The criminal justice system has unceasingly been the subject of widespread heated debate in Parliament, the broadcast media and the print media, and in academic and professional journals. It has been subject to extensive and continuous statutory change, spanning many areas, including those of criminal evidence, bail, juries and appeals. We examine some of these, where relevant, in this chapter and in Chapters 11 and 14.
The Crime Survey for England and Wales (CSEW) is a face-to-face victimisation survey in which people resident in households in England and Wales are asked about their experiences of a selected number of offences in the 12 months prior to the interview. It covers both children aged 10–15 and adults aged 16 and over, but does not cover those living in group residences (such as care homes, student halls of residence or prisons), or crimes against commercial or public sector bodies. For the population and offence types it covers, the CSEW is a valuable source for providing robust estimates on a consistent basis over time, as it has a consistent methodology and is unaffected by changes in levels of reporting to the police, recording practice or police activity. Respondents to the survey are also asked about their attitudes towards different crime-related issues, such as the police, the criminal justice system, and perceptions of crime and antisocial behaviour. The CSEW provides a better reflection of the true extent of crime because it includes incidents that are not reported to the police and crimes which are not recorded by them.
The CSEW is able to capture all offences experienced by those interviewed, not just those that have been reported to, and recorded by, the police. It covers a broad range of victim-based crimes experienced by the resident household population. However, there are some serious but relatively low-volume offences, such as homicide and sexual offences that are not included in its main estimates.
The latest CSEW published in January 2107, but covering the year ending September 2016 highlights the following main points:
The full report is available on National Statistics website at www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice
This chapter and the following one refer to the ‘criminal justice system’. Governmental responsibilities overlap in this area, with the Home Office and the Ministry of Justice dealing with separate areas (for an overview see www.cps.gov.uk/about/cjs.html#a02). The Ministry of Justice describes its work as follows:
We work to protect the public and reduce reoffending, and to provide a more effective, transparent and responsive criminal justice system for victims and the public.
We are responsible for these parts of the justice system:
We also work in partnership with the other government departments and agencies to reform the criminal justice system, to serve the public and support the victims of crime. We are also responsible for making new laws, strengthening democracy, and safeguarding human rights. (www.gov.uk/government/organisations/ministry-of-justice/about#what-we-do)
A previous White Paper suggested that the idea of a ‘system’ might result in slowness, inefficiency and lack of transparency. Instead, a ‘criminal justice service’ might be more effective (Swift and Sure Justice: The Government’s Plans for Reform of the Criminal Justice System, White Paper, July 2012).
There exists mistrust of the criminal justice system from both those who believe innocent people have been convicted and those who think guilty people escape justice. The number of exposed miscarriages of justice involving malpractice and disastrous errors by agencies of the criminal justice system were discussed in Chapter 9, as was the Royal Commission on Criminal Justice and the establishment of the Criminal Cases Review Commission (CCRC) by the Criminal Appeal Act (CAA) 1995. In the course of this debate, great concern was expressed by pressure groups about the government’s rejection of the Royal Commission’s findings in relation to the so-called right to silence.
This right was effectively undermined by ss 34–37 of the Criminal Justice and Public Order Act (CJPOA) 1994, and this change arguably increased the chances of miscarriages occurring rather than reducing them. Confidence in the criminal justice system appeared at this period to be in decline. In a national survey for the 1962 Royal Commission on the Police (Cmnd 1728, 1962, HMSO), 83 per cent of respondents indicated that they had ‘a great deal of respect’ for the way the police operated. In a national poll in 1993, conducted by MORI for The Sunday Times and the Police Federation, under 50 per cent of respondents indicated that they had ‘a great deal of respect’ for the way the police operated. Ipsos MORI has asked the same question for over 30 years from 1983 to 2014: ‘Do you generally trust the police to tell the truth?’ Positive responses have ranged between 58 and 65 per cent (www.ipsos-mori.com/researchpublications/researcharchive/15/Trust-in-Professions.aspx).
There is a friction between the sorts of policies that these two concerns generate – that is, first, that people seem to want the police to have greater powers to combat crime; yet, contradictorily, the public want greater controls on the police and evidence so as to avoid more miscarriages of justice. The time of the troubles in Ireland, from the late 1960s to the Good Friday Agreement in 1998, was one of particular turbulence and impropriety with unjust convictions against the Winchester Three, the Guildford Four, the Birmingham Six, the Maguire Seven, the Tottenham Three, and the solitary Judith Ward. (When the jury system is considered subsequently and generally defended in Chapter 14 of this text, it should be always be borne in mind that such injustices as are cited above were all condoned by juries.)
Consequently, as the growing problem of crime, and the fear of crime, whether real or perceived, has become more politically important for governments, there are two lobbies arguing for change and these hold diametrically opposed views as to the nature, and consequences of ‘so called’ criminal behaviour.
In this text the criminal process is examined in the following three chapters. This chapter considers the law relating to important pre-trial matters up to and including the admissibility of confession evidence in court. Chapters 11 and 14 look at institutional and procedural aspects of prosecution and matters relating to bail, the classification of offences, trials, plea bargaining and the jury. In examining all these topics, it is important to keep in mind the various aims of the criminal justice system and the extent to which the existing law serves these aims. It could be argued that a criminal justice system should aim:
The criminal justice system is showing signs of strain as it tries to cope with a society in the throes of major transitions. These include changes in the pattern of family life; changes in the nature of employment expectations; the economic downturn; and a revolution in information and communications technology.
In 1993, the prison population of England and Wales was 42,000 (this includes those incarcerated in young offender institutions). In December 2017 there were almost 86,000 people in prison.
Criminal justice has historically been regarded by government as a matter for the state. Recently, however, first under the Conservative government in the early 1990s, then under Labour, and then under the coalition government, various parts of the system have been privatised. Such moves have not generally been seen as runaway successes. Riots at one privately run prison are described at www.theguardian.com/business/2014/jan/06/prison-disorder-hmp-oakwood-g4s. After more than one fiasco, privatised prison escort services have come in for severe criticism. A provision of the CJPOA 1994 allowing for private sponsorship of police equipment was a boon for satirical cartoonists.
By contrast, there are several ways in which aspects of the criminal justice system, historically all independent from each other and detached from governmental control, have been drawn within the influence of central government. It has, for example, been a hallowed precept of the British constitution that police forces are local and not governmental agencies. Yet, under Conservative legislation, the Home Secretary became allowed to ‘determine objectives for the policing of the areas of all police authorities’.
There is also reason for disquiet about the law contained in the Terrorism Act 2000, which makes the opinion of a police officer admissible evidence in court. Proof of membership of a proscribed organisation may be based in part upon the opinion of a senior police officer. Considerable evidence – from miscarriage of justice cases, especially those involving suspects of terrorism from Northern Ireland – showed that some police officers were apparently prepared to lie and falsify evidence to secure convictions. The new law has hence caused some people to become alarmed at the prospect that a person could be convicted of a serious offence on evidence taken mainly from the opinion of a police officer.
Proactive ‘intelligence-led’ policing has become increasingly commonplace in recent years, especially in relation to drugs, protestors and organised crime. Such techniques inevitably involve deception by police officers and their informers (see C Dunnighan and C Norris, ‘A risky business: the recruitment and running of informers by English police officers’ (1996) 19 Police Studies 1). This may involve testing whether a person is willing to commit an offence or infiltrating a protest group. Although English law has never recognised a defence of entrapment, entrapment may be a mitigating factor and a ground for excluding evidence (R v Looseley; Attorney General’s Reference (No 3 of 2000) (2002); see A Ashworth, ‘Re-drawing the boundaries of entrapment’ [2002] Crim LR 161). Civil litigation is under way against the Metropolitan Police in respect of undercover police officers who allegedly had long-term sexual relationships with their targets under the direction of the Commissioner (DIL v Commissioner of Police of the Metropolis (2014)).
The long-running debate over how to deal with the policing and prevention of terrorism is also discussed in detail in Chapter 2 (at 2.5.2).
The Police and Criminal Evidence Act 1984 (PACE) was designed to provide a comprehensive code for policing in response to some of the miscarriages of justice described above. It consists of the Act and accompanying Codes of Practice A – H, issued under s 66 of the Act, and updated at regular intervals. Current versions can be found at www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice. The Serious Organised Crime and Police Act 2005 (SOCPA) made major amendments to PACE by revising the framework of arrest and search powers.
PACE 1984 gives the police power to search ‘any person or vehicle’ and to detain either for the purpose of such a search (s 1(2)). A constable may not conduct such a search ‘unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles’ (s 1(3)). Any such item found during the search can be seized (s 1(6)). An article is ‘prohibited’ if it is either an offensive weapon or it is ‘made or adapted for use in the course of or in connection with burglary, theft, taking a motor vehicle without authority or obtaining property by deception or is intended by the person having it with him for such use by him or by some other person’ (s 1(7)).
Section 1 of PACE was amended by s 1 CJA to include articles made, adapted or intended for use in causing criminal damage, under s 1 of the Criminal Damage Act 1971. The effect is to give police officers power to stop and search where they have reasonable suspicion that a person is carrying, for example, a paint spray can, which they intend to use in producing graffiti.
An offensive weapon is defined as meaning ‘any article made or adapted for use for causing injury to persons or intended by the person having it with him for such use by him or by some other person’ (s 1(9)). This definition is taken from the Prevention of Crime Act 1953. It has two categories: things that are offensive weapons per se (that is, in themselves), like a baton with a nail through the end or knuckle-dusters, and things that are not offensive weapons, like a spanner, but which are intended to be used as such. If the item is in the first category, then the prosecution need prove only that the accused had it with them to put the onus onto the accused to show that they had a lawful excuse.
Stop and search powers can also be exercised under s 8A regarding items covered by s 139 of the CJA 1988. These items are any article that has a blade or is sharply pointed, except folding pocket knives with a blade of less than three inches. It is an offence to possess such items without good reason or lawful authority, the onus of proof being on the defendant. The courts will not accept the carrying of offensive weapons for generalised self-defence unless there is some immediate, identifiable threat.
Under s 2 of PACE 1984, a police officer who proposes to carry out a stop and search must state their name and police station, and the purpose of the search. A plain-clothes officer must also produce documentary evidence that they are a police officer. The officer must also give the grounds for the search. Such street searches must be limited to outer clothing; the searched person cannot be required to remove any article of clothing other than a jacket, outer clothes or gloves. The officer is required to make a record of the search immediately, or as soon as is reasonably practicable afterwards (s 3). The record of the search should include the object of the search, the grounds of the search and its result (s 3). A failure to give grounds as required by s 2(3)(c) will render the search unlawful (R v Fennelley (1989)).
Section 1 of the Crime and Security Act 2010 amends s 3 of PACE 1984 to reduce recording requirements where a search is conducted under s 2 (and see revised paras 4.1–4.10). There is no longer a requirement to record the person’s name or description, whether anything was found or whether any injury or damage was caused as a result of the search. However, the police are obliged to record:
It seems that failure to comply with these conditions will make the search unlawful. See Fennelley (1989), a case where the defendant was not told why he was stopped, searched and arrested in the street. Evidence from the search, some jewellery, was excluded at the trial. Evidence of drugs found on him at the police station was also excluded.
As explained above, the Codes of Practice under PACE clarify how the police should exercise their powers. Code A details how searches under stop and search powers are to be conducted. The admissibility of evidence gained through the use of a dubious stop and search event may be in doubt if there are serious breaches of Code A. Someone charged with obstructing or assaulting a police officer in the exercise of duty may raise breaches of the Code in defence. Unlawful search or seizure may also provide a basis for an application for exclusion of evidence thus obtained under s 78 of PACE 1984.
The primary purpose of stop and search powers is to enable officers to allay or confirm suspicions about individuals without exercising their powers of arrest. The Code applies to powers of stop and search and states at para 2.1(a) that these are ‘powers which require reasonable grounds for suspicion before they may be exercised; that articles unlawfully obtained or possessed are being carried’. The Code makes it clear beyond doubt that searches must not take place unless the necessary legal power exists. The importance of a non-discriminatory approach is stressed throughout.
If an officer asks a member of the public to account for their ‘actions, behaviour, presence in the area or possession of anything’, a record must be made. The person stopped will be entitled to a copy. The 2011 amendments to Code A removed the requirement for officers to record ‘stops’. Police forces are now free to decide in consultation with their local communities whether to continue monitoring the stops on a local level.
In 2011 Code A was further amended to reflect the significant reduction in the quantity of information the police are required to record after a stop and search of a vehicle. While officers are still required to record the ethnicity of the occupant, they are no longer required to record their details, the registration number of the vehicle or even any injury or damage caused.
Reasonable suspicion can never be supported on the basis of personal factors alone. For example, a person’s race, age, appearance, or the fact that the person is known to have a previous conviction cannot be used alone or in combination with each other as the reason for searching that person, and nor can generalisations or stereotypical images of certain groups or categories of people (para 2.2). Paragraph 2.6 states that:
Where there is reliable information or intelligence that members of a group or gang habitually carry knives unlawfully or weapons or controlled drugs, and wear a distinctive item of clothing or other means of identification to indicate their membership of the group or gang, that distinctive item of clothing or other means of identification may provide reasonable grounds to stop and search.
Other means of identification might include jewellery, insignias, tattoos or other features that are known to identify members of the particular gang or group (Note 9).
Any search involving the removal of more than an outer coat, jacket, gloves, headgear or footwear, or any other item concealing identity, may only be made by an officer of the same sex as the person searched and may not be made in the presence of anyone of the opposite sex unless the person being searched specifically requests it (para 3.6). All searches involving exposure of intimate parts of the body shall be conducted in accordance with para 11 of Annex A to Code C (para 3.7). All stops and searches must be carried out with courtesy, consideration and respect for the person concerned. Every reasonable effort must be made to reduce to the minimum the embarrassment that a person being searched may experience (para 3.1).
Paragraph 2.15 introduces powers to require removal of face coverings. (These powers were added by s 60A of the Criminal Justice and Public Order Act 1994; see below.) Paragraph 2.15 states:
The officer exercising the power must reasonably believe that someone is wearing an item wholly or mainly for the purpose of concealing identity. There is also a power to seize such items where the officer believes that a person intends to wear them for this purpose. There is no power for stop and search for disguises. An officer may seize any such item which is discovered when exercising a power of search for something else, or which is being carried, and which the officer reasonably believes is intended to be used for concealing anyone’s identity.
Section 60 of the CJPOA 1994 provides for a stop and search power in anticipation of violence, and was introduced to deal with violent conduct, especially by groups of young men. The section provides that, where authorisation for its use has been granted:
The initial authorisation required by s 60 must be given by a police officer of, or above, the rank of inspector. The authorising officer must reasonably believe that:
Such an authorisation, which must be in writing, will permit the exercise of stop and search powers within that locality for a period up to 24 hours. It may be extended to 48 hours by an officer of, or above, the rank of superintendent. The authorisation could conceivably be given in fear of a single incident, even though the CJPOA 1994 requires fear of ‘incidents’. This is because s 6 of the Interpretation Act 1978 states that the plural includes the singular unless a contrary intention is shown.
The word ‘locality’ is left undefined in the CJPOA 1994. It could be an area outside a particular club or pub, or it might extend to a large estate. The courts have the power to declare an authorisation invalid because of an overly expansive geographical area; they are unlikely to substitute their own view for that of the operational officer.
There is no power to detain especially conferred on officers by s 60 in order to carry out the search, but it does make failure to stop a summary offence. As it stands, there is nothing in s 60 that would permit an officer to use any force to conduct a non-consensual search. It is possible that the courts could imply such a power. Exercise of the s 60 power is subject to the safeguards in Code A.
The scope of s 60 and police powers to stop and search are being incrementally extended through various Acts of Parliament. For example, s 8 of the Knives Act 1997 amended s 60 to deal with anticipated violence in situations where gangs or persons may be ‘tooled up’ and travelling through various police areas en route to an intended scene of confrontation. Thus, the power may be invoked even where it is believed that the actual anticipated violence may occur in another police jurisdiction, for example, by football hooligans travelling to and from matches.
Further amendments to s 60 were made under the CDA 1998. This was mainly to deal with the problem of troublemakers deliberately wearing facial coverings to conceal their identities, especially when the police are using CCTV cameras. Section 25 of the CDA 1998 inserted a new s 4A under s 60, which conferred a power on any constable in uniform to demand the removal of, or seize, face coverings where authority had been given under s 60, if the officer reasonably believed that the face covering was being worn, or was intended to be used, to conceal a person’s identity. The Anti-terrorism, Crime and Security Act 2001 replaced s 60(4A) with s 60AA. This is broader than the earlier subsection and provides for the removal of ‘disguises’. One case involved a protestor who wore a skeleton-type mask at a demonstration. A police officer asked her to remove it. When she failed to do so, he tried to remove it himself. The protestor responded by hitting him in the face. She was charged with assaulting a police officer in the course of his duty. The charge was dismissed by magistrates (partly because the policeman had failed to give his name, the location of his police station, or the reason why he wanted the mask to be removed). The Divisional Court took the view that an assault had been committed: DPP v Avery (2002).
Section 25 also extends s 60(8) and makes it a summary offence if a person fails to stop, or to stop a vehicle, or to remove an item worn by him or her, when required by the police in the exercise of their powers under s 60.
There are dangers that the powers under s 60 could be misused, as no reasonable suspicion is required and the requirements for authorisation are rather nebulous.
As the police have a common law power to take whatever action is necessary in order to prevent an imminent breach of the peace (Moss v Mclachlan (1985)), then, even if a challenge to the use of a s 60 power is technically successful, the police conduct in question may often be thus justified.
However, in R (on the application of Roberts) v Commissioner of Police of the Metropolis (2014), where the exercise of s 60 was challenged under the Human Rights Act 1998 as contrary to Arts 5, 8 and 14 ECHR, the Court of Appeal took a robust view of the s 60 powers. Maurice Kay LJ said that:
In my judgment, the scheme of section 60 cannot be said to be arbitrary. It permits the use of stop and search powers only for a very limited period of time – up to 24 hours, extendable by a maximum of a further 24 hours. Its temporal limitation is accompanied by a territorial limitation. The authorisation must relate to a ‘locality’ within a police area. Accordingly, there is no question of a ‘rolling programme’ across the whole area covered by a police authority. It is based on local intelligence of a specific kind, namely serious violence involving weapons.
He also noted that the individual officer ‘is at all times controlled by Code A issued under the Police and Criminal Evidence Act 1984’ and that Code A has specific provisions relating to the exercise of CJPOA powers (paras 2.12–2.18). In reaching his judgment, he rejected comparisons with Gillan and Quinton v UK (2010) (discussed below).
In a statement to Parliament in April 2014, the then Home Secretary, Theresa May, together with the College of Policing, announced a new code entitled The Best Use of Stop and Search Scheme. The stated principal aims of the Scheme were to achieve ‘greater transparency, community involvement in the use of stop and search powers and to support a more intelligence-led approach, leading to better outcomes, for example, an increase in the stop and search to positive outcome ratio’ and in so doing to improve public confidence and trust.
The specific features of the Scheme were:
Nonetheless, in November 2016 a special inspection by Her Majesty’s Inspectorate of Constabulary found that forces in Greater Manchester, South Yorkshire, Northamptonshire and Derbyshire were not complying with the rules of the new code, although subsequently it was reported in February 2017 that Derbyshire remained the only one of 43 forces in England and Wales that did not comply with the code.
The Terrorism Act 2000 gave exceptional powers of stop and search to uniformed police constables. A person of at least the rank of commander or assistant chief constable, who considered it expedient to do so for the prevention of acts of terrorism, could issue an authorisation specifying a particular area or place (to last for not more than 28 days). This gave a constable power to stop vehicles and pedestrians within that area or place and search the vehicle, driver, passengers, pedestrians (and anything with them) for articles of a kind that could be used in connection with terrorism. These powers could be exercised whether or not the constable had grounds for suspecting the presence of articles of that kind. The constable could seize and retain an article that they discovered in the course of such a search and that they reasonably suspected was intended to be used in connection with terrorism (ss 44 and 45). By s 47, it was an offence to fail to stop a vehicle when required to do so, fail to stop when required to do so, and wilfully to obstruct a constable in the exercise of these powers. The offences are punishable with six months’ imprisonment and/or a fine of up to £5,000.
These provisions were not confined to terrorism in connection with Northern Ireland or international terrorism. ‘Terrorism’ means the use or threat of action involving serious violence against a person, serious damage to property, endangering the life of a person other than the ‘terrorist’. This must be coupled with creating a serious risk to the health or safety of the public or a section of the public, or designing seriously to interfere with or seriously to disrupt an electronic system. The above action(s) must be designed to influence the government or to intimidate the public or a section of the public, and made for the purpose of advancing a political, religious or ideological cause. However, where the use or threat of action involves the use of firearms or explosives, it need not be designed to influence the government or to intimidate the public or a section of the public.
In Gillan and Quinton v UK (2010) the ECtHR held that the requirement on a person to submit to a stop and search under s 44 of the TA 2000 represented a clear interference with the right to respect for private life under Art 8 ECHR, finding that the provisions of the TA 2000 had been neither sufficiently circumscribed nor subject to adequate safeguards against abuse. The court was also influenced by the massive increase in the use of the power since it had been introduced and the fact that it was disproportionately used against ethnic minorities. As a result of the judgment, the coalition government made a remedial order under the Human Rights Act 1998 (the Terrorism Act 2000 (Remedial) Order 2011), which has the effect of repealing ss 44, 45, 46 and most of s 47. The new Protection of Freedoms Act 2012 now provides the police with more circumscribed powers to authorise stop and search of persons and vehicles without reasonable suspicion (s 47A) in exceptional circumstances. This places the powers provided by the Terrorism Act 2000 Remedial Order 2011 on a permanent footing. The Protection of Freedoms Act 2012 also changes stop and search powers in the Terrorism Act 2000 (ss 43 and 43A) which require reasonable suspicion to enable searches of vehicles or their occupants. Codes of practice supporting the new legislation were laid before Parliament in May 2012 in the form of the Terrorism Act 2000 (Codes of Practice for the Exercise of Stop and Search Powers) Order 2012. In addition PACE codes of practice C, G and H have been amended to introduce a new code of practice for the video-recording with sound of interviews carried out under s 41 of, and Sched 7 to, the Terrorism Act 2000 and post-charge questioning of terrorist suspects under the Counter-Terrorism Act 2008.
Section 18 of PACE provides powers to enter and search premises. These are further covered by Code B. Paragraph 1.3 states:
The right to privacy and respect for personal property are key principles of the Human Rights Act 1998. Powers of entry, search and seizure should be fully and clearly justified before use because they may significantly interfere with the occupiers’ privacy. Officers should consider if the necessary objectives can be met by less intrusive means.
Paragraph 7.7 states:
The Criminal Justice and Police Act 2001, Part 2, gives officers limited powers to seize property from premises or persons so that they can sift or examine it elsewhere. Officers must be careful they only exercise these powers when it is essential and they do not remove any more material than necessary. The removal of large quantities of material, much of which may not ultimately be retainable, may have serious implications for the owners… Officers must carefully consider if removing copies or images of relevant material or data would be a satisfactory alternative to removing originals.
In 2011, amendments to Code B extended the conditions which must be met in order for a search under s 18 of PACE to be authorised. Under the previous version of the Code, para 4.3 required that the authorising officer (of the rank of inspector or above) be satisfied that the necessary grounds under s 18 existed. This paragraph has now been extended to require the inspector to be satisfied, in addition to the grounds set out in s 18, ‘that the premises are occupied or controlled by the arrested person’. This reflects the judgment in Khan v Commissioner of Police of the Metropolis (2008). A suspect had falsely provided Mr Khan’s address as his own upon arrest. Entry and search of this address was duly authorised and undertaken under s 18. The Commissioner argued that s 18 should be interpreted so as to qualify the requirement of occupation and control by the suspect by reference to the belief of knowledge of the officer. The Court of Appeal rejected this submission and, dismissing the Commissioner’s appeal, found that there was no justification for such a reading and that ‘the requirement for occupation or control is central and fundamental to the operation of section 18’. The amended Code A was an attempt to achieve what the Metropolitan Police Commissioner failed to do in Khan: that is, to circumvent the clear wording of s 18 to protect the police from claims for damages in circumstances where the wrong address is searched in good faith.
According to AV Dicey, ‘individual rights are the basis not the result of the law of the constitution’ (Law of the Constitution, 6th edn, p 203; cited by Judge LJ in R v Central Criminal Court ex p The Guardian, The Observer and Bright (2002)). Before considering the rights of the citizen and the law governing arrest and detention, what happens in the police station and what evidence is admissible in court, it is appropriate to look first at what the citizen can do if those rights are violated.
Like other areas of law where the liberty of the subject is at stake, the law relating to arrest is founded upon the principle of justification. If challenged, the person who has attempted to make an arrest must justify his actions and show that the arrest and subsequent detention was lawful. Failing this, the arrest will be regarded as unlawful. In Roberts v Chief Constable of Cheshire Police (1999), the Court of Appeal held that a failure to carry out a review of detention in accordance with s 40 of PACE 1984 rendered a subsequent period of detention unlawful. However, in Lewis v Chief Constable of South Wales (1991) it was held that informing an arrested person of reasons for their arrest made a previously unlawful arrest lawful from that moment onwards.
There are four possible remedies:
78(1) In any proceedings, the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
This perhaps surprising rule was supported by the Royal Commission on Criminal Justice (although the argument there was chiefly focused on the admissibility of confession evidence). Professor Zander, however, in a note of dissent, contested the idea that a conviction could be upheld despite serious misconduct by the prosecution if there is other evidence against the convicted person. He states: ‘I cannot agree. The moral foundation of the criminal justice system requires that, if the prosecution has employed foul means, the defendant must go free if he is plainly guilty… the conviction should be quashed as an expression of the system’s repugnance.’ An extreme case might involve the admissibility of confession evidence obtained by torture by the authorities in another country (see for example Gäfgen v Germany (2011)). As well as interpretation of s 78(1) of PACE 1984, under the Human Rights Act 1998 any court must take Art 6 of the European Convention on Human Rights (ECHR) into account in appropriate circumstances.
Apart from the question of civil remedies, it is important to remember that if the arrest is not lawful, there is the right to use reasonable force to resist it (R v Waterfield (1964); Kenlin v Gardiner (1967)). This is a remedy, however, of doubtful advisability, as the legality of the arrest will only be properly tested after the event in a law court. If a police officer was engaged in what the courts decide was a lawful arrest or conduct, then anyone who uses force against the officer might have been guilty of an offence of assaulting an officer in the execution of his duty, contrary to s 89(1) of the Police Act 1996.
In Spicer v Holt (1977), Lord Dilhorne stated:
Whether or not a person has been arrested depends not upon the legality of the arrest, but on whether he has been deprived of his liberty to go where he pleases.
So, a person detained by the police against his will is arrested. Whether this arrest is lawful will depend on whether the conditions for a lawful arrest have been satisfied.
Lawful arrests are those: (1) under warrant; (2) without warrant at common law; or (3) without warrant under legislation.
The police lay a written information on oath before a magistrate that a person ‘has, or is suspected of having, committed an offence’ (s 1 of the Magistrates’ Courts Act 1980). The Criminal Justice Act (CJA) 1967 provides that warrants should not be issued unless the offence in question is indictable or is punishable with imprisonment.
Under the Extradition Act 2003, European arrest warrants may be obtained in the UK by other EU Member states. The traditional approach (found in extradition agreements) embodied the principle of ‘dual criminality’ – that is, a person would not be extradited from one state to another unless their alleged offence was an extraditable crime in both countries. This requirement has now been removed from a list of 32 offences. The inclusion of ‘racism and xenophobia’ has aroused some controversy. (See S Allegre, ‘The myth and the reality of a modern European judicial space’ (2002) 152 NLJ 986.)
The only power to arrest at common law is where a breach of the peace has been committed and there are reasonable grounds for believing that it will be continued or renewed, or where a breach of the peace is reasonably apprehended. Essentially, it requires conduct related to violence, real or threatened. A simple disturbance does not, in itself, amount to a breach of the peace unless it results from violence, real or threatened.
In 1981, two cases decided within months of each other offered definitions of a breach of the peace, in an attempt to bring some clarification to an area of law that previously was in doubt. In R v Howell (1981), the defendant was arrested after being involved in a disturbance at a street party in the early hours of the morning. Watkins LJ, who delivered the judgment of the court, observed that there was a power of arrest for anticipated breach of the peace, provided the arrestor had been witness to the earlier shouting and swearing of H. It followed that there must be reasonable grounds for belief, and the arrestor must believe at the time that the defendant’s conduct, either alone or as part of a general disturbance, was likely to lead to the use of violence by the defendant or someone else in the officer’s presence.
The court adopted the following definition of ‘breach of the peace’. It occurs:
Wherever harm is actually done, or is likely to be done to a person, or in his presence to his property, or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.
In the second of the two cases, R v Chief Constable of the Devon and Cornwall Constabulary ex p Central Electricity Generating Board (CEGB) (1981), Lord Denning MR suggested that breach of the peace might be considerably wider than this. This case involved a group of protestors who had occupied private land in order to prevent CEGB employees from carrying out a survey to assess its suitability for a nuclear power station. The protest was intended to be peaceful and non-violent. Lord Denning MR suggested that:
There is a breach of the peace whenever a person who is lawfully carrying out his work is unlawfully and physically prevented by another from doing it… If anyone unlawfully and physically obstructs the worker, by lying down or chaining himself to a rig or the like, he is guilty of a breach of the peace.
He appears to have been saying (Feldman, Civil Liberties and Human Rights in England and Wales (1993), pp 788–89) not that a breach of the peace is automatic in such circumstances. Instead, in the context of the CEGB case, any obstruction or unlawful resistance by the trespasser could give the police a reasonable apprehension of a breach of the peace, in the sense of violence.
However, in cases that have followed (such as Parkin v Norman (1982); Percy v DPP (1995); and Foulkes v Chief Constable of Merseyside Police (1998)), it is the definition in R v Howell that has been preferred. Despite earlier doubts, argues Parpworth (‘Breach of the peace: breach of human rights?’ (1998) 152 JP 6, 7 November), the decision of the European Court of Human Rights (ECtHR) in Steel and Others v UK (1998) brings clear and authoritative clarification to this area of law. This case represents ‘a clear endorsement by a court largely unfamiliar with the common law concept of a breach of the peace that such a concept is in accordance with the terms of the European Convention on Human Rights’.
At common law, a constable may arrest a person for conduct that they genuinely suspect might be likely to cause a breach of the peace even on private premises where no member of the public is present (McConnell v Chief Constable of Manchester (1990)). Although mere shouting and swearing alone will not constitute a breach of the peace, it is an offence under s 28 of the Town Police Causes Act 1847. If it causes harassment, alarm or distress to a member of the public, it may constitute an offence under s 5 of the Public Order Act 1986. In either case, it could lead to arrest under the Police and Criminal Evidence Act 1984.
The right to arrest is generally governed by s 24 of PACE 1984 (as amended by SOCPA 2005 s 110) in respect of arrest by police officers and s 24A in respect of arrest by other people. PACE 1984 preserves an old common law distinction in respect of the powers of constables and private individuals when making such arrests (Walters v WH Smith & Son Ltd (1914)). Where an arrest is being made after an offence is thought to have been committed, then PACE 1984 confers narrower rights upon the private individual than on the police officer.
In particular, the changes made by SOCPA provide, in the case of a constable’s power of arrest, for all offences to be ‘arrestable’ subject to a necessity test. This means that someone who has committed a relatively low-order criminal offence, like littering, could, in theory, be arrested if an officer deemed it necessary and was able to satisfy his or her desk sergeant at the police station that this was so. That might occur, for example, if the person being requested to pick up the litter refused to do so, and then refused to give his or her name to the officer.
SOCPA extended police powers in a highly controversial way. The case to extend powers for the police is built on the idea that those who have done nothing wrong will have nothing to fear from the exercise of the powers. The extension of police powers is also defended on the grounds that any arrest, to be lawful, must be ‘necessary’ (see s 24(5) of PACE as amended, above, by s 110 of the Serious Organised Crime and Police Act).
There are, however, clear reasons for concern at this development. A society in which the police have unlimited powers can be described as a ‘police state’, and such tyranny is almost universally disfavoured. That, of course, is very far from the position now in the UK, a country that has what are among the best-protected liberties in the world. However, the closer that law in the UK moves towards giving the police very wide powers to arrest, the greater the need for concern. A society in which people can be arrested for any offence, in which CCTV is ubiquitous (Surveillance UK, The Independent, 22 December 2005), and in which police ‘success’ is progressively measured by how many arrests and crimes are solved, might reduce certain sorts of offending (although many sorts of criminality are not reduced by such policies). But how comfortable a place would it be to live? The inhabitants of many countries in which there are dictatorial governments and no respect for civil liberties do not seem to rejoice in the crime-free streets. At all events, the most desirable balance between freedom not to be interfered with by police officers, and policing that improves society by effectively reducing crime, is ultimately a political question for the public, rather than the small section of the public comprising judges, lawyers and police officers.
Many of the powers of the police in relation to arrest, search and seizure are founded upon the presence of reasonable ‘suspicion’, ‘cause’ or ‘belief’ in a state of affairs, usually that a suspect is involved actually or potentially in a crime.
In Castorina v Chief Constable of Surrey (1988), detectives reasonably concluded that the burglary of a company’s premises was an ‘inside job’. The managing director told them that she had recently dismissed someone (the plaintiff), although she did not think it would have been her, and that the documents taken would be useful to someone with a grudge. The detectives interviewed the plaintiff, having found out that she had no criminal record, and arrested her under s 2(4) of the Criminal Law Act (CLA) 1967 (which has now been replaced by s 24 PACE 1984). She was detained at the police station for almost four hours, interrogated and then released without charge. On a claim for damages for wrongful arrest and detention, a jury awarded her £4,500. The trial judge held that the officers had had a prima facie case for suspicion, but that the arrest was premature. He had defined ‘reasonable cause’ (which the officers would have needed to show they had when they arrested the plaintiff) as ‘honest belief founded upon reasonable suspicion leading an ordinary cautious man to the conclusion that the person arrested was guilty of the offence’. He said an ordinary man would have sought more information from the suspect, including an explanation for any grudge on her part. In this, he relied on the dicta of Scott LJ in Dumbell v Roberts (1944) that the principle that every man was presumed innocent until proved guilty also applied to arrests. The Court of Appeal allowed an appeal by the chief constable. The court held that the trial judge had used too severe a test in judging the officers’ conduct.
Purchas LJ said that the test of ‘reasonable cause’ was objective and therefore the trial judge was wrong to have focused attention on whether the officers had ‘an honest belief’. The question was whether the officers had had reasonable grounds to suspect the woman of the offence. There was sufficient evidence that the officers had had sufficient reason to suspect her.
Woolf LJ thought there were three things to consider in cases where an arrest is alleged to be unlawful:
This case hinged on the second point and, on the facts, the chief constable should succeed on the appeal.
The Wednesbury principles come from Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948). Lord Greene MR laid down principles to determine when the decision made by a public authority could be regarded as so perverse or unreasonable that the courts would be justified in overturning that decision. The case actually concerned whether a condition imposed by a local authority on cinemas operating on Sundays was reasonable. Lord Greene MR said:
[A] person entrusted with a discretion must, so to speak, direct himself properly in law. He must call his own attention to matters which he is bound to consider. He must exclude from his consideration matters which are irrelevant to what he has to consider. If he does not obey those rules, he may be truly said, and often is said, to be acting ‘unreasonably’.
Sir Frederick Lawton, the third judge in the Court of Appeal in Castorina, agreed. The facts on which ‘reasonable cause’ was said to have been founded did not have to be such as to lead an ordinary cautious man to conclude that the person arrested was guilty of the offence. It was enough if they could lead an ordinary person to suspect that he or she was guilty.
This creates quite some latitude for the police. Additionally, the House of Lords has decided in Holgate-Mohammed v Duke (1984) that, where a police officer reasonably suspects an individual of having committed an arrestable offence, they may arrest that person with a view to questioning them at the police station. The police officer’s decision can only be challenged on Wednesbury principles if they acted improperly by taking something irrelevant into account. The police arrested a former lodger for theft of jewellery from the house where she had lived in order to question her at the police station. The trial judge awarded her £1,000 damages for false imprisonment. The Court of Appeal set aside the award and the decision was upheld by the House of Lords. The following passage from a judgment in the Court of Appeal in Holgate-Mohammed was approved in the House of Lords:
As to the proposition that there were other things which [the police officer] might have done. No doubt there were other things which he might have done first. He might have obtained a statement from her otherwise than under arrest to see how far he could get. He might have obtained a specimen of her handwriting and sent that off for forensic examination against a specimen of the writing of the person who had obtained the money by selling the stolen jewellery, which happened to exist in the case. All those things he might have done. He might have carried out fingerprint investigations if he had first obtained a print from the plaintiff. But, the fact that there were other things which he might have done does not, in my judgment, make that which he did do into an unreasonable exercise of the power of arrest if what he did do, namely, to arrest, was within the range of reasonable choices open to him.
It has been forcefully contended, however, that, in some circumstances, a failure to make inquiries before making an arrest could show that there were insufficient grounds for the arrest. (See Clayton and Tomlinson, ‘Arrest and reasonable grounds for suspicion’ (1988) Law Soc Gazette, 7 September.)
Note, however, that the powers are discretionary. (See Simpson v Chief Constable of South Yorkshire Police (1991).)
For there to be an arrest, the arrestor must regard his action as an arrest. If they simply detain someone to question them without any thought of arrest, the action will be unlawful. It is often reported in criminal investigations that a person is ‘helping police with their inquiries’. In R v Lemsatef (1977), Lawton LJ said:
It must be clearly understood that neither customs officers nor police officers have any right to detain somebody for the purposes of getting them to help with their inquiries.
There is no police power to detain someone against his will in order to make inquiries about that person (see also Franchiosy (1979)). This is confirmed by s 29 of PACE 1984, which states that where someone attends a police station ‘for the purpose of assisting with an investigation’, they are entitled to leave at any time unless placed under arrest. They must be informed at once that they are under arrest ‘if a decision is taken by a constable to prevent him from leaving at will’. There is, however, no legal duty on the police to inform anyone whom they invite to the station to help with their inquiries that they may go.
In Kenlin v Gardiner (1967), a police officer took hold of the arm of a boy he wanted to question about the latter’s suspicious conduct. The boy did not believe the man was a policeman, despite having been shown a warrant card, and punched the officer in order to escape. The other boy behaved similarly, but their convictions for assaulting an officer in the execution of his duty were quashed by the Divisional Court. The court held that the boys were entitled to act as they did in self-defence as the officer’s conduct in trying to physically apprehend them had not been legal. There is no legal power of detention short of arrest. As Lawton LJ observed in R v Lemsatef (see above), the police do not have any powers to detain somebody ‘for the purposes of getting them to help with their inquiries’.
It is important, however, to examine the precise circumstances of the detaining officer’s conduct. There are cases to suggest that if what the officer does amounts to only a de minimis interference with the citizen’s liberty, then forceful ‘self-defence’ by the citizen will not be justified. In Donnelly v Jackman (1970), an officer approached a suspect to ask some questions. The suspect ignored the request and walked away from the officer. The officer followed and made further requests for the suspect to stop and talk. He tapped the suspect on the shoulder and the suspect reciprocated by tapping the officer on the shoulder and saying ‘Now we are even, copper’. The officer tapped the suspect on the shoulder again, which was replied to with a forceful punch. Mr Donnelly’s conviction was upheld and the decision in Kenlin v Gardiner was distinguished as, in the earlier case, the officer had actually taken hold of the boys and detained them. The court stated that ‘it is not every trivial interference with a citizen’s liberty that amounts to a course of conduct sufficient to take the officer out of the course of his duties’.
In Bentley v Brudzinski (1982), the facts were very close to those above. A constable stopped two men who had been running barefoot down a street in the early hours. He questioned them about a stolen vehicle as they fitted the description of suspects in an earlier incident. They waited for about 10 minutes while the officer checked their details over a radio and then they began to leave. Another constable, who had just arrived on the scene, then said, ‘Just a minute’, and put his hand on the defendant’s shoulder. The defendant then punched that officer in the face. Unlike the decision in Donnelly v Jackman, the Divisional Court held that the officer’s conduct was more than a trivial interference with the citizen’s liberty and amounted to an unlawful attempt to stop and detain him. The respondent was thus not guilty of assaulting an officer in the execution of his duty.
Note, also, that a person may be arrested for being silent or misleading under s 25(5)(a) and (b) of PACE 1984, if the officer cannot ascertain or has reasonable doubts about the suspect’s name and address.
The power to search after arrest somewhere other than at the police station is governed by s 32 of PACE 1984 (searches of detained persons are dealt with by s 54 and Code C, para 4.1). Section 32(1) allows the police to search someone arrested where there are grounds for believing that he may present a danger to himself or to others. Section 32(2) allows a search for anything that might be used to effect an escape or which might be evidence relating to any offence. Additionally, s 32(2)(b) gives the police power to enter and search the premises he or she was in when arrested, or immediately before he or she was arrested, for evidence relating to the offence for which he or she was arrested. Unlike the power to search under s 18, this is not limited to arrestable offences, nor do the searched premises need to be occupied or controlled by him or her. Such searches, however, are only lawful where there are reasonable grounds for believing that the search might find something for which a search is permitted under s 32(2)(b). Random or automatic searching is not lawful. Section 32(4) states that a person searched in public cannot be required to take off more than outer garments like coats, jackets and gloves. An officer may search the arrested person’s mouth at the time of the arrest if he or she has reasonable grounds to believe that the arrested person is concealing therein evidence related to the offence (s 32(4)).
At common law (that is, before PACE 1984), it was necessary for the arrestor to make it clear to the arrestee that he was under compulsion either: (a) by physical means, such as taking him by the arm; or (b) by telling him, orally, that he was under compulsion. There was a danger, where words alone were used, that they might not be clear enough. Consider Alderson v Booth (1969). Following a positive breathalyser test, the officer said to the defendant: ‘I shall have to ask you to come back to the station for further tests.’ D did accompany the officer to the station. Lawful arrest was a condition precedent to anyone being convicted of driving with excess alcohol in their blood. At his trial, the defendant said he had not been arrested. He was acquitted and the prosecution appeal failed. Compulsion is a necessary element of arrest and the magistrates were not convinced that it was present in this case. The Divisional Court was not prepared to contradict the factual finding of the magistrates.
Additionally, where words alone were used, it was necessary for the arrestee to accede to the detention. There was no arrest where the arrestor said ‘I arrest you’ and the arrestee ran off before he could be touched (see Sandon v Jervis (1859)).
These principles remain good law after PACE 1984; see, for example, Nichols v Bulman (1985).
According to s 28(3) of PACE 1984, no arrest is lawful unless the arrestee is informed of the ground for the arrest at the time of, or as soon as reasonably practicable after, the arrest. Where a person is arrested by a constable, this applies (s 28(4)) regardless of whether or not the ground for the arrest is obvious.
The reasons for this rule were well put by Viscount Simon in Christie v Leachinsky (1947):
[A] person is prima facie entitled to personal freedom [and] should know why for the time being his personal freedom is being interfered with… No one, I think, would approve of a situation in which when the person arrested asked for the reason, the policeman replied ‘that has nothing to do with you: come along with me’… And there are practical considerations… If the charge… is then and there made known to him, he has the opportunity of giving an explanation of any misunderstanding or of calling attention to other persons for whom he may have been mistaken, with the result that further inquiries may save him from the consequences of false accusation.
An arrest, however, becomes lawful once the ground is given. In Lewis v Chief Constable of the South Wales Constabulary (1991), the officers had told the plaintiffs of the fact of arrest, but delayed telling them the grounds for 10 minutes in one case and 23 minutes in the other. The Court of Appeal said that arrest was not a legal concept but arose factually from the deprivation of a person’s liberty. It was also a continuing act and therefore what had begun as an unlawful arrest could become a lawful arrest. The remedy for the plaintiffs was the damages they had been awarded for the 10 minutes and 23 minutes of illegality: £200 each.
In Nicholas v Parsonage (1987), N was seen riding a bicycle without holding the handlebars by two police officers. They told him twice to hold the bars and then he did so. When they drove off, N raised two fingers. They then stopped N and PC Parsonage asked him for his name, telling him it was required as he had been riding his bicycle in a dangerous manner. N refused. P then informed him of his powers under PACE 1984 and requested N’s name and address. N again refused. P then arrested him for failing to give his name and address. N attempted to ride off and a struggle ensued. N was subsequently convicted of, inter alia, assaulting a police officer in the execution of his duty, contrary to s 51(1) of the Police Act 1964. His appeal was dismissed by the Divisional Court, which held that the arrest under s 25 of PACE 1984 (the law then in force) had been lawful as a constable exercising power under s 25(3) was not required to say why he wanted the suspect’s name and address. N had been adequately informed of the ground of arrest under s 28(3) of PACE 1984. N was not arrested for failing to give his name and address; he was arrested because, having committed the minor offence of ‘riding in a dangerous manner’, it then became necessary to arrest him because the conditions in s 25(3)(a) and (c) were satisfied. These conditions were that an arrest for a minor offence is possible where the officer believes that the service of a summons is impracticable because he has not been given a proper name and address.
Is it necessary for an arrestor to indicate to the arrestee the grounds on which his ‘reasonable suspicion’ was based? In Geldberg v Miller (1961), the appellant parked his car outside a restaurant in London while he had a meal. He was asked by police officers to move the car. He refused, preferring to finish his meal first. On being told that the police would remove the car, he removed the rotor arm from the distributor mechanism. He also refused to give his name and address or show his driving licence and certificate of insurance. He was arrested by one of the officers for ‘obstructing him in the execution of his duty by refusing to move his car and refusing his name and address’. There was no power to arrest for obstruction of the police as no actual or apprehended breach of the peace was involved. The court held, however, that the arrest was valid for ‘obstructing the thoroughfare’, an offence under s 56(6) of the Metropolitan Police Act 1839, an offence the officer had not mentioned. Lord Parker CJ said:
In my judgment, what the appellant knew and what he was told was ample to fulfil the obligation as to what should be done at the time of an arrest without warrant.
An arrest will be unlawful, however, where the reasons given point to an offence for which there is no power of arrest (or for which there is only qualified power of arrest) and it is clear that no other reasons were present in the mind of the officer (Edwards v DPP (1993)). This principle was confirmed in Mullady v DPP (1997). A police officer arrested M for ‘obstruction’, an offence with the power of arrest only if the defendant’s conduct amounted to a breach of the peace (for which there is a common law power of arrest) or if one of the general arrest conditions as set out in s 25 is satisfied. The police argued that the officer could have arrested M for a breach of the peace and merely gave the wrong reason. The Divisional Court held that the officer had acted unlawfully and that it would be wrong for the justices to go behind the reason given and infer that the reason for the arrest was another lawful reason.
In some circumstances, the court may infer a lawful reason for an arrest if the circumstantial evidence points clearly to a lawful reason (Brookman v DPP (1997)). However, if there is insufficient evidence to determine whether a lawful or unlawful reason was given for the arrest, then the police will fail to show that the arrest was lawful (Clarke v DPP (1998)).
The use of force by a member of the public when arresting someone is governed by s 3 of the CLA 1967. This states:
(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.
Reasonable force will generally mean the minimum necessary to effect an arrest. The use of force by police officers is governed by s 117 of PACE 1984. This states:
Where any provision of this Act:
A person arrested by a constable, or handed over to one, must be taken to a police station as soon as is ‘practicable’, unless his or her presence elsewhere is ‘necessary in order to carry out such investigations as it is reasonable to carry out immediately’ (s 30(1), (10) of PACE 1984). Where a citizen makes an arrest, he ‘must, as soon as he reasonably can, hand the man over to a constable or take him to the police station or take him before a magistrate’, per Lord Denning in Dallison v Caffery (1965). There is no requirement, however, that this be carried out immediately (John Lewis & Co v Tims (1952)).
Before moving into the specific provisions of PACE 1984 and the Codes of Practice as they apply in the police station, it is important to be aware of the general issues at stake in this area of law. Are the rights of suspects being interrogated by the police sufficiently protected by law? Is there scope for abuse of power by the police? Are the police burdened by too many legal requirements when trying to induce a suspect to confess to a crime? What effects are likely to flow from the undermining of the right to silence (see ss 34–37 of the CJPOA 1994)?
Once again, it is also necessary to bear in mind the significance of the ECHR in this context. Unless impossible because of conflicting primary legislation, English courts must interpret rules of law so as to be compatible with obligations under the ECHR. Article 5 guarantees a right to liberty. To justify depriving a person of their liberty before conviction for an offence, for example, Art 5 requires that there be a lawful arrest or detention for the purpose of bringing the person before a competent authority on a reasonable suspicion of having committed an offence, or that arrest or detention is considered reasonably necessary to prevent them from committing an offence. Moreover, every person arrested shall be informed promptly in a language that they understand of the reasons for their arrest. The arrested person shall be informed of any charge against them, shall be brought promptly before a judge and shall be entitled to trial within a reasonable time or to release pending trial. Clearly, PACE requirements in relation to arrest and detention must be measured against Art 5. Equally, Art 6 requires a fair trial and declares a presumption of innocence, matters that bear on the conduct of the trial, the evidence presented, and the obligation to offer explanations or risk the consequences of adverse inferences being drawn from silence.
Under s 40 of PACE 1984, the Custody Officer is obliged to review the detention of a suspect held at the police station as follows:
Section 6 of the CJA 2003 introduced a new innovation – the use of telephones for review of police detention (s 40A PACE). This provision enables reviews of the continuing need for detention without charge carried out under s 40 of PACE 1984 to be conducted over the telephone rather than in person at the police station. Such reviews have to be carried out by an officer of at least inspector rank. PACE 1984 only allows telephone reviews where it is not reasonably practicable for the reviewing officer to be present at the police station.
Under s 41 of PACE 1984, a suspect can be held without being charged for 24 hours before any further authorisation needs to be given. At this point, the situation must be reviewed and further detention must be authorised by an officer of at least the rank of superintendent (s 42). This can only be done if an officer of sufficient rank is satisfied that detention is necessary to secure, preserve or obtain evidence, that the investigation is being conducted diligently and expeditiously, and that the relevant offence was an indictable offence. The period is measured from arrival at the police station. If they are arrested by another force, the time runs from their arrival at the station of the area where they are wanted. If further detention is authorised, this can continue for up to the 36-hour point. After 36 hours from the beginning of the detention, there must be a full hearing in a magistrates’ court with the suspect and, if they wish, legal representation (s 43). The magistrates can grant a warrant of further detention for up to a further 60 hours – making a total of 96 hours (ss 43 and 44). However, the police could not be granted the 60-hour period as a whole because the maximum extension that a magistrates’ court can grant at one time is 36 hours (ss 43(12) and 44). The magistrates can only grant such extensions if the offence being investigated is an indictable offence and is being investigated diligently and expeditiously. Moreover, it must be shown that the further detention is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest or to obtain such evidence by questioning them (s 43(4)).
The capacity for extended detention without charge, which has been broadened since the original passage of PACE, assists the police in dealing effectively with a range of offences, for example robbery, where it will sometimes be extremely difficult or impossible to complete the necessary investigatory processes within 24 hours.
Section 38 states that, after being charged, the arrested person must be released with or without bail, unless:
If the suspect is charged and not released, they will have to be brought before a magistrates’ court ‘as soon as practicable’ – and not later than the first sitting after being charged (s 46(2)).
Under s 39 PACE, the custody officer has responsibility for ensuring that treatment at the police station complies with PACE and the codes of practice and has some decision-making powers in relation to detention, release and eventual charging (see Chapter 11).
The right to have someone informed after arrest is given to all suspects after arrest (s 56 PACE). It can be delayed for up to 36 hours, however, if the case involves an indictable offence and it must be authorised by an inspector on certain grounds; for example, the arrested person would alert others involved in a crime.
Access to legal advice is provided for under s 58 and Code C. The notification must accord with details set out in Code C. Legal advice can be delayed if authorised by a superintendent on various grounds. In certain circumstances, questioning can begin before the detainee’s legal adviser arrives.
Code C, paras 8–9 and 12 cover basic rights to food, drink, sleep and an interpreter during detention, including interviews.
Searches of people detained at police stations are governed by s 54 PACE 1984 and Code C. Section 54 and Code C, para 4.1 require the custody officer (a particular officer with special responsibilities in police stations) to take charge of the process of searching detainees. He or she must ascertain what the suspect has with them unless they are to be detained for only a short time and not put in a cell. The person detained can be searched to enable this to happen, but the custody officer needs to believe it to be necessary; it is not an automatic right (s 54(6)). Anything the detainee has can be seized and retained, although clothes and personal effects can only be kept if the custody officer believes that the detained person may use them to escape, interfere with evidence, or cause damage or injury to themselves, to others or to property (s 54(4)). The police are not permitted, however, to retain anything protected by legal professional privilege, that is, private legal communications between the detainee and their legal adviser. The police can also seize things they reasonably believe to be evidence of an offence. A search must be carried out by a constable who is the same sex as the person to be searched. Strip searches can only be made where the custody officer thinks it necessary to get some item that the detainee would not be allowed to keep. The officer must make a record of the reason for the search and its result. Section 8 CJA removed the requirement of the custody officer to record or cause to be recorded everything a detained person has with him on entering custody. The custody officer is under a duty to ascertain what the person has with them, but the nature and detail of any recording is at the custody officer’s discretion. They also have a discretion as to whether the record is kept as part of the custody record or as a separate record.
Part V of PACE also includes a wide range of powers to take, for example, fingerprints, footwear impressions and both intimate and non-intimate samples, and details when this may be done without consent. The destruction, retention and use of those samples and DNA evidence derived from them has been very controversial given the massive scientific strides in this area. In S and Marper v UK (2009) the ECtHR held that, contrary to the House of Lords’ earlier decision, holding DNA samples of people who were arrested but later acquitted or had the charges against them dropped was a violation of the right to privacy under Art 8 ECHR. The Protection of Freedoms Act 2012 introduced a new regime to govern this, which has been added to PACE as ss 63D – 63U. This is a complex regime. It is fully discussed and its compliance with Art 8 considered in Cape (2013) ‘The Protection of Freedoms Act 2012: the retention and use of biometric data provisions’ Crim LR 23.
The Policing and Crime Act 2017 extended the existing rules on retention of DNA and fingerprints of those with convictions in England and Wales to those with convictions elsewhere.
The police are free to ask anyone any questions. The only restriction is that all questioning is supposed to cease once a detainee has been charged. Code C, para 11.6 states that:
The interview or further interview of a person about an offence with which that person has not been charged or for which they have not been informed they may be prosecuted must cease when the officer in charge of the investigation:
This paragraph does not prevent officers in revenue cases or acting under the confiscation provisions of the Criminal Justice Act 1988 or the Drug Trafficking Act 1994 from inviting suspects to complete a formal question and answer record after the interview is concluded.
There is no obligation on a citizen to answer police questions. A person cannot be charged, for example, with obstructing the police in the execution of their duty simply by failing to answer questions. Although a judge or prosecutor cannot suggest to the jury that such silence is evidence of guilt, adverse inferences might be drawn in court from a defendant’s earlier refusal to answer police questions if he or she has been given the police caution (see below – s 34 of the CJPOA 1994). ‘Adverse inferences’ can be drawn, the logic runs, on the basis that failure to answer questions suggests there is something to hide, or there is no explanatory, adequate answer. What is clear, however, is that a conviction cannot be founded on silence alone in the absence of any other evidence. Judges seem to have interpreted this section rather narrowly. Lord Bingham CJ, for example, said in R v Bowden (1999):
Proper effect must of course be given to these provisions… But since they restrict rights recognised at common law as appropriate to protect defendants against the risk of injustice, they should not be construed more widely than the statutory language allows.
In Rice v Connolly (1966), the appellant was seen by officers in the early hours of the morning behaving suspiciously in an area where house-breaking had taken place on the same evening. On being questioned, he refused to say where he was going or where he had come from. He refused to give his full name and address, though he did give a name and the name of a road which were not untrue. He refused to accompany the officer to a police box for identification purposes, saying: ‘If you want me, you’ll have to arrest me.’ He was arrested and charged with wilfully obstructing a police officer contrary to s 51(3) of the Police Act 1964.
His appeal against conviction succeeded. Lord Parker CJ noted that the police officer was acting within his duty in inquiring about the appellant and that what the appellant did was obstructive. The critical question, though, was whether the appellant’s conduct was ‘wilful’ within the meaning of s 51. Lord Parker CJ, in the Divisional Court, took that word to mean ‘intentional [and] without lawful excuse’. He continued:
It seems to me quite clear that, though every citizen has a moral duty or, if you like, a social duty to assist the police, there is no legal duty to that effect, and, indeed, the whole basis of the common law is the right of the individual to refuse to answer questions put to him by persons in authority, and to refuse to accompany those in authority to any particular place; short, of course, of arrest.
The court was unanimous, although one judge, James J, cautioned that he would not go as far as to say that silence coupled with conduct could not amount to obstruction. It would depend on the particular facts of any given case.
There are certain circumstances where the citizen is under a duty to answer police questions. Where a constable has reasonable grounds for believing that a vehicle has been involved in an accident and he seeks the particulars of the driver, he or she may arrest that person if the information is not given. With the Home Secretary’s consent, and on the authority of a chief constable, coercive questioning (that is, where a suspect’s silence can be used in evidence against him) can be used in matters under s 11 (as amended) of the Official Secrets Act 1920. There are also wide powers under the Companies Acts to require officers and agents of companies to assist inspectors appointed to investigate the company.
Under s 2 of the CJA 1987, the Director of the Serious Fraud Office (SFO) (dealing with frauds worth over £5 million) can require anyone whom he or she has reason to think has relevant information to attend to answer questions and to provide information including documents and books. Such statements, however, cannot be used in evidence against the persons who make them unless they go into the witness box and give inconsistent testimony. Even this power, though, does not require the breach of legal professional privilege. Failure to comply with s 2 requests is a criminal offence and can result in an application for a magistrates’ search warrant. These powers have been widely used. The SFO Annual Report for 2013–14 revealed that 18 defendants’ cases had been prosecuted, amounting to eight trials, with an 85 per cent conviction rate at trial (Serious Fraud Office Annual Report and Accounts 2013–14, available at www.sfo.gov.uk). In R v Director of the Serious Fraud Office ex p Smith (1993), the House of Lords held that the SFO could compel a person to answer questions relating to an offence with which he or she had already been charged. It followed that in relation to such questions, the suspect did not have to be further cautioned.
Other powers to compel answers on pain of penalties for refusal exist under the Terrorism Act 2000, and refusal to answer certain allegations from the prosecutor can be treated as acceptance of them under the Drug Trafficking Act 1994.
The closest English law comes to creating a duty to give one’s name and address is in s 24(5)(a) and (b) of PACE, where the need to ascertain the name and address of a suspect is one of the reasons why an arrest may be lawful.
There is no duty to offer information about crime to the police. However, s 19 of the Terrorism Act 2000 makes it an offence for a person who believes or suspects that another person has committed an offence under any of ss 15–18 (offences involving funding of terrorism), and bases their belief or suspicion on information that comes to their attention in the course of a trade, profession, business or employment to not disclose to an officer as soon as is reasonably practicable their belief or suspicion, and the information on which it is based. Additionally, s 5 of the CLA 1967 creates the offence of accepting money or other consideration for not disclosing information that would lead to the prosecution of a relevant offence.
There is an established common law rule that neither the prosecution nor the judge should make adverse comment on the defendant’s silence in the face of questions. The dividing line, however, between proper and improper judicial comment has been a matter of great debate. In Scotland, a trial judge may not comment on a defendant’s failure to answer questions. It is suggested that the position in England and Wales, whereby a judge may comment, not only undermines the right to silence but also provides fertile ground for judicial misdirections to the jury, in turn increasing the opportunities for appeal on points that arise simply in default of lack of judicial restraint. There are many reasons why a suspect might remain silent when questioned (for example fear, confusion, reluctance to incriminate another person) and the ‘right to silence’ enjoyed the status of a long-established general principle in English law. Thus, in R v Davis (1959), a judge was ruled on appeal to have misdirected the jury when he told them that ‘a man is not obliged to say anything but you are entitled to use your common sense… [C]an you imagine an innocent man who had behaved like that not saying anything to the police… He said nothing.’
An exception, though, was that some degree of adverse suggestion was permitted where two people were speaking on equal terms and one refused to comment on the accusation made against them by the other. In R v Parkes (1974), the Privy Council ruled that a judge could invite the jury to consider the possibility of drawing adverse inferences from silence from a tenant who had been accused by a landlady of murdering her daughter. The landlady and tenant, for the purposes of this encounter, were regarded as having a parity of status, unlike a person faced with questions from the police. It was held in R v Chandler (1976) that the suspect was on equal terms with the police officer where the former was in the company of his solicitor. Chandler had refused to answer some of the questions he had been asked by the police officer before the caution. The judge told the jury that they should decide whether the defendant’s silence was attributable to his wish to exercise his common law right or because he might incriminate himself. The Court of Appeal quashed Chandler’s conviction since the judge had gone too far in suggesting that silence before a caution could be evidence of guilt.
It was proper for the judge to make some comment on a defendant’s reticence before being cautioned, provided that the jury were directed that the issue had to be dealt with in two stages: (i) was the defendant’s silence an acceptance of the officer’s allegations?; and, if so, (ii) could guilt of the offence charged be reasonably inferred from what the defendant had implicitly accepted? The court said that it did not accept that a police officer always had an advantage over a suspect. Everything depended on the circumstances. In an inquiry into local government corruption, for example, a young officer might be at a distinct disadvantage when questioning a local dignitary. That type of interview was very different from a ‘tearful housewife’ being accused of shoplifting.
The Court of Appeal’s decision in Chandler asserted that silence might only be taken as acquiescence to police allegations before a caution. The court excluded silence after the caution as being something from which anything adverse can be inferred, because a suspect could not be criticised for remaining silent having been specifically told of that right. This, however, seemed like an irrational dichotomy. If the suspect did, in fact, have a legal right to silence whether or not they had been cautioned, it was very odd that full enjoyment of the right could be effective only from the moment of it being announced by the police. Additionally, any questioning of a suspect at a police station prior to a caution being given was probably in contravention of Code C, para 10, which requires a caution to be given at the beginning of each session of questioning. Violation of the Code affords grounds for an appeal under s 78 of PACE 1984. Cautions need not be given according to para 10.1:
… if questions are for other necessary purposes, eg:
These cases must now all be read in the light of s 34 of the CJPOA 1994.
Before the changes to the right to silence that were made by the CJPOA 1994, the value of maintaining the traditional approach was subjected to considerable scrutiny. From 1988, the right to silence was effectively abolished in Northern Ireland. It became possible for a court to draw adverse inferences from a defendant’s silence when they were arrested. Adverse inferences could also be drawn from the defendant’s failure to provide an explanation for any ‘object, substance or mark’ on their clothing, footwear or in their possession, which the arresting officer found suspicious and questioned the suspect about (Criminal Justice (Evidence etc.) (Northern Ireland) Order 1988).
Similar recommendations were made by the Home Office Working Group on the Right to Silence in 1989. The question was also considered by the Runciman Royal Commission on Criminal Justice. It had to decide whether to adopt a practice like the Northern Ireland system and the one recommended by the Home Office, or whether to retain the right to silence, as the Philips Royal Commission on Criminal Procedure had recommended in 1981. In evidence to the Runciman Royal Commission, the proposal to retain the right to silence was supported by The Law Society, the Bar Council and the Magistrates’ Association. It was opposed by the police, the CPS, HM Council of Circuit Judges and several senior judges.
Professor Michael Zander’s research on this issue suggested that the role of the right to silence in the real workings of the criminal justice system was in fact not as significant as often argued. In one of his studies, ‘Investigation of crime’ [1979] Crim LR 211, he looked at 150 cases randomly drawn from those heard at the Old Bailey. According to police statements, of the 286 defendants (in many cases there was more than one defendant), only 12 were said to have relied on their right to silence when confronted by police accusations. Of these, nine were convicted. Zander has also made the following points:
The Runciman Royal Commission eventually decided to recommend retaining the right to silence. Its Report (1993) states (para 82):
The majority of us believe that adverse inferences should not be drawn from silence at the police station and recommend retaining the present caution and trial direction.
The Commission did, however, recommend (para 84) the retention of the current law regarding silence in investigations of serious and complex fraud under which adverse consequences can follow from silence. The Report notes that a large proportion of those who use the right to silence later plead guilty. The majority of the Commission felt that the possibility of an increase in convicting the guilty by abolishing the right would be outweighed by the considerable extra pressure on innocent suspects in police stations. The Commission did, however, meet the police and CPS concern about ‘ambush defences’, where a defence is entered late in a trial, thus leaving the prosecution no time to check and rebut the defence. The Commission recommended that if the defence introduces a late change or departs from the strategy it has disclosed in advance to the prosecution, then it should face adverse comment (para 136). Professor Zander, however, issued a note of dissent that the principle must remain that the burden of proof always lies with the prosecution. He stated:
The fundamental issue at stake is that the burden of proof throughout lies with the prosecution. Defence disclosure is designed to be helpful to the prosecution and, more generally, to the system. But, it is not the job of the defendant to be helpful either to the prosecution or the system.
Since the abolition of the court of Star Chamber in 1641, no English court has had the power to use torture or force to exact confessions from suspects. The so-called right to silence really meant that a suspect could remain silent when questioned by police or in court without prosecution counsel or the judge being allowed to make adverse comment to the jury about such a silence. Traditionally, silence could not be used in court as evidence of guilt.
The government ignored the recommendations of the Runciman Commission and, in ss 34–37 of the CJPOA 1994, curtailed the right to silence. Everyone still has the right to remain silent in the same circumstances as they did before the CJPOA 1994, but what changed was the entitlement of a judge or prosecuting counsel to make adverse comment on such a silence.
Notwithstanding the 1994 Act, therefore, any person may refuse to answer questions put to him or her out of court. There are only a few exceptions to this (as with s 2 of the CJA 1987, which concerns the investigation of serious fraud, and requires certain questions to be answered under pain of punishment for refusal) and they existed before the Act. The CJPOA 1994 does not alter the position of the accused person as a witness – he or she remains a competent but not compellable witness in his or her own defence (s 35), although now the prosecution as well as the judge may comment upon such a failure to give evidence (s 168).
Except in so far as the new law makes changes, the old law still applies.
In enacting ss 34–37 of the CJPOA 1994, the government was adopting a particular policy. The general purpose of the Act was to assist in the fight against crime. The government took the view that the balance in the criminal justice system had become tilted too far in favour of the criminal and against the public in general, and victims in particular. The alleged advantage of the change in law was that it helped convict criminals who, under the old law, used to be acquitted because they took advantage of the right to keep quiet when questioned without the court or prosecution being able to comment adversely upon that silence. Introducing the legislation, the Home Secretary said that change in law was desirable because ‘it is professional criminals, hardened criminals and terrorists who disproportionately take advantage of and abuse the present system’. There was also a feeling that defendants would wait until the last possible moment to formulate their defence, effectively ‘ambushing’ the prosecution.
Section 34 states that where anyone is questioned under caution by a police officer, or charged with an offence, then a failure to mention a fact at that time which he or she later relies on in his or her defence will allow a court to draw such inferences as appear proper about that failure. Inferences may only be drawn if, in the circumstances, a suspect could reasonably have been expected to mention the fact when he or she was questioned. The inferences that can be drawn can be used in determining whether the accused is guilty as charged. The section, however, permits adverse inferences to be drawn from silence in situations that do not amount to ‘interviews’ as defined by Code C of PACE 1984, and thus which are not subject to the safeguards of access to legal advice and of contemporaneous recording that exist where a suspect is interviewed at the police station. The caution to be administered by police officers is as follows (with appropriate variants for ss 36 and 37):
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.
Section 58 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 amended s 34 by adding a new s 34(2A). This restricted the drawing of inferences from silence in an interview at a police station (or similar venue) where the suspect was not allowed an opportunity to consult a solicitor prior to being questioned or charged (see Code D, Annex C). This amendment was intended to meet the ruling of the ECtHR in Murray v UK (1996) that delay in access to legal advice, even if lawful, could amount to a breach of Art 6, given the risk of adverse inferences being drawn.
An interesting illustration of the principle at work can be found in R v Maguire (Glen) (2008). The appellant offender (M) appealed against his conviction for two offences of wounding contrary to the Offences Against the Person Act 1861 s 20. M was accused, following an argument in a public house, first, of committing an unprovoked attack on a victim in a street with a rice flail, which he had allegedly taken from his pocket, and, second, of emerging from his house with a meat cleaver later the same evening, with which he struck a second victim on the arm. M gave two different accounts of the evening’s events, one during a police interview and the other in evidence at the trial. Both versions raised the issue of self-defence. On the Crown’s application, the trial judge gave a direction under the Criminal Justice and Public Order Act 1994 s 34 in conventional form, in which he identified two sets of facts on which M had relied at trial but which he had not mentioned in police interview, namely (i) that there had been no real gap between the incidents, that he had been confronted by a mob of people outside his house and that his need to act in self-defence arose at the same time in fending off what was a joint attack by the purported victims, and (ii) that, having emerged from his house, he was naked when obliged to confront the mob. M was convicted but appealed, saying his convictions were unsafe because the judge was wrong to give a direction under s 34 of the 1994 Act.
His appeal was dismissed. The Court of Appeal ruled that:
With or without such a direction, the Crown’s case was plainly going to be that M’s evidence had been shown to be untruthful, partly by other contradictory evidence in the case, and also by the way that his account had changed. The judge was virtually certain to refer to it, and he would no doubt have told the jury that it was up to them to say whether the explanation for the change in account might be an innocent one, or whether it was that M’s evidence was untruthful. The s 34 direction was a formalised way of saying precisely the same. Section 34 did no more than seek to apply common sense.
Such a direction always raised the question whether the omission to refer to something in interview which appeared later in evidence was or was not an indication that the new material was untruthful. The object of the section and of the direction was to enable the jury to decide that question. In the instant case, the matters identified by the judge were capable of being facts within the meaning of s 34, but even if they were not, the judge’s direction would have been substantially the same. The fact that the s 34 direction included the proposition that the jury were entitled to infer some additional support for the Crown from the change of evidence did not alter that. The jury had had the issues which arose in the case properly before them, and the convictions were safe.
The court also said that prosecutors should be cautious about too readily seeking to invite formalised directions under s 34. Anything that over-formalised common sense was to be discouraged.
Section 35 allows a court or jury to infer what appears proper from the refusal of an accused person to testify in his or her own defence, or from a refusal without good cause to answer any question at trial. In para 39.P. 2 of the Criminal Practice Direction (2013) ([2013] EWCA Crim 1631), the Lord Chief Justice indicates that where the accused is legally represented, the following should be said by the judge to the accused’s lawyer at the end of the prosecution case if the accused is not to give evidence:
Have you advised your client that the stage has now been reached at which he may give evidence and, if he chooses not to do so or, having been sworn, without good cause refuses to answer any question, the jury may draw such inferences as appear proper from his failure to do so?
If the lawyer replies to the judge that the accused has been so advised, then the case will proceed. If the accused is not represented, and still chooses not to give evidence or answer a question, the judge must give him a similar warning, ending: ‘… the jury may draw such inferences as appear proper. That means they may hold it against you.’
Section 36 permits inferences to be drawn from the failure or refusal of a person under arrest to account for any object, substances or mark in their possession, on their person, in or on their clothing or footwear, or in any place at which they are at the time of arrest. Section 37 permits inferences to be drawn from the failure of an arrested person to account for their presence at a particular place where they are found.
Thus, as the late Lord Taylor, the then Lord Chief Justice, observed, the legal changes do not, strictly speaking, abolish the right to silence:
If a defendant maintains his silence from first till last, and does not rely on any particular fact by way of defence, but simply puts the prosecution to proof, then [ss 34–37] would not bite at all.
The change was widely and strongly opposed by lawyers, judges and legal campaign groups. Liberty, for example, said that drawing adverse inferences from silence undermines the presumption of innocence. Silence is an important safeguard against oppressive questioning by the police, particularly for the weak and vulnerable.
John Alderson, former chief constable of Devon and Cornwall (1973–82) and a respected writer on constitutional aspects of policing, has written of the impending danger when police are able to ‘exert legal and psychological pressure on individuals held in the loneliness of their cells’. He stated (The Independent, 1 February 1995) that:
History tells us that, when an individual has to stand up against the entire apparatus of the modern State, he or she is very vulnerable. That is why, in criminal cases, the burden of proof has always rested on the State rather than on the accused. The Founding Fathers of America amended their constitution to that effect in 1791.
An example might be persons detained indefinitely at the Home Secretary’s discretion at HMP Belmarsh and HMP Woodhill (see J Cooper, ‘Guantanamo Bay, London’ (2004) 154 NLJ 41).
Undermining the right to silence may constitute a significant constitutional change in the relationship between the individual and the state. It may be doubted whether the majority of suspects should be put under greater intimidation by the system because of the conduct of a few ‘hardened criminals’ – the justification for the legislation given by the then Home Secretary when he introduced it.
Following the enactment of the CJPOA 1994, there has been a steady stream of case law about the correct judicial practice when directing the jury about the drawing of adverse inferences under ss 34 and 35.
In R v Cowan (1995), the Court of Appeal considered what should be said in the summing up if the defendant decides not to testify. The jury must be directed that (as provided by s 38(3) of the CJPOA 1994) an inference from failure to give evidence could not on its own prove guilt. The jury had to be satisfied (on the basis of the evidence called by the prosecution) that the prosecution had established a case to answer before inferences could be drawn from the accused’s silence. The jury could only draw an adverse inference from the accused’s silence if that silence could only be sensibly attributed to the accused having no answer to the charge or none that could stand up to cross-examination.
The difficult issue as to correct judicial practice when the accused remains silent during interview on the advice of his or her solicitor was considered in three cases – R v Beckles (2004), R v Hoare & Pierce (2004) and R v Howell (2005). The Court of Appeal arrived at the following position:
Where, however, a judge concludes that the requirements of s 34 have not been satisfied and therefore that it is not open to him or her to leave to the jury the possibility of drawing adverse inferences, he or she must direct the jury that it should not in any way hold against the accused the fact that they did not answer questions in interview (R v McGarry (1998)).
The provisions as to silence must also meet the requirements of Art 6 of the ECHR. The ECtHR held in Murray v UK (1996) that this right is not absolute and that a system under which inferences could be drawn from silence did not in itself constitute a breach of Art 6, though particular caution when drawing inferences was necessary. This was reaffirmed in Condron v UK (2001), where the Court asserted that though silence could not be the only, or even the main, basis for any conviction, it was right that it should be taken into account in circumstances which clearly called for an explanation from the accused (examples might be having to account for presence at the scene of the crime, or having to account for the presence of fibres on clothing). It should be noted that although the specimen direction issued by the Judicial Studies Board (JSB) and used by judges emphasises that silence cannot be the only basis for a conviction, it does not make any reference to whether it can be the main basis for conviction. Thus, there is a possible conflict between the approach under the ECHR and that currently adopted in English courts.
The ECtHR considers that legal advice is of great significance in this system. Thus, both Murray v UK and Condron v UK stressed the importance of access to legal advice at the time of any interview. As explained earlier, the finding in Murray v UK that denial of access to legal advice, in conjunction with the drawing of inferences, amounted to a breach of Art 6 led to the amendment to the CJPOA 1994 contained in s 34(2A). However, access in itself is not the end of the matter. The question which then arises is whether the drawing of inferences may be improper under the ECHR where silence results from legal advice, as discussed above. The ECtHR held in both Condron v UK and Averill v UK (2000) that legal advice may be a proper reason for declining to answer questions and that it may not be fair to draw adverse inferences in such cases. A solicitor representing a young or otherwise vulnerable person may recognise that the evidence against the client is very weak. Advising such a client to ‘say nothing’ will often make good sense (see A Keogh, ‘The right to silence – revisited again’ (2003) 153 NLJ 1352).
The jury should be informed that no adverse inference should be drawn where a defendant ‘genuinely and reasonably’ relies on a solicitor’s advice to remain silent in interview (R v Beckles (2004)).
In R v Robert Webber (2004), the House of Lords decided that, for the purposes of working out whether a silent defendant in court was ‘relying on a fact’ used in their defence (and therefore something that could prompt the judge to allow the jury to draw adverse inferences about the defendant’s silence), answers given by a witness for the prosecution who was being cross-questioned by the defendant’s counsel were facts.
A positive suggestion put to a witness by or on behalf of a defendant could amount to a fact relied on in their defence for the purpose of s 34 of the CJPOA 1994, even if that suggestion was not accepted by a witness.
The defendant (W) appealed from a decision (summarised below) that the trial judge was correct to give a direction under s 34 of the CJPOA 1994. W and two code-fendants had been charged with conspiracy to murder. The prosecution case against W was based on three incidents. When interviewed by police about each incident, W had either denied involvement in any conspiracy or said that he was not present. At trial, W’s counsel put it to several prosecution witnesses that their evidence relating to the incidents was wrong. The witnesses rejected counsel’s suggestions. The certified question for the House of Lords was whether a suggestion put to a witness by or on behalf of a defendant could amount to a ‘fact relied on in his defence’ for the purpose of s 34 of the Act, if that suggestion was not adopted by the witness. W submitted that s 34 was directed to evidence and that suggestions of counsel were not evidence unless or until accepted by a witness. The prosecution submitted that such suggestions were matters on which a defendant relied, whether or not they supported them by their own or other evidence, and whether or not prosecution witnesses accepted them.
The court held that a positive suggestion put to a witness by or on behalf of a defendant could amount to a fact relied on in his or her defence for the purpose of s 34 even if that suggestion was not accepted by a witness. The word ‘fact’ in s 34 covered any alleged fact that was in issue and was put forward as part of the defence case. If the defendant advanced at trial any pure fact or exculpatory explanation or account that, if true, he or she could reasonably have been expected to advance earlier, s 34 was potentially applicable. A defendant relied on a fact or matter in their defence not only when they gave or adduced evidence of it, but also when counsel, acting on their instructions, put a specific and positive case to prosecution witnesses, as opposed to asking questions intended to probe or test the prosecution case. That was so, whether or not the prosecution witness accepted the suggestion put. The appeal was dismissed.
The police were initially very hostile to the recommendation of the Philips Royal Commission on Criminal Procedure that there should be tape-recording of interviews with suspects. After a while, however, the police became more enthusiastic when it became apparent that the tape-recording of the interrogations increased the proportion of guilty pleas and reduced the challenges to prosecution evidence. Tape-recording of interviews is conducted in accordance with Code of Practice E. The tapes are time-coded so that they cannot be interfered with. It is compulsory for all police stations to record all interviews with suspects interrogated in connection with indictable offences and tape-recordings are used as a matter of course with all offences where an interview is held.
It was long established by the common law that a confession would not be admitted in evidence if it was ‘involuntary’, in the sense that it was obtained by threat or promise held out by a person in authority. This would include ‘even the most gentle, if I may put it that way, threats or slight inducements’, per Lord Parker CJ in R v Smith (1959). In that case, a sergeant major had put the whole company on parade and told them no one would be allowed to move until one of them gave details about which of them had been involved in a fight resulting in a stabbing. A confession resulting from this incident was ruled to have been something that should not have been admitted (although the conviction was not quashed as there was other evidence against the defendant).
In R v Zavekas (1970), a conviction was quashed where it had resulted from an improper promise. Z was told that the police were arranging an identification parade and that he would be free to go if he was not picked out. He asked whether he could be allowed to go at once if he made a statement. The officer agreed and then Z made a statement admitting guilt. The admission was given in evidence and Z was convicted. His conviction was quashed even though the inducement had not been proffered by the police. Similarly, the Court of Appeal regarded it as a ‘fatal inducement’ for a police officer to have agreed to a request by the defendant, in R v Northam (1968), for a second offence to be taken into account at a forthcoming trial rather than tried as a separate matter.
Apart from threats and promises, ‘oppression’ leading to a confession would render such a statement inadmissible. The Judges’ Rules were a set of guidelines made by Divisional Court judges for excluding unreliable evidence, but they left it as discretionary whether violation of the rules should result in the exclusion of any resultant evidence.
The law is now contained in s 76 of PACE 1984, which renders inadmissible any confession (i) obtained as a result of oppression (s 76(2)(a)) or (ii) which was obtained in consequence of something ‘likely in the circumstances to render unreliable any confession which might be made by the accused in consequence thereof’ (s 76(2)(b)).
‘Oppression’ is defined by s 76(8) to include ‘torture, inhuman or degrading treatment, and the use or threat of violence’.
The judge rules on whether evidence is admissible on these lines: if it is admitted, then the jury decides whether to believe it. There should be a ‘trial within a trial’ – without the jury – to determine whether the evidence is admissible (R v Liverpool Juvenile Court ex p R (1988)).
The courts have not found much evidence of ‘oppression’ in police questioning. In Miller (1986), a paranoid schizophrenic had confessed to killing his girlfriend. He had admitted the killing in an interview which contained both reliable and unreliable matter. He later retracted his confession. It was argued for him at trial that the confession should be excluded under s 76(2)(a) – that it had been obtained by ‘oppression of the person who made it’, as it had come as the result of protracted and oppressive interviews that had caused him to suffer an episode of ‘schizophrenic terror’. Medical evidence was given that the style and length of questioning had produced a state of voluntary insanity in which his language reflected hallucinations and delusion. The judge would not exclude the evidence and the defendant was convicted of manslaughter. The Court of Appeal held that the mere fact that questions triggered off hallucinations in the defendant was not evidence of oppression.
In R v Fulling (1987), the Court of Appeal held that it was not oppression for the police to tell the defendant that her lover had been having an affair with another woman, which so affected her that she made a confession. The word ‘oppression’, the court held, should be given its ordinary dictionary meaning as stated in the Oxford English Dictionary:
The exercise of authority or power in a burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects, inferiors, etc; the imposition of unreasonable or unjust burdens.
In R v Anthony Paris, R v Yusuf Abdullahi and R v Stephen Wayne Miller (1993), it was held that it was perfectly legitimate for police officers to pursue their interrogation of a suspect with the intention of eliciting an account or gaining admissions, and they were not required to give up after the first denial or even a number of denials. However, it was undoubtedly oppressive within the meaning of s 76(2) of the Police and Criminal Evidence Act 1984 to shout at a suspect. That had occurred in the case of Miller, after he had denied involvement over 300 times. Thus the confessions obtained were unreliable, particularly in view of the fact that Miller was on the borderline of mental handicap. Accordingly, considering the tenor and length of the police interviews, those interviews ought not to have been admitted in evidence.
Evidence of a confession can be excluded if it was given:
… in consequence of anything said or done which was likely in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof… (s 76(2)(b)).
The phrase ‘anything said or done’ means by someone other than the suspect. In R v Goldenberg (1988), G, a heroin addict, was arrested on a charge of conspiracy to supply diamorphine. He requested an interview five days after his arrest and during this he gave information about a man who he said had supplied him with heroin. It was argued for G at trial that he had given the statement to get bail and thus to be able to feed his addiction. G contended that the words ‘in consequence of anything said or done’ included things said or done by the suspect and that the critical things here were the things G had said and done, namely, requested the interview and given any statement that would be likely to get him out of the station. G was convicted and his appeal was dismissed. Neill LJ stated:
In our judgment, the words ‘said or done’ in s 76(2)(b) of the 1984 Act do not extend so as to include anything said or done by the person making the confession. It is clear from the wording of the section and the use of the words ‘in consequence’ that a causal link must be shown between what was said or done and the subsequent confession. In our view, it necessarily follows that ‘anything said or done’ is limited to something external to the person making the confession and to something which is likely to have some influence on him.
The reasoning in cases like R v Zavekas (see above) has now clearly been rejected. This view is confirmed by Code C; if a suspect asks an officer what action will be taken in the event of their answering questions, making a statement or refusing to do either, the officer may inform them what action he or she proposes to take in that event ‘provided that the action is itself proper and warranted’ (para 11.5).
‘Confessions’ made to fellow prisoners are particularly controversial. In 1996, Lin, Megan and Josie Russell were attacked while taking their dog for a walk. Lin and Megan were killed; Josie suffered serious injuries. Michael Stone was arrested and charged with the murders. He was then remanded into custody. At his trial in 1998, two fellow inmates, Damien Daley and Harry Thompson, were called as witnesses. Both alleged that Stone had ‘confessed’ to them. Stone was convicted. The next day, Thompson contacted national newspapers. He said that he had lied in court because of police pressures. In 2001, Stone’s convictions were quashed by the Court of Appeal. At his retrial, the prosecution used Daley’s evidence and Stone was reconvicted. A strong argument could be made for excluding such dubious evidence under s 78 of PACE. The central problem has been described by Gwyn Morgan in ‘Cell confessions’ (2002) 152 NLJ 453:
There may be a strong incentive for ‘grasses’ to come up with their incriminating stories. Deals may be done with the police as to the withdrawal of charges. Even where this is not the case, those on remand may well feel – even if they are wrong – that giving evidence for the prosecution will ease the way when their own cases come up. And where the grasses are already convicted, they may be anxious (again rightly or wrongly) to give a favourable impression to the prison authorities or the parole board. What’s more, in contrast to most witnesses, coming to court does not adversely interfere with their lives; it’s a day out.
See also ‘Cell confessions – no stone left unturned’ (2005) 155 NLJ 550.
In R v Wahab (2003) the accused was arrested on suspicion that he was involved in a conspiracy to supply drugs. He was interviewed in the presence of his solicitor. After the third interview he authorised his solicitor to approach the police to see whether his family, who were also in custody, might be released if he confessed his guilt. In accordance with those express instructions his solicitor approached the police, who made it clear that no promises could be made or guarantees given. The solicitor told W that if he made admissions, the police would look at the whole picture and that if the evidence against the family was ‘borderline’, they would be released. At a fourth interview W confessed to his involvement in the conspiracy, but only as a middleman.
The accused dismissed his solicitor and employed a different one for his trial, where he sought the exclusion of the fourth interview. The Court of Appeal held that advice properly given to a defendant by his solicitor did not normally provide a basis for excluding a subsequent confession under s 76(2) of the PACE 1984. The Court further held that one of the duties of a legal adviser, whether at a police station, or indeed at a pre-trial conference, or during the trial itself, is to give the client realistic advice. That emphatically did not mean that the advice had to be directed to ‘getting the client off’, or simply making life difficult for the prosecution; though it had to be sensibly robust considering the advantages that the client might derive from evidence of remorse and a realistic acceptance of guilt, or the corresponding disadvantages of participating in a no-comment interview.
At the beginning of the twenty-first century, we can see governmental recognition of the ‘criminal justice system’.
Remedies for unlawful arrest include: (1) an action for habeas corpus; (2) that any subsequent prosecution arising from the arrest should fail – s 78 of the Police and Criminal Evidence Act (PACE) 1984; (3) a claim for damages for false imprisonment. If the arrest is not lawful, then reasonable force may be used to resist it; and (4) judicial review and human rights.
Stop and search is governed by s 1 and Code A of PACE 1984. The judge can exclude evidence obtained in breach of the Codes (s 67(7) of PACE 1984). There are legal obligations on an officer conducting a search (ss 2 and 3 of PACE 1984). Note that the Code is quite specific about what indices can be grounds for reasonable suspicion and which, individually or combined, may not.
Section 60 of the Criminal Justice and Public Order Act (CJPOA) 1994 provides a stop and search power in anticipation of violence. Under it, with authorisation, an officer can stop any pedestrian and search them for offensive weapons or dangerous instruments, or even stop vehicles. The authorising officer must reasonably believe that incidents involving serious violence may take place in the area.
Arrest can be: (1) under police warrant; (2) under common law for breach of the peace; or (3) under legislation, principally PACE 1984. The details in s 24 PACE 1984 are very important. Detention short of arrest does not exist. Note this confirmation by s 29 of PACE 1984.
Suspects stopped in the street are not legally obliged to help police with inquiries. Note the distinction between Kenlin v Gardiner (1967) and Donnelly v Jackman (1970). Note also that a person may be arrested for being silent or misleading under s 4(5)(a) and (b) if the officer has reasonable doubts about the suspect’s name and address.
Procedure on arrest involves the arrestor having to inform the suspect of the grounds for arrest (s 28(3)). Note, though, that an arrest becomes lawful from when the information is given. The extent of the required information to the suspect is important (see Geldberg v Miller (1961); R v Telfer (1976)).
The use of force to effect an arrest must be ‘reasonable in all the circumstances’ (s 3 of the Criminal Law Act 1967 (citizens); s 117 of PACE 1984 (police officers)).
Search of arrested persons is governed by s 32 of PACE 1984. The person arrested cannot be required to take off more than outer garments. The place where they were arrested, or where they were immediately before, can also be searched under s 32. Note the differences between this power and those under s 18 regarding premises.
The main problem here is for the law to strike the proper balance between giving the police sufficient power to interrogate and protecting the interests of suspects. Too few rules governing how the police can conduct an interrogation and too few rules restricting the sort of evidence that can be put to a jury might easily lead to oppressive behaviour by the police interviewing suspects. Too many restrictive rules, conversely, will thwart the police in their endeavours to prosecute offenders successfully. The general rule in this area is that the courts have discretionary exclusionary powers under s 78 of the 1984 Act (the general overriding exclusionary provision) and s 76 (specifically pertaining to the admissibility of evidence derived from a purported confession by a defendant).
The right to have someone informed after arrest is given to all suspects after arrest. It can be delayed under certain circumstances.
Access to legal advice is provided for under s 58 and Code C. The notification must accord with details set out in Code C.
Note ss 42 and 38 of PACE 1984 for time limits operational before and after charges. Delayed access to legal advice is possible in cases of serious arrestable offences. A suspect can be held for up to 24 hours without being charged, up to 36 hours with authorisation from the superintendent and up to 96 hours with magistrates’ permission.
Search on detention is governed by s 54 of PACE 1984 and Code C, para 4.1, which require the custody officer to take charge of the process of searching the detained person. There is a complex statutory framework governing the taking, use, destruction and retention of biometric data, introduced into PACE by the Protection of Freedoms Act 2012.
The right to silence means that a person cannot be charged with obstructing the police in the execution of their duty simply by failing to answer questions. Note the important difference between Rice v Connolly (1966) and Ricketts v Cox (1982). There are some circumstances where the suspect does have to answer on pain of penalty (s 2 of the Criminal Justice Act 1987).
Under ss 34–37 of the CJPOA 1994, certain adverse inferences may be drawn from a suspect’s failure to answer police questions, or his failure to answer them in court.
Confessions have proved problematic and may be excluded as evidence under s 76 PACE.
Ashworth, A and Redmayne, M, The Criminal Process, 2010, Oxford: OUP
Baldwin, J and McConville, M, Jury Trials, 1979, Oxford: Clarendon
Buckland, R, ‘Update: police and criminal evidence’ (2009) 153(9) SJ 20
Cape, E, ‘Police station law and practice update’, May (2009) Legal Action 10
Cape, E, ‘The Protection of Freedoms Act 2012: the retention and use of biometric data provisions’ (2013) Crim LR 23
Committee on Fraud Trials, Roskill Report, 1986, London: HMSO
Cragg, S, Murphy, T and Williams, H, ‘Police misconduct and the law’ (2013) (Oct) Legal Action 23
Crime Survey for England and Wales, Office for National Statistics, July 2014
Darbyshire, P, ‘The lamp that shows that freedom lives – is it worth the candle?’ (1991) Crim LR 740
Davies, M, Croall, H and Tyrer, J, Criminal Justice: An Introduction to the Criminal Justice System in England and Wales, 2010, Harlow: Longman
Devlin, P, Trial by Jury, 1956, London: Stevens
Findlay, M and Duff, P, The Jury Under Attack, 1988, London: Butterworths
Greer, S, ‘The right to silence: defence disclosure and confession evidence’ (1994) 21 JLS Office of National Statistics, Crime in England and Wales 2010/2011, July 2012
Owusu-Bempah, A, ‘Silence in suspicious circumstances’ (2014) Crim LR 126
Parpworth, N, ‘Under control?’ (2008) NLJ 1061
Royal Commission on Criminal Justice, Runciman Report, Cm 2263, 1995, London: HMSO
Sanders, A and Young, R, Criminal Justice, 2010, Oxford: OUP
Zander, M, ‘Out of order’ (2008) NLJ 1121
Zander, M, The Police and Criminal Evidence Act 1984, 6th edn, 2008, London: Sweet & Maxwell
www.cps.gov.uk/about/cjs.html
The official website of the Criminal Justice System – very useful across a range of subjects.
www.gov.uk/government/organisations/home-office
The website of the Home Office – very useful on matters of policing and crime.
Now visit the companion website to: