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Report No. 152

5.6. Discretion regarding arrest.-

In England, by section 2(4) of the Criminal Law Act, 1967, the constable's power of arrest has been laid down in these words:-

"Where a constable with reasonable cause suspects that an arrestable offence been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence."

The question arose in England some time ago, as to whether, on such reasonable suspicion being entertained by the constable, arrest is mandatory. Dealing with this question, the House of Lords held1 that even when the police has a reasonable suspicion that a person has committed an arrestable offence, it does not follow that he must be arrested. The discretion has to be reasonably exercised and its exercise can be questioned in a court of law on the principles which have come to be known as Wednesbury principles.2 According to these principles, a person on whom discretion is conferred by statute:

(a) must exercise it in good faith, for furtherance of the object of the statute;

(b) must not proceed upon a misconstruction of the statute;

(c) must take into account matters relevant for exercise of the discretion; and

(d) must not be influenced by irrelevant matter.

1. Holgate Mohd. v. Duke, (1984) 1 All ER 1054 (1059, 1060) (HL).

2. Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, (1947) 2 All ER 680 (CA).

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