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It is in the news today that Wayne Couzens made an unlawful arrest of Sarah Everard in the process of her murder. If one found oneself in a situation where this was a possibility an obvious solution to protect oneself would be to inform a trusted third party of the arrest via a mobile phone call.

However in my (very limited) contact with police I have been told to stop using a mobile phone and give the police physical possession of said phone, in a way that lead me to believe that I was legally required to comply. This would obviously prevent one taking such a measure.

What is the law concerning such situations? Do the police have the capacity to compel an arrestee to not make a phone call, either with or without taking physical possession of the phone? Does the arrestee have the right to inform a third party of the arrest prior to complying with such a compulsion?

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  • The article speaks clearly of "Kidnap in the guise of Arrest", not unlawful arrest. This is a crucial difference.
    – Trish
    Sep 30 at 9:48
  • @Trish Is there? My understanding of UK law was that arrest meant any time someone had there freedom of movement restricted. If that restriction was legal it was a lawful arrest, if not it was an unlawful arrest. In either case that does not change the question, just the word I used to describe the news story.
    – Dave
    Sep 30 at 10:12
  • I would say that as he was not "in the performance of his duties" this was not an arrest by a police officer. But as @Dave says: it's a moot point
    – Rick
    Sep 30 at 10:48
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only

Do the police have the capacity to compel an arrestee to not make a phone call, either with or without taking physical possession of the phone?

  • Short Answer: At the time of arrest - yes

Does the arrestee have the right to inform a third party of the arrest prior to complying with such a compulsion?

  • Short Answer: No

Long Answer:

Notwithstanding the cited case was not an actual arrest, but a kidnapping, the relevant legislation to search a person under arrest may be found within s.32 of the Police and Criminal Evidence Act 1984 (PACE):

(1) A constable may search an arrested person, in any case where the person to be searched has been arrested at a place other than a police station, if the constable has reasonable grounds for believing that the arrested person may present a danger to himself or others.

(2) Subject to subsections (3) to (5) below, a constable shall also have power in any such case—

  • (a) to search the arrested person for anything—

(i) which he might use to assist him to escape from lawful custody; or

(ii) which might be evidence relating to an offence ...

(3) The power to search conferred by subsection (2) above is only a power to search to the extent that is reasonably required for the purpose of discovering any such thing or any such evidence.

(4) The powers conferred by this section to search a person are not to be construed as authorising a constable to require a person to remove any of his clothing in public other than an outer coat, jacket or gloves but they do authorise a search of a person’s mouth.

(5) A constable may not search a person in the exercise of the power conferred by subsection (2)(a) above unless he has reasonable grounds for believing that the person to be searched may have concealed on him anything for which a search is permitted under that paragraph.

...

(8) A constable searching a person in the exercise of the power conferred by subsection (1) above may seize and retain anything he finds, if he has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or to any other person.

(9) A constable searching a person in the exercise of the power conferred by subsection (2)(a) above may seize and retain anything he finds, other than an item subject to legal privilege, if he has reasonable grounds for believing—

  • (a) that he might use it to assist him to escape from lawful custody; or

  • (b) that it is evidence of an offence or has been obtained in consequence of the commission of an offence ...

Subject to the below, a person's rights are significantly restricted once they have been arrested and there is no legal requirement to allow them to make a phone call at the time of arrest, but common sense should prevail - for example, if I were to arrest a parent on their way to collect their children from school I would allow them to make alternative arrangements, if it is safe to do (a phone can be, and has been, used to assault officer to effect an escape) or there is no risk of evidence being destroyed or other suspects being tipped-off etc.

Persons under arrest are to be taken to a police station where their detention may be authorised by an independent officer (if not, then they are free to go) and, subject to a few caveats, entitled to the following relevant provisions under PACE Code of Practice C:

  3.1 When a person is brought to a police station under arrest or arrested at the station having gone there voluntarily, the custody officer must make sure the person is told clearly about:

  • (a) the following continuing rights, which may be exercised at any stage during the period in custody:

(ii) their right to have someone informed of their arrest as in section 5;

...

5.6 The detainee shall be given writing materials, on request, and allowed to telephone one person for a reasonable time, see Notes 5A and 5E. Either or both of these privileges may be denied or delayed if an officer of inspector rank or above considers sending a letter or making a telephone call may result in any of the consequences in:

  • (a) Annex B paragraphs 1 and 2 and the person is detained in connection with an indictable offence [interfering with evidence etc]

5.7 Before any letter or message is sent, or telephone call made, the detainee shall be informed that what they say in any letter, call or message (other than in a communication to a solicitor) may be read or listened to and may be given in evidence. A telephone call may be terminated if it is being abused. The costs can be at public expense at the custody officer’s discretion.

An arrest is a deprivation of one's liberty, which may include denying one's liberty to make a phone call in the circumstances described by the OP.

This deprivation is allowed in law by virtue of Article 5 of the European Convention on Human Rights as per Schedule 1 of the Human Rights Act 1998:

  1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

...

  • (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so ...

Whether this deprivation is justified will depend on the particular facts and circumstances - but may include preventing the arrested person from:

  • causing physical injury to themselves or any other person (phones can be weapons)

  • causing loss of or damage to property (either the phone itself if it's potential evidence, or by tipping others off)

Or:

  • to protect a child or other vulnerable person from the arrested person

  • to allow the prompt and effective investigation of the offence (by preventing others being tipping-off etc)

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  • Thank you for your answer, but I cannot see where in your quoted sections the answer is. There is nothing that definitively says the arrestee must not use a phone, and any confiscation must be both the result of a search and for one of the reasons given: that it could be used to "escape from lawful custody", that it was itself "evidence of an offence", or that it may been stolen. That is very different from not being allowed to make a phone call at the point that you are informed of being under arrest.
    – Dave
    Sep 30 at 10:47
  • @Dave see my edit re Article 5 ECHR
    – Rick
    Sep 30 at 14:41
  • My point is that s23 of PACE authorises searches. As a non-lawyer, it would seem to have nothing to do with the right to prevent the use a phone that is in use and in clear view. A5 of the ECHR seems to limit the police powers, not grant further powers.
    – Dave
    Sep 30 at 15:10
  • @Dave Try this - The law allows an arresting officer to deny someone of their liberty, including denying the use of their mobile phone for the reasons given
    – Rick
    Sep 30 at 16:09
  • If you highlight where the law says this, or the case law that has established this power, then that would answer the question. From the bits you quote it is far from clear how this gives the right to prevent telephone calls. Surely it is clear that that was not the intention when the law was written, or they would have made it more clear.
    – Dave
    Oct 1 at 7:30

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