Gapper v Chief Constable of the Avon and Somerset Constabulary

A statutory power of arrest without warrant is not removed by section 26(1) of the Police and Criminal Evidence Act 1984 merely because it appears in a pre-1984 Act. Section 26(1) addresses powers specifically conferred on constables by reason of their office. It does not abolish a general power available to any person, including constables and citizens. The statutory context, including the omission of the relevant provision from the repealing provisions and the avoidance of an anomalous result, supported that construction. The power in section 6 of the Vagrancy Act 1824 therefore survived.

The appellant brought proceedings against the Chief Constable for unlawful arrest after police officers found him hiding in an enclosed garden and arrested him under section 6 of the Vagrancy Act 1824 for an offence under section 4. Deputy Circuit Judge Toyn, sitting in the Bristol County Court on 3 September 1997, held that the arrest power survived the Police and Criminal Evidence Act 1984 and that the arrest was lawful. The appeal concerned whether section 6, which conferred a power on any person, was extinguished by section 26(1), particularly since the Vagrancy Act 1824 was not included in Schedule 2.

Disposition

Lord Justice Swinton Thomas gave the first judgment. Lord Justice Aldous and Lord Justice Stuart-Smith agreed. The appeal was dismissed unanimously.

1. Scope of section 6. Section 6 of the Vagrancy Act 1824 was plain in conferring a power on any person, whether a constable or a citizen, to apprehend a person found offending against the Act.
2. Scope of section 26(1). Section 26(1) of the Police and Criminal Evidence Act 1984 applied to pre-existing statutory powers specifically granted to constables to arrest without warrant. It did not apply to a general power of arrest conferred on any person. Otherwise, a citizen could arrest under section 6 while a constable could not.
3. Statutory context. Schedule 7 Part I repealed sections 8 and 13 of the Vagrancy Act 1824 but left section 6 intact. That omission reinforced the conclusion that section 6 had not been abolished. The absence of the Act from Schedule 2 did not produce a contrary result because section 26(1) did not reach section 6.
4. Authority. The Divisional Court’s decision in The Director of Public Prosecutions v Kitchen [1990] CLR 394, concerning the survival of an analogous general arrest power under section 91(1) of the Criminal Justice Act 1967, provided powerful support. Criticism of that decision was noted, but the court considered the conclusion correct.

The arrest was lawful and the claim therefore failed. The order was appeal dismissed, with an order nisi against the legal aid fund with nil contribution. Leave to appeal to the House of Lords was refused.

• Court of Appeal (Civil Division) ([1998] EWCA Civ 1146, 2 July 1998): unanimously dismissed the appeal and refused leave to appeal to the House of Lords.
• Bristol County Court: Deputy Circuit Judge Toyn held on 3 September 1997 that the section 6 arrest power survived the Police and Criminal Evidence Act 1984 and that the arrest was lawful.