Necessity to arrest

On an objective assessment, the intended arrests of a number of former soldiers as part of the criminal investigation into Bloody Sunday were unlawful, the arrests not being necessary for the prompt and effective investigation of the offences or conduct under review, explains Nick Peel.

As part of the current Police Service of Northern Ireland (PSNI) criminal investigation into the events of Bloody Sunday in 1972, the service wished to interview a number of former soldiers by first having them arrested in England and Wales and then interviewed in Northern Ireland with suitable protective measures in place.

The former soldiers challenged the lawfulness of arrest: they had repeatedly offered and remained willing to undertake to the court that they would attend a police station in England and Wales and be interviewed under caution.

On that basis, the former soldiers argued that their arrests were not necessary, as prescribed by the Police and Criminal Evidence Act 1984 (PACE), for the prompt and effective investigation of the offence.

They said that the law on necessity was as set out in Hayes v Merseyside Police (Court of Appeal, 2012) – a two-stage test requiring (1) actual belief that arrest is necessary for a prescribed necessity criterion, and (2) reasonable grounds, objectively assessed on the information known at that time, for that actual belief.

The PSNI argued that the test was in fact one of traditional “reasonableness” as defined in the well-known case of Associated Provincial Picture Houses Limited v Wednesbury Corporation (Court of Appeal, 1948) – the Wednesbury test – with the result that it would be lawful to arrest if a reasonable police officer in the investigating officer’s position could have decided the arrest was necessary for the prompt and effective investigation of the alleged offences.

Decision

The divisional court had no hesitation that the two-stage test set out in Hayes was correct: “There is no separate or overarching review based on Wednesbury principles to be carried out. The objective second limb of the test encompasses the concept of Wednesbury reasonableness.”

The PSNI also argued that the necessity ground for a “prompt and effective” investigation required the two elements to be read disjunctively, but the court disagreed, finding that “prompt and effective” was to be read conjunctively. ‘Promptness’ was a matter to be considered in context, taking into account all relevant circumstances while ‘effective’ meant “tending to achieve its purpose” and not efficient or cost-effective, for example.

In this case, the court noted that 43 years had elapsed since 1972, with numerous and exhaustive investigations in between. The former soldiers had given evidence in writing and orally and all documentation could now be put to them in electronic format. It was almost certain the soldiers would maintain their stated intention to exercise their right to silence and any transfer to Northern Ireland for interview would involve several days’ loss of liberty and a real attendant risk to life and personal security. The court concluded that “judged objectively, it cannot be said that arrest of the claimants is necessary to allow the prompt investigation of the claimants’ alleged offences”.

As both promptness and effectiveness were required to meet the requirements of the necessity ground in question, that rendered any arrest unlawful.

As to effectiveness, it was noted to be more convenient administratively or cheaper for the PSNI to interview the claimants in Northern Ireland than to travel to England. However, with all documents available in electronical format, and with the former soldiers’ intention to maintain their right to silence, there was no sound basis to support the belief that arrest before interview was required for an effective investigation.

The investigating officer’s further wish to impose post-interview bail conditions following arrest was discarded. The highest the investigating officer put it was that he would probably wish to consider the i