|
The need for investigative
powers |
|
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.
|
|
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”. |
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
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 |
|
Arrest |
|
Arrest |
Following arrest the dichotomy between
the police investigation and the rights of the suspect is at their most
pronounced.
|
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
Parliament Square Peace Campaign
 |
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.
|
|
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.
|
|
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.
|
|
Detention and searching
property |
|
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.
|
|
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.
|
|
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.
|
|
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.
|
|
Human
Rights |
|
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:
-
right to life
-
prohibition of torture
-
prohibition of slavery
and forced labour
-
right to liberty and
security
-
right to a fair trial
-
no punishment without law
-
right to respect for
private and family life
-
freedom of thought,
conscience and religion
-
freedom of expression
-
freedom of assembly and
association
-
right to marry
-
prohibition of
discrimination
-
protection of property
-
right to education
-
right to free elections
-
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.
|
|
Brown v Stott
[2000] PC
Whole case
here
|
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
|
|
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.
|
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.
|
|
Other dispersal powers |
Police can order persons to disperse if they think that harassment alarm
and distress will be caused. This power is contained the
Anti-social
Behaviour Act 2003. Such authorisation can only be given by a
senior officer.
|
|
Singh, R (on the application of) v Chief
Constable of West Midlands Police [2006] CA
Whole case
here |
This additional power was used when police attended at a theatre where a
play in which a Sikh priest was shown committing sexual acts in the temple
had caused protestors to become threatening and were causing other members
of the public harassment alarm or distress. The police ordered the
protestors to disperse and arrested the defendant who refused to leave.
He was convicted under the
Anti-social
Behaviour Act 2003, his appeal against conviction failed.
|
|
Databasing -
retention of DNA and fingerprints |
|
The history of
retaining samples |
It is not in doubt that the taking of fingerprints
and samples from persons suspected of having committed relevant offences
is a reasonable and proportionate response to the scourge of serious
crime.
The retention of such material in cases when a
suspect is subsequently acquitted or the charge is discontinued is
controversial.
Until section 82 of the Criminal Justice and
Police Act 2001, the retention by the police of such fingerprints and
samples was unlawful under section 64 of the Police and Criminal
Evidence Act 1984 (PACE).
There was public disquiet that this rule sometimes
enabled defendants who had in all likelihood committed grave crimes to
walk free. Parliament decided to reverse it. Section 64(1A) of PACE,
as substituted by section 82 of the 2001 Act, authorises the
retention of such fingerprints and samples.
|
|
Attorney General's
Reference No. 3 of 1999
(2000) HL
Whole case
here
|
D raped a 66 year old, swabs were taken
from the victim and a DNA profile placed on the national DNA database. D
was arrested a year later for burglary.
A DNA sample was taken from him but
when he was acquitted the sample DNA sample should have been destroyed. It
was not and in the DNA sample was matched with the profile taken from the
victim of an earlier rape.
The Court of Appeal held that the judge
had no discretion to allow the proceedings against the defendant based on
DNA evidence, which should have been destroyed.
Held:
A judge had discretion to allow a
prosecution to proceed in these circumstances.
Respect for the privacy of defendants
is not the only value at stake, that the purpose of the criminal law is to
protect citizens from harm and that there must be fairness to all, to the
victim and to the public as well as to the defendant
Not guilty but would be now
|
|
Largest in the world |
Britain's 12-year-old DNA database is the largest in the world, growing by
30,000 samples a month. According to the Home Office website, 5.2%
of the UK population is on the database, compared with 0.5% in the US.
It provides the police on average with around 3,500 matches each month.
|
|
Children OFF the National DNA
Database
Website here
|
Grant
Shapps MP is campaigning to remove 24,000 "innocent" children from the
National DNA Database.
This
number includes children who have never been charged or cautioned and
where the police have no particular suspicion about their being involved
in any wrong-doing, they should be removed.
It should
be noted that when the police database was opened and police officers
invited to submit their DNA more than half of the officers refused.
|
|
Liberty warns on
databasing |
Liberty takes the view that on the
subject of DNA databasing, and the protections for people in custody, the
Government risks creating real problems for the police and the public.
|
|
DNA collection by
stealth |
It is
thought that DNA profiles of 24,000 juveniles who have never been
cautioned, charged or convicted of an offence are stored on the UK
database and of the three million samples held at present, 139,463 are
from people never charged or cautioned.
The
samples are taken on arrest and not destroyed if the person is not
charged.
On the one
hand this is viewed as building a database by stealth, by the back door. On the
other hand the Home Office view is that it is an investigative tool that
the police can use according to their discretion.
The Home
Office says the number of samples stored will rise to 4.25 million by
2008.
|
|
European Court to rule in February 2008 |
A
challenge at the European Court of Human Rights is being brought by a
teenager, known as S, who was arrested and charged with attempted robbery
aged 11 in 2001, and Michael Marper, from Sheffield, who was arrested on
harassment charges, aged 41, in the same year.
Both were cleared and have no criminal records.
The Court of Appeal ruled in 2002 that they cannot ask for their DNA and
fingerprint evidence to be destroyed.
|
|
Interviews, the "caution" and the
"Right to Silence" |
|
Interviewing |
The Police and Criminal Evidence Act
(1984) (PACE) introduced a number of very important protections
for an accused person. Code C (from The Codes of Practice,
PACE) provided the correct practice in questioning suspects, while
Code E ensured these interviews were tape-recorded.
|
|
Sec 76 PACE - Confessions |
Where a defendant admits the facts of
which he is accused it is referred to as a confession. Confession
evidence has been the source of many miscarriages of justice.
Notable ones include The Birmingham 6 and the Guildford 4. The case of
Confait, on this very point lead to the introduction of PACE.
Confessions may not be used in court if
they have been obtained—
(a) By oppression; or
(b) Because of
something said or done which makes the confession unreliable
However, facts discovered as a result
of the confession can be allowed, and a confession that shows that the
accused speaks, writes or expresses himself in a particular way is also
allowed.
“Oppression” includes torture, inhuman
or degrading treatment, and the use or threat of violence (whether or not
amounting to torture).
|
|
The caution |
The caution is based on the principle
that no man is obliged to provide the evidence against him. It is the
prosecutor’s job to obtain such evidence. This is not an absolute rule,
as in drink driving cases for example; the defendant is obliged to provide
evidence in the form of his own breath or blood.
On the one hand there is the
individual's desire not to incriminate himself and the secure a trial most
likely to acquit him which he would call a "fair trial" is sometimes
referred to as the "private interest"; on the other hand is the "public
interest" which is to prevent crime and the two are in constant conflict.
Before
Brown v Stott [2003] there
appeared to have been no motoring cases on this point.
|
|
Requirement
for "The Caution" |
Where a constable has grounds to
suspect a person of an offence he must caution them before he puts any
questions to him for the purpose of obtaining evidence.
The suspect must then be cautioned
again on arrest, again at the beginning of each interview, and again when
charged. Being charged is the formal reading of the alleged crime, and
brings to an end the inquiry process.
|
|
The caution contained
in the PACE Codes of Practice, Code C: |
“You do not have to say anything. But
it may harm your defence if you do not mention when questioned something
which you later rely on in Court. Anything you do say may be given in
evidence.”
These are the words used on arrest
or being interviewed, there is a slight variation when the prisoner is charged.
|
|
R v Shillibier (2006) CA |
A police
investigation policy consisting of significant witnesses, TIE category
(Trace, Interview, Eliminate), and suspects, was perfectly lawful.
Held:
The obtaining of a search warrant did not automatically mean that a person
fell to be treated as a suspect.
"We
do not see the TIE policy (which we understand to be a national policy)
as cutting across or undermining that essential distinction. As
explained in evidence to Aikens J, it applies to persons who are not at
that stage regarded as suspects.
"The
adoption of those categories does not affect the requirement under the
Code to caution suspects or the absence of a requirement to caution
non-suspects."
"Suspects"
[are] interviewed by officers trained in a particular method of
interviewing which is given the acronym "PEACE".
|
|
The right to silence debate |
The right to a fair trial under Article 6 of
the European Convention on Human Rights (ECHR) is violated if the jury
improperly draws a conclusion from the fact that a defendant remained
silent during his police interview
Those perceived to be "professional
criminals" are more likely to be denied their rights by the police. If the
professional criminal attempts to exercise his rights it is regarded that
he is abuse the entitlement to those rights. The government and establishment appear to
believe that such exercising of rights is best cured by passing a law to
stop it happening. This occurred with the curtailment of the right to
silence in the Criminal Justice and Public Order Act 1994 (CJPOA), which became known as the
“right to silence debate”.
The right to silence when being
questioned by the police and the right to silence in a criminal trial is a
basic right.
To some extent to talk of the right to
silence being removed is erroneous, the suspect/ defendant still has a
right to silence; what happened in the CJPOA was that the Act allowed an
adverse inferences can be drawn from his silence. The word “conclusion”
is preferred to “inferences”.
|
|
Rice v Connolly (1966) CA
Whole case
here
|
In
Rice v Connolly (1966) CA
it
was held that while every citizen had a moral or social duty to assist the
police, there was no such legal duty, and the defendant in refusing to
answer the police constable's questions (as opposed to telling a lie) or
to accompany him to the police box was within his rights at common law.
|
|
Section 34 Criminal Justice and Public Order Act
- Effect of accused's failure to mention facts when questioned or charged |
Sections 34 to 38 CJPOA allow a
jury or magistrates court to draw inferences from an accused’s silence.
It follows that the implications for the way the police handle interviews
where a defendant remains silent are enormous.
Section 34 of the CJPOA states:
“Where … the accused … on being
questioned under caution … failed to mention any fact relied on in his
defence … failed to mention any … fact … which … the accused could
reasonably have been expected to mention when so questioned … the court or
jury,… may draw such inferences from the failure as appear proper.”
In other words, failure by the
defendant to mention facts when interviewed may count against him at
trial. This is because the jury may draw the conclusion from his failure
that he either had no answer then or had no answer that he then believed
would stand up to scrutiny or has since invented his account or has since
tailored his account to fit the prosecution's case.
A jury must not convict him wholly or
mainly on the strength of the failure; but may take it into account as
some additional support for the prosecution's case and when deciding
whether his case about the facts is true.
Such a conclusion can only be drawn if:
-
first, that when he was interviewed
he could reasonably have been expected to mention the facts on which he
later relied on in court;
-
second, that the only sensible
explanation for his failure to do so is that he had no answer at the
time or none that would stand up to scrutiny;
-
Third, that apart from his failure to
mention those facts, the prosecution's case against him is so strong
that it clearly calls for an answer by him.
No adverse inference may be drawn
against an accused at an authorised place of detention if at the relevant
time he has not had the opportunity to consult a solicitor, and he has to
be cautioned first.
|
|
Section 36 - |
Effect
of accused’s failure or refusal to account for objects, substances or
marks.
|
|
Section 37 - |
Effect
of accused’s failure or refusal to account for presence at a particular
place.
|
|
Remaining silent on legal advice |
Were the defendant did not answer
questions on the advice of his solicitor/legal representative it does not
prevent the drawing of any conclusion from his silence. A person given
legal advice has the choice whether to accept or reject it.
Some defendants give what is known as
"no comment” interviews, in other words they either make no comment or say
“no comment” in reply to all questions, often on the advice of their
solicitors. The jury decides whether the defendant was reasonable in
accepting the solicitor’s advice not on the quality the solicitor’s
advice.
|
|
R v Argent [1997] CA
Whole case
here
|
D stabbed V (who was unknown to him) to
death outside a nightclub he received advice from his solicitor and
replied "no comment" to a series of questions put to him by the officer.
Held:
The court must take into account the defendant's characteristics, such as
age, health and mental capacity, and legal advice as relevant
circumstances. The fact that it was unreasonable for D not to have
mentioned included the fact that he had had no quarrel with the victim in
the club; that he and his wife had left the club before the rest of the
party; that he had not at any stage of the evening carried a knife; that
he had not been involved in any altercation in the street in which V was
stabbed; that he saw and was a witness of no such altercation.
Guilty
|
|
R v Roble
[1997] CA
Whole case
here
|
D had knifed the victim (who was known
to him), and was guilty of wounding with intent. Under caution, the
defendant made a “no comment” statement after taking lengthy legal advice.
He a refugee from Somalia but did not need an interpreter.
At his trial inferences were drawn
because it was unreasonable for the defendant not to have mentioned that
he was acting in self-defence as the victim had been the aggressor.
Held:
It was open to the jury to draw inferences both generally and in relation
to the knife. In any event there was overwhelming evidence against this
appellant.
Guilty
|
|
"Inferences" = "conclusions" |
The 1994 Act refers to "inferences" but
it is thought that juries will more readily understand "conclusions".
That the defendant has recently
fabricated an explanation or account is not the only permissible
inference. In practice, however, it is the one that usually arises.
|
|
Cases relevant to the right to silence |
|
Condron v United
Kingdom
[2000] ECtHR
Whole case
here
|
DD were drug addicts allegedly dealing
in heroin items that had been seen to be exchanged. When interviewed by police
their solicitor thought they were experiencing withdrawal symptoms, the
doctor did not. They remained silent on their solicitor’s advice.
Held: Although in Murray v
United Kingdom [1996] the right to silence was held not to be an absolute
right the right to silence lay at the heart of the notion of a fair
procedure.
The right to silence cannot be the
basis of a conviction solely or mainly on the accused's silence itself.
DD had explained at their trial why
certain items were exchanged between them and their co-accused. Although
the trial judge drew the jury's attention to the applicants' explanation
for their silence, the Court considered that he did so in terms which left
the jury at liberty to draw an adverse inference notwithstanding that it
might have been satisfied as to the plausibility of the explanation.
Particular caution was required before
a domestic court could invoke an accused's silence against him.
Not guilty
Following Condron, the
Judicial Studies
Board issued a form of
words called a “standard direction” for judges to give to juries. What
happens is, if the issue is raised during the trial, the judge in his
summing up has to clarify the facts and the law for the jury; he does this
by using a “standard direction”.
|
|
R v Beckles
[2004] CA
Whole case
here
|
D and others robbed the
victim at a flat, prevented him from leaving, and finally threw him out of the
window where he sustained injuries to his spinal cord resulting in paraplegia.
When arrested the
defendant said that the victim "wasn't pushed, he jumped" but, after
seeing his solicitor, refused to answer any questions when interviewed.
The
European Court of
Human Rights (ECtHR) held in
2002 that the trial
judge had not told the jury to consider whether relying on the solicitor’s
advice was reasonable or genuine. This had violated
article 6.
The case
arrived at the Court of
Appeal on this occasion by a reference by the
Criminal Cases Review Commission.
Held:
A jury
should not
draw such an inference if they considered that the defendant genuinely and
reasonably relied on the advice of his solicitor to remain silent.
Were the facts relied on
at the trial facts which the defendant could reasonably have been expected
to mention at interview? If they were not that was the end of the matter.
If the jury considered
that the defendant genuinely relied on the advice but they concluded he
was acting unreasonably they could draw an adverse inference.
Retrial ordered.
|
|
R v Betts and
Hall
[2001] CA
Whole case
here
|
The defendants were alleged to have
caused grievous bodily harm with intent.
H remained silent having received
advice of a solicitor.
The solicitor gave that advice because
the police had not told H about material in their possession.
Similarly, B declined to answer any
further questions other than to deny assault.
The jury were wrongly allowed to draw
any adverse inferences from the defendants’ failure to answer questions in
the police station.
Held:
The jury should not have drawn inferences against the defendants simply
because the solicitor told to them to remain silent.
They had to be sure that the defendant
had no explanation to offer or none that he believed would stand up to
questioning or investigating.
Not guilty
|
|
R v Howell
[2003] CA
Whole case
here
|
D stabbed his friend who sustained
life-threatening injuries. D
claimed self-defence as the victim was trying to rob him.
He made a ‘no comment’ interview on the
advice of his solicitor. The solicitor had given the advice because the
victim’s statement had not been made available.
The case was referred to the Court of
Appeal by the Criminal Cases Review Commission.
Held:
A defendant’s silence in interview had to weigh in the balance against the
clear public interest in an account being given by the suspect to the
police. Solicitors should bear that in mind.
In this case there had been no good
reason for the defendant’s silence.
Section 34 says
a jury may draw proper inferences from a failure "to mention any fact
relied on in his defence ... being a fact which in the circumstances
existing at the time the accused could reasonably have been expected to
mention ...".
Now, the police
interview and the trial are part of a continuous process during which the
public interest requires reasonable disclosure by a suspected person of
what he has to say when faced with a set of facts which accuse him. This
principle is thwarted if currency is given to the belief that if a suspect
remains silent on legal advice he may systematically avoid adverse comment
at his trial.
The absence of
a written statement from the complainant is not a good enough reason for
silence, and it does not become good reason merely because a solicitor has
so advised.
Reasons not
good enough:
That the
complainant may not pursue his complaint,
A belief by the
solicitor that the suspect will be charged whatever he says.
Reasons that
might be good enough:
The suspect's
ill-health, mental disability; confusion; intoxication; shock, or his
inability genuinely to recollect events without reference to documents
which are not to hand
The reasons
must always be soundly based objective reasons.
Guilty
|
|
R v Knight
[2003] CA
|
Philip Knight took the
10 year-old daughter of a friend for a walk in some woods. There, it was
alleged, he indecently assaulted her. She claimed, for example, that he
put his hand on her stomach whilst his other hand was down his own
trousers. He was arrested and interviewed by police.
The duty solicitor
advised him not to answer police questions. He stated that he might get
confused when answering questions and so gave the police a pre-prepared
statement and he did not deviate from the statement at trial.
Held:
No inferences could be drawn. R v Howell followed.
Not guilty
|
|
Summary of the right to silence debate |
|
To summarise, it is not possible to do
better than the Court of Appeals 5 point ruling in R v Cowan [1996] CA
(actually a whole lot of conjoined appeals on similar matters).
So good
are the five points in Cowan that the House of Lords approved them in
R v Becouarn [2005] HL and said that they are fair.
Also, in
Becouarn their
Lordships said the Judicial Studies Board model direction was fair as
well.
So what are the five Cowan points?
|
|
The five Cowan points: |
(1) The burden of proof remains upon
the prosecution
(2) The defendant has a right to remain
silent
(3) An inference cannot on its own
prove guilt
(4) The prosecution must establish a
case before drawing any inferences from silence
(5) If the silence can only sensibly be
attributed to the defendant's having no answer or none that would stand up
to cross-examination, the jury may draw an adverse inference
|
|
Section 58 PACE – access to legal advice |
Section 58 of PACE requires that
a person arrested and held in custody in a police station or other
premises shall be entitled to consult with a solicitor privately at any
time.
However this right can be withheld, to
facilitate police investigations.
This is covered in detail in 1.2.1.3.
Powers of detention and the treatment of suspects at the police station.
|
|
Consideration of victims |
|
The Victims’ Charter |
Balanced against a defendant’s right to
fair treatment are the rights of the victim. Scant regard was paid to the
rights of victims until a change in culture that occurred in the 1950s,
when Margery Fry, a social reformer, set the scene for what was to come.
She ran a personal campaign to
highlight what it was like to be a victim of crime and to demand
compensation for victims. She and a small group of reformers persuaded the
government to set up the Criminal Injuries Compensation Scheme in 1964.
She was promoting the rights of a group of people about whom very little
was known and in whom there was little interest.
The Home Office now actively encourages
the police to inform the victim of significant developments in a case,
particularly if anyone has been arrested, cautioned or charged.
Some criticism of the police
involvement with victims is that they are not then independent and
unbiased in their treatment of a suspect if they are at the same time
closely involved with victims.
Where a person has been killed, the CPS
might agree to meet the family to explain their prosecution decision,
based on The Code for Crown
Prosecutors.
See here, for Victim Personal Statements, previously called Victim Impact
Statements.
|
|
Criminal injury compensation scheme and other compensation |
In assault cases courts must order an
assailant to pay his victim compensation or give reasons for not doing so.
Magistrates can award up to a maximum of £5000 but seldom ever make orders
of that size because a defendant would simply not be able to pay. They
can also make similar orders for criminal damage.
The
Criminal Injuries Compensation
Authority pays public money to victims of a violent crime
Last year more than 37,000 applicants
got nothing because they failed to co-operate with the police or because
of their conduct before, during and after the incident. The minimum they
pay is for an injury worth £1,000 for example for a broken nose
(undisplaced fracture).
In order to take advantage of such
payouts there have been criticisms of police and solicitors “trawling” for
evidence making a disproportionate use of resources and producing
unreliable evidence for prosecution. Many “victims” were encouraged to
report crimes that may not have occurred. A succession of child abuse
victims came forward, knowing they would receive substantial payments.
A House of Commons Home affairs
committee launched an inquiry into the conduct of investigations into past
cases of abuse in children's homes, they concluded in 2002 that "a new
genre of miscarriages of justice" has arisen from what it calls "the
over-enthusiastic pursuit" of abuse allegations in children's homes, many
relating to incidents said to have occurred going back twenty or thirty
years. It also says that a large number of people who are not charged may
have had their lives ruined or seriously damaged by unfounded allegations.
|
|
Contributing to own rape
|
In 2008 a rape victim who remained anonymous had her compensation reduced because she had drunk excessively. Her complaint lead to the review of 14 similar cases and the CICA admitted they had applied the rules wrongly and revered the decision, (BBC story here).
|
|
Bail |
|
Bail |
The Bail Act 1976 creates a
presumption in favour of bail. In other words as detained person must be
given bail unless there are specific reasons not go give him bail, it is
not the other way round.
There is a balancing exercise to be
carried out between the protection of the public and the assurance that
the defendant will appear in court on the one hand, and the presumption of
innocence and the avoidance of unnecessary public expenditure on the
other. Under no circumstances can the police offer bail as a “reward” for
a suspect’s cooperation.
There is no appeal against refusal of a
crown court judge to grant bail.
|
|
Presumption of innocence |
|
Presumption of innocence |
It is clear from the
cases and from the events surrounding the West Midlands Serious Crime
Squad that the police will sometimes decide of the guilt of a person
and then perhaps tailor the evidence to suit their prejudice.
The rule of law is the
opposite; a person is presumed innocent until proven guilty. This
may have been the case in many courts, but until 1935 the principle did
not achieve universal application.
|
|
Woolmington v DPP
[1935] HL |
D aged 21 accidentally
shot his wife V aged 17. Following quarrels V went back to live with
her mother. In order to persuade her to return he took a shotgun to show
her and threaten her that he would commit suicide. He tied the sawn
off shotgun over his shoulder under his coat, as he showed it to her it
went off accidentally killing V.
The issue to be decided
in this case was whether Foster's Crown Law (1762) was correct where it
said that were a death occurred it is to be presumed to be murder unless
the defendant proves otherwise.
Held:
Murder cases were reported since at least Mackalley's case in 1611, but
there was no authority, for Foster's statement. It was found in a
text book and often repeated by other writers and followed by judges, but
it was wrong.
Viscount Sankey LC:
"Throughout the web of
the English Criminal Law [there is] one golden thread … the
prosecution
[must] prove the prisoner's guilt … If there is a reasonable doubt
… the prisoner is entitled to an acquittal.”
Not guilty
Also
here |
|
The "Golden Thread" |
So, the “golden thread” that runs
through the English Legal System is that a man is innocent until proven
guilty, and the burden of proof lies on the prosecution. As with much of
the law, there are exceptions including “reverse burdens of proof”.
|
|
Disclosing information |
|
Withholding information in the public interest |
The public interest
sometimes requires information to be kept confidential. So, on the one
hand the public interest is served by preventing almost everyone from
access to secret information, and on the other hand the public interest
requires that justice be done to the parties and therefore information
should be shared. The two public interests compete.
"Public interest
immunity" permits government bodies, including the police to withhold
information where this would damage a public interest.
|
|
Alexandrovitch v Khan
[2008] QBD |
[Balance of individual rights and
the need for investigative powers]
D made a malicious statement to a police officer resulting in C being
wrongfully arrested. C sought disclosure of her statement to the police to
pursue his claim for defamation.
Held: Public policy required that communications between a witness
and those investigating an offence should be immune from action as the
public policy priority was that those who made complaints could do so
without the fear that they would subsequently be challenged in court, even
if those who made such statements maliciously benefited from that
protection.
D's oral and written complaints to the police were protected by absolute
privilege and immunity from suit.
D won
|
|
The
Regulation of Investigatory Powers Act 2000 (RIPA) |
|
Obtaining information
- a snoopers' charter? |
The
Regulation of Investigatory Powers Act 2000 (RIPA)
provides authority for the police (and other agencies) to monitor and
intercept mobile phone, email and other records.
The passing of the legislation was not
with critics, for example Lord Phillips of Sudbury:
"The
House of Lords gave more time to scrutinising RIPA than the House of
Commons, and no one in the House of Lords fully understood all of RIPA's
intricacies,"
Lord Phillips described
RIPA's passage through Parliament as a "nightmare".
|
|
The balance |
The Act provides a balance between investigation by the law enforcement
agencies and the freedoms of the citizen not to have their privacy
intruded upon.
The Act authorises police to obtain private information and in return
there are strict controls on their activity.
|
|
What the Act covers |
The regulated activities include:
-
the acquisition of communications data (e.g.
billing data);
-
intrusive surveillance (on residential
premises/in private vehicles);
-
covert (hidden) surveillance in the course
of specific operations;
-
the use of covert human intelligence
sources (agents, informants, undercover officers);
Intrusive surveillance covert surveillance is that:
-
which is carried out in relation to
anything taking place on any residential premises or in any private
vehicle; and
-
involves the presence of an individual on
the premises or in the vehicle or is carried out by means of a
surveillance device.
|
|
What is covert
surveillance? |
The Act is concerned with observations that are more than the use of
equipment to merely reinforce normal sensory perception, such as
binoculars, or the use of cameras, and where this does not involve
systematic surveillance of an individual.
Although, the Act does not normally cover the use of overt (not hidden)
CCTV surveillance systems, since members of the public are aware that such
systems are in use, there may be occasions when the police use overt CCTV
systems for the purposes of a specific investigation or operation. In such
cases, authorisation for intrusive or directed surveillance may be
necessary.
Material obtained through covert surveillance may be used as evidence in
criminal proceedings. If the police fail to obtain the proper
authorisation for surveillance such evidence may be inadmissible under the
common law, section 78 of the Police and Criminal Evidence Act 1984
or the Human Rights Act 1998. (The Act itself limits disclosure of
the existence of a warrant (Section
17)).
|
|
Automatic number plate recognition (ANPR)
|
ANPR has proved very effective in crime reduction and
is a prime example of intelligence-led policing. But the deployment of an
ANPR camera constitutes surveillance when an identifiable image is
recorded of a person in a vehicle.
It probably also amounts to the obtaining of private
information about any such person.
|
|
Supervising the law enforcement bodies |
|
Surveillance
Commissioners |
The Commissioners are appointed by the Prime Minister. Commissioners hold,
or have held, high judicial office. One of their chief responsibilities is
to scrutinise all notifications, renewals and cancellations of
authorisations of property interference and intrusive surveillance.
The Surveillance Commissioners have the power to quash or cancel an
authorisation for intrusive surveillance.
Commissioners' website,
here. |
|
Investigatory Powers Tribunal |
Complaints would normally be investigated by
the Investigatory Powers Tribunal. There is little evidence that
there will be a satisfactory outcome for complainants, one reason is that
it is difficult to establish if or who is conducting observations or phone
tapping.
|
|
Intercept evidence |
It is an offence for
other people to
intercept any communication whether it be the post or telephone but the police can, and do, obtain
lawful authority to do this on a regular basis using their powers under the
Regulation of Investigatory Powers Act 2000 (RIPA).
RIPA
requires the police to apply to the Home Secretary for authority for each
phone tap; in 2003 there were 1,885 taps.
Such intercept evidence and any
information gathered in this way is not admissible in court, while most
other methods of covert surveillance are admissible in court, for example
tapes from conventional bugs - not attached to phones - can be used in
court.
The fear is that allowing phone tap
evidence to be heard in court could reveal its secret operational methods.
A taped phone conversation on a
landline or a mobile phone is inadmissible. It can only be used for
intelligence purposes.
The UK and Ireland are alone in the
West in not allowing bugged phone conversations in court.
Liberty - the civil liberties campaign
group - does not object to intercept evidence being used in open court
with a properly constituted jury.
Until the Malone
case in 1985 intercept evidence was only ever used in matters of serious
crime or the security of the state. Some groups such as CND
and some trade unions were of concern to the government. The
police were engaged in intelligence gathering.
From memoirs and
historical documents we now know that the police and MI5/6 were engaged in
obtaining information for government officials, or for the general playing
of dirty tricks, not for obtaining evidence for prosecutions.
|
|
Phone tapping (intercept evidence) |
|
MPs phone are never tapped |
In a written statement to the House
of Commons in March 2006, the prime minister said the policy introduced by
Harold Wilson in the 1960s never to tap MPs phones would be maintained.
Swinton Thomas, the interception of communications commissioner, said that
the 'Wilson doctrine' had changed since 1966, but the Prime Minister did not
agree.
|
|
Malone v United Kingdom
(1985) ECtHR |
The Malone Case
was heard in the
European Court of Human Rights, and the resounding judgment against the UK
led to the Interception of
Communication Act 1985.
Mr Malone,
an antiques dealer, was prosecuted for offences relating to dishonest
handling of stolen goods. During the trial it emerged that the applicant's
telephone had been tapped by the police acting on the authority of a
warrant issued by the Home Secretary. Following his acquittal on the
criminal charges, the applicant brought civil proceedings seeking to
establish that the tapping of his telephone had been unlawful.
Held:
UK law did not provide sufficient protections for the citizen against
arbitrary interference, the minimum degree of legal protection to which
citizens were entitled under the rule of law was lacking. The system of
intercepting communications was not "in accordance with the law".
Malone won
|
|
Section 9 of that Act
and now
Section 17 RIPA
provided that in any proceedings before a court no evidence was to be
adduced and no questions were to be asked in cross-examination which
tended to suggest that an interception had taken place, with or without a
warrant |
Terrorism, particularly 9/11 and the
2005 London bombings requires a different approach.
The abolition of the current position
has been recommended repeatedly in recent years. However, the
Government's argument is that the use of intercept evidence could
undermine the public interest by revealing to terrorists and organised
criminals vital operational details deployed by the police and
intelligence service.
Since a well established and refined
system already operates in the criminal courts to ensure the withholding
of operational details in circumstances in which disclosure would be
detrimental to the public interest, this appears not to be well founded.
The Crown Prosecution Service on advice
can decide whether to proceed with the prosecution if the class of
evidence is such as to be prejudicial, it would not be adduced.
A basic principle of evidence is that
if it is relevant, it is admissible. Therefore its inadmissibility has
been described as a “carbuncle on the face of the law of evidence”.
|
|
R v Rankine
[1986] CA |
Elliston Rankine a drug dealer supplied
cannabis to about 10 people (and had cocaine in his possession). Two
police officers watched him for about an hour, from a nearby house,
selling cannabis outside a shop. The police refused to identify the
observation point because they would not be able to use it again and the
occupier might be put at risk.
The trial judge gave to the police
officers the complete discretion to answer questions if they thought it
would embarrass their sources.
Held:
It is in the public interest that police cannot be required to disclose
the sources of their information – fore example the identification of
premises used for surveillance - in order to retain their utility and to
protect their owners or occupiers from possible reprisals.
This rule is subject to a duty to
identify the premises in order to avoid a miscarriage of justice.
Guilty
|
|
Disclosure of evidence |
The police are required to preserve all
evidence that comes into their possession. All notes, all samples and all
documents. Vast amounts of evidence that pass through the hands of the
police are never used in a prosecution case, this material is known as
“unused material”. There are complex rules about allowing the defence
access to this material.
They are required to disclose to the
accused unused material which might undermine the prosecution case; the
accused, in return, is required to disclose the general nature of his
defence, following which the prosecution is required to make further
disclosure of such additional unused material as might assist that defence
(Criminal Procedure and Investigations Act 1996).
|
|
Rules
of evidence |
|
Section 78 PACE Exclusion of unfair evidence |
Subject to certain rules all evidence
that is relevant is admissible in court.
However, the courts may refuse to allow
evidence if it appears that the evidence would have such an adverse effect
on the fairness of the proceedings that the court ought not to admit it.
This is one of many rules that
basically amounts to deciding the difference between evidence that goes
towards proving the facts – whether the defendant committed the crime –
and evidence that is simply prejudicial – the behaviour of the defendant
or his previous convictions – this is the role of the judge.
The police will use any opportunity to
blacken the character of the accused to secure his conviction but the
rules, for example Section 78 prevent them doing so in most circumstances.
For example, the fact that a suspect
has a propensity to use and threaten violence is relevant to whether he is
more likely to have killed the deceased than a co-accused (R
v Randall
[2004] HL)
(Retrial ordered)
Propensity is therefore relevant to
guilt, and the police know this. At the same time the issue in Randall
was about admitting previous convictions, bad character … and for that
there are even more rules.
|
|
Excluding evidence |
PACE
also gave the court power by section 76
to exclude confessions obtained under pressure and a wide discretion under
section 78 to exclude evidence obtained unfairly.
Before PACE, there was no
requirement for tape-recording and there was no code for interrogation.
Consequently, confessions were extracted from suspects in very dubious
circumstances, and during the 1990’s many convictions based solely on
these ‘confessions’ were quashed.
|
|
Bad character – Criminal Justice Act 2003 |
During their enquiries the police will
know about the previous convictions (bad character) of the suspect. If
they can find a way to have this admitted in front of the jury the chances
of a conviction are greatly increased. The Criminal Justice Act 2003
allows evidence of previous bad character if, but only if—
-
all parties to the
proceedings agree to the evidence being admissible,
-
the evidence is
adduced by the defendant himself or is given in answer to a question asked
by him in cross-examination and intended to elicit it,
-
it is important
explanatory evidence,
-
it is relevant to
an important matter in issue between the defendant and the prosecution,
-
it has substantial
probative value in relation to an important matter in issue between a
defendant and a co-defendant,
-
it is evidence to
correct a false impression given by the defendant, or
-
The defendant has
made an attack on another person’s character.
|
|
When things go wrong |
|
Complaints
against the police - the Independent Police Complaints Commission (IPCC)
|
When the police get it wrong, perhaps
someone dies in their custody it is right that there should be a full
investigation.
30 years ago the police would have
investigated themselves, leading to frequent allegations of a whitewash
inquiry. Now they are investigated by the Independent Police
complaints Commission (IPCC), a wholly independent body.
The
Police Reform Act
(PRA) set up the new IPCC. The PRA guarantees the independence of the
Commission. The PRA outlines its role as guardian of the police
complaints system as a whole, and gives the IPCC a duty to raise public
confidence.
The IPCC commenced its work in 2004
with a wide range of powers to radically change the way complaints against
the police are handled in England and Wales.
Investigations take place when, for
example, there has been a death or serious injury, serious or organised
corruption, racism or perverting
the course of justice
The IPCC can choose to manage or
supervise the police investigation into a case and independently
investigate the most serious cases.
The IPCC aims to provide a greater
confidence in the complaints system, leading to greater trust in the
police service on which more effective policing depends.
|
|
The Independent Police Complaints Commission
report
|
In
2004/05 a total of 22,898 complaints against the police were recorded, an
increase of 44%. Some forces experienced very large increases,
whilst others had small decreases.
-
The most common allegations were incivility, impoliteness and
intolerance (21%), other neglect or failure of duty (19%), assault
(19%).
-
The majority of complainants were men (65%). Due to a lack of recorded
data on age, employment status and ethnicity, it is not possible to
glean anything about the profile of complainants at a national level.
-
95% of complaints were against police officers, 4% against civilian and
contracted staff and 1% against special constables, traffic wardens and
community support officers.
-
Men made up the vast majority of those subject to a complaint (79%).
This figure generally equates to the gender breakdown across the police
force as a whole.
-
A
lack of recorded data concerning the ethnicity of those subject to
complaints makes it impossible to provide a national picture.
-
Of
those allegations investigated, 13% were substantiated.
-
34
officers were dismissed and 57 officers were requested to resign.
-
228 police officers were convicted of criminal offences. 69% of
these convictions were for traffic offences; 67 officers were convicted
of offences linked to a complaint by a member of the public.
The Police Reform Act 2002 has
widened both the categories of complainant and those who could be subject
to complaints. Figures presented in the report indicate that this change
may have had a small contribution to the overall increase.
The full report
here. |
|
Rule against entrapment, or agent provocateur |
An example of entrapment would be where
the police encourage a criminal to commit a burglary in order to wait for
him to do so and then arrest him.
“Agent provocateur” is the expression
to describe an ‘agent’ who ‘provokes’ a criminal act (such a person
incites or counsels another to commit a crime which he/she would not
otherwise have committed).
This might happen when an undercover
police officer infiltrates a drug gang, animal activist group or terrorist
organisation and other members of the group are arrested when they commit
crime. Decoy vehicles are a similar (successful tactic used by the
police).
It is simply not acceptable that the
state through its agents should lure its citizens into committing acts
forbidden by the law and then seek to prosecute them for doing so.
Entrapment is a misuse of state power, and an abuse of the process of the
courts. The unattractive consequences, frightening and sinister in extreme
cases, which state conduct of this nature could have are obvious. The role
of the courts is to stand between the state and its citizens and make sure
this does not happen (R
v Loosely
[2000] HL).
|
|
Post Script |
|
Identity Cards |
In December 1950, police constable
Harold Muckle stopped Mr Clarence Willcock who was driving his car in
London. PC Muckle asked him to produce his national registration identity
card. Mr Willcock refused.
He threw on to the pavement a form
requiring him to present his card at a police station within two days. He
was prosecuted.
A Divisional Court of seven judges,
presided over by Lord Goddard, the Lord Chief Justice, said war-time
registration act did not justify a policeman demanding to see an identity
card “on some trivial occasion”.
Such action “turns law-abiding subjects
into lawbreakers, which is a most undesirable state of affairs”.
Identity cards were abolished in 1952.
The 2005 Identity Cards Bill would
establish a national identity register of people aged 16 and over living
in this country. There would be a database holding biometric information
matched against personal details. Registration would be compulsory.
ID cards do not raise human rights
issues but the systematic collection, storage and use of information on a
register allows for a significant intrusion into private life, and will
give the PC Muckle of 2005 more power.
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