Thursday 29 September 2006

We began with a warning – just because an arrest may be unlawful does not necessarily mean that a prosecution will fail. This is a matter for the court, who may exercise their DISCRETION to exclude evidence, but it is just that, DISCRETION.

When PACE was created there were arrestable and non-arrestable offences, the idea being that all the disparate powers of arrest littered throughout statutes would all be replaced by a simpler system. Unfortunately, some powers of arrest were preserved.

PRESERVED POWERS OF ARREST

These include powers of arrest under

s7 BAIL ACT 1976 which permit the arrest of a person who has broken/likely to break a condition of bail.

Offences under the ROAD TRAFFIC ACT 1988 are also preserved relating to drink/drive and driving whilst disqualified. A strange point is that the power of arrest for driving whilst disqualified is limited to the accused being found committing, no power of arrest is permitted at a later time. Drink/drive offences require the officer to be in uniform.

Vice squads of various police forces also have their powers of arrest maintained by virtue of Sch 2 PACE insofar as they can effect an arrest specifically under the provisions of the STREET OFFENCES ACT 1959.

Section 26 PACE maintains the common law power to arrest for breaches of the peace.

PROCEDURE ON ARREST

Upon arrest the arresting officer must inform the detained person of three things. It is mandatory, for otherwise the arrest would be unlawful. The three things are:

.

1. the fact of the arrest: R v Brosch [1988] – “you’re nicked” is enough


2. the grounds for the arrest


3. the caution

Section 28 PACE requires that a person arrested be informed of the fact of his arrest and of the grounds of his arrest either at the time of his arrest or as soon as is reasonably practical thereafter. This must be done even though the facts are obvious. No precise language is needed.

Code C of the Codes of Practice which deals with the detention, treatment and questioning of persons by the police, requires that where a person is arrested he must be cautioned by the following words:     

“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”.     

Minor deviations are okay.

It is not necessary that it is the arresting officer be the person who informs the prisoner of his arrest: Dhesi v C.C. West Midlands Police [2000].

A police officer is under no obligation to caution, where:

It is impractical to do so by reason of the suspect’s condition or behaviour.     
The caution has already been administered prior to arrest where the suspect is suspected of an offence but has not yet been arrested.

VOLUNTARY ATTENDANCE AT THE POLICE STATION

When investigating an offence it will not always be necessary or possible for the police to formally arrest a person. In these circumstances, the person may voluntarily attend the police station or another place to “assist the police with their inquiries”. This is a euphemism.

The rights of a volunteer are to be found in s29 PACE and Code C. Section 29 provides that the volunteer will be entitled to leave police custody at any time unless he is formally arrested. Where an arrest takes place, the police are required to inform the person immediately. In addition the volunteer can demand that a solicitor or friend be present at the interview and the Code requires that the person be told that he has the right to free and independent legal advice in person or over the telephone. There are some limitations placed on this, which will be covered later. As soon as the police have sufficient evidence to charge the suspect, he should be arrested and cautioned, if the caution has not yet been given.

SEARCH

We then turned to the powers of the police to search people, vehicles and premises.
The common law powers have been largely supplanted by PACE 1984 and the Codes of Practice. Essentially at common law the position was as stated in:

Seymane’s Case [1603]: “the house of everyone is to him as his castle and fortress.”

Code A covers the exercise of police powers of stop and search. An officer must act objectively in deciding whom to stop and search, and consider all the circumstances. The powers should be exercised responsibly and sparingly and the person being searched should be treated courteously and considerately. The person’s co-operation is to be sought whether or not they initially consent to a search, and that co-operation is not to be taken as consent. A record should be made of the search, including the identity of the officer, and a copy provided to the person searched on request.

The searching of premises under PACE 1984 is governed by Code B. This requires that police officers check their information carefully before seeking a search warrant to ensure that the information is accurate, recent, and not provided maliciously or irresponsibly. No application may be made on the basis of information from an anonymous source without seeking corroboration. A notice must be given to the occupier whenever a search is made, whether by warrant or with consent. under Code B. The premises may be searched only so far as is necessary having regard to the size and nature of whatever is sought, nor may it continue once that has been found. Full records must be made of the search and what is taken. A record must be given to the occupier on request.

STOP AND SEARCH

Whilst there is an aim to detect offences, there is a further aim here. The exercise of the power may cut down on unnecessary arrests. Section 1 PACE and Code A empowers a constable to detain and search any person or vehicle in a public place for stolen or prohibited articles, or articles to which s1(8A) applies.

Added to the original list are blades, and articles used for committing criminal damage.

Section 25 Crime & Disorder Act 1998 was introduced so that the police can remove anything concealing a suspect’s identity, e.g. motor-cycle crash helmet.

Section 60 CJPOA 1994 gives senior police officers power to permit all uniformed officers to stop and search for sharp pointed instruments or blades if serious violence locally is reasonably anticipated. By s166(5) CJPOA 1994, an officer may also search persons, premises, and vehicles if he reasonably suspects a football match ticket-touting offence.

Section 139 provides a statutory defence if a person charged has good reason or lawful excuse for having the article with him or he has the article:

for use at work;
for religious reasons;
as part of a national costume.

We will take a closer look at the articles prohibited next week.

The introduction began with an explanation of changes. In the early part of 2005 the Criminal Justice Act 2003 reformed the law governing (i) the admission of hearsay in criminal cases (ii) revised sentencing procedure and practice and (iii) introduced a unified procedural code for criminal cases through the Criminal Procedure Rules which can be accessed through the Department for Constitutional Affairs’ website at www dca.gov.uk.

The Serious Organised Crime and Police Act 2005 is the most significant recent development. Many of the Act’s provisions amalgamate and restructure the law enforcement agencies dealing with serious and organised crime such as the National Crime Squad and the intelligence work of H.M. Revenue & Customs. From 1st January 2006 SOCPA 2005 also revised many of the investigatory powers used by the police on a daily basis including (i) the classification of criminal offences for the purposes of arrest (ii) the powers of arrest (iii) stop and search (iv) the issue of search warrants.

A new Code of Practice, Code G, has been issued which deals with the practice and procedure on arrest. Revised Codes of Practice A-E also came into effect on 1st January 2006, although with only superficial revision.

No doubt further reforms will be introduced under CJA 2003 during 2006-07 by introducing a revised case allocation procedure and further changes to the courts’ sentencing powers. If implemented, I will bring them to your attention.
POWER OF ARREST BY A POLICE OFFICER
As a result of the amendments introduced by ss110 & 111 SOCPA 2005, PACE 1984 now classifies offences for the purposes of arrest as either “criminal” offences or “indictable” offences.

The former relates to summary matters, whilst indictable includes all either-way offences.

Formerly there were “arrestable” and “non-arrestable” offences.

Following the abolition of the term “arrestable offence”, the main powers of arrest without a warrant under s24(1-3) PACE 1984 are exercisable by a police officer in connection with any criminal offence on the following grounds.

The effect of the changes is that:

s24 PACE 1984 is fundamentally revised;
Code G Codes of Practice is introduced to deal with the practice and procedure on arrest;
s24A PACE 1984 is inserted; and
s25 PACE 1984 is repealed by s110(2) SOCPA 2005.

s24(1) PACE 1984:

A constable may arrest without a warrant:

anyone who is about to commit an offence; or
anyone who is in the act of committing an offence; or
anyone whom he has reasonable grounds for suspecting to be about to commit an offence; or
anyone whom he has reasonable grounds for suspecting to be committing an offence.

NOTE: the arrest is for any offence.

s24(2) PACE 1984:

If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect being guilty of it.

s24(3) PACE 1984:

If an offence has been committed a constable may arrest without a warrant:

anyone who is guilty of the offence;
anyone whom he has reasonable grounds for suspecting to be guilty of it.

For the arrest to be lawful, in addition to satisfying one of the grounds above in s24(1-3) PACE 1984, the officer must also prove that he had reasonable grounds for believing that an arrest was NECESSARY for one or more of the reasons listed in s24(5) PACE 1984 (the NECESSITY TEST):

to enable the person’s name to be ascertained where the constable does not know and cannot readily ascertain the person’s name or has reasonable grounds for doubting the name given by the person is his real name; or
to enable the person’s address to be ascertained;
to prevent the person in question:

(i) causing physical injury to himself or another;
(ii) suffering physical injury;
(iii) causing loss or damage to property;
(iv) committing an offence against public decency; or
(v) causing unlawful obstruction of the highway; or

(d) to protect a child or vulnerable person from the person; or
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person;
(f) to prevent the prosecution for the offence from being hindered by the disappearance of the person in question.

Extending the power of arrest to all offences provides a constable with the ability to use that power in any situation. However, applying the necessity criteria requires the constable to examine and justify the reason or reasons why a person needs to be taken to the police station for the custody officer to decide whether the person should be placed in police detention. The test to decide whether the officer acted lawfully is whether he had reasonable grounds for believing that one of the criteria in s24(5) applied at the time the arrest was made. Some of those grounds, especially where an arrest is necessary to allow the prompt and effective investigation of the offence, are almost unchallengeable from a defence perspective and therefore reduce further the opportunity to challenge the prosecution case at trial in connection with police investigation of the offence.

The factors to be taken into account in deciding whether to exercise the power includes the nature of the offence, the circumstances of the offender and the needs of the investigation (para 2.8 Code G).
CITIZEN’S POWER OF ARREST - s24A PACE
s110 SOCPA 2005 repeals s25 PACE 1984 which provided a constable with the power to arrest a person without a warrant in connection with a non-arrestable offence where one or more of the general arrest conditions under s25 PACE 1984 applied.

A citizen’s power of arrest under s24A PACE 1984 may be made in the following circumstances.

s24A(1) PACE 1984:

A person other than a constable may arrest without a warrant:

anyone who is in the act of committing an indictable offence; or
anyone whom he has reasonable grounds for suspecting to be committing an indictable offence ..

s24A(2) PACE 1984:

Where an indictable offence has been committed a person other than a constable may arrest without a warrant:

anyone who is guilty of the offence; or
anyone whom he has reasonable grounds for suspecting him to be guilty of it.

s24A(3)(a) PACE also requires that the arrest will only be lawful if the citizen has reasonable grounds for believing that an arrest is necessary for one or more of the reasons listed in s24A(4). The section provides that the arrest is necessary to prevent the person:

causing injury to himself or any other person;
suffering physical injury; or
causing loss or damage to property; or
making off before a constable can assume responsibility for him.

In addition to satisfying the grounds above, the person making the arrest must believe that it is not reasonably practicable for a constable to make the arrest instead: s24A(3) PACE.

So, in summary:

the power can only be exercised in connection with an indictable offence;
one of four criteria must be satisfied before an arrest is lawful:

there is evidence that the suspect is committing an indictable offence;
there are reasonable grounds for believing that an indictable offence is being committed; or
the person is guilty of committing an indictable offence; or
there are reasonable grounds for believing that an indictable offence has been committed; and

the citizen has reasonable grounds for believing that an arrest is necessary to prevent the person from causing injury to himself or making off before a constable can assume responsibility for him; and
the citizen has reasonable grounds for believing it is not reasonably practicable for a constable to make the arrest instead.

This is the power of arrest that will be used by community support officers, store detectives and the rest of us.
THE “REASONABLE GROUNDS” TEST
The powers of arrest under s24 and s24A PACE 1984 may only be lawfully exercised where the police officer or the citizen has reasonable grounds for believing that a criminal offence (or an indictable offence under s24A PACE 1984) is at some stage of commission. It is unlikely that the test for determining whether reasonable grounds exist has changed under the revised law of arrest and therefore the House of Lords’ decision in O’Hara v Chief Constable RUC [1997] remains the most authoritative judicial guidance on the test:

The prosecution was brought under the Prevention of Terrorism (Temporary Provisions) Act 1984, which contained an identical provision to that in PACE 1984. The Act provided that a person could be arrested by a police officer applying the “reasonable grounds” test. On the instructions of a senior officer, O’Hara had been arrested by a policeman on suspicion of being a terrorist. O’Hara was later released without charge and sued the police on the basis that there had never been any suspicion on the part of the arresting officer that O’Hara was a terrorist and so there had been no lawful basis for the arrest. The House of Lords held that the test of reasonable grounds for suspicion fell into two parts. (i) there must be actual suspicion on the part of the arresting officer and, (ii) there must be reasonable grounds for that belief.

This test is judged objectively. It was not enough to say that the arresting officer was acting on instructions from his superior as the arresting officer must show “reasonable grounds for suspicion”. On the facts of O’Hara there was sufficient evidence to show that the officer had formed a genuine suspicion as a result of the briefing from his superior and that the suspicion was reasonable. The arrest had therefore been lawful.

Therefore, whilst the test of “reasonable grounds” is not defined, it implies both an objective and a subjective element. The subjective ground will be satisfied where, on the facts known to the officer and in the circumstances existing at the time of the arrest, the officer actually believed the suspect was at some stage of committing an arrestable offence or had committed an arrestable offence and, objectively, the reasonable person would also have formed the necessary reasonable grounds for suspicion. In O’Hara the House of Lords confirmed that the test was in two parts:

actual suspicion on the part of the officer (or member of the public) that an arrestable offence was at some stage of commission; and
there must be reasonable grounds for that suspicion.

It is my intention to place on this blog a précis of all of my lectures, and will usually try to post them within 48 hours of the event.

There are limitations as to what can occur here, hence there are other ways that I will support you. I have a website at www.lawanswers.org.uk You will need a username and password for this, and I will get it arranged with you in the first couple of weeks.

I have also placed all of my handouts – and there are a lot! – on something called moodle. I will discuss this in class with you.

I shall also give details of an e-mail address, but won’t post it here for fear of spam.