Preventing The Unnecessary Arrest Of Your Client

'To allow the prompt and effective investigation of the offence' is a familiar reason given by police officers to justify the arrest of a suspect. However, it is a requirement of a lawful arrest that a constable has reasonable grounds for believing that an arrest is necessary for that purpose. But what does the test of necessity mean and how should it be applied in practice? These were the issues to be decided by Slade J. in the High Court in Richardson v The Chief Constable of West Midlands Police [2011] EWHC 773. The case concerned a teacher, accused of assaulting a pupil, who sought damages for false imprisonment following his arrest at a police station at which he had attended voluntarily for interview. The decision is essential for defence practitioners who wish to make representations against the arrest of clients who voluntarily attend for interview.

The significance of an arrest, even where no further action is taken, should not be underestimated. For all clients, an arrest will involve at least a temporary restriction of liberty and samples of their DNA and fingerprints being taken and retained. For some, it may also result in damaging publicity. For others, the impact of an arrest alone can be harmful to career prospects and travel plans. For example, an arrest can result in difficulties in obtaining visas, particularly for entry into the USA. In some cases, the fact of an arrest can impair the career prospects of a suspect significantly.

Professionals who regularly care for children or vulnerable individuals, such as the Claimant in Richardson, are required to submit to an Enhanced Criminal Records Bureau ('ECRB') check on successfully gaining employment and at regular intervals thereafter. An ECRB check will provide employers with details of unspent and spent convictions, cautions and reprimands, along with details of any entries on the Independent Safeguarding Authority barred lists. In addition, pursuant to section 113B(4) of the Police Act 1997, a Chief Constable can disclose any information which he considers might be relevant to the applicant's employment and ought to be included in the certificate. Such information can include allegations, complaints and investigations, even where no charges or prosecution are brought. In the consideration of relevance, Chief Constables have to assess whether the information might be true. In marginal situations, for example, where it is unclear as to whether an allegation can be...

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