Erroneous decision making by officers of the law

The past six months have been a particularly quiet period in the development of the law around the ?Police and Criminal Evidence Act 1998 (PACE). ?An indicator of these quiet months, the previous government issued a consultation in relation to PACE code E in March, which closed in May of ?this year and is still being analysed by the ?Home Office. 

Code E has not been revised since 2013; the proposed changes are to allow for the possibility that interviews for four specified offences can ?be conducted outside the police station and recorded in writing, rather than by audio recording. ?The offences are to be specified in a new annex and will apply to voluntary interviews of persons not under arrest, who are over 18, do not require either an interpreter or appropriate adult, and can both understand what is happening and recognise the significance of being questioned and providing answers. 

The four specified offences are: 

• Possession of cannabis; 

• Possession of khat; 

• Retail theft; and 

• Criminal damage. 

The annex specifies certain conditions which must be met in relation to each of these offences before a non-audio recorded interview can take place. Additionally, it is envisaged that the provisions of code C, as they relate to voluntary interviews, will remain, including the right of access to free and independent legal advice. 

The Home Office considers that this change will enable the police to use out-of-court disposals more appropriately, including penalty notices for disorder. The practicalities of this are a little unclear: it is difficult to see how a person subjected to an interview outside a police station for these low-level offences will be able to easily facilitate access to legal advice. 

The benefit of the Police National Database (PND) system to date has been that out-of-court disposals could be provided without an interview having been conducted; they didn’t require an admission of guilt or an acceptance of the offence to be made and could not be treated as such. ?These new changes may alter the existing landscape, and it is possible to envision that the police may now try to require that admissions in interviews are recorded in writing before PND disposals are made.  

Arrests and search warrants

The main theme of the limited case law in this ?area since the last update has related to decision making by police officers and investigators. 

In May this year, an application was heard for ?the judicial review of arrests and search warrants carried out by the National Crime Agency (NCA).

The case of R (on the application of Chatwani) v National Crime Agency concerns the arrest and detention of seven individuals, including three brothers from the Chatwani family, in January 2015. The brothers held a large number of business interests and acted as directors of a number of companies. The NCA suspected the brothers to be involved in a money-laundering operation on the basis of evidence showing links to known money launderers, and of payments made into the bank account of one of the companies, which were known or suspected to be the proceeds of crime.

The NCA was running an investigation into money laundering under Operation Heteredon, and the lead officer devised a plan where the suspects would be arrested and detained while officers covertly placed surveillance equipment ?at the group’s head office and in their homes. ?The suspects were to be provided sufficient information to understand the nature of the investigation, without being given the full facts, with the intention being not to elicit information from the suspects, but to provoke incriminating discussions among them on release from custody, which would assist any subsequent prosecution against them. 

In order to keep the plan under wraps, a ?decision was taken to arrest the suspects without a warrant under section 24 of PACE, and warrants to enable officers to conduct searches and deploy surveillance equipment were applied for under section 8. 

Information was not only kept from the suspects, but also the arresting and custody officers who assisted in carrying out the plan. They were not informed of the intention to place surveillance devices for the purpose of recording incriminating conversations. They were provided only with sufficient information to give them grounds to arrest and detain the suspects.

While both experienced, neither the lead ?officer nor the NCA officer tasked with preparing the section 8 applications had applied for search warrants for a number of years, and they were ?not up to date on the level of scrutiny required in making such applications. While the NCA has ?its own internal legal team, it is not routinely ?tasked with approving applications for warrants. Detailed information was not supplied for ?the applications and it appears that the magistrates neglected to ask for any further relevant information, effectively rubber-stamping the applications. 

Judicial review 

Five of the seven suspects sought judicial review of their arrests and the issuing of the search warrants by the NCA. 

The court found that an arrest is not unlawful where the arresting officer is relying on incorrect information, as an arrest is justified if the officer has reasonable grounds for suspecting that an offence has occurred and that offence has been committed by the person in question. The court found that the evidence of the connection with known money launderers was enough to give reasonable grounds for suspicion of money laundering on the part of the claimants and section 24 does not impose a duty on officers ?to check the information on which they are ?asked to make an arrest. 

The court found the search warrants to be unlawful on two grounds: 

The NCA failed to disclose all relevant matters ?to the magistrates, denying the court the opportunity to satisfy itself that all statutory requirements had been complied with, and, in effect, arrogated the role of the court to itself; and 

The warrants breached sections 15 and 16 in failing to specify the items the NCA intended to find during a search and in searching for items outside the scope of the warrant. On that basis, the warrants were unlawful and the agency was ordered to return all documents seized during the searches, including any copies taken. 

The court agreed the NCA had not acted in bad faith, but that its failings were ‘sufficiently egregious’ that it should not be permitted any benefit from the unlawful search and seizure. Lord Justice Davis advised the NCA to seek legal advice before applying for warrants in the future. ?The NCA found no relief under section 59 of the Criminal Justice and Police Act 2001, and the court hoped the refusal would ‘have something of a deterrent effect hereafter on ill-prepared or ill-executed applications, and to modify any mind-set of police or investigating authorities that they can always expect to be permitted to ?fall back on section 59 of the 2001 Act’. 

Correct offence in mind

On 21 July, the High Court handed down judgment in the case of McCann v CPS [2015] EWHC 2461 (Admin), holding that an arresting officer need not have the correct offence in mind when making an arrest if it reasonably appeared to her that she was acting in the execution of her duties. 

The appellant, McCann, was convicted of obstructing a police officer in the execution of her duty, contrary to section 89(2) of the Police Act 1996. The appellant was part of a small group of individuals chained together, blocking an access road to a site where fracking was being carried out. The group protest concerned environmental damage caused by fracking. The officer had instructed the group to move as they were ‘obstructing a public highway’. They refused to move and were arrested for the offence. The refusal to move had been based on a correctly held belief that the access road was a private road with a public footpath and that they were, therefore, not committing the offence of obstructing a public highway. 

A number of questions were posed to the High Court which were ultimately limited to just two grounds: 

Whether the error in fact made by the officer brought her outside the execution of her duty; and 

Whether, in the circumstances, she could not be within the execution of her duty on the basis that another offence (aggravated trespass) may have been committed. 

The High Court reviewed the case law and held ?that the fact that the officer had given ‘erroneous’ reasons for her decision to arrest did not, in the circumstances of the case, mean that she was ?not acting in the lawful execution of her duties. 

The court held that it was clear to the appellant that she was being asked to move because she was blocking the road and that ‘it was sufficient for the officer to have taken steps which reasonably appeared to her to be necessary for preventing crime’ (paragraph 31). 

In a fairly uneventful six months, the common theme appears to hold that erroneous decision making by the police and its agents may not be fatal to the success of any subsequent prosecutions. SJ

Claire Hegarty (left), is an associate and Irene McMillan (below) a solicitor in the criminal litigation team at Kingsley Napley @kingsleynapley www.kingsleynapley.co.uk