Police follow a cold trail

Cumbria Police followed a cold trail when they were called to the scene of a burglary on 2 December.

Detection was elementary when the police found footsteps in the snow leading them half a mile from the crime scene to the home of Christopher Henry.  In his bedroom they found a pair of snow soaked boots and, under his bed, a stolen ipod.

Mr Henry admitted burglary and was given a suspended prison sentence and 150 hours community service at Carlisle Crown Court this month.

David

Comments
Caber Feidh's picture

The trail of evidence

Caber Feidh | | Permalink

This sounds similar to a tale from my parents after they had retired to the Isle-of-Arran, nearly fifty years ago. There was a theft of strong drink from the golf club house at Brodick. The local policeman followed the trail of empty bottles and found the miscreant asleep in a ditch.

This same policemen had a very effective approach to drink driving. He patrolled the local hostelries at "chucking out" time and confiscated the car keys from anyone he deemed to be drunk, leaving them to walk home. This was usually several miles, in the dark. The only man he arrested was one who knew this keys technique and had brought a spare set. Apparently, his senior officers objected to his lack of arrests but he replied that his job was to keep the Queen's peace, not to lose the support of the local community by making unnecessary arrests.

cymraeg_draig's picture

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cymraeg_draig | | Permalink

It sounds cut & dried - but a good defence counsel could have made mince meat of the prosecution.

Snow soaked boots are circumstantial. Did he wear them?  Did the match the tracks followed ? The fact they were wet merely proves he (or someone wearing them) went out. It dosnt prove where.

Section 17(1)(b) of PACE provides that a constable may enter and search premises for the purpose of arresting a person for an arrestable offence (i.e. An offence carrying a penalty of not less than 5 years' imprisonment) and section 18(1) provides that following the arrest of a suspect for an arrestable offence any premises under that suspect's occupation or control may be searched with the written authority of a police inspector.  The question is, was the suspect arrested before or after the boots were found?  If arrested after then the search was illegal (assuming a warrant was not obtained).

Yes he confessed, but the facts point to him being of limited intelligence, and therefore that he possibly did not appreciate the consequences of doing so. Many "confessions" are  subsequently found to be false.

In other words, had he had good representation his conviction would not have been a forgone conclusion.

 

davidwinch's picture

Arrestable offence?

davidwinch | | Permalink

C_D

ANY offence is an arrestable offence in prescribed circumstances including where the arresting officer has reasonable grounds for believing the arrest is necessary to allow the prompt and effective investigation of the offence or the conduct of the arrested person.

I think you meant to refer to an INDICTABLE offence (which means any offence which is not summary only, that is to say an offence which can only be dealt with by Magistrates).

Clearly a burglary is an indictable offence (even if, as was apparently the case here, little of value was taken).

I rather think that if you obtained a copy of this defendant's custody record from the police station it would show that a search of his home was authorised by an inspector for the purpose of seeking property stolen in the burglary or other relevant evidence.

You will know that it is commonplace for suspected persons who voluntarily attend police stations by appointment for interview to be arrested and detained on arrival "to allow the prompt and effective investigation of the offence" and it follows that (if the arrest is for an indictable offence) police can then carry out a search at the person's home under s18 PACE 1984.  The police can also take fingerprints and a DNA sample of a detained person.  It is a very familiar police tactic which has the added benefit of putting the wind up any defendant who is not used to being detained in custody!  He or she has then been somewhat 'softened up' before the interview even begins.

This is, of course, one more good reason for having a solicitor with you before going anywhere near a police station.

David

cymraeg_draig's picture

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cymraeg_draig | | Permalink

 

I rather think that if you obtained a copy of this defendant's custody record from the police station it would show that a search of his home was authorised by an inspector for the purpose of seeking property stolen in the burglary or other relevant evidence.

Posted by davidwinch on Thu, 12/05/2011 - 17:04

 

An interesting and often useful line of investigation is to compare the time of the alleged authorisation (always look for evidence other than the time recorded in the record) with the time the actual search took place.

In this instance it appears that the defendant was followed home, arrested, and his bedroom searched. At that point there would be no custody record in which to record the authorisation.

There is every liklihood that the search was unlawful.

 

______________________________________________________________

You will know that it is commonplace for suspected persons who voluntarily attend police stations by appointment for interview to be arrested and detained on arrival "to allow the prompt and effective investigation of the offence" and it follows that (if the arrest is for an indictable offence) police can then carry out a search at the person's home under s18 PACE 1984. The police can also take fingerprints and a DNA sample of a detained person. It is a very familiar police tactic which has the added benefit of putting the wind up any defendant who is not used to being detained in custody! He or she has then been somewhat 'softened up' before the interview even begins.

This is, of course, one more good reason for having a solicitor with you before going anywhere near a police station.

 

Posted by davidwinch on Thu, 12/05/2011 - 17:04

 

  1. If the police had sufficient evidence to arrest then they would do so.
  2. Therefore you know that any "request" to attend is for their benefit, not yours.
  3. My advice is always, either simply decline their invitation and await developments, or,
  4. Attend (with a solicitor) and give a firm no comment interview.

If, after giving a no comment interview, they make an arrest, then an interesting question arises.

They have spent the last hour interviewing the defendant. He has said nothing (which is his absolute right). Therefore he has given them no information on which to form reasonable suspicion. Therefore they must have had suspicion sufficient to justify an arrest before the interview commenced.  They are required as a matter of law to make an arrest the moment they have reasonable grounds, and, to cease interviewing.  Therefore the interview your client has just been subjected to was illegal and an abuse of process. 

I have fried many officers brains in court putting these simple facts to them, and had many cases thrown out of court as a result. 

Incidently, a police officer is NOT allowed to draw any inferance from a suspects excercise of his absolute right to make no comment.  

davidwinch's picture

Arrest, interview and charge

davidwinch | | Permalink

C_D

As far as I am aware there are no police officers who post on AWEB (I may be wrong about this).

I am normally instructed by solicitors for defendants in criminal cases, although I have on occasion been instructed by the police and CPS (Crown Prosecution Service).

It seems to me that a police officer might sensibly say that before charging a suspected offender (or 'DP', detained person) he would take advice from a more senior officer and / or the CPS.  In order to offer to the most complete picture for the purpose of obtaining that advice it would be sensible to allow the DP an opportunity to put forward relevant information and explanations which might cause the officer's suspicions to be lifted.  So a formal interview under caution should be undertaken.

If, in the event, the officer's suspicions remained after the interview (whether or not the DP went 'no comment') then the DP would be charged.

You are quite correct in saying that a police officer is not entitled to draw an adverse inference from a 'no comment' interview.  Of course a jury ARE entitled to draw an adverse inference from 'no comment' in circumstances which would normally be explained to them by the judge at trial.

I do think that if the DP has an explanation to offer then he should, before the interview, discuss this fully with his solicitor in the light of any information the solicitor has received from the police about the evidence which they hold.  I am firmly of the view that it is better for the DP not to be charged at all than to be acquitted at trial.

A sound and credible explanation offered at interview may indeed give the police / CPS cause to think again about whether they wish to charge the DP or NFA the file (take no further action).

Of course in a complex fraud case, for example, the DP may quite properly say, "I don't know the source of that deposit of £500 on 21 February 2005 - I will have to look at my records and reply to you later" (or something along those lines).  As with tax enquiries, a guessed response is best avoided!

But it is often the case that a DP will provide information in interview which is ultimately unhelpful to his defence (either because he says something which is shown to be untrue or because he makes an admission of something which the police would otherwise have had difficulty in proving).  In one case I was involved with, Mr Blue was interviewed about a suspected conspiracy between himself and Mr Yellow to smuggle cigarettes through Customs at the Port of Dover.  He denied smuggling any cigarettes into the UK.  He said, "Myself and Mr Yellow at one time planned to smuggle cigarettes from Amsterdam into the UK via Portsmouth, but we couldn't find a suitable supplier in Amsterdam so it never got off the ground".  What Mr Blue should have realised was that he thereby had admitted conspiracy with Mr Yellow to smuggle cigarettes into the UK (the offence is in agreeing to commit a crime - not just in the execution of the plan).  By that admission Mr Blue effectively locked himself up!

David

P.S. A search of premises can, quite properly in certain circumstances, be authorised by a senior officer after the search has been completed.

cymraeg_draig's picture

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cymraeg_draig | | Permalink

 

If, in the event, the officer's suspicions remained after the interview (whether or not the DP went 'no comment') then the DP would be charged.

Posted by davidwinch on Fri, 13/05/2011 - 09:15

 

 

If the officer claims to have had suspicions sufficient to charge then any interview is unlawful.

PACE Code H clearly states -

11.7 The interview or further interview of a person about an offence with which that person has not been charged or for which they have not been informed they may be prosecuted must cease when: 

(a) .............

(b) ............. 

(c) the officer in charge of the investigation, or in the case of a detained suspect, the custody officer, see PACE Code C paragraph 16.1, reasonably believes there is sufficient evidence to provide a realistic prospect of conviction for that offence.

In the case of a no comment interview that evidence cannot have changed during the course of the interview, therefore if there was insufficient evidence at the start there remains insufficient evidence at the end. By charging the police are stating that they considered they had sufficient evidence before the interview - which renders the interview a total breach of PACE Code H.  

 

____________________________________________________

P.S. A search of premises can, quite properly in certain circumstances, be authorised by a senior officer after the search has been completed.

Posted by davidwinch on Fri, 13/05/2011 - 09:15

 

Only if there was a risk of evidence disappearing or being tampered with if there was a delay.  That doesnt appear to be the case in the example you quote.

 

davidwinch's picture

PACE Code H

davidwinch | | Permalink

C_D

I think we are getting a little off topic in going into the nitty-gritty of PACE Code H.

For what it's worth my reading of 11.7 is that the interview must cease when ALL of (a), (b) and (c) are satisfied (hence the "and" at the end of point b). Para 11.7 in full reads:

"The interview or further interview of a person about an offence with which that person has not been charged or for which they have not been informed they may be prosecuted, must cease when:

(a) the officer in charge of the investigation is satisfied all the questions they consider relevant to obtaining accurate and reliable information about the offence have been put to the suspect, this includes allowing the suspect an opportunity to give an innocent explanation and asking questions to test if the explanation is accurate and reliable, e.g. to clear up ambiguities or clarify what the suspect said;

(b) the officer in charge of the investigation has taken account of any other available evidence; and

(c) the officer in charge of the investigation, or in the case of a detained suspect, the custody officer, see PACE Code C paragraph 16.1, reasonably believes there is sufficient evidence to provide a realistic prospect of conviction for that offence."

 

I read it as a process.  The interviewing will cease when the officer has done (a) (i.e. put the points to the DP), and done (b) (i.e. considered other available evidence) and has arrived at (c) (i.e. he believes there is sufficient evidence to charge).

Once he has completed all of these three stages he must not interview further.

I don't believe that Code H requires that the police must not interview at all a person against whom they believe they already have a watertight case when they make the arrest.

Bear in mind that the police are supposed to follow up all reasonable lines of enquiry - including those which point AWAY from the current suspect.  Can the police claim to have done that if they have not interviewed the DP and asked him for his account of relevant events?

David

cymraeg_draig's picture

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cymraeg_draig | | Permalink

I don't believe that Code H requires that the police must not interview at all a person against whom they believe they already have a watertight case when they make the arrest.

Bear in mind that the police are supposed to follow up all reasonable lines of enquiry - including those which point AWAY from the current suspect. Can the police claim to have done that if they have not interviewed the DP and asked him for his account of relevant events?

David

 

Posted by davidwinch on Fri, 13/05/2011 - 11:38

 

 

Then your understanding is different to that of the courts who have repeatedly ruled such interviews to be oppresive and unlawful.

As for lines of enquiry pointing away from the suspect - now I've stopped laughing, Id love you to find me a single case where this has happened.

davidwinch's picture

Cases

davidwinch | | Permalink

There was the case of Chris Jefferies who was arrested and interviewed in connection with the murder of Jo Yeates.  He was released, initially on police bail, and ultimately another man was charged with the murder.  It would appear that in this case the police pursued a line of enquiry which led away from the initial suspect.

I would be grateful if you could refer me to a case in which the courts have ruled it unlawful for the police to hold an initial interview with a DP simply because they had, before the initial interview commenced, sufficient evidence on which to charge him.

David

davidwinch's picture

On further consideration . . .

davidwinch | | Permalink

C_D

I think we have up to a point misled ourselves by looking at PACE Code H since that applies to investigation of terrorism offences.  We should instead have referred to PACE Code C para 11.6 - but the wording is very similar.

In the case of R v Elliott [2002] EWCA Crim 931 the Court of Appeal considered the position where an interview was held in circumstances in which the interviewer believed, before the interview started, that he had sufficient evidence to charge the suspect.  The Court of Appeal looked at Code C as it then stood (it has since been amended to read as noted above) and concluded that the interview had not been in breach of the Code.  In referring, with approval, to a judgment in an earlier case the judgment records,

"The Court regarded as ‘nonsense’ the argument that the opportunity to give such explanation or information should not be given to any prospective defendant because the case seemed overwhelming even without his comment or explanation".

The consequences of an interview being undertaken in breach of Code C would be twofold.  Firstly any information obtained during the interview would not normally be admissible in evidence and secondly any failure by the DP to answer questions in the interview could not properly form the basis of an 'adverse inference' being put to the jury at the DP's trial.

Where a DP goes 'no comment' in interview then, of course, no information has been obtained from him so the first point does not arise.  With regard to the second point the Court of Appeal in Elliott upheld the 'adverse inference' which was drawn from the DP's 'no comment' replies.  The case arose from Mr Elliott headbutting another man in a bar.  At interview Mr Elliott had gone 'no comment' but at trial he claimed the blow was delivered in self-defence.  In his summing up the judge drew attention to Mr Elliott's failure to mention self-defence in the course of his interview.  Mr Elliott was convicted.  The Court of Appeal held the judge was correct to draw attention to Mr Elliott's failure to mention self-defence in the interview.  The conviction was upheld.

David

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