Reay & Sherlock v Chief Constable of Northumbria Police

The objective necessity requirement for arrest under section 24 of the Police and Criminal Evidence Act 1984 is a practical, fact-sensitive exercise. Arrest need not be the last resort, and the police need not eliminate every feasible alternative. They must, however, evaluate available alternatives and have rational grounds for rejecting them. The court assesses the decision in its operational context, on the information available at the time and without hindsight. The test imposes a high standard of accountability because arrest involves summary deprivation of liberty, while recognising the practical demands of public-order policing. Where a suspect’s conduct gives the police reasonable grounds to conclude that alternatives depend on cooperation which is unlikely to be forthcoming, immediate arrest may be objectively necessary.

The appellants challenged their arrests during an English Defence League march and counter-demonstration in Newcastle on 25 May 2013. They had been arrested on suspicion of conspiracy to commit violent disorder under section 2 of the Public Order Act 1986.

Following a five-day County Court trial, the jury found that the officers genuinely suspected the offence and genuinely believed arrest was necessary. The Recorder also found the suspicion reasonable and the arrests lawful. The appeal concerned only whether there were reasonable grounds for the officers’ belief that arrest was necessary for a preventive reason under section 24 of the Police and Criminal Evidence Act 1984.

1. Appeal dismissed. The officers had reasonable grounds for believing that arresting the appellants was necessary to prevent physical injury, property damage or unlawful obstruction.

2. The subjective findings were not challenged. The issue was therefore the objective necessity of arrest. That question required the court to reach its own conclusion, while giving appropriate weight to the trial judge’s assessment of the evidence.

3. The necessity test is practical rather than theoretical. It must be applied to the real-time circumstances known to the police, the operational context and the particular arrestees, without hindsight. Arrest need not be a last resort and the police need not exhaust every alternative. Nevertheless, the alternatives must be considered, and rejecting them requires a sensible and rational basis.

4. The exceptionally high risk of disorder, the suspected group conspiracy to commit violent disorder, the limited time available and the appellants’ sustained refusal to disclose their intentions were relevant to necessity. The pre-planned alternative of directing the group to another demonstration site depended on a basic prospect of cooperation. The officers reasonably concluded, after observing the group for about half an hour, that such cooperation was unlikely.

5. Section 14 of the Public Order Act 1986 provided the legal basis for imposing conditions on the assembly and was part of the planned alternative. Its non-use did not make the arrests unlawful because, in the circumstances, the police reasonably considered that the alternative was impractical. The court was not deciding that the police had interpreted the appellants’ behaviour correctly, that the plan had been perfectly executed, or that no viable alternative existed.

6. The police’s belief that arrest was the practical and sensible option had an adequate foundation in reason and could not fairly be impugned as objectively unreasonable.

• Newcastle-upon-Tyne County Court: Following a jury trial, the Recorder found the arrests lawful and dismissed the claims.
• High Court (Administrative Court): The appeal against the Recorder’s order dated 18 October 2019 was dismissed.