B & Ors (Former Soldiers) v Police Service of Northern Ireland

The statutory necessity test for arrest to facilitate investigation has two stages. The officer must actually believe that arrest is necessary for a specified statutory reason. Objectively, that decision must have reasonable grounds. The court must scrutinise the decision carefully, while respecting relevant police expertise.

Necessity is contextual and means more than convenience or desirability. The words prompt and effective are conjunctive. A voluntary interview may be a practicable alternative where the suspect gives an enforceable undertaking to attend and be interviewed. Administrative convenience, the use of original documents, or a possible future wish to impose bail conditions will not ordinarily establish necessity.

Former soldiers involved in the events of Bloody Sunday challenged the proposed exercise by the Police Service of Northern Ireland of cross-border arrest powers under Criminal Justice and Public Order Act 1994 section 137 and article 26 of the Police and Criminal Evidence (Northern Ireland) Order 1989.

They offered enforceable undertakings to attend interviews under caution at a police station in England or Wales. The central issue was whether the proposed arrests were necessary to allow the prompt and effective investigation of the alleged offences, and whether the decision to arrest was objectively supported by reasonable grounds.

1. Outcome. The Divisional Court prohibited the PSNI from arresting the claimants in England and Wales to interview them under caution, conditional on their undertaking to attend and remain for the duration of interviews at an acceptable location in England or Wales.
2. Applicable test. Article 26 of the Police and Criminal Evidence (Northern Ireland) Order 1989, as applied through section 137 of the Criminal Justice and Public Order Act 1994, required a two-stage inquiry. The constable must actually believe that arrest is necessary for a reason specified in article 26(5). Objectively, the decision must have been made on reasonable grounds. The court was entitled to scrutinise the decision carefully, although it had to take account of police expertise and operational judgment. There was no separate, overarching Wednesbury review: [2012] 1 WLR 517; [2010] EWCA Civ 1281.
3. Necessity. Necessity had to be assessed in context and required more than desirability or convenience. The statutory phrase “prompt and effective” was conjunctive. The proposed arrests could not make an investigation prompt after a 43-year delay. Interviewing the claimants in England could still be effective. Electronic documents removed the supposed difficulties of transport, storage and access, while the PSNI’s preference for original documents was outmoded and unjustified.
4. Voluntary attendance. Although voluntary attendance may sometimes be less effective than arrest, the claimants’ court undertakings meant that attendance was enforceable and could be structured and controlled. It was therefore a practicable alternative, so arrest was not necessary. The PSNI’s resource and administrative concerns did not establish reasonable grounds.
5. Post-interview bail. A possible future wish to impose bail conditions was too speculative to justify arrest. Treating that possibility as sufficient would remove the safeguards in article 26(5).
6. The court proceeded on the assumption that the subjective limb was satisfied. It found that the objective limb was not. It therefore did not need to determine the proportionality and article 2 arguments or whether the Attorney General’s undertaking had been breached.