Court In Bloody Sunday Case Applies 'Necessity' Threshold For Lawful Arrest

In B, N, O, Q, R, U, V (Former Soldiers) v The Chief Constable of the Police Service of Northern Ireland [2015] EWHC 3691 (Admin), Lord Thomas provided helpful clarification on the court's interpretation of legislation governing police powers of arrest without a warrant.

The case concerned the investigation by the Police Service of Northern Ireland ("PSNI") into the 'Bloody Sunday' shootings. As part of this investigation, the PSNI sought to arrest the claimants (all former British soldiers) in England and Wales, in order to transfer them to Northern Ireland for interview. As an alternative to this, the claimants offered an undertaking that they would co-operate and attend an interview under caution with the PSNI at a police station in England and Wales.

Relevant law

The primary statutory provisions relating to police powers of arrest in Northern Ireland are contained in article 26 of the Police and Criminal Evidence (Northern Ireland) Order 1989, and Code G of the Northern Ireland PACE Codes. These provisions effectively mirror section 24 of the Police and Criminal Evidence Act 1984 ("PACE") and Code G issued under PACE ("Code G"). Under these provisions, the power of arrest arises only when there are reasonable grounds for suspecting someone of committing a criminal offence. In addition, since 2006 there has been a requirement for a reasonable belief that arrest is 'necessary' for one of a number of specified purposes set out in section 24(5) PACE. The purpose on which the PSNI relied was "to allow the prompt and effective investigation of the offence or of the conduct of the person in question".

In Hayes v Chief Constable of Merseyside Police [2012] 1 WLR 517, Hughes LJ confirmed that the correct test for 'necessity' in this context is a two-stage one:

did the officer actually believe that the arrest is necessary, and for a section 24(5) reason?; and objectively assessed on the information known at the time, was the decision made on reasonable grounds? Application

In this instance, it was assumed that the first of the two limbs of the 'necessity test' in Hayes had been met, i.e. that the PSNI subjectively believed that the arrest was necessary to allow the prompt and effective investigation of the offence. However, the court "unhesitatingly" concluded that the threshold for the second limb of the test had not been reached, and that the PSNI had not shown objectively reasonable grounds for believing that the arrest of the soldiers was...