Gradual PACE of change
Claire Hegarty and Irene McMillan consider developments in case law and legislation relating to police powers, including the contentious question of the use of pre-charge bail
This update arrives in what has been a relatively quiet period in the law as it relates to police powers. There have been few reported cases regarding the interpretation of the Police and Criminal Evidence Act 1984 (PACE) and, unusually for recent times, there are no current proposals to amend or change the codes.
The Policing and Crime Bill, introduced to the House of Commons on 10 February 2016 and currently making its way through parliament, will bring in for the first time a statutory framework for the use of pre-charge bail by the police.
As currently drafted, the law will require the police to release an individual on pre-charge bail only if they consider it ‘necessary and proportionate in all the circumstances’ and that an officer of the rank of inspector or above authorises the release on bail. Release on bail would be for an initial period of 28 days. Following this initial period, a senior officer will be able to authorise a further period of three months if certain conditions are met. The magistrates’ court would then be able to grant further extensions of time.
All criminal justice parties have raised concerns about the proposed system. The police and CPS have concerns that the time limits are too short and that the level of officer required to authorise bail is too senior. Studies published by the police have concluded that most cases will require an initial bail period of 56 days and have suggested that authorisations for extensions of up to one year should be authorised by the police rather than the courts.
However, this extended period is unlikely to allay the concerns initially raised by defence practitioners and individuals subject to lengthy periods of bail. Defence representatives have concerns that individuals who are released not on bail but still subject to investigation will be left without any certainty as to the progress of their case or their status. These changes will of course be subject to further discussion and amendment as the Bill passes through parliament.
An additional minor change occurs in the Immigration Act 2016, which was granted royal assent on 12 May 2016. The Act renames the Gangmasters’ Licensing Authority the ‘Gangmasters and Labour Abuse Authority’ (GLAA). The GLAA was initially set up under the Gangmasters (Licensing) Act 2004 to regulate businesses in the agriculture, horticulture, shellfish-gathering, and associated fields. It is the responsibility of the GLAA to ensure that businesses in this sphere act in compliance with the law.
Under the Immigration Act 2016 its remit has been extended to enable it to investigate and prosecute allegations of exploitation across the labour market in the UK. Alongside this remit extension, the House of Lords inserted an amendment into the Act to give the GLAA powers under PACE 1984. Powers under PACE 1984 will be granted to the GLAA using statutory instruments. No delegated legislation has yet been proposed or placed before either house. The purpose behind the Lords’ amendment was to strengthen the powers of the GLAA to ‘allow officers to arrest suspects, enter premises where they believe labour market offending is taking place, and to search and seize evidence. In doing this, the amendment strengthens the powers of the GLAA and ensures that immediate action can be taken where the GLAA finds evidence of potential exploitation’ (according to paragraph 27 of the government’s explanatory notes on the Lords’ amendments to the Bill).
This amendment shows a clear intention by parliament to strengthen the powers of the GLAA to make the investigation and prosecution of labour offences easier. Whether this intention is realised remains to be seen.
The admissibility of guilty pleas from third parties came under review in the Court of Appeal in July. There were six co-defendants in the case of R v Denham; R v Stansfield  EWCA Crim 1048, involving a conspiracy to rape a child under 13.
The two appellants in this appeal were part of a group of men who had an interest in the sexual abuse of young children. One member of the group was godparent to a baby boy who lived next door and for whom he babysat. He committed an oral rape on the child between December 2013 and January 2014, which he filmed and sent to the others. He and one other member of the group pleaded guilty to rape. The two appellants were then tried together on charges of conspiracy to assault and conspiracy to rape a child under 13.
The trial judge allowed the guilty pleas to be put before the jury under section 74 of PACE 1984 and the appeal concerned whether or not the judge’s decision created unfairness for the two appellants.
The facts of the case showed that the group planned to meet on three occasions so that abuse could take place, but neither of the two appellants attended. Skype records were produced, together with other chat logs, showing discussions about the anticipated abuse of the child among the group, including one with one of the appellants expressing regret that one of the events had not taken place.
In defence, both men said that they never had any intention of carrying out the abuse, but obtained sexual gratification from the fantasy of pretending to carry out abuse and causing others to believe they were genuine.
The trial judge ruled that the prosecution should be able to rely on the guilty pleas of the co-defendants. The prosecution relied on section 74 of PACE 1984, which provides for the admission of the convictions of third parties. Counsel for the appellants at trial argued that section 74 should be used sparingly, particularly in relation to cases where a joint offence such as conspiracy is alleged, as it carries the inference of complicity and would make it impossible to challenge the existence of a conspiracy.
The judge rejected their arguments. He accepted that section 74 should be approached with caution and should not be employed simply to get evidence in front of the jury for the sake of convenience. However, he was satisfied that where it could be shown that the offence had been committed and the issue for the jury was whether the defendant was a party to that offence, then the evidence of a guilty plea was likely to be fair, although each case is fact specific in balancing the issue of fairness. He accepted that admitting such evidence may be unfair should it close off issues which the jury has to decide on, but not where it makes the issues more difficult.
The trial judge was not found to have erred in law in his approach and, dismissing the appeal, the court agreed that the key issue was whether the decision to admit evidence caused unfairness, rather than difficulties, to the defence. In this case, the admission of the earlier guilty pleas neither shut off their defences, nor closed down the issue the jury had to consider. Neither appellant sought to argue that there were no conspiracies, but that they had not joined in the conspiracy, and the judge acknowledged that the jury was entitled to come to a view on the intent of the appellants.
Processes within the criminal justice system (such as digital working, better case management, and new allocation guidelines) are changing. Whether these will streamline the system and address the difficulties within it is a matter for discussion. The changes to police bail are currently controversial, and, given the impact of the reforms on the liberty of individuals, it is likely that they will remain so as the new regime is finalised and implemented.
Claire Hegarty, pictured, and Irene McMillan are associates at Kingsley Napley