Arrested Developments

The revisions to Police and Criminal Evidence Act and Codes of Practice (Code G) came into force at midnight on November 12th.

Are you a cop? Do you know what it means to you operationally? If you don’t then it’s time you did because you could find yourself with an unlawful arrest on your hands.

It’s very important to note that Code G is not new legislation. What it does is codify the existing legislation by virtue of the changes to s24 PACE (arrest powers) as enacted by the s110 of the Serious Organised Crime and Police Act 2005.

In lay terms this means that your SOCAP grounds to arrest (the necessity test) are now clarified within the Codes of Practice.

SOCAP grounds for arrest are not new. You will no doubt be familiar with “prompt and effective” or “to prevent further injuries” but it’s still surprising how many officers get this wrong. Many times when asked for the SOCAP grounds to make the arrest necessary I get a blank face whilst the officer trawls memories of a distant training course or stumbles over the one they think they have used.

“To allow him to be interviewed under caution Sarge”

or

To secure and preserve evidence Sarge

Whilst both the above may very well be part of the investigative process the officer wishes to follow they are not SOCAP grounds. Code G lists the grounds as an exhaustive list. They are recreated below and are to :-

1. allow the prompt and effective investigation
2. ascertain the persons name
3. ascertain persons address
4. prevent offence against public decency
5. prevent an unlawful obstruction of the highway
6. Prevent person causing loss or damage to property
7. Prevent person causing physical injury
8. Prevent the disappearance of the person
9. Prevent the person suffering physical injury
10. Protect a child or vulnerable person

The code is in many regards a document that should have accompanied the introduction of the necessity test. Regardless of timeliness the code doesn’t tell us anything we didn’t know. It does remind us though of matters that we may have overlooked in the past or, more realistically, interpreted another way.

It has been a topic of discussion at the National Custody Conference for at least the last 2 years and has been commented upon by Professor Michael Zander QC, FBA. Much of the debate revolves around necessity and whether voluntary arrangements are appropriate. Code G now states the officer should “consider whether the suspects voluntary attendance is a practical alternative to arrest”.

Two years ago Professor Zander cited the case of Richardson v Chief Constable of West Midlands Police [2011] EWHC 773 (QB) by way of example. This in simple terms revolves around a teacher attending voluntarily to be interviewed about an assault allegation. He refused to accept a “local resolution” (I read this as RJ? – if you know different please let me know) and as such was asked to drive to another police station in his own vehicle. On arrival there he was arrested and booked into custody. Richardson subsequently claimed damages for unlawful arrest and won. In a nutshell Richardson was a compliant and cooperative suspect and therefore did not need arresting.

The thrust of the legislation steers officers away from arrest unless it is proved to be necessary. It is clear, at least from my perspective, that many officers still haven’t got a handle on this. It is, albeit SOCAP has been with us for some time, a culture change within policing. Arrestable offences gave us a direct power. It was discretion that determined if an arrest was made or not. In 99% of cases the power was exercised. This approach has been slow to erode. The changes now mean we can arrest for any offence but we must satisfy the necessity test. Failure to do so will make your arrest unlawful.

For police officers the PNLD details a number of interesting cases centred around s24 that are quite eye opening and well worth a read.

When considering an arrest ask yourself if you can do all you need to do without arrest and have the suspects cooperation. If the answer is yes then any arrest is likely to be unlawful.

There are some caveats of course. If a cooperative suspect suddenly declines to be interviewed then you are likely to have grounds to arrest. There are also matters such as searches (s18 PACE) or intimate/non-intimate samples (s62 and s63 PACE) where the suspect must be in police detention. There may also be occasions where even after interview bail may be appropriate to allow further investigation on forensic matters or similar. On such occasions bail conditions may be appropriate under s37(2) or s37(7)(a) of PACE. These would be limited to the Bail Act 1976 s3A(5) purposes; the likelihood of person failing to attend, interfering with witnesses, preventing further offending or for the suspects own protection. To my knowledge such powers cannot be applied to anyone not in custody.

I don’t propose to offer an exhaustive list of all scenarios to cover arrest necessity. There are a myriad of scenarios that are impossible to document. However, the routine practice of asking suspects to attend at a police station and arresting them on arrival could well be unlawful unless you have a specific need to arrest as exampled above, no matter how serious the offence. (Littering to a s18 wounding).

Custody Sgts are likely to more robust since the implementation of code G last week and as such you may find detention will not be authorised unless you can justify the necessity of it.

No Winners

This is a guest blog by Rianne a trainee solicitor, 6 months off qualification and focusing predominantly on criminal law. She is based in South-East London and defends a variety of clients, mainly under the legal aid scheme.

There is often much criticism of the defence and questioning of morals when they represent offenders responsible for the most heinous crimes. This is a misinformed and ridiculous attitude. It engenders a them and us mindset that is corrosive to relations across the whole criminal justice system.

It’s often seen as a “game” of winners and losers but as Rianne points out; in many cases there are no winners at all.

Rianne can be found on twitter here;

Ri_Macca

How can you defend someone like that?

I will admit that once upon a time, I supported the idea of capital punishment. This arose, as it does for many people, out of gut instinct and without really knowing enough about the subject to form a reasoned decision.

Since then I have studied to become a solicitor and found myself working in criminal defence law for the last year and a half. I was always a fan of criminal law, yet I used to think that my head was firmly stuck in a prosecutor’s cap and I could envisage my career heading in this direction. A brief stint of work experience at the CPS soon knocked some sense into me.

This time last year, I had both the fortune and misfortune of working on a murder trial. I say fortune as having access to the complex criminal proceedings of this level, spending time at the Old Bailey and working with incredible criminal barristers was a massive privilege. However I will always be haunted by the details.

Our client in this case was a 17 year old boy; he had been 16 at the time of the offence. It was a typical south east London stabbing. Gangs. Knives. Bravado. Confrontation. One fatal blow. For no good reason at all.

I spent the best part of the two month trial visiting B everyday in the court cells. After being slightly apprehensive at first, I soon formed a good relationship with him and would spend court breaks chatting and gossiping rather than actually having a need to take instructions. B was quite your typical teenager; it was difficult at first to get more than a mono syllabic grunt out of him. However he was sweet, kind and obviously cared a great deal about his family-especially his younger brother. He had managed to wrap all the cells’ staff around his little finger in order to have double lunch portions and all the hot chocolate he could drink.

Whilst not in the cells, I also spent a lot of time with B’s mum who came to court every day. There is a lot of time spent waiting around during a trial. In this time I got to know her well. B’s family were incredibly supportive and destroyed all notions that criminal teenagers must have awful parents and an even worse upbringing. Only legal visits are allowed whilst at court and I therefore had to pass quite a few messages to B from his Mum. “I will always love you and support you regardless of what happens.” Also numerous messages asking him to sort his hair out or to ask why he wasn’t wearing the suit she had taken down to prison for him the weekend before.

B arrived on the scene without any previous convictions and I still cannot work out how he managed to get himself into this situation. 9 boys in total were charged with murder. One other for perverting the course of justice. Only one inflicted the wound, however the principle of joint enterprise, the prosecution say, makes them all guilty. I fear that for some schools in the local area the belief is that if you are not part of a gang or an associate, the only alternative is to be a target.

B was convicted of murder by unanimous verdict after 35 painful hours of jury deliberations. Possibly the longest and most tense week of my life. Every callback into court following a jury note sent a ripple of fear through everybody present. By the time of the verdict I noticed that even the manliest of solicitors had quivering hands whilst taking notes. The jury were also convinced that 2 others committed murder, 2 did not and the rest were guilty of manslaughter.

This brings me back to the question of capital punishment. B is now serving a life sentence. If the death penalty had not been abolished, he could now be waiting for execution. One QC eloquently raised this matter in his closing speech, asking the jury how it would affect their decision making if death was the resulting punishment for these young boys, whether it would make them reconsider the apportionment of guilt. I would challenge anyone to meet this boy and tell me that his death would be justified.

To see B convicted and given a life sentence was hard enough, I cannot even imagine how hard it would have been if I had known his life was in the balance. To label someone a murderer evokes fear and implies that person is a danger to society. To coin a common phrase you would not like to get stuck down a dark alley with that person. It had never crossed my mind that B could be dangerous. I do not think that his incarceration is preventing further offending. I honestly believe that he did not appreciate the consequences of his actions and did not intend to murder. Not that I want to make excuses for him. The sad truth is that in London, young boys frequently get stabbed. Many of our clients have been a victim of stabbing and a lot have inflicted stab wounds. Most of the time, it is not critical and therefore youths presume that this is an acceptable method of establishing their gang rivalries and warning people off their turf. The true implications are never appreciated.

The day before the verdict I noticed a change in B. In his eyes there was an acceptance of what he had done, an acknowledgement of how the rest of his life was going to be and the desperate feeling of regret. Myself and the junior barrister left the cells very close to tears. He will regret that one moment in time for the rest of his life. I do not believe that he would have a life of crime had it not been for this incident. His family were preparing to move out of the country following B’s GCSEs and they will always wonder why they didn’t get on that plane sooner. Who can say what will happen now as he spends 15 years with other ‘lifers’ and becomes an adult in that environment. On my most recent visit to the prison, he had already become withdrawn, reluctant to talk and obviously gearing up to be the tough man in order to ensure protection.

This comes from the point of view of knowing a defendant. I cannot even start to imagine what the victim’s family went through losing their child/brother and then facing 2 trials, attending every day, and finally the sentence. All I can say is that they were very dignified throughout it all. There have not been any winners in this.