Update | PACE: cover evidence, necessity of arrest

The recent Court of Appeal decision of Saunders v R [2012] EWCA Crim 1380 considered whether a valid waiver is given of the right to legal advice in a police station in circumstances in which all the consequences of a decision to waive are not made known to the suspect.

The appellant was interviewed on a number of allegations of fraud by false representation. She had a number of previous convictions for fraud and therefore had prior experience of police station interviews. She waived her right to legal advice prior to being interviewed and, during interview, failed to mention certain facts that she later relied on at trial. She argued that her waiver to legal advice had not been validly given, in that she had not been warned that the interviewing officer's practice was to provide pre-interview disclosure only in cases where the suspect was legally represented. It was argued that, had she known this, she would have sought legal representation and that, as a result of not receiving disclosure, she was taken by surprise in relation to allegations put to her during interview.

At trial the judge held that the police give a solicitor pre-interview disclosure in order to advise his/her client and that when a suspect has decided against the option of legal advice, pre-interview disclosure is no longer necessary. The Court of Appeal took the view that this approach was too rigid and recognised that there may be cases where fairness demands that a suspect be afforded pre-interview disclosure.

However, it found that the appellant had failed to demonstrate a disadvantage: she had been told that she could ask for a solicitor at any time and the allegation had been explained to her at the outset. The court went further in finding that it was not enough to show the appellant would have been 'better off' in interview with a solicitor present or to identify some disadvantage as a consequence or this waiver; the correct test was whether her decision had been 'informed' as well as also being voluntary and unequivocal. In this case it was informed, by her background experience? in previous cases.

As to the claim that the appellant had been taken by surprise, it was held that this provided no basis for an argument that decision not to obtain legal advice was not effectively made. It was noted that on occasion surprise may be legitimately used by the police in interview. The court also noted that the presence of a legal advisor may not in itself prevent an interviewee from being surprised or confronted with accusations, although it failed to mention that had a legal advisor been present the accused would have had the opportunity of being properly advised as to whether to respond to allegations or evidence which had not previously been disclosed.

This case underlines the clear benefit to suspects in seeking legal representation as well as drawing attention to the different treatment that sometimes is given by the police to those who are unrepresented.

Admission of covertly recorded conversation

The case of R v King & others [2012] EWCA Crim 805 concerned the admissibility of a covertly recorded conversation between the appellant and his co-accused. Following arrest, the suspects were placed in the back of a police vehicle that had been fitted with recording equipment. They had a conversation during which they discussed their involvement in the supply of drugs and fabricated a cover story to be given to the police. The appellant's co-accused thereafter pleaded guilty to conspiracy to supply Class A drugs.

At trial, the appellant sought to have the evidence of the conversation with his co-accused excluded under section 78 of PACE, on the basis that the investigating officers acted in deliberate breach of their duty under section 30 of that Act. Section 30(1)(A) requires that a detained person be taken to a police station as soon as is practicable following arrest. Having heard evidence from the investigating officers, the judge had found that there was no delay and consequently no breach of the Act. She further held that had there been a breach it was so minimal that there was no unfairness in admitting the evidence. The appellant was convicted and appealed on a number of grounds, including the decision to admit the covert recording as evidence.

On appeal, the court found that whilst a deliberate flouting of a statutory duty for the purpose only of creating an opportunity to make a covert recording may result in the exclusion of evidence, on the facts of this case it was held that the trial judge was correct in concluding that, even if there had been a breach of section 30, the fairness of the proceedings was unaffected. Accordingly the appeal against conviction was dismissed.

Necessity for arrest

Necessity for arrest was one of a number of issues considered by the High Court in the case of R (on the application of Hicks ?and ors) v Commissioner of Police of the Metropolis [2012] EWHC 1947 (Admin). The judgment, handed down in July 2012, relates to four linked claims for judicial review concerning the lawfulness of the policing of events at the time of and immediately prior to the Royal Wedding ?on 29 April 2011.

This case, which was also the subject of comment in a previous issue of Solicitors Journal (31 July 2012, Vol. 156, No 30, p.7), concerned the exercise of a number of police powers including stop and search, the taking and retention of DNA, fingerprints and photographs and search under warrant. This update relates to only one of the numerous claims determined in the case: that of the claimant M relating to the lawfulness of his arrest.

M was at the time a 16 year old boy. He was arrested on the morning of the Royal Wedding while on his way to an anti-monarchist gathering in Soho Square, carrying a bag on his back and a megaphone over his shoulder. On his way, he was stopped by a police officer who indicated that he wished to search him. M agreed but said that he wished to remain anonymous, to which the officer agreed. ?In his bag were found two felt tip marker pens and a digital camera. M explained that he had used the pens to make a placard, which he had left behind as it was too bulky to carry.

M was then arrested on suspicion of going equipped to cause criminal damage. The officer explained that this was due to his having the pens in his possession. At that point M offered to hand over the pens so that he could continue on his way. The officer declined this offer. M was not asked again to confirm his name. M was then transported to a police station, where he was detained for nine hours before being released without charge.

M claimed that the arrest was unlawful on a number of grounds, including that there were no reasonable grounds for believing it was 'necessary' to arrest him for any of the reasons set out in section 24(5) of PACE.

The police argued that arrest had ?been necessary for three reasons: to ascertain the name of the claimant, to prevent the claimant causing loss or damage to property and to allow ?a prompt and effective investigation of ?the claimant's conduct.

The court considered that the arrest was lawful and that there were reasonable grounds for believing that the arrest was necessary:

? To establish the claimant's name, as M had declined to provide his name when stopped and had not subsequently proffered it. It was not incumbent upon the police to ask him again, nor to warn him of the consequences of failure to do so.

? To prevent damage to property, as there were reasonable grounds for suspicion of a criminal damage offence. This gave rise to reasonable grounds for believing it was necessary to arrest the claimant. Confiscation of the pens would not have been sufficient, as the claimant could simply have purchased new ones.

? To facilitate a prompt and effective investigation: there was no requirement for the officers to ask further questions prior to arrest, nor to consider the possibility of a voluntary interview. The court was satisfied that 'a voluntary interview was not a realistic option and, more generally, that the officer did have reasonable grounds for his belief that arrest was necessary'.

This claim was accordingly dismissed.

Since the introduction of the necessity criteria in January 2006, courts have consistently applied a broad interpretation of section 24 in order, it is submitted, to allow operational policing requirements to prevail over the plain meaning of the provision. It is difficult to understand how, based on these facts, the arrest of M could reasonably be considered 'necessary', on any normal reading of the word, yet the Court had no hesitation in finding it such ?on all three of the grounds suggested by ?the police. A revised version of Code G to PACE is due to come into force on 12 November 2012. It provides, at paragraph 2.9(a), that 'an officer might decide that a person's name cannot be readily ascertained if they fail or refuse to give it when asked, particularly after being warned that failure or refusal is likely to make their arrest necessary.' This is followed by guidance, at note 2D, that while such a warning is not expressly required, officers should consider providing one, if practicable, and giving the person an opportunity to respond. The section relating to the prevention of damage to property has also been amended, to provide the example of a known, persistent offender with a history of serial offending against property who may continue offending if not arrested.

It is hoped that these revisions to ?Code G will lead to the police, and the judiciary, taking a more logical approach to the interpretation of the necessity criteria in future.