ALK & Anor v The Chief Constable of Surrey Police

The statutory necessity test for arrest requires more than a genuine belief that arrest would be desirable or convenient. The arresting officer must have reasonable grounds for believing that arrest is necessary for an identified statutory purpose, assessed on the information actually known at the time.

Officers must give real consideration to a practical, less intrusive alternative, including voluntary attendance for interview. A failure to consider such an alternative creates a real risk that the arrest will be unlawful. General references to child protection or investigation integrity do not suffice where the circumstances show that voluntary attendance could achieve those objectives.

The claimants, serving police officers, appealed against the dismissal of their claims for false imprisonment, battery and trespass arising from their arrests by Surrey Police in March 2019. Their teenage son had alleged that the first claimant assaulted him and that the second claimant failed to intervene.

The first claimant was arrested at home and both claimants were taken to a police station, detained and interviewed. They were released under investigation without charge, and the police later took no further action. The appeal concerned whether the arresting officers had the necessary subjective beliefs and objectively reasonable grounds under section 24 of the Police and Criminal Evidence Act 1984, and whether the judge had erred in permitting enforcement of 70% of the defendant’s costs under the QOCS provisions.

1. Liability appeal allowed. The judge was entitled to find that PC Havers subjectively believed that arresting the second claimant was necessary. The absence of objective grounds did not, on the evidence, undermine that factual finding.

2. The decisive issue was objective necessity under section 24 of the Police and Criminal Evidence Act 1984. The statutory test is an important constitutional safeguard and sets a high bar. The court must examine the arresting officer’s actual reasons and must not rely on hypothetical reasons developed after the event.

3. Code G does not make every breach automatically unlawful. However, serious or unexplained failures to comply with relevant guidance may be decisive. Officers must give real consideration to practical alternatives which are less intrusive than arrest. Voluntary attendance for interview was such an alternative here.

4. The children were safe and under the supervision of police officers and a social worker. The claimants were co-operative. The second claimant was not accused of a contact assault. The police could have taken the claimants to the station voluntarily, prevented contact between them if necessary, and arrested them later if they ceased to co-operate. The possibility of departure during interview was not a valid reason to arrest beforehand.

5. The evidence did not show that either officer had genuinely considered voluntary attendance, and no reason was identified why it was impracticable. References to protecting the children and preserving the integrity of the investigation were insufficient. Both arrests were therefore unlawful and the claims should have succeeded.

6. The costs ground was academic in light of the liability decision, but the court held that the judge had erred in treating the proceedings as not being, in the round, a personal injury claim. The psychiatric injury claims were viable, supported by expert evidence, and not improperly added to obtain QOCS protection. The costs discretion therefore required reconsideration.

Consequential submissions were invited.

• High Court (King's Bench Division): HH Judge Simpkiss dismissed the claims after a five-day trial and ordered the claimants to pay 70% of the defendant’s costs. The High Court allowed the appeal and held that both arrests were unlawful.