Hi, guys. Mark Dawes here. In this short video, I want to answer the question, which is, “What is the difference between arresting someone and detaining someone, and is there a difference?”
The short answer to that is no, there is no difference whatsoever.
In fact, if you detain someone for committing a crime, then you’ve deprived this person of their liberty, and, therefore, an arrest has been made.
Can I Detain Someone on Suspicion of Having Committed a Crime?
Now, another question we get asked is, “Can I detain someone on suspicion of having committed a crime?”
The answer to that is NO.
I use the following reference book quite a lot. It’s called: English Law. It’s the second edition of this book written by Gary Slapper and David Kelly. In this book, it says, “For there to be an arrest, the arrestor must regard his action as an arrest. If he simply detains someone to question him without any thought of arrest, the action will be unlawful.”
Now, it goes on to say that, “There is also no police powers to detain someone against his will in order to make inquiries.” This is confirmed by Section 29 of PACE, which states that where someone attends a police station for the purpose of assisting with an investigation, he is entitled to leave at any time unless placed under arrest.
The Police Do Have Some (Limited) Additional Powers
Having said that, police officers do have some additional powers to detain on suspicion, but these powers are specific and limited by the following laws, which are:
1. Section 23 of the Misuse of Drugs Act 1971,
2. Section 1 of the Police and Criminal Evidence Act 1984, and
3. Section 44 of the Terrorism Act 2000.
For example, under Section 23 of the Misuse of Drugs Act 1971, it states that, “A police officer who has reasonable grounds for believing that a person may have illegal drugs on them may search that person and, if necessary, detain them for the purpose.”
You can search the other two Acts as well in your own time, but that gives you an example of where this power to detain someone can be used.
The Powers Are Specific To The Police and Only For The Purpose of a Search
Now, these powers specifically give a police officer conducting a search the power to detain the person searched for the purpose of the search, and these powers are specific to police officers only. Anyone else who detains someone against their will, who is technically making an arrest on suspicion, and possibly without evidence, is committing false imprisonment and also breaching an individual’s protected rights under Article 5 of the Human Rights Act 1998.
In short, the term detain with regards to non-police officers, in my experience, is a cop-out term (and excuse the pun there). It’s used because they either:
a) Don’t have the evidence to make an arrest, or
b) Don’t know that by depriving someone of their liberty that they are actually making an arrest. This is known as a compulsion or an arrest under duress.
If Someone Has Been Legally Arrested They Are Lawfully Detained
But if they’ve made the arrest legally, then the person is lawfully detained. In other words, they’re arrested.
In addition, and this is an interesting question that was asked:
What about the bit in Section 3(1) of the Criminal Law Act 1967
“What about the bit in Section 3(1) of the Criminal Law Act 1967 where it says you can use reasonable force, and it mentions suspected offenders? Is that not detaining or arresting people on suspicion of committing an offence for the purpose of bringing them before a competent authority, i.e. the police?”
Once again, it’s the wording here within the Act of Parliament that’s important. Because remember, an Act of Parliament goes through a whole interpretation process where words have to be interpreted in line with the law.
The first thing to bear in mind here is that a person can only be labelled an “offender” when convicted of a crime. Before such time, they are merely “suspected offenders”.
Therefore, with regards to Section 3(1) of the Criminal Law Act 1967, a ‘suspected offender’ is, generally speaking, someone who has already been arrested, be this formally, by warrant, or by having been deprived of their liberty.
The Statutory Power Awarded to Citizens Who Are Not Police Officers To Make Arrests
Now, the statutory power of any member of the public in England and Wales to arrest someone they consider to be involved in criminal activity is to be found in Section 24A of the Police and Criminal Evidence Act 1974, commonly known as PACE.
In there, it states that a person other than a constable may arrest without a warrant anyone who is in the act of committing an indictable offence or whom the person has reasonable grounds to suspect is committing an indictable offence.
What is An Indictable Offence?
An indictable offence is one that is tried in a Crown Court, in front of a jury, for offences such as theft, criminal damage, and assault occasioning actual bodily harm, just to give you some examples (and this not an exhaustive list of what an indictable offence is).
The problem is is that most lay members of the public would not know what an indictable offence is and, therefore, may end up trying to make a citizen’s arrest for other offences that don’t fall within this category. There’s one hurdle there that people actually trip over quite a lot.
The Common Law Power Awarded to Citizens Who Are Not Police Officers To Make Arrests
The only other power available to non-police officers to arrest at common law is where a breach of the peace has been committed, and there are reasonable grounds for believing that it will be continued or renewed.
We can do a whole video on the subject of “reasonable grounds”, but reasonable grounds is not just suspicion. It’s got to be an objective assessment.
When I used to do a lot of training in theft and violence for large retailers with regards to dealing with theft, having reasonable grounds to do so meant that we’d seen them conceal the item. Therefore, if we stopped them, we’d have a good chance of actually finding the concealed item and / or getting that item back.
Breach of The Peace
It is also worth noting that the power to arrest for breach of the peace is not present if the act of a breach of the peace has already been completed. In other words, if someone’s committed a breach of the peace, and or those of you that don’t know or can’t remember, a breach of the peace is defined in many ways, but here’s one from case law. It says, “The peace is the normal state of society, and a breach occurs when harm is done to a person or in their presence to their property, or a person is in fear of such harm.”
If that’s happening we can only arrest under common law if the breach of the peace is present. If the person stops doing it, then we can’t arrest for that. However, the suspect may still be arrested for having committed a different type of offence, such as criminal damage, etc.
Let’s Just Summarise These Main Points.
1) The starting point is that detention of another person is, on its own, unlawful. This is to give the law a balance and not to actually encourage a vigilante approach to actually using powers under law to arrest or detain or use force.
2) Only the police have the power to detain someone within specific legislation and with limited powers, as you’ve already seen.
3) All other citizens have no power to detain anyone because: …..
4) Detaining someone by removing their liberty is an arrest. Therefore, if we are detaining someone we are arresting them. Detain and arrest are the same thing.
5) Under statute law, a citizen who is not a police officer can lawfully arrest someone who is in the act of committing an indictable offence or who they suspect is committing an indictable offence.
6) At common law, a citizen who is not a police officer only has the power to arrest someone for a breach of the peace. So, a citizen who is not a police officer can, under statute law, arrest someone who is committing or they suspect is committing an indictable offence, but at common law, they can only arrest someone who is actually committing a breach of the peace. Remember, if the breach of the peace is finished, is ended, then the citizen has no additional powers to arrest.
7) In both circumstances, arresting for an indictable offence or under common law for breach of the peace, a law-abiding citizen who is not a police officer can also use reasonable force to do so.
8) However, if there are no reasonable grounds for arresting someone or depriving them their liberty. For example, if you have detained someone but believe you are not making an arrest, then, the detention/arrest will be unlawful.
9) If the detention/arrest is unlawful, then any subsequent use of force will also be unlawful because there are no grounds for that.
10) Detaining someone by removing their liberty without lawful authority is false imprisonment and a breach of an individual’s protected rights under Article 5 of the Human Rights Act 1998, even if the person detaining the other person is not aware that they’ve made an arrest.
As always, if you have any questions, please get in touch or leave a comment below, but please do your own due diligence on this.
Go and check to make sure that everything I’ve said is correct. Don’t take my word for it.
I’ve been doing this type of work now for twenty-nine years. This is something I’ve taught. This is something I’ve covered in depth. Hopefully, I’m on point with this stuff, but please, please do your own due diligence and check it out for yourself just to make sure that you’re sure.
Thanks for listening. Thanks for watching. Any questions, leave me a comment, drop me an email.