Monday 22 August 2011

Detained persons: blanket refusal to bail: possible legal challenge

Burning bus at Tottenham
During the recent extensive public disorder, many arrests were made.  Naturally, this made it difficult for Custody Officers at some Police Stations to process detainees as quickly as normal.  However, did this justify a blanket policy of the Police not granting bail?

According to a document published by The Guardian on 22nd August, the Metropolitan Police decided that it was impractical to bail for the purpose of protracted investigation - see "Prisoner Processing Strategy."  In all cases an application would be made for a remand in custody both at the Police Station and later at court.  This was argued to be in the interests of public safety and the prevention of further cases of public disorder.   It seems that a legal challenge to this policy is under consideration - see article by Polly Curtis (Whitehall Correspondent) in The Guardian 22nd August 2011.

Terminology?  Persons arrested and held by the Police are "suspects" or "detainees" - see, for instance, PACE Code C where the word "detainee" is generally used.  The word "prisoner" is usually reserved for those held in one of H.M.Prisons.

Further analysis:
Entering premises -

Historically, at least since the late 18th century, the courts have refused State Authorities a general power to enter premises - Entick v Lord Carrington (1765) 19 St Tr 1029 - and, in modern times, the Police may only enter premises either with the permission of the occupier or under a search warrant (issued by a judicial authority such as a magistrate) or under a statutory power.  The issuing of search warrants is subject to certain safeguards set out in the Police and Criminal Evidence Act 1984 s. 15 and the execution of warrants is addressed by s.16.

An entry by the Police may be under statutory authority and there are many such enactments.  PACE s.17 permits entry for the purpose of effecting an arrest.  PACE s.18 - (referred to in the "Prisoner Processing Strategy") - relates to entry and search of premises occupied or controlled by a person who is under arrest for an indictable offence if the constable has reasonable grounds to believe that there is on the premises evidence, other than items subject to legal privilege, that relates - (a) to that offence; or (b) to some other indictable offence which is concerned with or similar to that offence.  Such an entry and search normally requires the authority of an officer of Inspector rank or above but section 18(5) and 18(5A) make an execption.  Records of section 18 searches have to be kept - see 18(6) and 18(7). 

A further Police power is PACE s.32 which permits certain searches of both an arrested individual and of premises where he was when arrested. 

An entry to a person's home engages Article 8 of the European Convention on Human Rights and must be justified by Article 8(2) - McCleod v U.K. (1999) 27 EHRR 493. An instructive case is Khan v Metropolitan Police Commissioner [2008] EWCA Civ 723 where the Court of Appeal considered PACE s.18 and held that the words "occupied or controlled" were to be interpreted objectively and not on the basis of whether the Police had reasonable grounds to believe that the premises were the arrested person's address.

Threshold test - 

The "Prisoner Processing Strategy" also refers to using the "Threshold test" for making charging decisions.  Charges for certain offences may be brought by the Police without reference to the Crown Prosecution Service (CPS).  These are set out in guidance issued by the Director of Public Prosecutions - see para. 19
Other offences must be referred to the CPS but, exceptionally, it is possible to apply a "Threshold test" - set out at para. 12 of the guidance.  The normal rule is that the FULL CODE TEST must be applied to a charging decision.  Para 12 states:-

Prosecutors will apply the Full Code Test unless the suspect presents a substantial bail risk if released and not all the evidence is available at the time when he or she must be released from custody unless charged.

The Threshold Test may be used to charge a suspect who may justifiably be detained in custody to allow evidence to be gathered to meet the Full Code Test realistic prospect of conviction evidential standard.

Applying this test is subject to four requirements set out at para. 13:-

The Threshold Test may only be applied where the prosecutor is satisfied that all the following four requirements are met:
a) there is insufficient evidence currently available to apply the evidential stage of the Full Code Test, and
b) there are reasonable grounds for believing that further evidence will become available within a reasonable period, and
c) the seriousness or the circumstances of the case justifies the making of an immediate charging decision, and
d) there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and, in all the circumstances of the case, an application to withhold bail may be properly made.

Obviously, where it is permissible to use the threshold test, the suspect can be charged sooner and brought quickly to the courts.  However, it is important to note that para. 17 of the guidance requires that cases where the threshold test was used are reviewed by the CPS and the full code test applied to any contested court hearing.  The consequences of not applying the DPP's guidance properly are set out clearly at para. 26.

On the basis of how para. 13 of the guidance is worded, it would not be permissible to decide that all cases were to be subjected to the threshold test.  Any decision to apply the test must be based on the circumstances of the particular case.  For example, why, in relation to this individual suspect, are there continuing grounds to object to bail?  

It cannot be the law that "broad bush" generalised grounds are permissible.

Other links:

UK Human Rights blog - "Reason resumes after a riotous August ..." - a roundup of human rights items with several further links ...

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