Necessity to arrest for a search
Joanna Carty, Associate examines the case of Dr Abdul Rashid v Chief Constable of West Yorkshire Police
The court determined that whilst there was a reasonable suspicion to arrest the claimant and that suspicion was genuine, the reasons given as to whether the arrest was necessary did not give rise to a lawful arrest. This case is a peculiar one which really turns upon its facts and whether it was necessary to arrest for the purposes of a post-arrest search. In this case search warrants were obtained prior to arrest and therefore any post-arrest search was limited to Section 32 Police and Criminal Evidence Act 1984 (‘PACE’). If a suspect is cooperative and therefore would hand over any item such as a mobile phone suspected as being on their person, necessity to arrest will not be made out.
The claimant was arrested following an operation which concerned an investigation into fraudulent claims made via a claims management company against motor insurers for whiplash in fictional or exaggerated road traffic collisions. The claimant, a GP, provided medical reports for the claims management company. As part of the investigation the police discovered diary appointments which showed the claimant was examining up to 50 potential claimants a day, booked 10 minutes apart over an eight-hour period. Independent medical experts advised the police that such assessments should take 20-30 minutes, the claimant’s reports were of poor quality and the claimant was charging significantly more than comparable experts for a report. The police also found that the claimant had been making payments into the bank accounts of the fraudulent claims company and one of the conspirators, which added to their suspicion.
Prior to the arrest, a meeting took place on 19 January 2012 amongst the officers in the team including DI Taylor and DC Mark Lunn (the eventual arresting officer) where strategy, including the decision as to arrest, was discussed. Search warrants were also obtained prior to the arrest of the claimant to search three of his properties for evidence in connection with the offence.
On 7 March 2012, the claimant was arrested by DC Lunn and conveyed to a police station where he was interviewed. He was released on bail and subsequently interviewed again on a number of occasions. In June 2013 the Crown Prosecution Service decided that no charges should be brought against him.
The claimant subsequently made a claim for wrongful arrest, false imprisonment and trespass. It proceeded to trial before Mr Recorder Nolan QC, with judgment handed down on 20 September 2019. DC Lunn did not give evidence at the trial as at that point he had left the police following an allegation of misconduct made in 2012, which concerned his proposal to set up a business as a private investigator.
At first instance, the claimant’s claim was dismissed in its entirety. The recorder found that DC Lunn had the requisite reasonable suspicion that the claimant was complicit in the illegal activities of the claims management company. He also found that he held an honest and reasonable belief that it was necessary to arrest the claimant to allow the prompt and effective investigation.
This was challenged on appeal to the High Court.
Mr Justice Lavender found that the recorder had not erred in his conclusion that based on the material available to the police at the time of arrest there were reasonable grounds for suspecting the claimant was a party to the offences committed by the conspirators. The recorder was also entitled to find that DC Lunn held a genuine suspicion. Whilst noting that DC Lunn did not give evidence, the cumulative effect of the contemporaneous records prepared prior to arrest including an Operational Order, together with the evidence of DI Taylor who was accepted to be a reliable witness, allowed the recorder to reach the conclusion that DC Lunn held a genuine suspicion.
As to necessity, Mr Justice Lavender determined that the recorder was entitled to conclude that the officers involved, including DC Lunn, genuinely believed that it was necessary to arrest the claimant. However, there were no reasonable grounds for that belief.
DI Taylor had given evidence to the effect that it was necessary to arrest to obtain and seize evidence, in particular mobile phones, for the purposes of interview. In this case, as search warrants had been obtained pre–arrest to search the claimant’s three properties, any post-arrest search would be limited to a search of the claimant’s person pursuant to Section 32 PACE. However, in accordance with Section 32 (5) PACE a constable must have reasonable grounds for believing that the person to be searched may have concealed on him anything for which a search is permitted.
The arrest took place at 6.00.am and the claimant was in his night clothes when the police arrived. The search record showed that his phone was seized from his bedside table under the search warrant. As a result, Mr Justice Lavender found that these factors cast doubt on whether Section 32(5) PACE was satisfied. Furthermore, he accepted the claimant’s submission that as the claimant was expected to be co-operative, an arrest could not reasonably be thought necessary unless he refused to co-operate or gave the appearance of refusing to co-operate. In other words, as in Commissioner of Police for the Metropolis v MR  EWHC 888, DC Lunn could have asked the claimant for his telephone if it was on his person at the time of attending the claimant’s address and, if refused, that would give grounds for believing that an arrest was necessary. As a result, the court concluded that there were no reasonable grounds for believing that it was necessary to arrest the claimant and his arrest was therefore unlawful.
This is an interesting case which demonstrates that whether the grounds for necessity are met very much turns on its own facts. This case serves as a cautionary tale, that where search warrants are in place, any arrest for the purposes of a post-arrest search is limited to a Section 32 PACE and if a suspect is expected to be co-operative, necessity to arrest is unlikely to be made out.
Arguably, if search warrants are not in place, Section 18 PACE could be utilised to justify an arrest as necessary for the purposes of a search. However, what is the position if a suspect consents to a search? Would this negate necessity? A suspect would have to give informed consent to such a search, which is a difficult concept in itself. Can it really be said that a suspect threatened with the prospect of arrest if he does not consent can truly consent to a search? These questions show that each case needs to be considered on its own merits and demonstrates the intricate decision-making process an arresting officer must have in mind when determining whether or not it is necessary to arrest.