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Criminal Procedure
Introduction
Mark and Cazza, two Solent LLB students were unlawfully arrested and victims of false imprisonment giving the lack of proceedings followed by the police constables Jones and Reed.
The police officers (PO) committed innumerable errors – that will be discussed in the following paper – regarding the proceedings of arrest concerned on the Police and Criminal Evidence Act 1984 (PACE) and in the respective Codes of Practice; the use of force and conduction of the interview. During the whole process, the officers failed to give the necessary information to the suspects and their rights of freedom were clearly violated contrary to Art.5 from the Human Rights Act 1998 (HRA).
The outcome of this arrest lead to a miscarriage of justice, given that the suspects, coerced by the police, ended up confessing to a crime of which they are totally innocent.
In the matter of miscarriages of justice, Michael Naughton[footnoteRef:1] says: [1: Michael Naughton, The innocent & the criminal justice system. (Palgrave Macmillan, 2013) p.15]
“… the term miscarriage of justice relates to intentional and or unintentional acts by those that cause them, and (…) the wrongful conviction of the factually innocent. (…) Miscarriage of justice are problematic (…) in terms of the harm of the victims and the loss of faith in the system…”
The misconduct of the police officers could have been avoided if the powers granted by the PACE and the “detailed guidance”[footnoteRef:2] provided by the Codes of Practice had been followed. [2: Deborah Sharpley, Criminal litigation: practice and procedure”. (College of Law Publishing,2016) p.23]
The following paper will be chronologically written in accordance with the events, from the moment of the first approach until the moment of the confession.
All references to non-specified sections belong to PACE 1984.
Stop and Search
Following PACE S.1(3) on the powers of constable to stop and search persons and S.24(3)(b) on the powers of arrest without warrant, anyone may be searched/arrested if the police officers have “reasonable grounds for suspecting” that they will find prohibited articles/a person is guilty of an offense that has been committed (respectively) – concerning the concept of “reasonable grounds” in Castorina v Chief Constable of Surrey[footnoteRef:3] is stated that it “must be determined by reference objectively to information available to the officer and without regard to his belief”. [3: Castorina v Chief Constable of Surrey [1988] 6 WLUK 85]
The PO that arrested Mark and Cazza, had a description of two suspects being “a white male and female, wearing jeans and t-shirts, the male also wearing a red baseball cap”. There are two problems arising from this description.
First, a question if this description is reasonable enough for suspecting since it is relatively generic. According with PACE Code A para 2.2[footnoteRef:4], the suspicion might be considered enough given it allows “a description of a suspect” without clarifying how precise that description must be. [4: Searches requiring reasonable grounds for suspicion ]
And second, the lack of characteristics fulfilment by the suspects i.e. Mark and Cazza barely satisfied the description of the suspects given that Mark is of Black ethnicity and the cap he was wearing was blue, so basically, the only description that was fit was “male and female wearing jeans and t-shirt” which is basically a common wearing nowadays.
When the PO asked the suspects to empty their pockets, Cazza refused to do so. At this stage, the constables failed to provide the required information stated on s.2(2) and 3 from PACE – the constables names and their police station, the object of the search, and the grounds to make the search – which gives Cazza the right to refuse to comply with the request. A similar absence of proceedings happened in the case of Bristol [2007][footnoteRef:5] in which the court of appeal declared that the information was mandatory and that on the event of not providing such information the search would not be properly carried out. [5: R v Bristol [2007] EWCA Crim 3214]
After refusing to comply with the constable’s demands Cazza tried to leave which resulted in her being “tackled to the ground and forcible handcuffed” by the police constable (PC) Reed; S.117 of PACE[footnoteRef:6] allows the use of force by constables if it is necessary when exercising their duties, it can thus be argued that the PC Reed had reasons to use force to “prevent further escape”, nevertheless if they had followed the requirements for a stop and search then the argument could be acceptable but given that both of the PCs failed to provide the suspects the necessary information under Ss.2(2) and 3 they were, until otherwise be said, free to go – the constraint against that freedom incur in a breach of right to liberty under S.5 of the ECHR[footnoteRef:7]. In Christie v Leachinsky [1947][footnoteRef:8] it was stated that the constable must inform the person arrested of the grounds of arrest; if the information is not given but the person is seized the policeman may be liable for false imprisonment; a person “is only required to submit to restraint on his freedom if he knows in substance the reason why it is claimed that this restraint should be imposed” and that unless an arrest is lawful every citizen is entitled to resist. [6: Power of constable to use reasonable force within any provisions of PACE] [7: European Convention on Human Rights] [8: Christie v Leachinsky [1947] A.C 573]
Arrest
An arrest is established when the police constable informs, as soon as possible, the citizen that he is under arrest and the reasons for it – see Alderson v Booth [1969] 2 QB 21 – accordingly, the arrest of Mark and Cazza began after the alleged attempt to escape. Even then, I should ask, following the appeal in Wilson v Chief Constable of Lancashire [2000][footnoteRef:9], if the sarcastic answer of PC Reed conveyed satisfactory information required for an arrest to be lawful under S.28 (see also Code G para.3.3 and Note 3). [9: Wilson v Chief Constable of Lancashire [2000]11 WLUK 671]
Even if PC Reed’s response is considered enough the suspects are still empowered to claim damages for the restraint of their liberty under S.5 of ECHR as explained above, and following the appeal in Lewis v Chief Constable of South Wales [1991][footnoteRef:10]: “the appellants were entitled to damages for the period where their freedom was denied without being given reasons”. If, on other hand, the information given by PC Reed is considered no to be enough, then the “period” to which the suspects are entitled to damages is extended until the moment they got to the police station and the information was given, if it was given. [10: Lewis v Chief Constable of South Wales [1991] 1 All E.R 206]
Based on the aforementioned information we can declare that the procedures to arrest according to PACE were not followed, thus, resulting in an unlawful arrest.
Considering the reasons for arrest, it can be argued that within S.24(5)(a)[footnoteRef:11] the constables could have arrest Cazza to ascertain her name as she refused to give them (legally she has no duty to do so, as it was stated by Lord Parker in Rice v Connolly[footnoteRef:12]) but it does not justify Mark’s arrest. The officers could try to excuse themselves with S.24(5)(e) but it should not be valid on the basis that Mark does not even fit in the description and from the beginning of the ‘stop and search’ showed to be willing to respond to all the requests (see Richardson v The Chief Constable of the West Midlands[footnoteRef:13] where the defendant was considered to be unlawfully arrested and false imprisoned on the ground that the arresting officer had no reasonable ground for considering the arrest necessary’). [11: Reasons for constable to arrest without warrant] [12: Rice v Connolly [1996] 2 QB 414] [13: Richardson v The Chief Constable of the West Midlands [2011] EWCH 773 (QB)]
Concerning the misstep to deliberate about the necessity[footnoteRef:14] of the arrest, Person, Rowe and Turner[footnoteRef:15] wrote: [14: See also, R.C. Austin, “The new powers of arrest: plus ca change: more of the same or major change?” [2007] Criminal Law Review.
And PACE Code G para 1.3; plus, Notes para 2 and 2A] [15: Geoff Pearson, Mike Rowe and Liz Turner, “Policy, Practicalities, and PACE s.24: The subsuming of the necessity criteria in arrest decision making by frontline police officers” [2018]. Journal of Law and Society, v.45, n.2, p 307]
“The failure by officers to consider, even in a ‘fleeting’ way whether the arrest is necessary does not just mean that unlawful arrests and non-human-rights-compliant detentions are occurring, but also that many officers are unconsciously discounting alternative resolutions to incidents”
Caution and Questioning
Mark and Cazza should also have been cautioned[footnoteRef:16] and, at the arrival to the police station presented to a custody officer[footnoteRef:17]; we have no information on the facts of such caution be given but I believe that by “checked in” it is fair to assume that they were presented to the custody officer as it is formal procedure applied to anyone who arrives to a police station (even voluntarily). [16: PACE Codes of Practice C, para.10.4 and 10.5] [17: PACE Codes of Practice C, para.2.1A]
The custody officer has the duty to open a custody record[footnoteRef:18] and to keep it updated[footnoteRef:19] as well as to ensure that, in a case of stop and search, the person is asked if they want a copy of the search record as well[footnoteRef:20]. When under arrest, the person has three rights she should be aware of, which is the custody officer’s responsibility to ensure that awareness following Code C para.3.1, those being: to inform someone of their arrest[footnoteRef:21]; to have legal advice and that “free independent legal advice is available”[footnoteRef:22]; to consult the Codes of Practice. [18: PACE Codes of Practice C, para.2.1] [19: PACE Codes of Practice C, para.2.3] [20: PACE Codes of Practice C, para.2.3A] [21: PACE s.56] [22: PACE s.58 and Code C para.6.1]
Lacking on information if whether the custody officer duties and procedures were followed or not, I may only assume that they were not, at least concerning to the para.3.1 of Code C based on the ground that if the rights have been given to the suspects the interview would not had followed the same path (discussed below). As so, I will proceed on the assumption that Mark and Cazza were not told about the right to free legal advice which incurs on a breach of S.6(3) ECHR – Murray v United Kingdom[footnoteRef:23]. [23: Murray v United Kingdom (1996) 22 EHRR 29: “It was imperative in the interests of fairness for an accused to have access to a lawyer at the initial stages of police questioning”]
Regarding the conduct of the interview, accordingly, with Code C and E of PACE, it was inadequate and misdirected on the following basis: the interviewer failed to “remind”[footnoteRef:24] the suspects of their right to free legal advice[footnoteRef:25]; it was not given a “short break” every two hours[footnoteRef:26] resulting in a continuous 8-hour questioning process which resulted in both of the suspects confessing without guilt as they were clearly coerced by the interviewer, thus the confessions are inadmissible under the Code of Practice C para.11.5 and Ss.76(2)(b) and 78 of PACE and following common law resolutions on the appeals of Fulling [1987][footnoteRef:27] and Zaveckas [1970][footnoteRef:28]. [24: The expression is between quotation marks given the fact the rights had not been giving before, even though they should have.] [25: PACE Codes of Practice C, para.11.2] [26: PACE Codes of Practice C, para.12.8] [27: R. v Fulling [1987] Q.B. 426] [28: Regina v Zaveckas [1970] 1 W.L.R. 516: “…the statement was made as the result of an inducement by a person in authority and that the conviction should be quashed.”]
It is also important to state Code C Note 11B:
“In conducting an investigation, the investigator should pursue all reasonable lines of enquiry, whether these points towards or away from the suspect (…)”[footnoteRef:29] [29: Criminal Procedure and Investigations Act (CPIA) 1996 Code of Practice para.3.5]
Conclusion
The covered contents lead to concluding that the police officers acted unlawfully concerning to the procedures of stop and search, arrest, and interviewing which deviates from what is stated and expected by PACE 1984, the ECHR, and the CPIA 1996 constructing more than enough reasons for Mark and Cazza to bring complaints against the police and be entitled to damages:
“Individuals who believe that their Convention rights have been infringed by a public authority can rely on their rights as a defense in criminal or civil proceedings or as the basis of an appeal, alternatively seek judicial review, or, if no other legal avenue is open, bring civil proceedings for damages.”[footnoteRef:30] [30: Ken Starmer, “The European Convention on Human Rights and the Human Rights Act 1998” [2001] Legal Information Management]
S.67(10) and (11) of PACE predicts that if a provision or Code is not followed that does not constitute a criminal offense or civil wrong[footnoteRef:31] but it is admissible in court and it can lead to a disciplinary offense [footnoteRef:32]. [31: John Sprack, “A practical approach to criminal procedure”. (4th edn. Oxford University Press. 2012) p.23] [32: Ibis]
However, when by violating the provisions or Codes the officers commit a false imprisonment, the victim can take legal actions against the responsible constable and his Chief Officer as co-defendant.[footnoteRef:33] [33: Ibis]
The public authorities are entitled to use the law in order to make the “principles of justice” [footnoteRef:34] prevail, not to sabotage it. [34: Andrew Sanders, Richard Young and Mandy Burton, Criminal Justice. (4th edn. Oxford University Press, 2010)]
Bibliography
Books
- Andrew Sanders, Richard Young and Mandy Burton, Criminal Justice. (4th edn. Oxford University Press, 2010)
- Deborah Sharpley, Criminal litigation: practice and procedure. (College of Law Publishing, 2016)
- Howard Davis, Human Rights and Civil Liberties. (Willan Publishing, 2003)
- John Sprack, A practical approach to criminal procedure. (14th edn. Oxford University Press. 2012)
- Michael Naughton, The innocent & the criminal justice system. (Palgrave Macmillan, 2013)
- Paul Ozin, Heather Norton, and Perry Spivey, A practical guide to the Police and Criminal Evidence Act 1984. (3rd edn. Oxford University Press, 2013)
- Ruth Costigan and Richard Stone, Civil liberties and human rights. (11th edn. Oxford University Press, 2014)
Legislation
- Criminal Procedure and Investigations Act (CPIA) 1996
- European Convention on Human Rights
- Police and Criminal Evidence Act 1984 and Codes of Practice
- [bookmark: _Toc535375276]Cases
- Alderson v Booth [1969] 2 QB 21
- Castorina v Chief Constable of Surrey [1988] 6 WLUK 85
- Christie v Leachinsky [1947] A.C 573
- Lewis v Chief Constable of South Wales [1991] 1 All E.R 206
- Murray v United Kingdom (1996) 22 EHRR 29
- R v Bristol [2007] EWCA Crim 3214
- R. v Fulling [1987] Q.B. 426
- Regina v Zaveckas [1970] 1 W.L.R. 516
- Rice v Connolly [1996] 2 QB 414
- Richardson v The Chief Constable of the West Midlands [2011] EWCH 773 (QB)
- Wilson v Chief Constable of Lancashire [2000]11 WLUK 671
Websites
- Parliament website, Human Rights Act 1998 accessed 14 January 2019
Journals
- Geoff Pearson, Mike Rowe and Liz Turner, “Policy, Practicalities, and PACE s.24: The subsuming of the necessity criteria in arrest decision making by frontline police officers” [2018]. Journal of Law and Society, v.45, n.2
- Ken Starmer, “The European Convention on Human Rights and the Human Rights Act 1998” [2001] Legal Information Management
- R.C. Austin, “The new powers of arrest: plus a change: more of the same or major change?” [2007] Criminal Law Review
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