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A higher test of necessity for arrest?

In Rashid v Chief Constable of West Yorkshire [2020] EWHC 2522 (QB) the High Court (Lavender J) has allowed an appeal against a Recorder’s decision to dismiss a general practitioner’s claim for wrongful arrest, on the basis that the officers involved lacked reasonable grounds for believing the arrest was necessary. It follows recent cases in articulating a higher bar for the police to show reasonable grounds for necessity to arrest than perhaps had been thought to apply. It also raises interesting arguments about whether any other defences, such as the “Lumba/Parker” issue or ex turpi causa (the defence of illegality) might be available where an arrest has been unlawful.


This was a case in which there appears to have been strong (and certainly reasonable) grounds for suspecting the claimant general practitioner of a crime. He had been arrested in connection with an investigation into fraudulent claims against motor insurers for injuries sustained in road traffic accidents, which led to 45 individuals being convicted of fraud.

The police found appointment diaries concerning the general practitioner in the car of one of the conspirators, and at the office of the company making the fraudulent claims, which showed appointments for up to 50 potential claimants per day at 10 minute intervals. Medical experts advised that such assessments should take 20-30 minutes; that the claimant’s reports were of poor quality; and that £250-£300 per assessment was a reasonable fee, whereas the claimant appeared to have been charging £470 per report, thereby earning himself up to £23,500 per day. The police also found that the claimant had been making payments into the bank accounts of the fraudulent claims company, and one of the conspirators.

The claimant was arrested during a home visit at dawn, in the course of which his mobile phone was seized from his bedside table. In addition, the police had warrants to search three of the claimant’s premises. He was interviewed and released on bail, but the Crown Prosecution Service decided against bringing charges.

Perhaps, unsurprisingly, Lavender J was satisfied, notwithstanding the absence of the arresting officer at the trial, who had since left the police service, that there had been reasonable grounds for suspecting the claimant of being party to the offences committed by the conspirators [74]-[76]. However, although the judge agreed that the Recorder had been entitled to conclude that the officers involved had honestly believed it was necessary to perform an arrest, they had, according to Lavender J, lacked reasonable grounds for that belief.

The Chief Constable’s case had been that the officers involved genuinely and reasonably believed that an arrest was necessary to allow the prompt and effective investigation of the suspected offences, pursuant to subsections 24(4) and (5)(e) of the Police and Criminal Evidence Act 1984 (“PACE”). The reasons recorded as being given in evidence included

  • that the time constraints of voluntary attendance may not have been sufficient;
  • there was a need to secure information contained, in particular, on the claimant’s phone(s);
  • there was a need to obtain evidence seized on arrest for the purpose of later interviews.

Since the claimant was suspected of involvement in a large-scale conspiracy, the Chief Constable had submitted that there was an obvious risk of suspects tampering with evidence or “tipping off” co-conspirators; although Lavender J noted that such matters had not been relied on by the senior officer who gave evidence [81].


Lavender J was dissatisfied with all three reasons.

First, there was no time constraint on voluntary attendance for interview. The judge opined that the senior officer, DI Taylor, appeared to have had in mind the 24-hour period within which a person may be detained without charge.

However, DI Taylor’s evidence had not been that it would have been necessary to detain the claimant for 24 hours – rather, that the police might not be ready to interview him within 24 hours, depending on what emerged from the searches. Nor had DI Taylor suggested there was a need to detain the claimant prior to interview in order to prevent him having contact with others. If the police had not been ready to interview the claimant on the day of his arrest he could, Lavender J considered, have been invited to attend the station for interview the following day or subsequently. Moreover, the police could have invited him to a voluntary interview while intending to arrest him if he intended to leave [82]-[87].

Second, the other two reasons did not suffice because the police had search warrants of the claimant’s premises, and therefore the only evidence which might have necessitated the claimant’s arrest would have been evidence concealed on his person.

Although Lavender J accepted that the intention to arrest had been formed before the police attended the claimant’s home, he observed that it had been a dawn arrest, when the claimant had been in his nightclothes and the mobile phone seized from the bedside table. This, in the judge’s view, cast doubt on whether s. 32(5) PACE had been satisfied (i.e. the power to search on arrest where the officer has reasonable grounds for believing the person may have concealed on him anything for which a search is permitted). Moreover, given that the claimant had been expected to be cooperative, an arrest could not reasonably be thought necessary unless he had refused to cooperate (or given that appearance) [88]-[91].

Lavender J, thus, concluded there were no reasonable grounds for believing it was necessary to arrest the claimant and that his arrest had been unlawful. In obiter remarks, the judge added that in light of his conclusion on necessity, it could not be said that, if the arresting officer had not arrested the claimant, another officer would have done so lawfully – the so-called “Lumba/Parker” issue.

Also, he held that there was “no scope” for the application of the ex turpi causa doctrine, which the Chief Constable had submitted was applicable because the claimant’s “industrialisation” of his medico-legal work involved a breach of his duty to the court and was contrary to the public interest [48]. Lavender J concluded that the conduct of the claimant referred to by the Recorder – that he had given “evasive” and “equivocal” answers in cross-examination, which demonstrated that he had “neither a proper understanding nor respect for the duty he owed to the court and the solemnity of the declarations he was making in his reports” – merely provided the occasion for his arrest, but did not cause him to be arrested unlawfully [93].


On one view, this is simply another case where a police force has failed to demonstrate that an arrest was necessary.

Lavender J appears to have taken a particularly stringent view of the necessity requirement. He remarked that whereas the requirement for reasonable grounds for suspecting a person of being guilty of a crime under section 24(2) PACE “imposed a comparatively low hurdle”, the requirement for reasonable grounds for believing an arrest is necessary “imposed a comparatively high hurdle” [25]. In support of this proposition, the judge cited Hayes v Chief Constable of Merseyside [2011] EWCA Civ 911; [2012] 1 WLR 517, where Hughes LJ stated, of sub-sections 24(4) and (5) PACE (as amended from 1 January 2006):

“[15] The effect of this is, in one sense, to tighten up the accountability of police officers, at least in the case of arrest for serious offences, because those arrests now become subject to the criterion of necessity, whereas previously only non-arrestable offences were. As Toulson LJ pointed out in this court in Shields v Chief Constable of Merseyside Police [2010] EWCA Civ 1281, the new formulation also: (a) creates a single code for all offences; (b) ensures conformity with article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; and (c) incorporates the Wednesbury principle of review via the concept of reasonable grounds, brought forward from the previous law and extended to the new general requirement of necessity.”

However, Hughes LJ was there referring to the introduction of the “necessity” requirement, not how easy it is to satisfy. A similar emphasis was placed by Thornton J in Commissioner of Police of the Metropolis v MR [2019] EWHC 888 (QB) where she, by reference to the same section in Hayes, described the test of necessity as a “high bar” [47]. In MR, the claimant had attended a police station for a voluntary interview and only then been arrested, prior to the interview, on suspicion of harassment. In that scenario it is perhaps easier to see how the court was not persuaded that it had been necessary to arrest him.

In this case, the Chief Constable was not helped by the absence of any record of the reasons for the arrest, as required by PACE Code G [45]-[46], or the absence of the arresting officer at trial. There appears to have been no direct evidence that the officers feared that by inviting the claimant to a voluntary interview, they would have been alerting him to the fact that he was of interest to the police, thereby giving him an opportunity either to make contact with the conspirators or conceal evidence. Despite the Chief Constable’s submission to this effect, Lavender J was not prepared to draw any such inference.

Perhaps of more interest to future cases are the other arguments which did not succeed. The “Lumba/Parker” issue, derived from Parker v Chief Constable of Essex [2018] EWCA Civ 2788; [2019] 1 WLR 2238, failed because Lavender J was not satisfied that there were any reasonable grounds for believing it was necessary to arrest and therefore there was no other scenario in which the claimant “could and would have been arrested lawfully” had the police acted lawfully (thereby entitling him only to nominal damages) as had been the case in Parker, where there had been reasonable grounds for suspecting the claimant but the arresting officer, who had had those grounds in mind, had not ultimately performed the arrest.

The illegality argument was dismissed with equally short shrift. Lavender J was satisfied that it had been reasonable to suspect that the claimant’s activity had been fraudulent [10]. In those circumstances, the Chief Constable had argued that this amounted to “turpitude” sufficient to engage the illegality defence, which allows a court to deny a claim for damages where it is founded on the claimant’s own illegality or immorality, which is both serious and related to the events from which the claim arises. Lavender J cited Gray v Thames Trains Ltd [2009] UKHL 33; [2009] 1 AC 1339 where Lord Hoffmann described, at [54], the distinction between causing something and “merely providing the occasion for someone else to cause something”. Lavender J characterised the damage suffered by the claimant as having been caused by the unlawfulness of his arrest, rather than the suspected fraudulent activity which led to that arrest.

Unlike the “Lumba/Parker” issue, which stands or falls with the existence of reasonable grounds, the illegality defence could, conceivably, be used as a “fall back” in cases where those grounds are lacking. It might be thought most likely to apply in cases where the evidence of the claimant’s suspected offending is particularly cogent. Assuming that such cases are more likely to give rise to reasonable grounds for suspicion, the illegality defence might avail forces in cases where the stumbling block for the lawfulness of an arrest is the necessity requirement.

Above all, this case reaffirms the care with which forces need to consider the necessity requirement, and properly document the reasons for an arrest so that they are able to withstand subsequent scrutiny in court.