The news media are busy parroting, almost word for word, the UK Government Press Release regarding this Sunday 1st January 2006 commencement of the controversial Serious Organised Crime and Police Act 2005 Section 110 Powers of arrest
When these powers come into force, a Police Constable will be able to arrest you without a warrant, for any offence, for vague "catch all" reasons such as Section 110 (5) (e):
"(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
This power of arrest is subject only to his or her "reasonable grounds for suspecting", something which must inevitably lead to inconsistent and arbitrary justice.
Remember that in the UK, any arrest nowadays involves fingerprinting, photography and DNA samples, which are taken and retained indefinately, no matter whether you are ever charged with any crime, and even if you are found not guilty.
However, we suspect "Yet Another Home Office Error" might make all Arrests under Section 110 illegal, simply because Section 110 of the Act has still not yet been brought into force by Order or Statutory Instrument.
Please correct us if we are wrong in our reasoning below:
UPDATE: The "missing" Statutory Instrument 3495 turned up on the Office of Public Sector Information website late on Thursday 29th December 2005 i.e. 11 days after the SI was signed. It is unclear if the delay was at OPSI, who claim to try to publish online within 24 hours, or at the Home Office.
The nearest SI that we can find online is:
The Serious Organised Crime and Police Act 2005 (Powers of Arrest) (Consequential Amendments) Order 2005
Made 7th December 2005
Laid before Parliament 8th December 2005
Coming into force 1 January 2006
(This note is not part of the Order)
Section 110 of the Serious Organised Crime and Police Act 2005 ("the 2005 Act") inserts a new section 24 into the Police and Criminal Evidence Act 1984. The new section 24 removes the distinction between criminal offences which are arrestable and those which are not and provides that a constable may, provided certain criteria are met, arrest a person in relation to any criminal offence.
Section 111 of, and Schedule 7 to, the 2005 Act make a number of consequential amendments to primary legislation and repeal those powers of arrest which are not contained within PACE and which apply to constables.
This Order makes equivalent consequential amendments to secondary legislation.
Neither this Statutory Instrument nor any of the others appears to set a Commencement Date for Section 110 , or Section 111 or the long list of repeals wihich involve the words "arrest" or "arrestable" in Schedule 7 either:
- Statutory Instrument 2005 No. 1521
The Serious Organised Crime and Police Act 2005 (Commencement No. 1, Transitional and Transitory Provisions) Order 2005
Made 7th June 2005
- Statutory Instrument 2005 No. 2026
The Serious Organised Crime and Police Act 2005 (Commencement No. 2) Order 2005
Made 20th July 2005
- Statutory Instrument 2005 No. 3136
The Serious Organised Crime and Police Act 2005 (Commencement No.3) Order 2005
Made 9th November 2005
- Statutory Instrument 2005 No. 1537
The Serious Organised Crime and Police Act 2005 (Designated Area) Order 2005
Made 8th June 2005
Laid before Parliament 10th June 2005
Coming into force 1st July 2005
- Statutory Instrument 2005 No. 3447
The Serious Organised Crime and Police Act 2005 (Designated Sites) Order 2005
Made 14th December 2005
Laid before Parliament 19th December 2005
Coming into force 1st April 2006
- Scottish Statutory Instrument 2005 No. 358 (C.15)
The Serious Organised Crime and Police Act 2005 (Commencement No. 1) (Scotland) Order 2005
Made 20th June 2005
- Draft Statutory Instrument 2005 No.
The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005
Coming into force 1st January 2006
There is no wording in the text of SOCPA which treats Sections 110 , 111 and Schedule 7 any differently from the other Sections and Schedules, i.e. there is no specific Commencement Date written "on the face of the Act", as the SIs above show, the Sections have been brought into force piecemeal, by Order.
So, unless there is a last minute SI which has not appeared online then the Section 110 powers will still not yet apply, starting on 1st January 2006.
The Police and Criminal Evidence (PACE) Code G, which deals with the procedures for using these new powers of arrest does come into force on Sunday, but has no Statutory basis, until SOCPA Section 110 comes into play and repeals and amends the Police and Criminal Evidence Act 1984 as intended.
For any such Statutory Instrument to be issued and "laid before Parliament", before Sunday, this must surely require an emergency recall of Parliament ?
It will be interesting to see if the rule of law, as laid down and approved by Parliament prevails, or whether the NuLabour Government attempts to use some sort of administrative trick or just propaganda and spin, to pretend that the new Section 110 powers are legal as of Sunday.
We would welcome any expert legal opinion as to why our chain of reasoning above is wrong..
Given the apparent lack of training which most Policemen have received about these new powers, there could well be some miscarriages of justice, with innocent people being wrongfully arrested, and with guilty offenders getting let off on appeal beacause of an unlawful arrest procedure.