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The need for investigative
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Introduction |
In 1978 Maxwell Confait, a male
prostitute was murdered. Three educationally sub-normal boys (all under
eighteen) were convicted of his murder. Whilst under police detention they
were given no access to adult or legal guidance, they were interrogated
for long periods of time and in the end, they confessed. New evidence
came to light that proved that the boys were innocent. The police had
fabricated evidence. A Royal Commission under Sir Cyril Philips (the
Royal Commission on Criminal Procedure 1981 - “The Philip’s Inquiry”)
followed taking evidence from 1978-1981. The Philips Inquiry led to
the Police and Criminal Evidence Act 1984.
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The (The
Philips Inquiry) focused on a fundamental
balance: |
“…need to strike balance
between interests of whole community in bringing offenders to justice and
rights and liberties of persons suspected or accused of crime”. |
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1765,
Sir William Blackstone said, “It is better to
let ten guilty men go free than to punish one innocent man” |
Whilst the public
interest is clearly to convict the guilty, this interest competes with
private interest in securing the acquittal of the innocent.
Arguably, the public interest too should be to ensure the acquittal of the
innocent.
For centuries the Rule
of Law has favoured the acquittal of the innocent; in 1765, Sir William
Blackstone said, “It is better to let ten guilty men go free than to
punish one innocent man”.
Courts recognise that if
an innocent man is convicted the guilty one is free, perhaps to offend
again.
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Rule of Law |
Simply put, the Rule of
Law, which can be found in the writings of Aristotle, Dicey and
Montesquieu, holds (among other things) that
It follows that it is
not the job of the police to punish offenders or take any interest in
their punishment. Individual police officers must obey every law
just like anyone else.
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No man is above the law |
The law is "above" the government.
"Be you ever so high, the law is above you"
(Lord Denning in Gouriet v Union of Post Office Workers).
That was of course said in relation to the refusal by Attorney General Sam
Silkin to grant consent to an action which Mr Gouriet wanted to bring to
obtain an injunction against the Union of Post Office Workers to stop them
calling a boycott of all post between the UK and South Africa in a protest
against apartheid. Silkin had argued that his decision was not subject to
review by the courts.
Despite the resonance of Lord Denning’s remark – which he used to justify
his conclusion that the Attorney’s decision was justiciable – the House of
Lords in fact agreed with Silkin, noting that in this case the Attorney
General was accountable to the public for the exercise of his public
interest powers through Parliament and not through the courts.
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Liberal and establishment view |
“Liberty” the charity
that protects civil liberties and promotes human rights holds the view
that the fear of crime is one of the biggest concerns for people across
the UK today. The police have a difficult job to do and not enough
resources to do it.
But too often, rather
than give them those extra resources, Governments opt for short-cut
solutions. The police are in a position of great responsibility - and
great power. That is why their powers have to be carefully managed, to
ensure that they're not abused, and that the public have confidence in
them.
At the same time, they
need the support - of more staff, more money, and more resources - so they
can genuinely police our streets and help communities feel safer.
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The difficult but vital balance |
Home Secretary announcing a police
reform programme “Building Communities, Beating Crime A better police
service for the 21st century” agrees with Liberty and said that preventing, reducing and detecting
crime; providing safety and security for law-abiding citizens and their
families – is what effective policing is about and it is at the heart of
civil society.
He went on to say that we owe the men
and women of our police service a tremendous debt of gratitude for the
challenging and sometimes dangerous job that they do. We also owe them our
help and support to enable them to deliver effective policing.
The core role of the police service is,
and will remain, prevention, detection and reduction of crime, and
protecting the public. There are nearly 140,000 police officers –and
there will be 25,000 community support officers (CSOs) and wardens by
2008, the Home Office continues to provide evermore sophisticated
improvements in scientific and technological support, such as computers
and DNA databasing.
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The role of the police constable |
A police constable is a citizen locally
appointed, whose authority is derived from the crown. It follows
therefore that in most cases he acts independently and has personal
discretion within the law to act in a manner he sees fit. This gives
individual officers great power.
A police officer does not simply act as
directed which is the usual position in employment.
The police no longer investigate all
crime, especially if there is no likelihood of detection. Even then not
every detected crime results in formal action unless it is serious.
There have been high profile police
teams that have been disbanded because individual officers, in their
dedication to convict the guilty (to protect us) over enthusiastically
collected evidence – or planted evidence – against known offenders. The
history of the West Midlands Serious Crime Squad and the Metropolitan
Police Special Patrol Group is a history of police officers failing to
balance of individual rights and
their investigative powers.
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Investigative powers |
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Arrest |
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Arrest |
Following arrest the dichotomy between
the police investigation and the rights of the suspect is at their most
pronounced.
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Powers of arrest |
Under the Serious Organised Crime
and Police Act 2005 the powers of arrest for constables is extended to
allow police to arrest for all offences.
This is claimed by the
Home Office to be geared to better serve the interests of justice and in
particular the victim.
The huge increase in these powers and
the vague controls will be a temptation for abuse. We can only wait and
see whether the balance is maintained or the ever increasing power of the
police is abused or not.
The early signs are not promising;
When a peace activist tried to honour the dead at the
Cenotaph in Whitehall two police sergeants and 12 constables arrived in
haste to arrest her.
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Maya Anne Evans |
Maya Anne Evans a 25 year-old vegan
cook from Hastings breached
 Section
132 of the Serious Organised Crime and Police Act by reading out names of
soldiers killed in Iraq at central London's Cenotaph.
At Bow Street Magistrates' Court she received a conditional discharge but
had to pay £100 costs in October 2005.
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Walter
Wolfgang |
Mr
Wolfgang, a refugee from Nazi Germany and a Labour Party member since
1948, was - in full view of the television cameras - was ejected from the
Labour Party conference in Brighton in 2005.
He had heckled the
Foreign Secretary whilst he gave a speech (he shouted "That's a lie and
you know it").
When he tried to re-enter the secure zone, he was detained by a police
officer citing the Terrorism Act.
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Other
stories |
Other
people have reported what they claim to be bizarre police behaviour
exercising various powers. For example a
woman
arrested for walking on a cycle track because she could have been a
terrorist.
In March 2006 the police seized
three golliwog dolls because of racism claims; the
dolls were returned after 2 weeks and no action was taken by the CPS.
News story
here.
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Parliament Square Peace Campaign
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Worthy of a section on its own is the record of police, courts and
parliamentary action against Brian Haw and the other members of the
Parliament Square Peace Campaign.
Haw, a carpenter is famous for living in a peace camp in Parliament
Square since 2001 in an anti-Iraq-war protest.
In an attempt to get rid of him and his noisy megaphone Parliament passed
a provision banning all unlicensed protests, permanent or otherwise, in
the
Serious Organised Crime and Police Act 2005 (sections 132 to 138).
The Act was ineffectual against Haw as the Act was not
retrospective (viz. before the date he started his protest), so he
remained.
He has been arrested many times and so far the police and the courts have
had very little success at curbing his protest.
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Home office plans £367m database linking
police across the country |
The
IMPACT Programme will connect
information systems held locally and nationally by police systems, as well
as on the Police National Computer.
The programme will meet Sir Michael Bichard's recommendations following
his inquiry into the Soham murders and to more widely transform the
police's ability to protect communities.
However, some people are worried that making
projects too large will result in inaccurate records being kept and no one
can be sure they will not be misused in the future.
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Police bring more to justice than the courts |
Traditional court convictions account for just 49% of the "offences
brought to justice" - a key government crime target.
Between 2005-2007 the number of offenders dealt with by police cautions
increased from 268,000 a year to 379,000.
Penalty fines and warnings for cannabis possession have risen rapidly to
232,000 a year since they were introduced in 2004.
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Detention and searching
property |
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Detention |
One of the reasons that is clearly
stated in
PACE is that persons may be detained to obtain evidence by
questioning, and it is the way this questioning is done and the
circumstances in which it occurs and the controlling rules that produce a
conflict of interests.
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28 days maximum |
The police have to complete their enquiries and charge, or release all
suspects within a maximum of 28 days. The government has tried to
extend this period for the police asking Parliament for various periods
without success.
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Search premises and persons and seize property |
The police will frequently trespass to
chase fleeing criminal in the full expectation that owners of land on
which they are trespassing will consent.
There is an anomaly in the law of theft
where unlawful damage is caused by a person who enters a building as a
trespasser, does not amount to burglary; the only known reason for the Act
being worded that way is to save police officers from conviction when they
cause damage as trespassers.
In order to preserve evidence and
recover stolen property the police must be given the power to take
property from suspects. In order to obtain possession it follows that
they must also be allowed to enter private property and vehicles.
A constable has no general right of
entry into private property except to prevent a breach of the peace and to
prevent the commission of an offence which he believes to be imminent or
likely to be committed.
He has, however, certain statutory
powers of entry, and may be entitled to enter and search premises where a
person was at the time of or immediately before his arrest.
Where he is on private property he must
leave if he is asked to.
A constable has certain statutory
powers to enter and search premises without a warrant. Alternatively he
can search premises with the consent of the occupier or with a search
warrant issued by a justice of the peace.
Where he is lawfully on any premises he
may seize goods if he believes them to be stolen.
Or if he thinks it is the fruit of a
crime, or an instrument used in a crime or is evidence of a crime.
There are special provisions for
computers.
The police must not retain what they
seize for longer than is necessary and they must be judged by their
beliefs at the time and not in the light of subsequent events.
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Use of force |
The police can use force to search
suspects, take samples, but not to extract a confession. They can use
force in self-defence and to prevent a crime,
Section 3 Criminal Law Act 1967. They can also carry offensive weapons for this purpose and
firearms, the only purpose of which is to kill.
Article 2 of the European Convention on
Human Rights protects the right to life and places onerous obligations on
the State to protect the lives of all us. Lethal force can only ever be
justified where “absolutely necessary”; where there is no other way of
effectively protecting the lives of others.
This was discussed by Lord Justice Ward
in the “Conjoined Twins” case,
Re: A (Children) (2000) CA,
he said that killing a six-year-old boy who was shooting all and sundry in
a school playground, would in
law be fully justified and
would be lawful (“self-defence of others”).
Even in the context of a suspected
suicide bomber, Article 2 requires that everything possible is done to
avoid a moment where lethal force is the only viable means of preventing
the suspect from detonating a device and bringing injury and death to
others. However, there may be situations where lethal force is the only
means of protecting huge loss of life.
Whenever someone dies at the hands of
the State, there must be a fully independent and comprehensive inquiry,
which is what happened when Jean Charles de Menezes was shot 8
times in the head by police in 2005.
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Human
Rights |
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Individual rights |
A list of 16 basic human rights have
been written into UK and European law
The Human Rights Act 1998 (HRA)
gives effect to the fundamental rights and freedoms in the European
Convention on Human Rights (ECHR).
There are 16 basic rights. They affect
matters of life and death like freedom from torture and killing, and
affect rights in everyday life: what an individual can say and do,
beliefs, and for our purposes, most importantly, the right to a fair trial
and similar basic entitlements. The rights include:
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right to life
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prohibition of torture
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prohibition of slavery
and forced labour
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right to liberty and
security
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right to a fair trial
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no punishment without law
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right to respect for
private and family life
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freedom of thought,
conscience and religion
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freedom of expression
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freedom of assembly and
association
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right to marry
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prohibition of
discrimination
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protection of property
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right to education
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right to free elections
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abolition of the death
penalty
The Human Rights Act protects the
individual against the state, the state in this case being the police. It
is therefore abundantly clear that the HRA restricts police activity and
ensures fair treatment of the suspect.
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Civil Liberties |
Civil liberties are generally
understood to mean the basic human rights and freedoms of the individual
against arbitrary (based on whim or impulse) government interference.
Examples include freedom of speech,
freedom of assembly, and trial by jury. In England and Wales many of these
are enshrined in the Human Rights Act of 1998.
It is said that anti-terrorism measures
have done little to ensure Britain is safe and secure from terrorist
attack, but much to infringe the civil liberties of those living in the
UK.
The miscarriages of justice which involved Irish suspects and anti terror
laws in the 70s and 80s are a reminder of the dangers of rushing laws
which create a twin-track system and delivering poor justice.
The Prevention of Terrorism Act 2005 gives the Home Secretary the power to
issue 'control orders' to restrict the liberty of individuals. Without any
need for a trial, control orders range from restrictions on communications
to house arrest.
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Brown v Stott
[2000] PC
Whole case
here
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B was suspected of having stolen a
bottle of gin from a superstore. The police judged her to be the worse for
drink, and to have arrived by car. Using their road traffic powers the
police required B to say who had been driving her car at the time it would
have been driven to the store car park.
B stated that she had been the driver
of the car at the relevant time. The police then administered a breath
test which proved positive. B was charged with drink driving.
B contended that the use in evidence of
the admission would infringe her right to a fair hearing.
Held:
The Privy Council did not think the admission infringed her rights.
Lord Bingham CJ that the high incidence
of death and injury on the roads caused by the misuse of motor vehicles
was a serious social problem and there was a clear public interest in the
enforcement of road traffic legislation … the Act allowed for the putting
of one simple question which was not incompatible with the defendant's
rights
Users of motor cars know they are
subject to a regulatory regime; that regime is imposed because cars have
the potential to cause grave injury.
Guilty
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Dispersal Zones
R
(on the application of W) v Metropolitan Police Comr (Secretary of State
for the Home Department, interested party)
[2006] CA
Whole case
here.
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In W v MPC [2006] CA, it was held that police can force children home if they are found within dispersal zones.
Dispersal zones are used to tackle unruly behaviour. The Court of
Appeal reversed a decision of the High Court that had ruled that forcibly
'removing'
children home breached their human rights.
Inside these areas, after 9pm, children under 16 - without an adult - can
be 'removed'; forced home, to protect them from anti-social behaviour or
to prevent them from committing anti-social behaviour.
However, The CofA said that
can only happen if the child is at risk from, or involved in, anti-social behaviour.
The legislation is
Sec 30
Anti-social Behaviour Act 2003.
In this case "W" was never 'removed', only
warned by a CSO that he was in a dispersal area (he lived in the dispersal
area and went to the shops), so although this was a hypothetical question the
CofA did answer it to clear up a legal limbo left by the High Court.
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Other dispersal powers |
Police can order persons to di |
