Police powers - 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

no man is punishable except by a court
no man is above the law

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.

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.

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.