests taking place.   And the chances are that they will be used particularly against young men of black and Asian appearance. 
Lord Carlile, the Independent Reviewer of the Terrorism Act 2000, stated last year in his annual review of the Act, that use of the stop and search powers under s44 of the Act could be cut by ‘at least 50 per cent without significant risk to the public or detriment to policing’.  It is likely that the same will be said of the new powers of arrest.

It is equally likely that the police will want to use an arrest to grow their database of information to help with crime fighting in the future, no matter whether the person arrested is charged or convicted.  After all, why not?  ‘Law abiding citizens have nothing to fear from having their DNA retained on the national DNA database’ said Andy Burnham, Home Office spokesman, on 16 January 2006 in response to a parliamentary question.  The size of the national database only came to light because a Conservative MP, Grant Shapps, raised the case of a juvenile, wrongly arrested in a case of mistaken identity, whose DNA details had been entered and retained on the database.  It now appears that Britain has the largest DNA database in the world, costing £300 million to date, and holding details of more than 3 million people.  This amounts to just over 5 per cent of UK residents (compared to an average of 1.13 per cent in the EU and 0.5 per cent in the USA).  Of these, 139,463 are from people who have not been charged or cautioned.

In the year 2004/2005, 34.6 per cent of those arrested had their DNA tested.   Results were automatically checked against all deposited crime scene DNA profiles, and a number of matches with stains from crime scenes for murder and rape cases have been made.  But does this justify taking and retaining the personal data of innocent people who by mischance have been wrongly arrested?  Does the end justify the means?  LAG believes not. It should not be left to the police to create a national database of personal information by stealth. There must be transparency, fairness and accountability at all levels of the criminal justice system, from the power to arrest through to trial and beyond. The presumption of innocence should not mean a suspicion of guilt, to be tested over time against records obtained under compulsion, piggy-backed on the power of arrest.  If such a database is to be created, it should be the subject of a national debate in the same way that identity cards have been.

A further worrying aspect of these changes is the lack of public awareness of their impact at the time the bill was going through parliament.  The single arrest powers are by no means the only example of legislation going through Parliament without careful scrutiny by the legislature, media or public.  It is indeed difficult to keep up with all the changes in the criminal justice system -  between May 1997 and February 2004, the government was responsible for creating over 1,000 new criminal offences.  It is hardly surprising if the police want to save themselves the effort of remembering which are arrestable.

But legislation on issues of personal liberty and the right of the state to obtain and retain personal information about its citizens should not be rushed through, passed on the hoof to make a political point.  It is often said (and not only by politicians) that litigation should be seen as the last resort.   The same principle should apply to legislation.  We would all benefit if it were seen as a serious step, requiring careful thought, and drafting, to ensure it provides the solution to a real problem, rather than simply creating another one for the justice system to deal with further down the line.

 Alison Hannah, Legal Action Group