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On 17 June 2008, a complaint was made to the police by a Mr Mooney that Mr Hayes had threatened and assaulted him several days previously demanding monies owed for the purchase of cocaine. A decision to arrest Mr Hayes was made on 24 June 2008. The police tracked down Mr Hayes’s telephone number from his mother and were able to speak with Mr Hayes at 21.00 on 26 June 2008. A meeting was arranged for that evening and Mr Hayes was arrested. Mr Hayes was taken into custody and detained at the police station at 22.33; he chose to see the duty solicitor who was not available immediately and Mr Hayes was placed in a cell. Mr Mooney was then contacted by the police to inform him of the arrest but Mr Mooney decided to retract his complaint; he did not resile from his retraction even after a visit from the police. However, it was never alleged that the allegations were not true. Mr Hayes was then released at 00.58. Mr Hayes sued the Chief Constable for wrongful arrest and unlawful detention; he lost at first instance and appealed to the Court of Appeal on two grounds: (a) that the arrest was not necessary as the police had not looked at all possible alternatives; and (b) that the arrest became unlawful when Mr Mooney first retracted his complaint.
The principal issue on the appeal was whether the necessity requirement in s24 of PACE requires that a police officer "must actively consider all possible courses of action alternative to arrest; he must have taken into account all relevant considerations and have excluded all irrelevant ones." The Court of Appeal rejected that proposition as wrongly incorporating a public law test into the decision to arrest. There are three significant features to the decision:
(1) First, the Court set out the test to be applied when deciding whether the necessity criterion is satisfied. This is a two-stage. First, that the constable actually believes that arrest is necessary for an indentified subsection s24(5) reason. Second, that objectively that belief was reasonable: see [21], [30] – [35], and [42]. The Court rejected the submission that there was also a requirement, in order to found a lawful arrest, that the arresting officer should have actively considered all possible courses of action alternatives to arrest; to have taken all relevant considerations into account; and have excluded all irrelevant ones: see [18], [30], and [42].
(2) Second, the Court held that that voluntary attendance at a police station is not always as effective a form of investigation as interview after arrest. It would not be honest, given s29 of PACE, for an officers to tell a suspect that he may leave the police station at any time if he intended to arrest him the moment that he decided to leave. Moreover, it would not be effective given that the suspect would be free to interrupt questioning the moment that he found a question or topic difficult: see [42].
(3) Third, the Court suggested that when deciding whether an officer’s belief that arrest was necessary was objectively justified, the Court will ask itself whether the decision of the arresting officer was unreasonable in the sense that no reasonable arresting officer could reasonably have reached that conclusion: see [36].
Applying that test, the court found for the Chief Constable. The court also found that the proposition that the detention became unlawful upon Mr Mooney first retracting his complaint was unarguable; and that the Chief Constable succeeded on that ground as well.
Jason Beer QC acted for the Chief Constable of Merseyside Police. Jason is experienced in public law, police law and inquiries and was described in Chambers 2011 as "phenomenally bright" and as a barrister who "stands out head and shoulders above the rest". Jason frequently appears in the appellate courts.