Don’t Panic: What to expect if you are arrested at a protest

If the police have an existing warrant for someone’s arrest over a specific crime, then they can arrest them under this warrant if they identify them at a protest. If they don’t have an existing warrant for someone, they have two powers of arrest.

Under Section 24 of the PACE they can arrest you IF:

• They are satisfied or suspect that you were involved in a criminal offence; AND
• They have reasonable grounds to suspect that an arrest is necessary to:
  • Ascertain your details
  • Prevent you causing damage to property, offending public decency or causing obstruction of a public highway
  • Protect a child or vulnerable person
  • Allow a prompt investigation
  • Prevent you from disappearing

There is also a common law power of arrest to “prevent a breach of the peace”. This is often trotted out by police regarding protests. Under this power, the police can arrest you if:

• You have committed a breach of the peace in their presence
• They have reasonable cause to believe that you will commit a breach of the peace in the near future; or
• You have committed a breach of the peace and they have reasonable grounds to believe that you will do it again.

As you may have noticed, these are extremely broad powers. Police do have to state that they believe you were involved in a specific criminal offence, so if you have not done anything wrong then you should be fine. However, the police can come up with a tenuous offence and then claim that they need to carry out an arrest to ‘ascertain your details’ or ‘allow a prompt investigation’. But it is important to remember that being arrested is not the same as being charged, as we explain below.

There are also many things which are not a criminal offence, but which police threaten to arrest people over. You cannot be arrested for these. These include:

• Filming a police officer
• Attending a protest (when it complies with the Covid regulations)
• Refusing to give your details when you have not been arrested
• Covering your face
• Avoiding a facial recognition camera

When the police arrest someone, they have not charged them with any crime. As the reasons for an arrest are so broad, they may simply be arresting you in order to start an ‘investigation’ which they know will not go anywhere. There is therefore no need to panic.

When the police arrest you, they have to tell you three things:

1. That you are under arrest (even if it seems obvious, if they do not specifically tell you that you are being arrested then they are unlawfully restricting your liberty)
2. The grounds for your arrest (this means the offence which they claim you committed – again, they have to do this even if the grounds seem obvious and if they do not specifically tell you then they are unlawfully restricting your liberty)
3. The prescribed ‘caution’ from Code C: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”

It is important to note that the ‘caution’ in point 3 is NOT the same as an ‘official caution’, which is explained below.

The caution in point 3 is also intended to sound foreboding, but remember that it is a blanket statement which they have to say to everyone. You do not have to talk to the police just because you have been arrested, and we would recommend responding with “no comment” to everything until you speak to a solicitor. This includes apparently casual conversations with officers, as these conversations can still be used as evidence.

The police are allowed to use reasonable force when arresting someone. This will generally include handcuffs, but it should not include any physical manhandling unless you are resisting arrest. If you are being physically compliant (even if you are refusing to give them your details) then the police should not be using force on you. If they are, this is unlawful.

The police can only search or interview AFTER you have been arrested (note that this is different from a Stop and Search).

Search: The police officer can conduct an immediate pat down search if they have reasonable grounds to believe that you represent a danger to yourself or others, or if they have reasonable grounds to believe that you have something which may be evidence relating to the offence, or may be used to escape. This can only be an outer layer search, which means they cannot ask you to remove any item of clothing other than an outer coat, jacket or gloves. For any deeper search (or ‘strip search’) they must take you to a police station (or other designated place) and have reasonable grounds for believing that you have hidden something upon your person which could present a danger to yourself or others. The officer conducting a strip search must be the same sex as you, and there must be two witnesses present, preferably also of the same sex.

Interviews: While the police officers might ask you questions at any point (which you can simply refuse to answer), they are not allowed to conduct a proper interview until you are at the police station unless the delay would cause a serious issue. You have the right to talk to a solicitor before you are interviewed, and we would recommend that you refuse to be interviewed until you do talk to a solicitor. Being interviewed can be stressful, and you may feel more comfortable after you have taken some time to relax, and after the solicitor has told you what to expect. The solicitor may also help prepare a statement for you, which they will read out to the police. Until you have spoken to a solicitor, simply reply “no comment”.

After an arrest you must be taken to a police station as soon as reasonably practicable. They should tell you which police station you are being taken to, and you can pass this information on to witnesses (our LOs, for example, should be able to notify our network of expert solicitors and arrange for someone to meet you there and support you).

The officer might choose to release you on ‘street bail’, with notice of when and where you should attend a police station for a later interview.

Once you arrive at a police station you will be assigned a custody officer. They will start a custody record giving the reasons for your detention, maintain a detention log of any significant events and must inform you of your rights. These are:

1. The right to have someone else informed of your arrest (this can of course be a friend or family member, but you can also contact BPLS or one of the solicitors recommended on our bustcards. We can then get in contact with your friends or family members if you need)
2. The right to consult privately with a solicitor (you will be offered free legal advice from a duty solicitor. While they offer a vital service, many are not experienced in protest law, and so we would recommend contacting an experienced protest lawyer. Again, we have a network of expert lawyers who we can put you in contact with)
3. The right to consult the Code of Practice (these explain the details of the police powers and your rights. We would recommend asking for these; they will help you understand your situation and, at least, offer some reading material while you wait).

The custody officer will supervise the confiscation of your property. The officer should write a list of everything which they take from you which they will ask you to sign. You should receive all of this property back when you are released. The police do have the right to seize anything which may be used to cause harm, may be used to escape, or may be evidence regarding the offence.

From the moment you arrive at the police station, the police have 24 hours to decide whether to charge you or not (they can extend this in some serious cases, but that shouldn’t be relevant to anything related to a protest). During this period, you will be detained in the cells while they investigate, and the custody officer will determine whether there is enough evidence to charge you.

During those 24 hours you must be provided with food at meal times, a warm cell, a cushioned bed, tea or coffee, and access to a toilet. You can also ask for a pen and paper to write and you can ask for the Codes of Practice to read (or any other non-electronic reading material you might have with you).

You may hear the police offering to simply give an official caution rather than arresting you as this will allow you to “go home tonight rather than spending a night in the cells” or something similar.

In theory, official cautions are supposed to be used when someone has clearly committed a crime, and going through the full process of court would be a waste of resources. In practice, they are used as an easy win for police officers when they don’t really think they have the evidence to prove an offence. For example, when police believe that someone in a crowd is guilty of a breach of the peace, but they can’t prove it, they might offer official cautions to all of the people they suspect in the hope that people will simply accept them. They often know that if they took any of those people to court they would not actually be able to convict them.

The most important thing to remember is that accepting an official caution is an admission of guilt. This will go on your criminal record and can affect your future. If you know that you haven’t done anything unlawful and that the police can’t have evidence saying otherwise, then we would recommend refusing a caution and asking to speak to an experienced solicitor if they do decide to arrest you. This solicitor will be able to advise if they actually have anything to convict you on.

It is important to remember that, in general, the police can only hold you for 24 hours. After this they have to either charge you or let you go. During those 24 hours you should have food and water, a warm cell, a cushioned bed, tea or coffee, and access to a toilet. You can also talk to a duty solicitor at the very least, and possibly one of our network of expert solicitors if you are able to contact us or them.

Any time in cells will be challenging and feel intimidating. Peaceful protests are a legal right and no one should ever be put in cells simply for exercising this right. However, it is important to remember that the police often use this as a threat because they know it will rattle people. You should not feel that you need to accept a caution for a crime you didn’t commit, give the police details which they have no right to, or leave a lawful protest simply because the police are claiming that you might end up in the cells if you don’t. This is an abuse of power on their part.