Police and Criminal Evidence Act

“The Police and Criminal Evidence Act 1984 is
often unfairly maligned. It struck a good balance between crime control and due
process in the investigation of crime and, while the amendments to the law
since its inception have improved it, there is no real need for further
change.”

Statement B: “The fallacy in Statement A is the
naive belief that there can be such a thing as a ‘good balance’. There is no
objective way of ‘balancing’ crime control and due process; we have to decide
which takes priority. We know which decision successive governments have
taken.”

Discuss these two statements, with illustrations.

Introduction:

The nature of
civil liberties have changed in the recent years, due to the incorporation of
certain articles of the European Convention on Human Rights (ECHR) through the
Human Rights Act 1998 (HRA); however English law governing the detention of an
individual is deemed to comply with the ECHR. The following exploration will
consider; the minimum requirements as set by the European Court of Human Rights
(ECtHR) pertaining to the detention of individuals, i.e. Right to Liberty and
Personal Security (Article 5) and the Right to a Fair Hearing (Article 6); the
requirements on police officers in relation to legally detaining individual,
i.e. PACE; and will finally conclude with the application of PACE and the ECHR
to considering whether the civil liberties of individuals are sufficient, even
when police officers fully comply with PACE, i.e. does PACE meet the minimum
requirements of the ECHR? If is does meet the requirements of the ECHR, is its
minimum protections sufficient? If PACE does meet the ECHR then one would
assume that it does ensure that there is a good balance between due process and
crime control; however there are problems with PACE, such as the right to
silence and the implication that if one refuses to talk this implies guilt;
hence illustrating that the legislation protects crime control at any cost,
even due process.

Police and Criminal Evidence
Act (PACE):

PACE was set up in
order to ensure that individuals were not arbitrarily detained by legal
authorities; it provides a comprehensive set of laws that govern the detention
of the individual by the police officer. Arrestable offences are held within
sections 24 and 25 of PACE; which include offences fixed by law, i.e. murder;
offences that carry a minimum sentence of 5 years, e.g. burglary, indecent
assault; certain statutory offences as listed in 24(2). These are the most
serious offences and aimed at protecting the individuals of society. A police
officer can arrest an individual whom they suspect of an arrestable offence or
is about to commit an arrestable offence, as long there are reasonable grounds
for the suspicion.
The police officer is arresting an individual must inform of the reasons for
arrest (PACE 28) at the time of or as soon as practicable.
The individual must also be cautioned which sets out that a person has the
right to silence but silence can be construed as guilt and anything said will
be written down and used in court. Once detained a person must be taken to a
detention centre where the time of detention is counted from or 24 hours after
detention, whichever is the earliest (PACE 41); the individual must be released
24 hours after detention if no charge is brought or if lengthened detention is
authorized. Detention can be extended to 36 hours by a superintendent if he has
reasonable grounds that fulfil section 42, i.e. detention is necessary to
preserve/obtain evidence; it is a serious arrestable offence; and the
investigation is being conducted in a diligent and expeditious manner.
Finally detention can be extended by a further 36 hours if the individual is
brought before a magistrate and the criteria, as mentioned above, are
fulfilled. When in detention the individual has the right to legal advice, as
well as the right to notify somebody of his arrest (PACE 56 and Code C);
however notification can be refused by a Superintendent in the case of a
serious arrestable offence as long as there are reasonable grounds that fulfil
section 56, i.e. lead to interference or alerting other suspects; or hinder the
recovery of property. Therefore PACE sets up very strict guidelines for a legal
arrest, which complies with the time limit of Section 5 of the ECHR.

Case Study – PACE &
Arrest:

The first
determination in the nature and cause of an accusation is to consider is what
is a criminal charge?

The primary
criteria are: domestic classification, nature of the offence, and severity of
the penalty incurred…
If a national court classifies an act as criminal [then the act is
criminal], but if an act is classified as non-criminal in domestic law,
this fact is relevant but not definitive. Even loss of liberty as a punishment
is not conclusive In McFeely v UK
the Commission considered whether Article 6 applied to decisions by prison
governors dealing with disciplinary adjudications [and decided
that these were not criminal offences, even though a severe punishment might be
meted].

Therefore the main criteria of a
criminal charge is the determination by law, Engels v Netherlands is
a very important case in understanding what a criminal charge is; the court
asked three questions:

• • 1)
    Is the offence determined as criminal by domestic law?
  • 2)
    Is the nature of the offence of great consequence?
  • 3)
    Is the penalty of such a severe risk to the accused individual?

In addition to a correct
determination of whether the charge is in fact criminal or civil, the
individual has the right to be informed of the full nature of accusation. It
has been questioned whether an individual can be found guilty in absentia. In
the case of Colozza v Italy
it was found that as long as sufficient attempts to trace the individual is
made then a person can be found guilty in absentia. The English Law requires
for an individual to be told of the grounds for arrest under the Police and
Criminal Evidence Act (PACE) 1984, Section 24 and explicitly given
definition in DPP v Hawkins:

No arrest is
lawful unless the person arrested is informed of the ground for the
arrest at the time of, or soon as is practicable after, the arrest.

Hence in relation to providing the
full nature of the accusation the English Legal System has had this
incorporated into the laws of PACE much longer than the enactment of the HRA
1998. However for the status to be re-confirmed in court signifies that this
basic principle is not always correctly observed. However if an individual is
falsely arrested or charged the individual has a right to seek remedy as long
as long as the individual can prove the arrest was not justified. Therefore the
English Legal System emphasizes the importance of supplying the grounds of a
charge, because if there are no grounds the criminal justice system may be
found liable for false arrest.
Also the necessity of providing the full grounds of arrest is important to
ensuring a fair trial, the opportunity to provide an adequate defence; and to
ensure there is an equality of arms between the defence and prosecution in both
civil and criminal cases, which also leads to impartiality because if only the
prosecution knew the full grounds of the trial then it would be a biased trial
in respect to knowledge. The import of equality is stressed, even at the lower
level of import in civil proceedings, as the ECtHR held in the case of Dombo
Beheer BV v Netherlands:

The Court agrees with the Commission that
as regards litigation involving opposing private interests, ‘equality of arms’
implies that each party must be afforded a reasonable opportunity to present
his case – including his evidence – under conditions that do not place him at a
substantial disadvantage vis–vis his opponent.

Hence illustrating the importance of equality of arms, this
is even more important at a criminal level where there are higher stakes; which
the English Legal System adheres to. Therefore PACE and the English Criminal
Justice System does seem to adhere to the ECHR and the balance of due process
with criminal control, yet this raises the question whether adhering to the
ECHR is enough.

Presumption of Innocence – The Lack of the Right to
Silence in PACE:

This section of
Article 6 is imperative to the whole pre-trial process and a system of fair and
just trials, because if one had to prove they were not guilty beyond a
reasonable doubt then the consequences are too high. This is a fundamental
right which is common to all democratic systems and a keystone of justice. The
English Legal System is a liberal democracy, therefore this is a concept
entrenched in the workings of the system and the attitudes of the judiciary. Also
if this basic right was not present then there would not be any fair criminal
hearing. However the English System has come under a lot of fire in respect to
the right of silence, because under English Law silence can be equated to guilt
or self-incrimination. The leading case on this point is Murray (John) v
UK where the arrested individual argued that he should have an inherent right to
silence, akin to the Fifth Amendment of the US Constitution. It
was argued that the English judiciary cannot imply guilt or adverse inferences
from silence:

[If the Judge was to do so then it
amounts] to subverting the presumption of innocence and the onus of proof resulting from
that presumption: it is for the prosecution to prove the accused’s guilt
without any assistance from the latter being acquired.

On the other hand:

The Government argued that the right of
silence and refusal to testify had not taken away but merely permitted the
judge to make inferences from the accused’s silence once the following state of
affairs had been affirmed:

• • (a) The prosecution
    must have first established, at least, a prima facie case.
  • (b) The accused must
    have failed to give a plausible innocent explanation for his silence when
    questioned
  • (c) The accused
    must be informed of the consequences of maintaining his silence.

The ECtHR had to decide whether
there was a breach of Article 6 if guilt or an adverse inference was a result
of silence, i.e. is the right to silence without inference of guilt necessary
for a fair trial and the presumption of innocence? The court held that it
depended on whether the individual was compelled to testify:

The circumstances of the case having
particular regard to the situation where inferences may be drawn, the weight
attached to them by national courts in their assessment of the evidence and the
degree of compulsion inherent in the situation.

Hence there is only a right to
silence if the individual was coerced by the authorities and was forced to give
up their wish for silence and forced self-incrimination. Therefore in this case
the ECtHR found that there was enough evidence to find the individual guilty,
therefore there was no coercion. However this does not totally rule out the
evolution of the right to silence; because it is on the first step by ensuring
persons are not compelled into making self-incriminating statements.
This idea of compelling self-incriminating statements was advanced in Saunders
v UK,
where the court ruled that; is not important that the statements themselves
were incriminating; rather it is whether the statements questioned the
innocence of the individual. Therefore the fact that this case compelled
self-incrimination, with a question over the guilt found a breach of Article 6.
Therefore this tightens the leeway given to the English Legal System in respect
to the right to silence, which possibly will evolve to the creation through
case-law of the right to silence in order not to breach the right to a fair
hearing and the presumption of innocence. In short in most areas the English
Legal System does comply with the ECtHR in relation to the presumption of
innocence; however in inherent rights theory this depends on one’s attitude to
the right to silence. One would have to argue in line with the Fifth
Amendment that the right to silence is fundamental to a fair trial and the
presumption of innocence and that the ECtHR is arguably creating a body of
case-law to ensure this right.

Quasi-Policing:

In short the
balance between due process and criminal control seems to fail on this point,
also PACE is extended to other sectors such as the detention of Mentally Ill
patients and the investigation by Environmental Health Officers to search and
seize proof in the possibility of a commission of an environmental crime; as
well as introducing quasi policing. Therefore taking PACE out of the hands of
trained individuals and placing it in quasi-trained or bureaucratic positions.
In respect to Environmental Health Officers the placing of these powers in
their hands makes sense because their speciality is environmental crime and
their powers are limited, in order to make an arrest they need an accompanying
police officer. The rights of investigation are contained within the EPA s 108,
where an EA enforcement officer can investigate at a reasonable time or in an
emergency any premises. In which the officer can determine whether
anti-pollution laws have been breached and take samples of polluting matter,
ensure that the polluting origins are preserved. Also any relevant paperwork,
photocopies, computer data and recordings are made. In addition the officer can
take information from employees etc. under oath and enter with the aid of any
relevant person, e.g. police officer. In impeding this obstruction of the
officer’s powers has occurred and depending on the circumstances possible
obstruction charges will be levied. In similar manner emergency powers of
detention for the mentally ill makes sense as long as ensuring that a proper
assessment is performed along the same timelines as PACE. Quasi-policing, on
the other hand, illustrate that crime control is more important than due
process, because it seems to forget the presumption of innocence.

Therefore creating further implications and training because
without the correct powers and use of these powers designated civilians may
contravene these human rights, which would create a further backlog in the
appeal system. One can observe how important these considerations are with the
provisions of the Police Reform Act 2002; whereby it allows the civilians
designated by the Chief Officer of Police to give the relevant powers and
duties to perform their role to a sufficient standard (Section 38(1) and
38(2)). One of the duties that designated civilians can perform is to issue
fixed penalty notices (Section 38(1) Schedule 4, Part 1(1); whereby this power
is only available if it is given by the Chief Officer of the Police, which may
be given for all offences in the ambit of the designated officer’s duties or
just particular offences, for example the Community Support Officer may also
have powers to issue fixed penalty tickets for riding a bicycle on the footway;
dog fouling; dropping litter. There is also an additional provision that may be
used by the Community Support Officers to exercise their power, which in itself
can be subject to various modifications. This includes issuing fixed penalty
notices in respect of an offence which appears to have caused injury, alarm or
distress to any person or which involves any other person’s property to be lost
or damaged:

1(1)
Where a designation applies this paragraph to any person, that person shall
have the powers specified in sub-paragraph (2) in relation to any individual
who he has reason to believe has committed a relevant fixed penalty offence at
a place within the relevant police area.

1(2)
Those powers are so far as exercisable in respect of relevant fixed penalty
offences as below:

1(2)(a)
the power of a constable in uniform and of an authorised constable to give a
penalty notice under Chapter 1 of Part 1 of the Criminal Justice and Police Act
2001 (c16) (fixed penalty notices in respect of offences of disorder).

The powers given
to the designated individual is very broad and includes offences from the minor
to the more major, major offences can include attacks on citizens whereby a
citizen’s arrest is available and the powers of search and seizure can be used
by these individuals. Therefore this may bring human rights implication in
relation to wrongful imprisonment, which creates implications under Article 5
of the ECHR, even though the maximum detention time is 30 minutes, it
illustrates that the government is prepared to give up due process for crime
control.

Conclusion:

This system of
quasi-policing and no right to silence are prime examples of trading off crime
control for due process. Quasi policing has created further resources to the
justice system, however if it is not properly policed then designated civilians
may have too much power or too little power; whereby if the power is too much
then there may be breaches of the ECHR. On the other hand if the power that
these individuals hold is too weak then the effectiveness of designated
civilians will be minimal. Therefore if the police force is going to continue
using designated civilians then adequate training needs to be provided, in
addition to the right level of power. The main advantage of using designated
civilians is having a visible police presence; however this presence is not
that of an individual that holds the power of a police officer, rather an
individual’s whose powers are much weaker. This means that the deterrence
effect of designated individuals may be very minimal; therefore indicating that
there may be a need for further recruitment and training of police officers or
further training of designated civilians and stronger powers are given, however
if there powers are too high then breaches of the ECHR may occur. In short the
implications of devolving police protection may have a reassuring effect to a
community, like a placebo but the effectiveness of crime deterrence and
reduction may be minimal because these designated civilians may be viewed by
the less law abiding individuals of the community as toothless tigers, i.e.
they can roar but have no bite in their powers.

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