Arrest. To arrest an offender or a debtor is to seize his person, in order that he may be brought to trial, or compelled to obey the law. In English criminal practice, arrest may take place in two ways: (1) Without Warrant.—According to Mr Justice Stephen, any person may arrest any one who commits a felony or gives a dangerous wound in his presence, any one whom he reasonably suspects of felony (if a felony has in fact been committed), or any one whom he finds committing certain offences specially provided for by statute. A peace-officer may also arrest any one who commits a breach of the peace in his presence, or any one whom he reasonably suspects of felony (whether a felony has been committed or not). His statutory powers of arrest are also wider than those of private persons; he may, for example, arrest any person whom he finds loitering at night, whom he has reason to suspect of having committed or being about to commit a crime; and (in the Metropolitan district) any person loitering at night who cannot give a satisfactory account of himself. (2) With Warrant.—A warrant is an order addressed by a judge or magistrate to a peace-officer, or to the officers within a certain district. If the person against whom it is issued is not within the jurisdiction of the authority issuing it, the warrant must be 'backed' by a magistrate of the place where such person is, or is supposed to be. Warrants issued in one part of the United Kingdom may be backed by a magistrate in another part. By an act of 1881, provision has been made for backing warrants throughout Her Majesty's dominions. The act applies to treason, piracy, and every offence which, by the law of that part of the empire where it was committed, is punishable by twelve months' imprisonment with hard labour. For the arrest of offenders against foreign law, or of offenders against British law taking refuge in a foreign country, see EXTRADITION.
In executing a warrant, or in making a lawful arrest, an officer, or even a private person, may break open doors in pursuit of the person whom he is authorised to take. Obstruction of an officer making an arrest has always been treated as a serious offence; it seems that a person may still be charged with treason if he rescues a prisoner charged with treason. Modern legislation treats this offence as a misdemeanour, for which imprisonment with hard labour is the appropriate punishment. But to rescue a murderer or a prisoner is punishable by penal servitude. The same subject is treated in Scotch law under the head Deforcement, which Sir Archibald Alison, in his work on the Criminal Law of Scotland (vol. i. p. 491), says, 'consists in the resistance to the officers of justice in the execution of their duty.' It is essential to such deforcement that it should be such as to defeat the warrant or other process which authorises the arrest. Mere unsuccessful attempts with this view are charged under the name of 'resisting and obstructing the officers of the law in the execution of their duty.'
On the other hand, persons who are active in assisting the officers of the law may be compensated for their expense and trouble, as provided by an act of 1851, which amends and extends the provision contained in an act of 1827. A special allowance may be made to any person who has shown extraordinary courage, diligence, or exertion.
In English civil procedure, arrest takes place only in exceptional cases. All the superior courts have power to arrest or attach persons for contempt. By an order of the court or a judge (which is not made without notice to the party), a writ may be issued to the sheriff, commanding him to arrest a certain person, and have him before the court to answer his contempt. Defendants on civil process were formerly arrested by means of the writ of ca sa or capias ad satisfaciendum. But this writ is now rarely issued, unless in the cases expressly excepted out of the Debtors Act, 1869. That act put an end to imprisonment for debt, except where non-payment of money due involved contempt of or disobedience to the order of a competent court, as, for example, where a trustee refuses to comply with the order of a court of equity. Orders of committal are now made for the most part by judges of county-courts, to compel payment of a debt by instalments, where the debtor is drawing weekly wages, or has other means of paying the instalments, but has no furniture or other goods on which execution can be levied.
Arrest may also be made to prevent a debtor from absconding, or from removing his property out of the jurisdiction. Ancient writs available for this purpose were those of capias ad respondendum and ne exeat regno; the modern practice is regulated by the Debtors Act, 1869, and the Bankruptcy Act, 1883, sect. 25. Arrest on mesne process (i.e. during the progress of a suit, and before judgment given) is now abolished, except as above explained.
The following are privileged from arrest on civil process: Ambassadors and diplomatic representatives of foreign courts; peers of the United Kingdom; Scotch and Irish peers; members of parliament; clergymen during divine service, or going to or returning from service; and all persons attending any court of justice, as parties, witnesses, solicitors, or counsel. Barristers are probably entitled to their privilege only when attending the superior courts; Archbold, in his Practice of the Common Law, refers to a case where a barrister was discharged who was arrested on circuit. Persons in attendance on the sovereign are privileged; writs of protection were formerly issued to persons in the royal service, but this prerogative is now seldom or never exercised. In regard to privilege of parliament, it may be observed that though members of both Houses are free from arrest on civil process, actions may be brought against them; and the 10 Geo. III. chap. 50 provides that such actions are not to be delayed on pretence of privilege. It is also provided by the Bankruptcy Act, 1883, that if a person having privilege of parliament becomes bankrupt, he may be dealt with as if he had no privilege. No person who is a bankrupt may sit in either House; and if a member of the House of Commons fails to satisfy his creditors within a year after he is adjudicated a bankrupt, his seat becomes vacant. Privilege does not exempt any person from arrest for contempt of court.
In the Scots law, the word arrest is not a technical term for process against the person. But see ARRESTMENT and ARRESTMENT FOR FOUNDING JURISDICTION; also ATTACHMENT.