Line of Duty ~ Legal angles

Series 5 Episode 6 of BBC Television's Line of Duty (Cast List) was screened on Sunday evening 5 May.  The programme has offered gripping viewing as the fictitious AC12 led by Police Superintendent Ted Hastings (Adrian Dunbar) battled to reveal corrupt elements in the Police Service.   With at least one more series on the horizon, it is perhaps no surprise that the programme delivered some, but not all, of the answers viewers had been waiting for - Digital Spy 5 May.

We discovered that Ted Hastings was not "H" because there is no "H" even though we had been led to believe that there was!  In a previous series,
corrupt Officer "Dot" Cottan (Craig Parkinson) was shot and, as he died, AC12 understood him to have indicated that there was an "H" but it transpired that Cottan was using his left-hand to indicate - by Morse Code (H is ....) - that there were four corrupt individuals including himself.  Two others were Assistant Chief Constable Hilton (Paul Higgins) and lawyer Gill Biggeloe (Polly Walker).  The fourth has yet to be revealed.

The programme referred to several items of legal interest.

Dying Declaration:

What "Dot" Cottan was understood to have indicated was referred to as a "dying declaration" - a form of hearsay evidence.  Of course it was open to the Police to make what they wished of what Cottan may have indicated but, regarding admissibility in criminal proceedings, dying declarations were previously admissible at common law in cases of murder and manslaughter.  The theory was that such a declaration was "made in extremity when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced and the mind induced by the most powerful considerations to speak the truth; a situation so solemn and serene that the law considers it an obligation to accept the veracity of the statement" - R v Woodcock (1789) 1 Leach 500, (1789) 168 ER 352 - per Eyre CB.

The admissibility of hearsay evidence in criminal proceedings is now governed by the Criminal Justice Act 2003 which effectively replaced the common law regime and abolished all common law hearsay exceptions (except those preserved by s.118) including the dying declaration exception. An original statement made by a dead person may now be admissible under the statutory "unavailability" exception (ss.114 and 116) subject to the courts' judicial discretion (preserved by s.126) to exclude unreliable evidence (i.e. the prejudicial value outweighs the probative value).

Law Commission - Evidence in criminal proceedings; Hearsay

Powers to search:

One of the interviews of Ted Hastings was conducted by Chief Superintendent Carmichael (Anna Maxwell Martin) who wished to put to Hastings matters relating to a Police search.  Gill Biggeloe asked about the legal basis of the search and discovered that the search could have been unlawful.  If so, the defence could apply, under the Police and Criminal Evidence Act 1984 s.78, for its exclusion in any criminal case.

Police Powers to search premises are set out in PACE 1984 - in particular, see sections 18 and 32.

Use of force:

The Criminal Law Act 1967 s.3  permits a person to "use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large."   Section 3 replaced common law rules relating to use of force for those purposes.

The Police and Criminal Evidence Act 1984 s.117 - Where any provision of this Act - (a) confers a power on a constable; and (b) does not provide that the power may only be exercised with the consent of some person, other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power.


Immunity:

The programme indicated that Gill Biggeloe and Lisa McQueen (Rochenda Sandall) had been granted immunity from prosecution.   This is possible under the Serious Organised Crime and Police Act 2005 Part2 Chapter 2.

The Crown Prosecution Service has published information about Queen's Evidence - Immunities, Undertakings and Agreements under the Serious Organised Crime and Police Act 2005

Case law relating to pre-statutory immunities established that the Crown had no power to make a prospective grant of immunity to cover future offending (see R v DPP ex parte Pretty and Another [2001] UKHL 61). Nothing in the 2005 Act alters that position. Accordingly, immunity notices can only be granted in respect of offences which have already been committed. 

Witness Protection:

In some very serious cases the risk to a witness is so great that they may need to relocate and even change their identity.

See Serious Organised Crime and Police Act 2005 Part 2 Chapter 4 and the CPS website.

Police Recruits:

The episode depicted murderer Ryan Pilkington (Gregory Piper) being accepted by the Police as a trainee constable.  We know that he killed undercover Police Officer John Corbett (Stephen Graham) and PC Maneet Bindra (Maya Sondhi).  In this way the OCG (Organised Crime Group) have now further infiltrated the Police.

In practice, Police Forces exercise extensive vetting of candidates - see, for example, Metropolitan Police Careers, West Yorkshire Police, and Lancashire Police.

Undercover Policing:

This is the subject of a Statutory Inquiry under the Chairmanship of Sir John Mitting.  The Inquiry was set up in March 2015 by Theresa May (then Home Secretary).  See the Inquiry Website.

Finally, in case anyone is wondering about anti-corruption action in Police Forces, see -

Justice Inspectorates - 30 January 2015  and College of Policing - 30 January 2015