THE CRIMINAL PROCESS: (1) THE INVESTIGATION OF CRIME

A special data subset pertaining to knife crime was started in 2007/08. In 2009/10, for the selected offences of attempted murder, GBH with intent, GBH without intent, robbery, threats to kill, ABH, sexual assault and rape, the police recorded 33,566 offences. Where a knife or sharp instrument was involved, a fall of 3 per cent was seen from 2009/2010, following a fall of 7 per cent from the previous year. That represents around 6 per cent of the total offences in the selected categories – and 0.8 per cent of all offences (Tenth report, Crime in England and Wales 2010–11, Home Office, July 2011, p 18).

• The 2010/11 BCS shows that 59 per cent of people thought the police in their local area were doing a good or excellent job, a significant improvement on the 56 per cent who held that view in 2009/10 and the 53 per cent in 2008/09. Overall confidence in the local police in 2010/11 rose to 72 per cent, as compared with 69 per cent in 2009/10. Levels of confidence in the CJS varied by demographic and socio-economic characteristics: the proportion of participants who had confidence in stating that the CJS is fair or effective was higher amongst younger people.

7.2.1 A CONTRADICTION

There is a friction between the sorts of policies that these two concerns generate – that is, first, that people seem to want the police to have greater powers to combat crime. Yet, contradictorily, the public want greater controls on the police and evidence so as to avoid more miscarriages of justice. Unjust convictions lay against the Winchester Three, the Guildford Four, the Birmingham Six, the Maguire Seven, the Tottenham Three, Stefan Kiszko, Judith Ward, and the Bridgewater Three (The Guardian, 21, 22 February 1997). It is argued that, if we wish to avoid similar instances of injustice, we should tighten the rules of evidence and procedure that govern the investigation and prosecution of crime. Against this, it has been argued that the police should have greater powers and that the trial process should be tilted less in favour of the defendant. (For example, see Charles Pollard, Chief Constable of the Thames Valley Police: letter, The Times, 12 April 1995; article, The Sunday Times, 9 July 1995.) The rules on disclosure of evidence in criminal trials, for example, have been radically changed by the Criminal Procedure and Investigations Act (CPIA) 1996. In particular, the material the prosecution has to disclose to the defence is staged (albeit that the CPS have a duty of continuous review) and brought within a more restrictive framework.

Now, for the first time, the defence has a duty to disclose its case in advance of trial, in the form of what is called a Defence Statement or commonly but incorrectly called a ‘DCS’. It is incumbent on all defendants to comply with the requirements of ss 5(5) and 6A of the Criminal Procedure and Investigations Act 1996, even if no positive defence is asserted by them (and so their case is conducted solely by means of putting the prosecution to proof). Failure to comply with these provisions may lead a jury to draw an adverse inference against a defendant should they wish to do so. A defendant is statutorily obliged to set out the nature of their defence ahead of trial. It is wrong for a barrister or solicitor (or for a barrister to advise his professional client, the solicitor) to advise a defendant not to prepare or cooperate in the writing of a Defence Statement. However, where a defendant chooses not to set out the nature of his defence, neither he nor his legal representative are liable for contempt of court proceedings (R v Rochford (2010).

One problem, therefore, in this area of the English legal system is that as the growing problems of crime, and the fear of crime, become more important concerns of government, there are emerging two lobbies for change. Those lobbies are diametrically opposed.

It is not clear yet what is the main thrust of governmental policy in relation to the criminal justice system. Thus far, we have seen an unusual cocktail consisting of several privatisation measures and a good dose of centralisation.

Criminal justice has historically been regarded by government as a matter for the State. Recently, however, first under the Conservative government in the early 1990s, then under Labour, and now under the coalition government, various parts of the system have been privatised. Such moves have not generally been seen as runaway successes. In November 1998, there was public scandal at the extent of injury to prison officers and trainers and damage to the premises of the country’s leading private institution for young offenders. It was revealed that over £100,000 of damage had been wrought by wild 12–14 year olds at the Medway Secure Training Centre in Kent. After more than one fiasco, privatised prison escort services have come in for severe criticism. A provision of the CJPOA 1994 allowing for private sponsorship of police equipment has been a boon for satirical cartoonists.

By contrast, there are several ways in which aspects of the criminal justice system, historically all independent from each other and detached from governmental control, have been drawn within the influence of central government. It has, for example, been a hallowed precept of the British constitution that police forces are local and not governmental agencies. Yet, under Conservative legislation, the Home Secretary became allowed to ‘determine objectives for the policing of the areas of all police authorities’.

There is also reason for disquiet about the law contained in the Terrorism Act 2000, which makes the opinion of a police officer admissible evidence in court. Proof of membership of a proscribed organisation may be based in part upon the opinion of a senior police officer. Considerable evidence – from miscarriage of justice cases, especially those involving suspects of terrorism from Northern Ireland – showed that some police officers were apparently prepared to lie and falsify evidence to secure convictions. The new law has hence caused some people to become alarmed at the prospect that a person could be convicted of a serious offence on evidence taken mainly from the opinion of a police officer.

Proactive ‘intelligence-led’ policing has become increasingly commonplace in recent years, especially in relation to drugs and organised crime. Such techniques inevitably involve deception by police officers and their informers (see C Dunnighan and C Norris, ‘A risky business: the recruitment and running of informers by English police officers’ (1996) 19 Police Studies 1). This may involve testing whether a person is willing to commit an offence. Although English law has never recognised a defence of entrapment, entrapment may be a mitigating factor and a ground for excluding evidence: R v Looseley; Attorney General’s Reference (No 3 of 2000) (2002). (See A. Ashworth, ‘Re-drawing the boundaries of entrapment’ [2002] Crim LR 161–79.)

Until recently, foreign persons – that is, non-British nationals – suspected of involvement in terrorist activities could be detained without trial under the provisions of Part 4 of the Anti-terrorism, Crime and Security Act 2001. Detention without trial obviously breached Art 5(1) of the European Convention on Human Rights. The policy was justified under Art 15 which permits derogation from Art 5(1) in time of war ‘or other public emergency threatening the life of the nation’. The House of Lords addressed the issue in 2004: A and X and Others [2004] UKHL 56. Their Lordships decided the case against the Government. Lord Hoffmann rejected the view that modern terrorists were a threat to the life of the nation (and therefore that a ‘state of emergency’ was appropriate): ‘The real threat to the life of the nation […] comes not from terrorism but from laws such as these’ (see P Mendelle, ‘No detention please, we’re British?’ (2005) 155 NLJ 77). Although the government could (theoretically) have ignored this decisive rebuff, it accepted the constitutional reality that the law had to change and introduced legislation providing for control orders. Control orders were extremely controversial. According to Doug Jewell, Liberty’s campaign director: ‘The Prevention of Terrorism Act 2005 is a fundamentally flawed piece of legislation. No one knows how [the orders] are going to be enacted … It’s going to be a policing nightmare.’ See ‘“Profound unease” over control orders’ (2005) 155 NLJ 394. The coalition government has subsequently re-branded control orders as ‘terrorist prevention and investigation measures’, which will have a qualified limitation period of two years in the Protection of Freedoms Bill 2011. The Bill is expected to receive Royal Assent in 2012.

According to AV Dicey, ‘individual rights are the basis not the result of the law of the constitution’ (Law of the Constitution, 6th edn, p 203; cited by Judge LJ in R v Central Criminal Court ex p The Guardian, The Observer and Bright (2002)). Before considering the rights of the citizen and the law governing arrest and detention, what happens in the police station and what evidence is admissible in court, it is appropriate to look first at what the citizen can do if those rights are violated.

7.3.1 REMEDIES FOR UNLAWFUL ARREST

Like other areas of law where the liberty of the subject is at stake, the law relating to arrest is founded upon the principle of justification. If challenged, the person who has attempted to make an arrest must justify his actions and show that the arrest was lawful. Failing this, the arrest will be regarded as unlawful. In Roberts v Chief Constable of Cheshire Police (1999), the Court of Appeal held that a failure to carry out a review of detention in accordance with s 40 of PACE 1984 rendered a subsequent period of detention unlawful.

There are four possible remedies:

• To use the illegality of the detention to argue that any subsequent prosecution should fail. This type of argument is very rarely successful as illegally obtained evidence is not, ipso facto, automatically rendered inadmissible. The House of Lords ruled in R v Sang (1979) that no discretion existed to exclude evidence simply because it had been illegally or improperly obtained. A court could only exclude relevant evidence where its effect would be ‘unduly prejudicial’. This is reflected in s 78(1) of the Police and Criminal Evidence Act (PACE) 1984. This perhaps surprising rule was supported by the Royal Commission on Criminal Justice (although the argument there was chiefly focused on the admissibility of confession evidence). Professor Zander, however, in a note of dissent, contested the idea that a conviction could be upheld despite serious misconduct by the prosecution if there is other evidence against the convicted person. He states: ‘I cannot agree. The moral foundation of the criminal justice system requires that, if the prosecution has employed foul means, the defendant must go free if he is plainly guilty […] the conviction should be quashed as an expression of the system’s repugnance.’ An extreme case might involve the admissibility of confession evidence obtained by torture by the authorities in another country (see for example Gäfgen v Germany (2011)). Since the Human Rights Act (HRA) 1998 became fully operative in October 2000, it has no longer been possible to treat such issues merely as involving interpretation of s 78(1) of PACE 1984 itself. Additionally, any court must take Art 6 of the European Convention on Human Rights (ECHR) into account in appropriate circumstances. For further discussion of this aspect, see above, at 2.5.1.1–2.5.1.2, and below, at 15.4.

• A judicial review of the detention. A judicial review of a decision to detain someone can be brought in the High Court on the ground that the detention is unlawful. The judicial review may include a claim under the Human Rights Act 1998 that the detention is in violation of Art 5 ECHR. If the High Court finds in favour of the detainee, it has the power to quash the decision to detain, order that the detainee be released and, in some limited circumstances, to award damages.

In a review of trends in actions against the police, S Khan and M Ryder ((September 1998) Legal Action 16) comment on two cases in relation to damages. In Goswell v Commissioner of Police for the Metropolis (1998), a jury awarded damages totalling £302,000 to Mr Goswell, comprising £120,000 for assault, £12,000 for false imprisonment and £170,000 exemplary damages. On appeal, Simon Brown LJ held that £100 was an appropriate award for basic damages for false imprisonment for 20 minutes. He allowed for the fact that the unlawfulness of the detention was a consequence of a breach of s 28 of PACE 1984 and expressed the opinion that the case ‘does not in the fullest sense involve a wrongful deprivation of liberty’. Basic damages were assessed at £22,500, aggravated damages at £10,000 and £15,000 for exemplary damages. Overall, the figure was reduced from £302,000 to £47,500. In a second case against the police, Commissioner of Police for the Metropolis v Gerald (1998), an initial award by a jury of £125,000 for assault, false imprisonment and malicious prosecution was reduced to £50,000 on appeal by the Commissioner.

Apart from the question of civil remedies, it is important to remember the following:

• If the arrest is not lawful, there is the right to use reasonable force to resist it: R v Waterfield (1964); Kenlin v Gardiner (1967). This is a remedy, however, of doubtful advisability, as the legality of the arrest will only be properly tested after the event in a law court. If a police officer was engaged in what the courts decide was a lawful arrest or conduct, then anyone who uses force against the officer might have been guilty of an offence of assaulting an officer in the execution of his duty, contrary to s 89(1) of the Police Act 1996.

• That, for our purposes in considering the consequences for an unlawfully arrested person faced with prosecution, s 78 of PACE 1984 states:

7.3.2 GENERAL POWERS OF ARREST

In Spicer v Holt (1977), Lord Dilhorne stated:

So, a person detained by the police against his will is arrested. Whether this arrest is lawful will depend on whether the conditions for a lawful arrest have been satisfied.

Lawful arrests are those: (1) under warrant; (2) without warrant at common law; or (3) without warrant under legislation.

7.3.3 ARREST UNDER WARRANT

The police lay a written information on oath before a magistrate that a person ‘has, or is suspected of having, committed an offence’ (s 1 of the Magistrates’ Courts Act 1980). The Criminal Justice Act (CJA) 1967 provides that warrants should not be issued unless the offence in question is indictable or is punishable with imprisonment.

Until recently, complex extradition arrangements existed between the Member States of the European Union (EU). In December 2001, the EU agreed in principle to introduce European arrest warrants. The decision was formally adopted in June 2002. The traditional approach (found in extradition agreements) embodied the principle of ‘dual criminality’ – that is, a person would not be extradited from one State to another unless his alleged offence was an extraditable crime in both countries. This requirement has now been removed from a list of 32 offences. The inclusion of ‘racism and xenophobia’ has aroused some controversy. (See S Allegre, ‘The myth and the reality of a modern European judicial space’ (2002) 152 NLJ 986–7).

7.3.4 COMMON LAW ARRESTS

The only power to arrest at common law is where a breach of the peace has been committed and there are reasonable grounds for believing that it will be continued or renewed, or where a breach of the peace is reasonably apprehended. Essentially, it requires conduct related to violence, real or threatened. A simple disturbance does not, in itself, amount to a breach of the peace unless it results from violence, real or threatened.

The court adopted the following definition of ‘breach of the peace’. It occurs:

In the second of the two cases, R v Chief Constable of the Devon and Cornwall Constabulary ex p Central Electricity Generating Board (CEGB) (1981), Lord Denning MR suggested that breach of the peace might be considerably wider than this. This case involved a group of protesters who had occupied private land in order to prevent CEGB employees from carrying out a survey to assess its suitability for a nuclear power station. The protest was intended to be peaceful and non-violent. Lord Denning MR suggested that:

He appears to have been saying (Feldman, Civil Liberties and Human Rights in England and Wales (1993), pp 788–9) not that a breach of the peace is automatic in such circumstances. Instead, in the context of the CEGB case, any obstruction or unlawful resistance by the trespasser could give the police a reasonable apprehension of a breach of the peace, in the sense of violence.

However, in cases that have followed (such as Parkin v Norman (1982); Percy v DPP (1995); and Foulkes v Chief Constable of Merseyside Police (1998)), it is the definition in R v Howell that has been preferred. Despite earlier doubts, argues Parpworth (‘Breach of the peace: breach of human rights?’ (1998) 152 JP 6, 7 November), the decision of the European Court of Human Rights (ECtHR) in Steel and Others v UK (1998) brings clear and authoritative clarification to this area of law. This case represents ‘a clear endorsement by a court largely unfamiliar with the common law concept of a breach of the peace that such a concept is in accordance with the terms of the European Convention on Human Rights’.

7.3.5 ARREST UNDER LEGISLATION

The right to arrest is generally governed by s 24 of PACE 1984 (as amended by SOCPA below).

Serious Organised Crime and Police Act 2005 (SOCPA)

Part 3 of this Act, which came into force in January 2006, makes a number of changes to police powers set out in the Police and Criminal Evidence Act 1984 (PACE) and extends the powers of Community Support Officers (CSOs) and other persons designated or accredited under the provisions of the Police Reform Act 2002.

Sections 110, 111, 113 and 114 and Sched 7 revise the framework of arrest and search powers in PACE. In particular they provide, in the case of a constable’s power of arrest, for all offences to be ‘arrestable’ subject to a necessity test. This means that someone who has committed a relatively low order criminal offence, like littering, could, in theory, be arrested if an officer deemed it necessary and was able to satisfy his or her desk sergeant at the police station that this was so. That might occur, for example, if the person being requested to pick up the litter refused to do so, and then refused to give his or her name to the officer.

Section 110 states:

Section 112 introduces a new offence of failing to obey a police direction to leave an exclusion area. Section 115 extends the powers of the police, in s 1 of PACE, to stop and search persons suspected of carrying prohibited fireworks.

Sections 116 to 118 enable the police to take photographs and fingerprints of persons away from a police station and to take impressions of a person’s footwear at a police station. The power to take photographs is extended to Community Support Officers (CSOs) and accredited persons in limited circumstances. Section 116(3) amends s 64A of PACE to allow the police to pass a photograph to the court for the purposes of enforcing the orders of the court. This new power is in addition to that which already allows the police to pass a photograph to the court for the purposes of prosecution. Section 119 amends the definition of an intimate and non-intimate sample.

Sections 120 and 121 create a new category of designated person under the Police Reform Act 2002, namely a ‘staff custody officer’, thereby enabling police staff to undertake custody functions previously restricted to police officers.

Sections 122 and 123 and Scheds 8 and 9 extend the powers of CSOs, other designated police staff, and accredited persons. Those provisions enable police staff to access certain information relating to drivers, vehicle registration plate suppliers and motor insurance.

These are highly controversial new powers. The case to extend powers for the police is built on the idea that those who have done nothing wrong will have nothing to fear from the exercise of the powers. The extension of police powers is also defended on the grounds that any arrest, to be lawful, must be ‘necessary’ (see s 24(5) of PACE as amended, above, by s 110 of the Serious Organised Crime and Police Act).

There are, however, clear reasons for concern at this development. A society in which the police have unlimited powers can be described as a ‘police state’, and such tyranny is almost universally disfavoured. That, of course, is very far from the position now in the UK, a country that has what are among the best-protected liberties in the world. However, the closer that law in the UK moves towards giving the police very wide powers to arrest, the greater the need for concern. A society in which people can be arrested for any offence, in which CCTV is ubiquitous (Surveillance UK, The Independent, 22 December 2005), and in which police ‘success’ is progressively measured by how many arrests and crimes solved, might reduce certain sorts of offending (although many sorts of criminality are not reduced by such policies). But how comfortable a place would it be to live? The inhabitants of many countries in which there are dictatorial governments and no respect for civil liberties do not seem to rejoice in the crime-free streets. At all events, the most desirable balance between freedom not to be interfered with by police officers, and policing that improves society by effectively reducing crime, is ultimately a political question for the public, rather than the small section of the public comprised by judges, lawyers, and police officers. The cases below are included to illustrate the operation of s 24 of PACE (although note that they were decided before SOCPA came into force).

7.3.6 G v DPP (1989)

It should be noted, in particular that, under s 24(6), no offence need actually have been committed. All that is required is that the police officer reasonably believes that an arrestable offence has been committed.

The differences in the powers of arrest in s 24 are based on whether an offence:

• is being committed: anyone may make the arrest; see s 24(4);

• has been committed: anyone may make the arrest; see s 24(5) or the wider powers of the police (s 24(6)) who can arrest where they have ‘reasonable grounds for suspecting that an arrestable offence has been committed’ whether one has in fact been committed or not;

• is about to be committed: only a police officer may act here; see s 24(7).

PACE 1984 preserves an old common law distinction in respect of the powers of constables and private individuals when making such arrests. Where an arrest is being made after an offence is thought to have been committed, then PACE 1984 confers narrower rights upon the private individual than on the police officer.

7.3.7 WALTERS v WH SMITH & SON LTD (1914)

In Walters v WH Smith & Son Ltd (1914), the defendants had reasonably suspected that Walters had stolen books from a station bookstall. At his trial, Walters was acquitted, as the jury believed his statement that he had intended to pay for the books. No crime had therefore been committed in respect of any of the books. Walters sued the defendants, inter alia, for false imprisonment, a tort which involves the wrongful deprivation of personal liberty in any form, as he had been arrested for a crime that had not in fact been committed. The Court of Appeal held that, to justify the arrest, a private individual – as opposed to police officer – had to show not only reasonable suspicion but also that the offence for which the arrested person was given over into custody had in fact been committed, even if by someone else. A police officer making an arrest in the same circumstances could legally justify the arrest by showing ‘reasonable suspicion’ alone, without having to show that an offence was, in fact, committed.

This principle is now incorporated in s 24 of PACE 1984. It is worthy of note that the less prudent arrestor who acts against a suspect when the latter is suspected of being in the act of committing an arrestable offence (s 24(4)) can justify his conduct simply by showing that there were ‘reasonable grounds’ on which to base the suspicion. They need not show that an offence was in fact being committed. If the arrestor waits until he thinks the crime has been committed, then, whereas a police officer will only have to show ‘reasonable grounds for suspecting that an arrestable offence has been committed’ (s 24(6)), a citizen can only justify his behaviour if an offence ‘has been committed’ (s 24(5)).

7.3.8 R v SELF (1992)

This analysis is supported by the decision in R v Self (1992). The defendant was seen by a store detective in Woolworths to pick up a bar of chocolate and leave the store without paying. The detective followed him out into the street and, with the assistance of a member of the public, she arrested the suspect under the powers in s 24(5) of PACE 1984. The suspect resisted the arrest and assaulted both his arrestors. He was subsequently charged with theft of the chocolate and with offences of assault with intent to resist lawful apprehension or detainer, contrary to s 38 of the Offences Against the Person Act 1861. At his trial, he was acquitted of theft (apparently for lack of mens rea), but convicted of the assaults. These convictions were quashed by the Court of Appeal on the grounds that, as the arrest had not been lawful, he was entitled to resist it. The power of arrest conferred upon a citizen (s 24(5)) in circumstances where an offence is thought to have been committed only applies when an offence has been committed. As the jury decided that Mr Self had not committed any offence, there was no power to arrest him.

It is not easy to justify the considerable legal protection available to police officers when compared with the near total lack of protection available to ordinary British subjects/citizens. In the article mentioned above, Professor Spencer states: ‘[I]f a citizen, reacting to the words “Stop thief!” tackles someone who looks for all the world like a fleeing robber, he has no defence if it later turns out that no robbery has actually occurred. The person he tackles can hit him with impunity, and sue him for damages at leisure later’ (‘Extending the Police State’, ibid). This seems far from satisfactory.

7.3.9 JOHN LEWIS & CO v TIMS (1952)

In John Lewis & Co v Tims (1952), Mrs Tims and her daughter were arrested by store detectives for shoplifting four calendars from the appellant’s Oxford Street store. It was a regulation of the store that only a managing director or a general manager was authorised to institute any prosecution. After being arrested, Mrs Tims and her daughter were taken to the office of the chief store detective. They were detained there until a chief detective and a manager arrived to give instructions whether to prosecute. They were eventually handed over to police custody within an hour of arrest. In a claim by Mrs Tims for false imprisonment, she alleged that the detectives were obliged to give her into the custody of the police immediately upon arrest. The House of Lords held that the delay was reasonable in the circumstances. There were advantages in refusing to give private detectives a ‘free hand’ and leaving the determination of such an important question as whether to prosecute to a superior official.

7.3.10 WHAT IS THE MEANING OF ‘REASONABLE GROUNDS FOR SUSPECTING’?

Many of the powers of the police in relation to arrest, search and seizure are founded upon the presence of reasonable ‘suspicion’, ‘cause’ or ‘belief’ in a state of affairs, usually that a suspect is involved actually or potentially in a crime.

In Castorina v Chief Constable of Surrey (1988), detectives reasonably concluded that the burglary of a company’s premises was an ‘inside job’. The managing director told them that she had recently dismissed someone (the plaintiff), although she did not think it would have been her, and that the documents taken would be useful to someone with a grudge. The detectives interviewed the plaintiff, having found out that she had no criminal record, and arrested her under s 2(4) of the Criminal Law Act (CLA) 1967 (which has now been replaced by s 24(6) of PACE 1984). She was detained at the police station for almost four hours, interrogated and then released without charge. On a claim for damages for wrongful arrest and detention, a jury awarded her £4,500. The trial judge held that the officers had had a prima facie case for suspicion, but that the arrest was premature. He had defined ‘reasonable cause’ (which the officers would have needed to show they had when they arrested the plaintiff) as ‘honest belief founded upon reasonable suspicion leading an ordinary cautious man to the conclusion that the person arrested was guilty of the offence’. He said an ordinary man would have sought more information from the suspect, including an explanation for any grudge on her part. In this, he relied on the dicta of Scott LJ in Dumbell v Roberts (1944) that the principle that every man was presumed innocent until proved guilty also applied to arrests. The Court of Appeal allowed an appeal by the chief constable. The court held that the trial judge had used too severe a test in judging the officers’ conduct.

Purchas LJ said that the test of ‘reasonable cause’ was objective and therefore the trial judge was wrong to have focused attention on whether the officers had ‘an honest belief’. The question was whether the officers had had reasonable grounds to suspect the woman of the offence. There was sufficient evidence that the officers had had sufficient reason to suspect her.

Woolf LJ thought there were three things to consider in cases where an arrest is alleged to be unlawful:

• Did the arresting officer suspect that the person who was arrested had committed the offence? This was a matter of fact about the officer’s state of mind.

• If the answer to the first question is yes, then was there reasonable proof of that suspicion? This is a simple objective matter to be determined by the judge.

• If the answers to the first two questions are both yes, then the officer did have a discretion to arrest, and the question then was whether he had exercised his discretion according to Wednesbury principles of reasonableness.

This case hinged on the second point and, on the facts, the chief constable should succeed on the appeal.

Note : The Wednesbury principles come from Associated Provincial Picture Houses Ltd v Wednesbury Corp (1948). Lord Greene MR laid down principles to determine when the decision made by a public authority could be regarded as so perverse or unreasonable that the courts would be justified in overturning that decision. The case actually concerned whether a condition imposed by a local authority on cinemas operating on Sundays was reasonable. Lord Greene MR said:

Sir Frederick Lawton, the third judge in the Court of Appeal in Castorina, agreed. The facts on which ‘reasonable cause’ was said to have been founded did not have to be such as to lead an ordinary cautious man to conclude that the person arrested was guilty of the offence. It was enough if they could lead an ordinary person to suspect that he was guilty.

This creates quite some latitude for the police. Additionally, the House of Lords has decided in Holgate-Mohammed v Duke (1984) that, where a police officer reasonably suspects an individual of having committed an arrestable offence, he may arrest that person with a view to questioning him at the police station. His decision can only be challenged on Wednesbury principles if he acted improperly by taking something irrelevant into account. The police arrested a former lodger for theft of jewellery from the house where she had lived in order to question her at the police station. The trial judge awarded her £1,000 damages for false imprisonment. The Court of Appeal set aside the award and the decision was upheld by the House of Lords. The following passage from a judgment in the Court of Appeal in Holgate-Mohammed was approved in the House of Lords:

It has been forcefully contended, however, that, in some circumstances, a failure to make inquiries before making an arrest could show that there were insufficient grounds for the arrest. See Clayton and Tomlinson, ‘Arrest and reasonable grounds for suspicion’ (1988) Law Soc Gazette, 7 September.

Note, however, that the powers are discretionary. See Simpson v Chief Constable of South Yorkshire Police (1991).

7.3.11 DETENTION SHORT OF ARREST

For there to be an arrest, the arrestor must regard his action as an arrest. If he simply detains someone to question him without any thought of arrest, the action will be unlawful. It is often reported in criminal investigations that a person is ‘helping police with their inquiries’. In R v Lemsatef (1977), Lawton LJ said:

There is no police power to detain someone against his will in order to make inquiries about that person. See also Franchiosy (1979). This is confirmed by s 29 of PACE 1984, which states that where someone attends a police station ‘for the purpose of assisting with an investigation’, he is entitled to leave at any time unless placed under arrest. He must be informed at once that he is under arrest ‘if a decision is taken by a constable to prevent him from leaving at will’. There is, however, no legal duty on the police to inform anyone whom they invite to the station to help with their inquiries that he may go.

7.3.12 SUSPECTS STOPPED IN THE STREET

In Kenlin v Gardiner (1967), a police officer took hold of the arm of a boy he wanted to question about the latter’s suspicious conduct. The boy did not believe the man was a policeman, despite having been shown a warrant card, and punched the officer in order to escape. The other boy behaved similarly but their convictions for assaulting an officer in the execution of his duty were quashed by the Divisional Court. The court held that the boys were entitled to act as they did in self-defence as the officer’s conduct in trying to physically apprehend them had not been legal. There is no legal power of detention short of arrest. As Lawton LJ observed in R v Lemsatef (see above), the police do not have any powers to detain somebody ‘for the purposes of getting them to help with their inquiries’.

It is important, however, to examine the precise circumstances of the detaining officer’s conduct. There are cases to suggest that if what the officer does amounts to only a de minimis interference with the citizen’s liberty, then forceful ‘self-defence’ by the citizen will not be justified. In Donnelly v Jackman (1970), an officer approached a suspect to ask some questions. The suspect ignored the request and walked away from the officer. The officer followed and made further requests for the suspect to stop and talk. He tapped the suspect on the shoulder and the suspect reciprocated by tapping the officer on the shoulder and saying ‘Now we are even, copper’. The officer tapped the suspect on the shoulder again, which was replied to with a forceful punch. Mr Donnelly’s conviction was upheld and the decision in Kenlin v Gardiner was distinguished as, in the earlier case, the officer had actually taken hold of the boys and detained them. The court stated that, ‘it is not every trivial interference with a citizen’s liberty that amounts to a course of conduct sufficient to take the officer out of the course of his duties’.

In Bentley v Brudzinski (1982), the facts were very close to those above. A constable stopped two men who had been running barefoot down a street in the early hours. He questioned them about a stolen vehicle as they fitted the description of suspects in an earlier incident. They waited for about 10 minutes while the officer checked their details over a radio and then they began to leave. Another constable, who had just arrived on the scene, then said, ‘Just a minute’, and put his hand on the defendant’s shoulder. The defendant then punched that officer in the face. Unlike the decision in Donnelly v Jackman, the Divisional Court held that the officer’s conduct was more than a trivial interference with the citizen’s liberty and amounted to an unlawful attempt to stop and detain him. The respondent was thus not guilty of assaulting an officer in the execution of his duty.

Note, also, that a person may be arrested for being silent or misleading under s 25 of PACE 1984, if the officer has reasonable doubts about the suspect’s name and address or whether the summons procedure can be used at the address given.

7.3.13 STOP AND SEARCH

PACE 1984 gives the police power to search ‘any person or vehicle’ and to detain either for the purpose of such a search (s 1(2)). A constable may not conduct such a search ‘unless he has reasonable grounds for suspecting that he will find stolen or prohibited articles’ (s 1(3)). Any such item found during the search can be seized (s 1(6)). An article is ‘prohibited’ if it is either an offensive weapon or it is ‘made or adapted for use in the course of or in connection with burglary, theft, taking a motor vehicle without authority or obtaining property by deception or is intended by the person having it with him for such use by him or by some other person’ (s 1(7)). An offensive weapon is defined as meaning ‘any article made or adapted for use for causing injury to persons or intended by the person having it with him for such use by him or by some other person’ (s 1(9)). This definition is taken from the Prevention of Crime Act 1953. It has two categories: things that are offensive weapons per se (that is, in themselves), like a baton with a nail through the end or knuckle-dusters, and things that are not offensive weapons, like a spanner, but which are intended to be used as such. If the item is in the first category, then the prosecution need prove only that the accused had it with him to put the onus onto the accused to show that he had a lawful excuse. Stop and search powers can now also be exercised under s 8A regarding items covered by s 139 of the CJA 1988. These items are any article that has a blade or is sharply pointed, except folding pocket knives with a blade of less than three inches. It is an offence to possess such items without good reason or lawful authority, the onus of proof being on the defendant. The courts will not accept the carrying of offensive weapons for generalised self-defence unless there is some immediate, identifiable threat.