england-and-wales 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?
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—
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:
- 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:
