This is a analysis of the ‘threshold’ police powers lawfully required for arrest which often occurs ‘in the heat of the moment’; the first check and balance when brought before a custody sergeant to independently re-evaluate the evidence; and the continuing checks and balances of a further independent assessment to continue detention for up to 24 hours starting from ‘the time you are not free to leave’…

The basic principles of breach of peace apply, as affirmed in the constitutional case of Entick v Carrington [1765] that without evidence of lawful excuse no one has the right to breach another’s peace, and should that occur then pecuniary and non pecuniary damages become payable by the trespasser…

The Evidentiary Threshold for Lawful Arrest in England

I. Introduction

The power of arrest represents one of the most significant interferences with individual liberty that the state can exercise. In England and Wales, the legal framework governing this power seeks to strike a delicate balance between the necessity for effective law enforcement and the fundamental right of individuals to freedom from arbitrary detention.1 This balance is crucial; granting police excessive power risks infringing civil liberties, while overly restrictive rules could hamper the investigation and prevention of crime. The Police and Criminal Evidence Act 1984 (PACE) and its accompanying Codes of Practice form the cornerstone of this framework, establishing the powers available to police while simultaneously aiming to protect public rights.1

The exercise of the power of arrest is not unfettered. For an arrest by a police constable without a warrant to be lawful, specific legal tests must be met. These tests centre on the evidence and justification available to the officer at the time of the arrest. This report examines the precise legal test that police in England must satisfy for an arrest to meet the threshold of lawfulness. It will detail the statutory basis for arrest without a warrant under Section 24 of PACE, dissect the crucial two-part test involving reasonable suspicion of an offence and a reasonable belief in the necessity of the arrest, and explore the detailed criteria that underpin this necessity justification as outlined in PACE Code G. Furthermore, the report will distinguish the standard required for arrest from the higher threshold needed for the Crown Prosecution Service (CPS) to bring charges. Finally, it will touch upon the essential procedural requirements that accompany a lawful arrest. Understanding this legal test requires appreciating the inherent tension between state power and individual rights, a tension the legislative framework continually seeks to manage.4

II. The Statutory Basis for Arrest Without Warrant: PACE Section 24

The primary legislative authority granting police constables the power to arrest individuals without a warrant in England and Wales is found in Section 24 of the Police and Criminal Evidence Act 1984 (PACE).3 This section has undergone significant evolution since its enactment. Originally, the power of arrest without warrant under PACE was largely tied to the concept of “arrestable offences,” which were generally defined by the seriousness of the potential sentence (e.g., offences carrying a term of five years or more imprisonment, or those specifically listed).7 This created a system where the power to arrest was often determined by the category of the suspected offence.

However, the Serious Organised Crime and Police Act 2005 (SOCPA) introduced substantial amendments, effective from 1 January 2006, which replaced the previous structure.1 The current Section 24 grants a constable the power to arrest without a warrant for any offence, subject to specific conditions.6 This marked a fundamental shift in the philosophy underpinning arrest powers. Instead of the power being contingent on the offence meeting a certain threshold of seriousness, the focus shifted towards the justification for the arrest in the specific circumstances of any suspected offence.

Under the revised Section 24, a constable may arrest without a warrant 6:

Anyone who is about to commit an offence (S24(1)(a)).
Anyone who is in the act of committing an offence (S24(1)(b)).
Anyone whom the constable has reasonable grounds for suspecting to be about to commit an offence (S24(1)(c)).
Anyone whom the constable has reasonable grounds for suspecting to be committing an offence (S24(1)(d)).
If a constable has reasonable grounds for suspecting that an offence has been committed, they may arrest anyone whom they have reasonable grounds to suspect of being guilty of it (S24(2)).
If an offence has been committed (i.e., it is known for certain), a constable may arrest anyone who is guilty of the offence or anyone whom they have reasonable grounds for suspecting to be guilty of it (S24(3)).

While these provisions grant a broad potential scope for arrest, covering past, present, and anticipated involvement in any offence, the power is significantly constrained by a crucial mandatory requirement introduced by SOCPA. Section 24(4) explicitly states that the power of summary arrest conferred by subsections (1), (2), or (3) is exercisable only if the constable has reasonable grounds for believing that arrest is necessary for one or more of the reasons specified in subsection (5).6

This necessity test fundamentally alters the application of arrest powers. The expansion of the power to cover “any offence” provides police with flexibility, but the simultaneous introduction of the mandatory necessity requirement places a significant burden on the arresting officer. They must now actively justify the specific need for arrest based on defined criteria, rather than relying solely on the nature or seriousness of the suspected offence.10 This change requires a more nuanced, justification-based approach to the decision to arrest, particularly concerning less serious offences where the necessity might be harder to establish.

III. The Two-Part Test for Lawful Arrest

For an arrest by a constable under Section 24 of PACE to be deemed lawful, a stringent two-part test must be satisfied at the time the arrest is made. Both components of this test are mandatory and must exist concurrently.11 Failure to satisfy either part renders the arrest unlawful.

The two essential conditions are:

Reasonable Grounds for Suspicion: The constable must have reasonable grounds for suspecting that the person is involved in the commission of a criminal offence. This involvement can relate to an offence that has been committed, is being committed, or is about to be committed.6
Reasonable Grounds for Believing Arrest is Necessary: The constable must also have reasonable grounds for believing that the person’s arrest is necessary for one or more of the specific reasons enumerated in PACE Section 24(5).6

It is critical to understand the interdependence of these two elements. Possessing reasonable grounds to suspect someone of an offence is, on its own, insufficient to justify an arrest. Similarly, believing an arrest is necessary for one of the statutory reasons is irrelevant if there are no reasonable grounds to suspect the person of committing an offence in the first place. As PACE Code G explicitly states, “it can never be necessary to arrest a person unless there are reasonable grounds to suspect them of committing an offence”.11 Both suspicion and necessity must be reasonably grounded in the facts and circumstances known to the officer at the time.

PACE Code G, the code of practice specifically covering the statutory power of arrest, provides essential and authoritative guidance on the interpretation and practical application of both parts of this test.1 Officers are expected to adhere to this Code, and courts will consider it when determining the lawfulness of an arrest.

IV. Part 1: Reasonable Grounds for Suspicion (RGS)

The first limb of the lawful arrest test requires the arresting constable to possess “reasonable grounds for suspecting” the individual’s involvement in an offence.6 This standard, often abbreviated as RGS, acts as the initial evidential threshold. It is a standard that sits above mere speculation or a hunch but falls short of the standard required for conviction, which is proof beyond reasonable doubt.14 It necessitates that the officer suspects the person may have committed the offence based on some objective foundation.11

Crucially, the suspicion must be objectively reasonable. This means it cannot be based purely on the officer’s subjective feelings or biases. There must be “some reasonable, objective grounds for the suspicion, based on known facts and information which are relevant to the likelihood the offence has been committed and the person liable to arrest committed it”.11 These grounds must be assessed based on the information actually available to the arresting officer at the specific time the arrest is made.4

A key legal principle, established in cases such as O’Hara v Chief Constable of the RUC, clarifies that the arresting officer must personally hold the suspicion and be aware of the grounds supporting it.4 While an officer can rely on information provided by others, such as a superior officer during a briefing, they cannot simply arrest someone based on an order without knowing the underlying reasons that form the basis for suspicion.4 This requirement ensures that the arresting officer can articulate the justification for the arrest and prevents arrests based on unknown or unsubstantiated information held elsewhere within the police force. This places accountability squarely on the individual officer making the arrest, linking their state of mind directly to the available evidence and ensuring decisions are evidence-based rather than arbitrary. If the grounds known to the officer are objectively insufficient, the arrest will be unlawful, regardless of the officer’s personal belief.16

Factors that can contribute to forming reasonable grounds for suspicion include specific intelligence linking a person to a crime, observations of the person’s behaviour (such as attempting to conceal something, acting evasively, or matching a specific description of a suspect involved in a recent incident), the time and place (though location alone is rarely sufficient), and any admissions made by the person.14 Often, a combination of factors provides a stronger basis for suspicion than a single indicator.20 For example, smelling cannabis on a person, combined with seeing them fidgeting and observing Rizla papers, might contribute to RGS for drug possession.20

Conversely, it is explicitly stated in guidance that reasonable suspicion can never be supported solely on the basis of “personal factors”.14 This means that characteristics such as a person’s race, age, sex, sexual orientation, disability, religion, physical appearance (unless part of a specific suspect description), or the fact that they have previous convictions, cannot, either alone or in combination with each other, form the basis for reasonable grounds for suspicion.14 Similarly, stereotypes or generalizations about certain groups are impermissible grounds.14

While the term “reasonable grounds for suspicion” is also the legal test for exercising certain stop and search powers under PACE Section 1 and the Misuse of Drugs Act 1971 Section 23 14, the focus in the arrest context is different. For arrest, the suspicion must relate to the person’s involvement in the commission of a criminal offence, whereas for many stop and search powers, the suspicion relates to the possession of stolen or prohibited articles.14

V. Part 2: Reasonable Grounds for Believing Arrest is Necessary (RGBN)

Satisfying the requirement for reasonable suspicion of an offence is only the first part of the test for lawful arrest. The second, equally vital, component is that the constable must have “reasonable grounds for believing” that the arrest is necessary for one or more of the specific purposes outlined in PACE Section 24(5) [6, 6. This ‘necessity test’ acts as a crucial safeguard, ensuring that the significant step of depriving someone of their liberty is not taken lightly, even when an offence is suspected.

The interpretation of ‘necessity’ in this context was clarified by the Court of Appeal in Hayes v Chief Constable of Merseyside Police .5 The court established a two-stage test:

Subjective Belief: Did the arresting officer actually believe at the time that arrest was necessary for one of the legitimate reasons listed in Section 24(5)?
Objective Reasonableness: Was that belief objectively reasonable, based on the facts and information known to the officer at that moment?.5

Both the subjective belief and its objective reasonableness must be present. This means an officer cannot justify an arrest based on a reason they did not genuinely believe applied at the time, nor can they rely on a belief that, viewed objectively, was not reasonable in the circumstances.

A core principle underpinning the necessity test is proportionality. PACE Code G emphasizes that the power of arrest must be “fully justified” and officers should consider if the objectives can be met by “other, less intrusive means”.2 Arrest must never be used simply because it is available or convenient.5 Officers are expected to consider alternatives such as issuing a summons, arranging voluntary attendance at a police station for an interview, using street bail, or issuing a penalty notice where appropriate.11 The decision to arrest should be the most proportionate response required in the circumstances.14 Failure to consider or appropriately discount less intrusive measures can lead to a finding that the arrest was not necessary and therefore unlawful.5

The specific reasons for which an arrest may be deemed necessary are exhaustively listed in PACE Section 24(5) and mirrored in PACE Code G paragraph 2.9. An officer must be able to justify the arrest by reference to at least one of these criteria.11 These criteria are:

Table 1: PACE Section 24(5) / Code G para 2.9 Necessity Criteria

Criterion Ref (Code G 2.9)	Statutory Reason (PACE S24(5))	Key Considerations / Examples from Code G
(a)	To enable the name of the person in question to be ascertained.	Applies where name is unknown, cannot be readily ascertained (e.g., person refuses to provide it after warning), or reasonable grounds exist to doubt the name given. Consider alternatives like mobile fingerprint scanners if available.
(b)	Correspondingly as regards the person’s address.	Applies where address is unknown, cannot be readily ascertained (e.g., refusal after warning, no verifiable details), or reasonable grounds exist to doubt the address given. Consider if address is needed for summons/charge and whether it can be verified.
(c)(i)	To prevent the person in question causing physical injury to himself or any other person.	Applies where there is a reasonable belief of imminent risk of physical harm based on factors like threats, behaviour, history of violence.
(c)(ii)	To prevent the person in question suffering physical injury.	Applies where the person’s actions are likely to provoke violence from others, and arrest is necessary for their own protection.
(c)(iii)	To prevent the person in question causing loss of or damage to property.	Applies where there is a reasonable belief the person will cause damage if not arrested, potentially based on current actions or history.
(c)(iv)	To prevent the person in question committing an offence against public decency.	Applies only where members of the public cannot reasonably avoid the person and the conduct is likely to be repeated.
(c)(v)	To prevent the person in question causing an unlawful obstruction of the highway.	Applies where obstruction is occurring and likely to continue or repeat if person not arrested, particularly after a warning has been given.
(d)	To protect a child or other vulnerable person from the person in question.	Applies where the child/vulnerable person’s physical or mental health/welfare is at risk from the suspect, and alternative protective measures are not practicable or appropriate.
(e)	To allow the prompt and effective investigation of the offence or of the conduct of the person.	Requires specific justification. Examples include: Interviewing: necessary when voluntary attendance is not practicable (e.g., suspect unlikely to attend, needs interviewing after other actions), or specific risks exist (false statements made, evidence destruction risk, collusion risk, witness intimidation risk), or special warnings needed. Searching: premises (indictable offences), the person. Preventing Contact: with co-suspects/witnesses. Securing Evidence: taking samples, prints, photos (recordable offences). Drug Testing: if relevant to offence.
(f)	To prevent any prosecution for the offence from being hindered by the disappearance of the person.	Applies where there are reasonable grounds to believe the person will fail to appear at court or cannot be reached by summons/charge due to address issues (e.g., no fixed abode, address unverifiable/unsuitable).

The criterion allowing arrest “to allow the prompt and effective investigation of the offence or of the conduct of the person” (S24(5)(e) / Code G 2.9(e)) is particularly broad and requires careful application.6 While it covers essential investigative steps like interviewing suspects, searching premises or persons, and seizing evidence, its breadth creates a potential risk of it being used as a default justification or for reasons of administrative convenience rather than genuine necessity.5 The detailed examples provided in Code G attempt to structure its use, often linking the necessity of arrest for interview, for example, to specific risks like the destruction of evidence, collusion between suspects, or the intimidation of witnesses, or where voluntary attendance is deemed genuinely impracticable.11 However, the judgment required remains significant. Courts are likely to scrutinize the justification provided under this criterion closely, assessing whether the specific circumstances objectively necessitated arrest or whether less intrusive methods, particularly voluntary interviews, were reasonably available and improperly discounted.5 The threshold for necessity requires more than the arrest being merely “desirable or more convenient” for the police.5

VI. Distinguishing the Arrest Threshold from the Charging Standard

It is essential to differentiate between the legal standard required for a lawful arrest and the standard required for the Crown Prosecution Service (CPS) to formally charge a suspect and initiate a prosecution. These represent distinct stages in the criminal justice process, involving different decision-makers and significantly different evidential thresholds.27

As established, a lawful arrest requires Reasonable Grounds for Suspicion that an offence has been committed (or is being/about to be committed) and Reasonable Grounds for Believing that the arrest is Necessary for one of the statutory reasons.6 This is primarily a suspicion-based standard, designed to allow police to intervene, prevent immediate harm or disruption, and facilitate investigation based on credible initial information.

The decision to charge, however, rests primarily with the CPS (although police can charge certain less serious offences).27 The CPS applies the Full Code Test as set out in the Code for Crown Prosecutors.28 This test also has two stages:

The Evidential Stage: Prosecutors must be satisfied that there is sufficient evidence to provide a “Realistic Prospect of Conviction” against each suspect on each charge. This means an objective assessment, considering the likely strength of the prosecution evidence and potential defences, must conclude that a conviction is more likely than not.28 The evidence must be admissible, reliable, and credible.28 This threshold is significantly higher than the ‘reasonable suspicion’ required for arrest.15
The Public Interest Stage: If the evidential stage is met, the prosecutor must then consider whether a prosecution is required in the public interest. This involves weighing factors such as the seriousness of the offence, the culpability of the suspect, the circumstances of and harm caused to the victim, the suspect’s age and maturity, the impact on the community, and whether prosecution is a proportionate response.28

The evidential gap between arrest and charge is therefore substantial: arrest is permissible based on reasonable suspicion, while charging requires evidence pointing towards a probability of conviction. This difference reflects the distinct functions of the police and the CPS. The police need the power to act decisively based on initial suspicion to investigate crime and protect the public. The CPS, as the prosecuting authority, acts as an independent check, ensuring that individuals are only subjected to the rigours of a criminal trial when there is a solid evidentiary foundation suggesting they are likely to be found guilty.27 This two-tier system with escalating evidential requirements serves as a crucial procedural filter, balancing the need for effective policing with the protection of individuals from potentially unfounded prosecutions.

In exceptional circumstances, the CPS may apply the Threshold Test to charge a suspect when the Full Code Test is not yet met.28 This applies only when an immediate charging decision is justified by the seriousness or circumstances of the case, there are substantial grounds to object to bail, and further evidence is expected to become available shortly that will support a realistic prospect of conviction. The initial evidential standard for the Threshold Test is lower, requiring “reasonable grounds to suspect” the person committed the offence (similar to the arrest standard). However, this is a temporary measure, and the Full Code Test must be applied as soon as the anticipated evidence is obtained.28

VII. Procedural Requirements and Practical Guidance

Beyond meeting the substantive two-part test of suspicion and necessity, a lawful arrest also entails adherence to specific procedural requirements mandated by PACE and its Codes of Practice. These procedures are not mere formalities; they are integral to ensuring the arrest is conducted fairly, transparently, and accountably, and failure to comply can impact the lawfulness of the subsequent detention.18

Firstly, under PACE Section 28, the arresting officer must inform the person that they are under arrest and the ground(s) for the arrest as soon as is practicable after the arrest occurs.3 PACE Code G further clarifies that, where practicable, the officer should also explain the reason or reasons why arrest is considered necessary by reference to the relevant necessity criteria.11 This ensures the arrested person understands the immediate basis for their detention.

Secondly, the arrested person must be cautioned, usually at the time of arrest or immediately prior to it, unless impracticable due to the person’s condition or behaviour.11 The standard caution informs the suspect of their right to remain silent and the potential adverse consequences of failing to mention something later relied upon in court.32

Thirdly, meticulous record-keeping is essential. The arresting officer is required to record specific details concerning the arrest in their pocket book or via other official recording methods.11 This record must include:

The nature and circumstances of the offence leading to the arrest.
The grounds for suspecting the person’s involvement (the RGS).
The reason or reasons why arrest was deemed necessary (the RGBN, referencing the specific criteria).
Confirmation that the caution was given.
Anything said by the person at the time of arrest.11

This contemporaneous record is vital. It provides the basis upon which the custody officer at the police station will decide whether to authorise detention 12, forms a key part of the evidence should the lawfulness of the arrest be challenged in court 18, and serves as an essential tool for accountability and supervision.

PACE Code G provides the most detailed operational guidance on applying the Section 24 arrest powers.1 It elaborates on the meaning of reasonable suspicion and necessity, outlines factors officers should consider, and emphasizes the need for fairness and non-discrimination.2 The College of Policing’s Authorised Professional Practice (APP) further translates these legal requirements into practical guidance for officers, reinforcing the two-part test and the importance of adhering to Code G.12

These procedural elements – providing information, cautioning, and recording the grounds – are therefore intrinsically linked to the substantive legality of the arrest. They function as practical mechanisms to ensure transparency, facilitate the suspect’s understanding of their situation, enable them to access legal rights, and create an auditable record for subsequent review and oversight. Compliance with these procedures helps demonstrate that the substantive tests of reasonable suspicion and necessity were indeed met at the time of arrest.

VIII. Conclusion

The legal test for a lawful arrest without warrant by a police constable in England is clearly defined by Section 24 of the Police and Criminal Evidence Act 1984, as interpreted and supplemented by PACE Code G. It comprises two essential and concurrent components:

The officer must have reasonable grounds for suspecting that the person is involved (past, present, or future) in the commission of an offence. This suspicion must be based on objective facts and information known to the officer.
The officer must have reasonable grounds for believing that the arrest is necessary for one or more of the specific reasons exhaustively listed in PACE S24(5) (and Code G para 2.9), such as ascertaining identity, preventing harm, protecting vulnerable persons, allowing effective investigation, or preventing the suspect’s disappearance.

Both suspicion and necessity must be objectively justifiable at the time of the arrest. The necessity requirement mandates that officers consider less intrusive alternatives and use the power of arrest proportionately and only when genuinely required according to the statutory criteria. This standard for arrest, based on suspicion and necessity, is distinct from, and significantly lower than, the evidential threshold required for the Crown Prosecution Service to charge a suspect, which demands a “realistic prospect of conviction” based on the available evidence.

Adherence to procedural requirements, including informing the suspect of the grounds for arrest and necessity, administering the caution, and meticulously recording the reasons, is also crucial for ensuring the lawfulness and accountability of the arrest process. Ultimately, the legal framework governing arrest reflects a continuous societal effort to balance the need for effective policing and crime control against the fundamental right to individual liberty, demanding that officers exercise this significant power responsibly, justifiably, and in accordance with the law.1

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