Sunday 4 September 2011

Charge on the basis of "reasonable suspicion"

20th September 2011: "Stepping Hill nurse criticises media over arrest charge" - The GuardianMiss Leighton says that, at first, she did not opt for legal advice but points out that she was advised to do so by the Police.   Legal advice is absolutely crucial.

Rebecca Leighton's case : Background

On Friday 2nd September, the Crown Prosecution Service (CPS) announced that criminal charges against Rebecca Leighton have been discontinued - see CPS announcement.  Miss Leighton had been arrested in connection with suspicious deaths at Stepping Hill Hospital, Stockport.  She was employed as a nurse at the hospital.

Police powers of arrest without warrant are set out in the Police and Criminal Evidence Act 1984 section 24.  It will be noted that many of the arrest powers are expressed to be on the basis of "reasonable grounds to suspect" guilt.  Certain "arrest conditions" also apply - see s.24(5).

On 22nd July 2011 she was charged: three charges of criminal damage with intent to endanger life; three charges of criminal damage being reckless as to whether life would be endangered and one charge of theft (of medication belonging to the hospital).  On 23rd July the Magistrates duly "sent" her for trial at the Crown Court as they are now obliged to do under section 51 of the Crime and Disorder Act 1998 (which ended "committal proceedings" for offences triable only in the Crown Court). 

The criminal damage charges arose under the Criminal Damage Act 1971 s.1(2):-

A person who without lawful excuse destroys or damages any property, whether belonging to himself or another - (a) intending to destroy or damage any property or being reckless as to whether any property would be destroyed or damaged; and (b) intending by the destruction or damage to endanger the life of another or being reckless as to whether the life of another would be thereby endangered; shall be guilty of an offence.

The maximum sentence for these offences is life imprisonment (Criminal Damage Act 1971 s.4).

According to the CPS, the reason for discontinuance of the criminal damage charges is that Miss Leighton was charged on the basis of "reasonable suspicion" but the on-going inquiries had not so far provided a "stronger case which would meet the test that there is sufficient evidence for a realistic prospect of conviction."

In relation to the theft charge, the CPS stated that- "While there is sufficient evidence for a realistic prospect of conviction on this charge, we have decided it is not in the public interest to proceed as Rebecca Leighton would be likely to receive a nominal penalty given the time she has already spent in custody."

She spent 45 days in custody.

It is quite remarkable that a person can be charged with such serious offences on the basis of "reasonable suspicion."  Is there legal authority for this?

Legal powers of Police and CPS:

The post of Director of Public Prosecutions has
existed since 1880.  In 1981, the Royal Commission on Criminal Procedure (Cmnd 8092, 1981) recommended the setting up of a new and independent prosecuting authority.  Hence, in 1986, the CPS came into being following the enactment of the Prosecution of Offences Act 1985 ("the 1985 Act").   The DPP became Head of the CPS but works under the "superintendence of" the Attorney- General.  

The 1985 Act section 9 requires the DPP to make annual reports to the Attorney-General and these reports are to be "laid before" Parliament.  Section 10 of the 1985 Act (Guidelines for Crown Prosecutors) permits the DPP to issue a "Code for Crown Prosecutors" so as to give "guidance on the general principles to be applied by them in deciding whether proceedings for an offence should be instituted or, where proceedings have been instituted, whether they should be discontinued; or what charges should be preferred; ...."   The Code is to be set out in the DPP's report to the Attorney-General.

The latest "Code for Crown Prosecutors" sets out the requirements before charges may be preferred.  Hence, the legal basis (if any) for charging on the basis of reasonable suspicion is section 10 of the 1985 Act and the Code made thereunder.

The Code - at paragraph 4 - sets out what is known as the FULL CODE TEST.  It is clear enough (from para. 4.2) that it is this test - with its evidential and public interest stages - which should normally be applied:

"In the vast majority of cases, prosecutors should only decide whether to prosecute after the investigation has been completed and after all the available evidence has been reviewed."

However, the Code also sets out - at para. 5- a "Threshold Test" -
5.1 Prosecutors will apply the Full Code Test wherever possible. However, there will be cases where 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.

5.2 In such cases, prosecutors may apply the Threshold Test in order
to make a charging decision.

When the Threshold Test may be applied

5.3 The Threshold Test may only be applied where the prosecutor is
satisfied that all the following four conditions 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 properly be made.

It is remarkable that such powers are set out merely in a Code made under an Act (i.e. the 1985 Act) which merely enables the DPP to issue guidance.  The details of the Code do not appear to be subject to any of the commonly used Parliamentary procedures such as "laying in draft" or "negative resolution" or "affirmative resolution,"  However, the Code will appear in DPP reports to the Attorney-General and these reports are "laid before" Parliament.  There certainly appears to be a good case for Parliament becoming more proactive in relation to matters of such crucial importance to the liberty of the citizen.

Where does this leave Miss Leighton?

The charges have been discontinued (see  s.23A of the 1985 Act).  It cannot truly be said that her name has been cleared despite the paucity of evidence which was commented upon by Henriques J at a bail hearing at the Crown Court in Manchester - see The Manchester Evening News 3rd September - "Weak case against Rebecca Leighton hinged on a single fingerprint on a saline bag at Stepping Hill."  It appears that Henriques J refused her bail only on the basis of her own protection.  (The press applied to attend this bail hearing and Henriques J agreed).  Miss Leighton was suspended from her profession on 2nd August and, at this time, remains suspended.

The case is a good example of the immense damage which can be done to a person by the processes of the law.  The liberty of the citizen should only be taken away on the basis of a law passed after due consideration by Parliament.  Can it truly be said that Parliament has applied itself to the Code for Crown Prosecutors?

It appears that civil action against the Police might be under consideration - see Telegraph 3rd September.  Such actions are complex and, in modern times, clearly engage Article 5 of the European Convention on Human Rights.  It is unlawful for a public authority in the UK to act incompatibly with Convention rights - Human Rights Act 1998 s.6.    The Police and the CPS are, without doubt, public authorities.  A leading text is "Civil Actions against the Police" - Sweet and Maxwell - eds. Hugh Tomlinson QC and Richard Clayton QC.

Addendum 5th September:  The Inforrm's blog looked at the media coverage of this case - A suspect monstered by the tabloids ...

In relation to arrest, the term "reasonable suspicion" has been the subject of numerous judicial decisions of which the following are perhaps the most important:

Fox, Campbell and Hartley v UK(1990) ECHR 18
Cumming v Chief Constable of Northumbria Police [2003] EWCA Civ 1844
O'Hara v Chief Constable of the Royal Ulster Constabulary [1996] UKHL 6
Commissioner of the Metropolis v Raissi [2008] EWCA Civ 1237
Armstrong v Chief Constable of West Yorkshire Police [2008] EWCA Civ 1582
Alford v Chief Constable of Cambridgeshire [2009] EWCA Civ 100
Buckley and others v Chief Officer of the Thames Valley Police [2009] EWCA Civ 356

For an excellent and detailed article on this please see Criminal Law and Justice Weekly - Reasonable suspicion and the Court of Appeal - Neil Parpworth, De Montfort Law School

In relation to reasonable suspicion and the threshold test for charging - see the Code for Crown Prosecutors Section 5.

Rebecca Leighton wants to carry on as a nurse after Stepping Hill saline charges are dropped - Manchester Evening News 5th September




  1. Fantastically informative article - thanks.

  2. I didn't like this bit.
    Rebecca Leighton also faced one charge of theft of medication belonging to the hospital. This charge has also been discontinued. Mr Afzal said: "While there is sufficient evidence for a realistic prospect of conviction on this charge, we have decided it is not in the public interest to proceed as Rebecca Leighton would be likely to receive a nominal penalty given the time she has already spent in custody."
    What about her right to have a court decide if she is guilty or not?

  3. @ Anonymous - thank you.

    @ Conor - Indeed. In their view, there was sufficient evidence on the theft charge. This decision prevents Miss Leighton from getting the case decided by a jury. A most unhappy state of affairs. Should persons in such a situation have a right to insist on the case proceeding to court?

    They have also left open the possibility of her being charged again in relation to the deaths if further evidence implicating her were to emerge.

    The Public Interest Test is at para 4 of the Code for Prosecutors.

    It is an inescapable fact that, no matter what the legal theory, a person charged with a serious offence must then be acquitted by a jury if their name is to be cleared. This is a practical reality. Some would add - " ... and even then ..." or "mud sticks .."

    The whole business is extremely unsatisfactory.

  4. Some sources say it was a small amount of paracetamol, a lot different from prescription drugs. Still theft but more akin to an office worker taking a biro home from the stationery cabinet.
    Left to itself, I doubt the hospital would involved the police over something so minor.