Keeping PACE

As the general election came and went,
the government issued a number of responses to consultations issued last year. The law continues to develop in relation to the use of and retention of DNA samples and the use of technology: it will be interesting to see how
this continues in the next parliament.

Revised code A

Last year saw the government’s consultation on amendments to code A to the Police and Criminal Evidence Act 1984 (PACE). The Home Office published its response to the consultation and
an amended code A on 5 December 2014.

The revised code A applies to all searches and public encounters taking place after midnight on
19 March 2015. Further guidance on what constitutes ‘reasonable grounds for suspicion’ is provided for officers. The police must have formed a genuine suspicion in their own minds that they will find the object for which they are allowed to search; the suspicion that the object will be found must
be reasonable; and there must be an objective basis
for their suspicion (paragraph 2.2). Annex A contains examples of when a stop and search may be
carried out.

The code states that officers may need to justify their use of stop and search to their supervisors and in court. They must be able to explain their use of these powers to the public. The code emphasises the possibility of officers who misuse these powers being made subject to performance or disciplinary reviews (paragraphs 1.4, 5.5, and 5.6).

Applicability of code C

On 19 February 2015, in PD (By her mother and litigation friend ZD) v The Chief Constable of Merseyside Police and Just for Kids Law and Children’s Rights Alliance for England (Interveners) [2015] EWCA Civ 114, Lord Justice Pitchford confirmed that code C, annex A applied to all powers exercised by the custody sergeant under section 54 of PACE.

The case concerned a 14-year-old girl taken into custody on 16 September 2010 while uncontrolled and aggressive. The custody sergeant ordered her clothing to be removed under section 54 as he considered she was a suicide risk. The claimant was taken to a room by three female officers who removed her clothing and dressed her in a safety gown. The door to the room was left ajar. Male officers remained in the vicinity. The claimant made a number of claims, including a breach of code C of PACE.

At first instance it was found that code C, annex A did not apply to the forced removal of clothing. The Court of Appeal disagreed. It found that ‘the code applies to the exercise of all powers given to custody officers in section 54, including the power to remove and seize clothing under subsections (3) and (6A)’ as ‘it would make little sense for paragraph 4 to apply to clothing retained as a result of search for some other thing but not to clothing removed because it was itself liable to seizure under subsection (4)’. Pitchford LJ found that a search had occurred and that code C, paragraph 4 applied. As more than the claimant’s outer clothing had been removed, a strip search had been conducted and annex A applied. The search should have been conducted in accordance with paragraph 11 of the annex, which is intended to preserve the dignity and well-being of detainees whose clothing is removed.

Pitchford LJ considered that ‘the essential requirement was that the removal should take place in an area where no one who was not immediately involved, and no male officer, could observe the claimant’.

Despite expressing concern that alternative and less invasive measures had not been considered in the circumstances, Pitchford LJ considered that there had not been a breach of the code.

Reviews of detention

On 8 January 2015, the Police and Criminal
Evidence Act 1984 (Remote Reviews of Detention) Regulations came into force. These regulations permit a review officer who is not in the same police station as a detained but not charged individual to conduct a review of detention using video-conferencing facilities. Reviews should not take place by telephone unless it is not reasonably practicable to use a video link.

Use of DNA evidence

DNA evidence seized by the police under part 2
of PACE cannot be used for purposes other than criminal law enforcement.

In X v Z (Children) [2015] EWCA Civ 34, the Court
of Appeal was asked to consider a judgment by the president of the Family Division which permitted
the disclosure of DNA profiles seized from premises during a criminal investigation under section 19
for the purpose of establishing paternity. The first appellant father, X, was serving a conviction for the murder of the mother of the respondent children.
X was accepted as the ‘psychological’ father of the children and, in subsequent care proceedings, asserted that he was also the biological father on the basis that he wanted to continue to play a role in the children’s lives. He refused to provide a DNA sample to prove paternity. The guardian of the children sought to obtain DNA samples obtained by the police in the course of the murder investigation.

Swabs were taken from the crime scene by the Metropolitan Police Service under part 2 of PACE.
A blood sample was taken from the victim at post mortem and a mouth swab was taken from X after his arrest. These samples demonstrated a high probability that the blood at the crime scene belonged to X.

It was understood that disclosure of the mouth swab taken from X under part 5 was prohibited by section 63T; therefore, disclosure was sought of profiles taken from the blood at the scene of the crime and a mouth swab from the mother. In his judgment of 18 June 2014, the president ordered the second appellant, the commissioner of the Metropolitan police, to disclose the information
to the local authority. Both X and the commissioner appealed the decision.

The court considered whether the use of samples obtained under part 2 could be disclosed for purposes other than the criminal investigation.
The court considered that the difference between the materials is that part 2 samples are obtained from a place and part 5 samples directly from a known individual. A request for a part 2 sample will only be made where a link can be established to a known individual, and therefore there is no rational basis for treating the samples differently. The appellants argued that section 22 should have the same effect as section 63T and the court agreed that this was its true intention. To treat a part 2 sample differently from a part 5 sample would produce arbitrary and irrational results which could not
have been intended by parliament. In addition,
the retention and use of a person’s DNA data would constitute interference with that person’s right
to private life under article 8 of the European Convention on Human Rights.

As a result, it was ruled that the DNA data obtained for the purposes of criminal proceedings could not be used to determine paternity in care proceedings.

Home Office guidance

On 29 September 2014, the Home Office issued guidance for chief police officers when considering making an application for the extended retention of biometric material where a person has been arrested for, but not charged with or convicted of, a qualifying offence.

Currently, such applications can be made under sections 63G(2) and (3) of PACE. Under section 63G(2) an application may be made where any alleged victim at the time of the offence was under the age of 18, a vulnerable adult, or associated with the person to whom the material relates. Under section 63G(3) the responsible chief officer may make an application if the victim criteria of section 63G(2) do not apply, but the retention of the material is necessary to assist in the prevention or detection of crime. While chief officers should be satisfied that they have reasonable grounds for believing these criteria are met before an application is made, it is only in exceptional circumstances that retention will be justifiable.

Relevant factors to be taken into account include the seriousness of the offence: extended retention will only be considered appropriate if the alleged offence is a ‘qualifying offence’ (more serious offences such as murder, manslaughter, rape, and assault). Similarly, reasons for suspecting that the arrested person committed the crime for which they were arrested will have to be strong. Examples given are where a suspect has previous offences for similar crimes or where a credible witness has withdrawn an accusation and there are good grounds for suspecting coercion. SJ

Irene McMillan, pictured, is a solicitor and Claire Hegarty is an associate in the criminal litigation department at Kingsley Napley

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