Unlawful Detention and Inadequate Legal Representation

Introduction

The instant case pertains to one Karen Golightly, a resident of 36, Cooper Avenue, Chelmbridge. Her Date of birth is the 16th of January, 1974 and she had sought the assistance of our firm Laws R Us, in the matter of her Detention by police officials, which in her opinion was unlawful. Such detention was based on a misunderstanding regarding theft at her workplace, which later came into the attention of the police officials on grounds of which she was released. Her detention period, though less than 24 hours was an uncomfortable one, during which her ill-health was considered to be a matter of slightest concern to the police officials even after being repeatedly informed to them. The police also discouraged her from seeking legal representation by a solicitor, and was told that claim for legal representation might make it look like she had been at fault due to which the entire detention ensued. The Solicitor who represented the detenue seemed to be uninterested in representing the matter and did not hold up her interests or concerns even after his arrival at the police station where Karen was detained. The respected Supervisor Solicitor as well as the detainee were of the opinion that the detenue was also of the opinion that the Solicitor who acted as the legal representative did not represent her well and came across as just being present for the sake of it. Even he, like the Police officials, turned a deaf ear to the physical discomfort of his client owing to high blood pressure and difficulty in breathing, and did not even attempt to make himself well-acquainted with the matters of the case.

Issue:

Karen had recorded a statement concerning the instant case for the benefit of the firm, and signed such statement on Thursday. Her statement for the perusal of the firm stated that Karen had attended work in accordance with her work schedule on the 11th of March, 2021. While disposing her duties in the Chelmbridge Stock Investments, PLC as an office cleaner as per schedule at 4:30. She stated that she adhered to her usual routine of cleaning the office, and had started with sorting out the rubbish bins in the post room and reception area. When it was about 5 pm, Karen took to cleaning the rooms of the staff who had left for home. She also explained how the individual key of the staff offices were in the possession of the staff members and she had been given access to a Master Key.

She recorded that she took permission of the staff who were still present in the office, if they wanted their offices cleaned when they were present in the room, or if she should wait till they finally left for home. She also stated that she collects from the security before every check-in and leaves at the designated place after every check-out once she is finished with her job for the day. She went on to say that in the 3 years that she had worked in this office, she has evidenced several valuable items left in the office, they can be laptops, phones, etc., the thought of stealing something among those valuables had never even crossed her mind. She also said she was unable to recall any cash left on the desk of office number 10 on the evening that such detention took place.

Some time after she had left her office at around 7:30 and reached home, at about 9:45pm, the doorbell of Karen’s home was rung by police officers. They informed Karen of being a suspect in the missing of cash from the desk of Office Number 10, which was cleaned by her in the absence of the staff to whom such office belonged, and she was accused of stealing cash to the amount of 300 pounds .

Consequently, the police officers searched her home and confiscated a pile of cash of 375 pounds in an envelope, that she stated in her statement, was saving for a holiday. The police was further convinced of her being the offender, and therefore, arrested and detained her.

Karen, being a patient of high-blood pressure started feeling dizzy out of nervousness and anxiety, since she had never had any incidents with the police in the past, let alone being a suspect. The police officer shrugged off her complaint about being dizzy, put her in a cold and uncomfortable cell. On repeated reporting to the police officers about her ill health and apprehension of having breathing troubles, they informed her that she would be provided with medical help if she continued to feel sick the next morning.

Analysis of Relevant Rule of law:

The Police and Criminal Evidence Act (PACE), 1984 was legislated to not only define the powers and jurisdictions of the police officials but also majorly aimed to promote and ensure harmony between the public and the powers of the police officers.

But it does not go unnoticed that in this case, no such co-operation from the police personnels were observed. The police officers had barged in her home and had started with the search of her apartment, without even interviewing her properly. Her statements regarding the situation were not taken into consideration, and she not only faced mistreatment in the cell where she was detained but was also misguided by the officers about the possible outcome of her seeking legal representation.

The relevant Codes of PACE which would be applicable in the given circumstances could be the following:

The PACE (Police and Criminal Evidence Act), 1984 is an Act of Parliament which was constituted as a legislative framework which aimed to check or strike a proper balance between powers and duties delegated to the Police Officers of England and Wales, so that the occurrence of crimes could be better governed and harmony and cooperation between the general public and the police officials.

Conclusion:

According to the provisions of the Part VI of the Police and Criminal Evidence Act, legislated in 1984, the Home Secretary has been entrusted with the power to control, check and supervise the powers of the police officers, in adherence to the Codes of PACE.

An equivalent provision, aiming for peace and harmony between the public and the police has also been made in the Criminal Procedure Act, 1995 in Scotland. An equivalent law to PACE for Northern Ireland vide the Police and Criminal Evidence Order 1989(SI 1989/1341) had also been made.

Such provisions deal with the procedure to conduct search and seizures over individuals or premises; the jurisdiction of the police to seize exhibits from the searches conducted and the procedures required to be followed while handling them. The determination of the power of the

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1. “Police and Criminal Evidence Act 1984 (PACE) Codes of Practice” (GOV.UK) https://www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice accessed March 14, 2021

police to enter to the premises to be searched, and the treatment of the suspects when they are in custody and the way they are to be interviewed, have all been outlined in PACE.

The non-conformity to the codes of PACE while interviewing, arresting, searching their premises or detaining such suspect might render the evidence collected during such search to be inadmissible in court. PACE considers the problem of how unsupervised powers of investigation on the part of the police might obstruct the right to freedom of the general public.

The PACE codes of practice cover: stop and search, arrest, detention, investigation, identification ,interviewing detainees.

Issue:

In the instant case, the Solicitor who was appointed in order to represent Karen took absolutely no part in the release of the detainee. He not only turned a deaf year to the detainee’s deteriorating physical health, but also chose not to assist her when she sought legal help during the course of the interrogation.

Rule of Law:

The provisions of Code G of the PACE provides that any arrest without a warrant would be considered illegal.

Application:

The Serious Organized Crime and Police Act, 2005 modified provisions of PACE to the effect that nearly all existing powers of arrest including the category of arrestable offences were amended.

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2. Ibid
3. Ibid
4. Spencer JR, “ARREST FOR QUESTIONING” (2007) 66 The Cambridge Law Journal 282

It is the liability of any person to adhere to PACE when delegated with the power of investigation in any criminal occurrence. The PACE should also be followed by anyone with a conduct of a criminal investigation including the police officers of Her Majesty’s Revenue and Customs. In which the Ministry of Defence Police also includes the military investigations.

The PACE sets out the core powers of the police to prevent, detect and investigate crime in England and Wales, subject to codes of practice, or PACE codes, which prescribes procedural safeguards for the public when the police exercise their powers. PACE and the relevant codes harmoniously balances the requisite powers of the Police to mitigate crime and the well-recognised need of right to freedom of the public.

In the case of Osman v Southwark Crown Court (1999), the officers searching the applicant did not give their names and station, thereby rendering their search unlawful.

In O'Loughlin v Chief Constable of Essex (1997), it was held that the entry into the premises in order to arrest O'Loughlin's wife was ulawful under Section 17.

In the case of Christopher James Miller v Director of Public Prosecutions (2018), the Mid Westland Police were found to be in breach of Code C of PACE.

A breach of Code C of PACE was held to have occurred when, in 2012, a vulnerable 11-year-old girl child with a neurological disability similar to autism was denied the access to an adult capable of taking care of her needs at Crawley Police Station.

In the case of R v Longman (1988), the entry into the premises by the police in order to execute a search warrant for drugs was held to be unlawful.

Application:

The Codes of PACE has gained massive importance. Four of such Codes were drafted recently. The statutory legal consultation by the Secretary of State was also extended to bodies such as the Crown Prosecution Service, Liberty, Justice, and the Youth Justice Board. The general public

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5. Participation E, “Police and Criminal Evidence Act 1984” (Legislation.gov.uk October 31, 1984) https://www.legislation.gov.uk/ukpga/1984/60/section/67 accessed March 14, 2021
6. Sec. 114, Police and Criminal Evidence Act, 1984
7. Sec.113, Police and Criminal Evidence Act, 1984

were also granted a say in such Codes by publishing such drafts on the Government official website to enable the public at large to respond.

Conclusion:

The revision in the provisions of Code C led to the introduction of the use of live link technology according to the provisions of Policing and Crime Act 2017, in order to interview detained suspects.

A modification in the provisions of the safeguards for vulnerable suspects, the interviews of the suspects by the police who are not under arrest (voluntary interviews) was also brought by the revision of Code C. The definition of “vulnerable” was revised to describe a large range of functional factors which might render the suspects vulnerable when faced with a police charge. Earlier, the word “vulnerable suspects” meant the persons who were “mentally vulnerable” due to some “mental disorder”. Vulnerability was revised to mean that an array of factors which might stunt the ability of a person to assess the position they have been put in and exercise of their rights and entitlements.

In case a person is identified as vulnerable, an appropriate adult must be secured for such suspect. Juvenile suspects would also qualify to be vulnerable if the police is of such opinion, and would be provided with an appropriate adult according to the revision. The role of such appropriate adult would be to ensure that the suspect comprehends the situation they are in, and makes them aware of their entitlements relating to such situation. The revised Code C requires the Police officers to be pro-active in securing and catering to the needs of such vulnerable suspects.

For a person to qualify as an appropriate adult, such person should not be the parent or guardian in the case of a juvenile, or a relative, guardian or care taker in the case of a vulnerable person, and must be independent of the police.

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8. “Latest Intelligence” (Lexology) https://www.lexology.com/ accessed March 15, 2021
9. “Articles on PACE Codes” (Justice) https://www.justice-ni.gov.uk/ accessed March 15, 2021

Substantial changes to the audio and visual recording of suspect interviews, with specific devices as are prescribed have been brought vide revision to Code E. The types of devices that can be used shall be authorized by the Chief Officers. A written record of such interview may also be kept in case of unavailability of the prescribed device. The provision for written records might also be exercised when the interview cannot be delayed due to procedural requirements until such device as has been authorized by the Chief Officer can be made available. Such recording of interviews could be executed for all types of offence and for all suspects, irrespective of the outcome of such outcome and the status of arrest of such suspect. The police has been enabled to take full advantage of technological advancement during such interviews vide the new revision, since the revised Code provides that whenever an authorized recording device is available and can be used, it must be used./p>

Code F mirrors the revisions in Code E by the recent revisions and provides for exclusive application of technology when the situation demands, in the opinion of the police official in charge, that a visual recording with sound with sound is made. The revision also sets out requirements and modifications regarding the mandate of such visual recordings.

The provision of audi-visual recordings avoid the replication of the revised provisions of Code E of the PACE Codes, with provisions that govern audio recorded interviews. It has been clarified by the revised provisions that the audio recordings and simultaneous visual recording is provided for in revised Code E. The circumstances which may allow the police to make such simultaneous visual recording has also been stated in the Code.

The device specification also extends the range of devices that may be used for recording suspect interviews to include body-worn video devices. “Body-worn video is increasingly being deployed across forces and I know that this change will be particularly welcomed by the police, as long as they comply with the revised operating specifications and manufacturers’ instructions and the interview is conducted in accordance with the code.”

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10. “Hansard and Official Reports for the UK Parliament, Scottish Parliament, and Northern Ireland Assembly - Done Right” (TheyWorkForYou) https://www.theyworkforyou.com/ accessed March 15, 2021
11. “Hansard and Official Reports for the UK Parliament, Scottish Parliament, and Northern Ireland Assembly - Done Right” (TheyWorkForYou) https://www.theyworkforyou.com/


Code H deals with provisions relating to the people who might be considered to act as an appropriate adult in case of vulnerable suspects, and determines the role description of the same. The revision also reflects the establishment of good practices by taking into account the work of the Home Office-chaired working group on vulnerable people and the responses to the statutory consultation on the codes.

The revised codes provide for a live link to be used on the detainees when detention without charge is extended by a superintendent for up to 36 hours and by a magistrates’ court for up to 96 hours. The new code provisions also reflect the amendments to PACE made by the Policing and Crime Act 2017. The provision for such live link has also been made applicable to a suspect who has been interviewed by an officer who is not present at the premises of the police station where the suspect has been detained. Since such live link does not adversely impact the ability of a suspect to communicate effectively and exercise their rights and entitlements, such revisions have come as a way of making the police take full advantage of scientific and technological improvement in the recent times. The recent revisions also brought 17 year olds under the ambit of Juveniles according to the provisions of the Policing and Crime Act 2017. Such consideration is to be made for all purposes under PACE vide the revision.

The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, E, F and H) Order 2018 changes will establish harmonious relationship with the changes in legislation, policy, operational policing practice and case law. With the changes to Codes C (detention), E (audio recording of interviews), F (visual recording of interviews) and H (detention – terrorism) coming into effect on 31 July 2018, the dimensions of the police governing the cases, investigation and collection of evidence for the same will change. Change will also be brought in the admissibility of evidence relating to such revised Codes.

Voluntary Interviews

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12. “Latest Intelligence” (Lexology) https://www.lexology.com/ accessed March 15, 2021
13. “PACE Codes” (ResearchGate) https://www.researchgate.com/ accessed March 15, 2021

The main revisions to Code C concerns the safeguards for vulnerable suspects, voluntary interviews and amendments to PACE by the Policing and Crime Act 2017,

The procedure to be followed when arranging a voluntary interview, and the applicable rights, entitlements and safeguards, have also been mentioned in the revised Code.

Voluntary interviews may be argued to be as important as having been interviewed by the police after the arrest has been made. These revisions put the conception of the concerns of a voluntary interview not holding as much importance as interviews conducted post arrest into place by legislating to that effect.

Legal Advice to Karen

Karen, our client, had been denied the right to medical attention which is her right in accordance with para 9.8 of the PACE Code C. The police had also not briefed Karen about the charges on which she had been booked, until after they had searched her apartment; and had discouraged her from seeking the assistance of a solicitor. The detained had also been denied fundamental human right of being given access to a comfortable cell with access to the bathroom. In these respects, the police can be criminally liable for breach of the code and the policy enshrined in the Police and Criminal Evidence Act, 1984 Codes.

A complaint can be lodged against the police before the police authorities themselves within 12 months of the occurrence of the incident, i.e., before the 11th of March, 2022. Such complaint must enclose within itself all pertinent information about the details of the police complained against, the specific ways in which such abuse of power was exercised by them (the problems listed above), the impact of such abuse in the health (both physical and mental) of such individual (the deterioration in her health post release for which she had to be hospitalized) and the damage endured to her property (the envelope of money that had been seized by the police as suspected stolen money).The complaint should also include the expected outcome of such complaint and the way she expects the justice to be served.

As against the Solicitor, who breached his duties of representation of the client, by not looking out for her interests, and showing complete disregard to her concerns regarding her health and legal queries pertaining to the instant case, can be held liable for Solicitors Regulatory Authority Principles, for which regulatory actions against the solicitor may be sought.

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References

Statute

Sec. 114, Police and Criminal Evidence Act, 1984 Sec.113, Police and Criminal Evidence Act, 1984

Articles/ Internet Sources

“Police and Criminal Evidence Act 1984 (PACE) Codes of Practice” (GOV.UK) https://www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice accessed March 14, 2021

Spencer JR, “ARREST FOR QUESTIONING” (2007) 66 The Cambridge Law Journal 282

Participation E, “Police and Criminal Evidence Act 1984” (Legislation.gov.uk October 31, 1984) https://www.legislation.gov.uk/ukpga/1984/60/section/67 accessed March 14, 2021

“Latest Intelligence” (Lexology) https://www.lexology.com/ accessed March 15, 2021

“Articles on PACE Codes” (Justice) https://www.justice-ni.gov.uk/ accessed March 15, 2021

Ronde Ede, “UK Corporate Governance And Narrative Reporting: Key Developments Checklist - Corporate/Commercial Law - UK” (Welcome to MondaqDecember 23, 2020) https://www.mondaq.com/uk/shareholders/1018806/uk-corporate-governance-and-narrative-reporting-key-developments-checklist accessed March 15, 2021

“Latest Intelligence” (Lexology) https://www.lexology.com/ accessed March 15, 2021

“Hansard and Official Reports for the UK Parliament, Scottish Parliament, and Northern Ireland Assembly - Done Right” (TheyWorkForYou) https://www.theyworkforyou.com/ accessed March 15, 2021

“Hansard and Official Reports for the UK Parliament, Scottish Parliament, and Northern Ireland Assembly - Done Right” (TheyWorkForYou) https://www.theyworkforyou.com/

“PACE Codes” (ResearchGate) https://www.researchgate.com/ accessed March 15, 2021

“Virtual Library | Office of Justice Programs” https://www.ojp.gov/ncjrs/virtual-library accessed March 15, 2021

Cases

Osman v Southwark Crown Court [1999] EWHC 822

O'Loughlin v Chief Constable of Essex [1998] LWR 37

Christopher James Miller v Director of Public Prosecutions [2018]EWHC 822