PACE Update: arrests, evidence, confession

Reasonable grounds for arrest

The Court of Appeal’s decision in Alanov v Chief Constable of Sussex [2012] EWCA Civ 234 demonstrates that an arresting officer’s suspicions that an individual may be guilty of an alleged offence must objectively be based on reasonable grounds.

The case concerned an appeal against a decision of the county court dismissing the appellant’s claims for unlawful arrest, unlawful detention and assault. At the time of his arrest he was living at a block of flats near which, on the previous night, a woman had been raped. When undertaking enquiries the following day, officers called at his flat. His partner initially denied that he was present. The police were eventually allowed into the flat and they found the appellant showering. The arresting officer described him as agitated, aggressive and argumentative, and he continued to wash despite the request of the officer. He was arrested on suspicion of rape and taken to the police station. Having provided various intimate samples, it was eventually established that the appellant was unconnected to the offence and no further action was taken. In dismissing the majority of his claims, the judge found that the officer had had reasonable grounds for effecting an arrest.

In allowing the appeal and finding that the arrest was unlawful, the Court of Appeal stated that the threshold for reasonable grounds for suspicion of a suspect’s guilt is low but that the facts in this case did not meet even this standard. The court observed that the arresting ?officer had failed to ask basic questions to ascertain the appellant’s name, whether he resided at the address, his relationship to his partner and his whereabouts and dress the previous evening, the answers to which (or refusal to answer) may have provided further material to establish reasonable grounds. There was no question that the officer had in fact suspected the appellant of the offence, but the court held that his suspicion was not objectively based on reasonable grounds.

The events that formed the basis for this appeal took place in 2005, before the current version of section 24 of the Police and Criminal Evidence Act (PACE) 1984 came into force. However, while the new provision introduced the requirement of ‘necessity’ to arrest, the requirement of ‘reasonable grounds’ of suspicion within the old section 24(6) is essentially identical to that in the current section 24(2) and the judgment would, it is submitted, have equal application in respect of an arrest under the current provisions.

This case reminds us that, while the amount of material that is known to an arresting officer may be minimal, there is nevertheless a requirement that any grounds for arrest must exist and must, objectively, be reasonable. When considering the lawfulness of an arrest with regard to section 24(2), defence solicitors should seek to ascertain the grounds upon which the arresting officer suspects the client’s involvement in the offence. This should be assessed against three questions, as referred to in Alanov, to determine whether the statutory requirements for a lawful arrest have been established. First, does the officer suspect that the person to be arrested was guilty of the offence? If so, are there reasonable grounds for that suspicion? Finally, is it reasonable for the arresting officer to exercise his executive discretion to make the arrest?

Excluding evidence

In R v Michael Williams [2012] EWCA Crim 264, the Court of Appeal considered the admissibility of a police officer’s evidence that had been obtained in breach of the PACE Codes of Practice.

The appellant sought to appeal against his conviction for wounding with intent. The complainant had been attacked and was shot in the leg, and, after giving chase to the perpetrators, he caught up with the appellant and attacked him with a sword. The appellant was taken to hospital and, while there, he had a conversation with a police officer in which the appellant presented himself to the officer as a victim of the assault.

At trial the appellant sought to exclude the officer’s evidence of this initial conversation, which was wholly inconsistent with the appellant’s case as advanced at trial, on the basis that it had been obtained in breach of code C:10.1 (requirement to caution). It was argued ?that, at the time, the appellant was already ?a suspect and ought to have been cautioned. It was also argued that what had taken place constituted an ‘interview’ within code C:11 and that there were additional breaches of that requirement to keep an accurate, written and signed record of what had been said. It was submitted that these breaches were so serious that evidence of the conversation should be excluded under section 78 of PACE.

The Court of Appeal held that the trial judge had erred in applying a subjective test based solely on how the police officer regarded the appellant at that time and that an objective test ought to have been applied: there was sufficient information available to the police at that time to establish reasonable grounds for suspicion, whether or not the officer had in fact any such suspicions in her mind. In the court’s view, there was sufficient information in the possession of the police at that time to warrant treating the appellant as a suspect with the consequence that he would have been afforded the protections of PACE. Accordingly, it was held that there had been breaches of both code C:10.1 and code C:11 of PACE and the trial judge ought to have excluded the evidence under section 78.

Although in this particular case the court found that the erroneous decision to allow the officer’s evidence had not affected the safety of the conviction, it is nonetheless an important reminder for defence advisers to consider the circumstances in which early comments were provided to the police and to consider whether these give rise to any basis for challenge.

Unreliable confession

In R v Roberts [2011] EWCA Crim 2974, the Court of Appeal allowed an appeal on the grounds that a confession, where obtained on false pretences, is unreliable and inadmissible. The appellant was a shop worker who had confessed to his employer that he had stolen items from the premises, having been informed by the employer that he would not contact the police should the appellant admit what he had done. The appellant admitted the offence and the employer nevertheless contacted the police. The court held that the employer’s untrue inducement made the confession unreliable and that it had been wrongfully admitted.

In this case, the appellant had exercised his right to silence in the subsequent police interview and provided a defence at trial. The court found that the appellant’s subsequent silence in the interview could not have the effect of turning what was an inherently unreliable earlier confession into a reliable one. It is a salient reminder that police station advisers should always consider carefully the admissibility of any admissions made before police involvement before advising a client upon the approach to an interview under caution.

Search warrants

R (on the application of G) v Commissioner of Police for the Metropolis [2011] EWCA concerned an application for the judicial review of the police commissioner’s application for and execution of a seizure warrant and the decision of the magistrates’ court to grant it. The police had applied for a warrant to seize material from the claimant’s premises connected to the possession of indecent images of children. The application was based on material suggesting that the claimant had subscribed to, and supplied his bank details to, a child pornography website.

The claimant submitted that the information supplied by the police in support of the application was inaccurate, misleading and incomplete as the police had been aware that he had been the victim of credit card fraud and, further, the email address did not relate to him.

The court criticised the manner in which the application for the warrant had been made and the lack of checks carried out by the police. It held that the police had failed to meet the high standards required for search and seizure warrants and granted the declaration that the application had been unlawfully made.

While the extent of the deficiency exhibited in this particular application is thankfully rare, defence practitioners will welcome the decision. Recent case law has indicated that investigators should accommodate requests for the information provided in support of applications for search warrants unless there is good reason not to do so. Yet, in this case, the police had initially refused to provide the claimant’s solicitors with a copy of the written information, claiming public interest immunity. This highlights the need for persistence if initial requests for a copy of the information are refused.

Glenn & Co (Essex) Ltd & 5 Ors v (1) Revenue & Customs (2) East Berkshire Magistrates’ Court [2011] EWHC 2998 (Admin) concerned another application for judicial review of the issue and execution of search warrants issued by the magistrates’ court pursuant to section 8 PACE.

On this occasion, the claimants submitted that district judge’s failure to refer to section 8(1)(a)-(e) PACE being satisfied and the badly drafted and imprecise nature of the warrant rendered the warrant unlawful. The court held that there was no requirement under section 8 that the district judge provide reasons why he was satisfied that there were reasonable grounds for believing the matters set out in section 8(1)(a)-(e). While accepting that the warrant was poorly drafted and demonstrated a lack of clarity, it was necessary to balance two competing factors: the need for a warrant to be sufficiently clear and precise so that those executing it be aware of the limits of their powers, as against the need for a power of search to be appropriate to the scope of what may be a broad investigation.

This case demonstrates a reluctance to quash warrants on the basis of what were considered to be essentially technical deficiencies. It stands in clear contrast to the case of G, in which the court considered that the information provided to the district judge was so deficient that the judge could not have been sufficiently satisfied to grant the warrant.