Legality of the Arrest of Mr Dave Smith - Article Example

CRIMINAL INVESTIGATION i. Overview This paper will discuss the legality of the arrest of Mr. Dave Smith on September 26, 2007 at approximately 8:35am. It will analyze the arrest and detention procedures conducted by Sunderland Shopping Centre guard and Police Constable Norman. It includes the analysis of the evidential implications of both police and non-police actions and appraisal of the detention conditions that must be observed while Mr. Dave Smith is in police custody. Finally, it will discuss the effectiveness of the law in this area in relation to the protection provided by the European Convention on Human Rights. i. Analysis of the Arrest and Detention The arrest of Mr. Smith on September 26, 2007 by a Shopping Centre security guard (James Taylor) seems entirely based on an “attempted theft” (“I saw you try to pickpocket a woman by Boots, and I know you, you are one of the regular shoplifters”) and on ”suspicion” that he will try to “steal again”. Security Guard James Taylor contacted the police after the arrest and apparently detained Mr. Smith a couple of minutes after 8:35 am. When Police Constable Norman arrived at the scene at approximately 9:15 am, which is probably more than 40 minutes after the arrest, Taylor informed him that he detained Mr. Smith because he believed he was a thief. PC Norman probably wanted to confirm the accusation, checked the Police National Computer, and found out that Mr. Smith has multiple convictions for shoplifting. Exercising his authority to “stop and search”, he then made a body search on Mr. Smith and found a credit card in the name of Ms. L. Lytton in Smith’s coat’s right pocket. He then asked Mr. Smith where the credit card came from and Smith said that Lytton is a friend and he is minding it for her. PC Norman apparently did not buy the alibi arrested Smith on “suspicion of theft”, and cautioned him at 10:30 am. Immediately after the arrest, Mr. Smith made another claim that he did not “nick” the credit card but found it. At 10:45 am, Mr. Smith arrived at the Sunderland Central Police Station. It is now 11:15am. ii. Analysis of the Implication of Police and Non-Police Actions Primarily, according to the Police and Criminal Act of 1984 Code A (1.1), regarding the principles governing stop and search, it must be used “fairly, responsible, with respect for people being search and without unlawful discrimination”1. More importantly, it must be “brief and detention for the purposes of a search must take place at or near the location of the stop”2. In our scenario, let us note that Mr. Smith was arrested twice on that day, the arrest made by the Sunderland Shopping Centre security guard and the arrest made by police officer. The difference between these arrests is the “grounds” where the first arrest was made out of sheer “suspicion” without “search” and the second arrest was made based on “facts or information”. On PACE’s code of practice, “a reasonable ground for suspicion depend on the circumstances in each case and there must be an objective basis for the suspicion based on facts, information, and/or intelligence”3. The security guard’s arrest is legal although it appears that it does not have any reasonable grounds. According to Fennely (2004) on the liabilities connected with 1-3 PACE , 1984, Police Officers of Statutory Powers of Stop and Search, Police and Criminal Evidence Act 1984, Code A,, United Kingdom, p.2 & p.4 security guards, the guard should know that the law has actually been violated and that the violation is a crime before making an arrest, as no arrest is legal until after the actual violation of the law. More importantly, no person maybe arrested on a charge of suspicion and if ever an arrest is made, it is enough if the person submits to their custody4. In 2.2 of PACE (1984) Code A (2.2), it is clearly stated that a reasonable suspicion can never be supported based on “personal factors alone without reliable supporting intelligence or information or some specific behaviour”. Furthermore, even the fact that the “person is known to have previous conviction, cannot be used alone or in combination with each other as the reason for searching that person”5. In other words, Mr. Smith’s previous shoplifting convictions are not a ground for search by either the security guard or the police. Let us remember that first arrest or detention was made without a search or reliable information and although “reasonable suspicion can sometime exist without specific information”6 it should as a rule be “linked to accurate and current intelligence or information”. For instance, information “describing an article being carried, a suspected offender, or a person who has been seen carrying a type of article known to have been stolen recently from premises in the area”7. Apparently, based on our scenario, the security guard arrested and detained Mr. Smith without search or concrete evidence. However, he actually saw Mr. Smith “trying” to pickpocket a woman and that is “actual” commission of a crime. More importantly, Mr. Taylor’s noble initiative is inside the centre’s property, which is legal, as our scenario indicates that Mr. Smith was trying to pickpocket a woman by Boots and the 4 Lawrence Fennelly, 2004, Effective Physical Security, Published 2004 Elsevier, ISBN 0750677678, p.267 5, 6, & 7 PACE , 1984, Police Officers of Statutory Powers of Stop and Search, Police and Criminal Evidence Act 1984, Code A,, United Kingdom, p.4 arrest was made while Mr. Smith was walking through the centre. This is very important because the guard has no authority beyond the company property line other than that of a private citizen8. Moreover, it also did not indicate use of force or “physical” arrest and apparently, Mr. Smith voluntarily submitted himself into Taylor’s custody. Calling the police right after the arrest is also correct as “no person is to be transported as a prisoner off company property by a security guard” because a “security guard is not a law enforcement officer”9. According to Erylmaz (1999) interpretation of PACE, anyone may arrest without a warrant a person in the act of committing an arrestable offence but if he is not, it is unlawful. PACE only authorizes the arrest by anyone of any person whom he has reasonable grounds for suspecting to be committing an offence so long as the police officer has reasonable grounds that he is doing so10. When PC Norman arrived at the scene approximately 9:15am, he was informed by the guard that he arrested Mr. Dave Smith on suspicion of theft. Presumably aware of the “stop and search” procedures on PACE’s code of practice on “reasonable suspicion”, he conducted a search on the National Police Computer and found out that Mr. Smith has previous convictions on shoplifting. Since “previous conviction” is not a sufficient reason for an arrest, PC Norman now acting on suspicion “based on facts”11, conducted a search on Mr. Smith and found someone’s credit card on him. Out of “courtesy, consideration and respect”12, Police Constable Norman asked Mr. Smith about the credit card but the response 8 & 9 Lawrence Fennelly, 2004, Effective Physical Security, Published 2004 Elsevier, ISBN 0750677678, p.267 10 Bedri Eryilmaz,1999, Arrest and Detention Powers in English and Turkish Law, Published 1999 Martinus Nijhoff Publishers, ISBN 9041112693, p.54 11 & 12 PACE , 1984, Police Officers of Statutory Powers of Stop and Search, Police and Criminal Evidence Act 1984, Code A,, United Kingdom, p.4 & p.9 is not satisfactory and he finally arrested Mr. Smith on suspicion of theft. Probably on the way to Sunderland Central Police Station before 10:45am, Mr. Smith again made an implausible alibi that he found the credit card somewhere. iii. Human Rights and the Juvenile Although Mr. Smith is a convicted person and apparently committing another offence in our scenario, his arrest and detention must be in accordance with his rights under the Human Rights Convention. In Article 5 (1c) for Right to Liberty and Security, the lawful arrest or detention of a person affected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence is legal13. In the same manner, whether there have been deprivations of liberty depends upon a range of factors such as the type of interference, the duration of any detention and so on. In fact, stopping someone for a short time with the purpose of searching them many not trigger Article 5 protection. However, if a detention for a significant period of time, especially if linked with an extensive search undertaken, perhaps, at a police station, would be likely to engage Article 514. Another issue in our scenario that we should look into is the age of Mr. Dave Smith. According to PC Norman was born on September 21, 1991. Apparently, he is only 16 years old at the time of arrest and in Code C (1.5) of the PACE 1984 clearly 13 & 14 Howard Davis, 2003, Human Rights and Civil Liberties, Published 2003 Willan Publishing, ISBN 1843920085, p.43 & p.87 stated that “if anyone appears to be under 17, they shall be treated as a juvenile for the purpose of this Code in the absence of clear evidence that they are older”15. Since our scenario did not mention anything about PC Norman’s concern over Mr. Smith’s age and related rights, we will assume that did not consider the implications of detaining a juvenile. In PACE 1984 Code C (3.13), a person under 17 belongs to a special group thus “if a detainee is a juvenile, the custody officer, must, if it is practicable, ascertain the identity of a person responsible for their welfare”16. In addition, that person “must be as soon as practicable that the juvenile has been arrested, why they have been arrested, and where they are detained”17. More importantly, a juvenile “must not be interviewed regarding their involvement, suspected involvement in a criminal offence”. Moreover, they should not be asked to “provide or sign a written statement under caution in the absence of the appropriate adult”18. Under Article 5 of ECHR Section 41-45 the time limits for detention on the initial authority of the custody officer is for a maximum period of 24 hours and after that, a suspect should be charged or released19. In the case of Mr. Smith at the time of PC Norman’s report, he has been in custody for only about two hours from the first arrest. iv. Human Rights and the Effectiveness of the Law Police officers in terms of results, procedure, and the way in which these were handled defined good and successful stop and searches. It is good and successful 15 PACE , 1984, Detention, Treatment and Questioning of Persons by Police Officers, Police and Criminal Evidence Act 1984, Code C, United Kingdom, p.2 16-18 PACE , 1984, Detention, Treatment and Questioning of Persons by Police Officers, Police and Criminal Evidence Act 1984, Code C, United Kingdom, p.11, p.12, p.38 19 Howard Davis, 2003, Human Rights and Civil Liberties, Published 2003 Willan Publishing, ISBN 1843920085, p. 98 when a well-handled procedurally solid encounter results to an arrest20. In the same way, a large number of officers saw finding an illegal object on a person and arresting them as a good result. For some, an arrest was viewed as substantiating an officer’s uspicion concerning a person and, consequently, justifying their grounds for search. The provisions of the PACE 1984 according to Hirschel and Wakefield 1995, were wide-sweeping and intended to lead to increased effectiveness, consistency, accountability, and efficiency21. The code of practice comprehensively changed and codified the law relating to police powers to stop and search, conduct road checks, effect warrant less arrest, obtain search warrants, and detain suspects22. Section one of PACE that requires a police officer to possess “reasonable grounds” to suspect that they would find stolen or prohibited articles is quite impressive. This is because a “reasonable suspicion’ has to be more than a negative perception of style or manner or clothes, hairstyle, or skin color. Moreover, the actual code of practice specifically addresses even minute aspects of the stop and search procedures and consequently, the police officer were faced with a radical departure from past practice. However, detention is a sensitive issue where the limits on the police powers to detain an individual suspected of crime were somewhat unclear. Most the concern revolved around the ability of the police to gather the type of evidence required for a successful charge to stick within the period of 36 hours23. Consequently, some research indicates that only 2% of the cases result in detention for more than 24 hours and that the vast of majority of suspects can be released or charge within the time limit set by the act24. 20 Paul Quinton, Nick Bland, and Joel Miller, 2000, Police Stops, Decision-making and Practice, Police Research Series Paper 130, Home Office, ISBN 1-84082-534-0, p.53 21- 24 David Hirschel and William Wakefield, 1995, Criminal Justice in England and the United States, Published 1995 Praeger/Greenwood, ISBN 0275941337, p.92 & p.94 In general, despite fears that civil liberties of individuals would be eroded, that the police would be hampered and confined in their abilities to carry out their duties, the police have come to accept, or a least adhere to the new codes, which have not hampered effective policing in England. For instance, strong initial police opposition to the tape recording of interviews has dissipated and the tape recording has proved to be a strikingly successful innovation providing better safeguards for the suspect and the police officer as well25 (Hirschel and Wakefield 1995, p.96). In our scenario, Mr. Smith being a juvenile is protected by European Commission on Human Rights in Article 5 (1d) where the “detention of a minor by lawful order for educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority”26. This is the reason why PACE specifies that if a person is under 17, the police officer must ascertain the identity of a person responsible for his/her welfare. Moreover, they must not be asked to provide any statement in absence of the appropriate adult. Although there are a number of critics who are not satisfied with the new police powers and the law, our scenario seems to indicate a comparatively effective policing. The rights afforded by European Convention on Human Rights is apparently observed although there are some details that are probably not included in Police Constable’s Norman’s report like Mr. Dave Smith’s juvenile status. In general, our scenario indicates a relatively effective law that is providing preventive provisions to fight criminality and protecting the right and liberty of individual. 25 David Hirschel and William Wakefield, 1995, Criminal Justice in England and the United States, Published 1995 Praeger/Greenwood, ISBN 0275941337, p.96 26 John Andrews, 1982,Human Rights in Criminal Procedure: A Comparative Study, Published 1982 BRILL, ISBN 9024725526, p.17 v. Bibliography Andrews John, 1982,Human Rights in Criminal Procedure: A Comparative Study, Published 1982 BRILL, ISBN 9024725526 Davis Howard, 2003, Human Rights and Civil Liberties, Published 2003 Willan Publishing, ISBN 1843920085 Eryilmaz Bedri,1999, Arrest and Detention Powers in English and Turkish Law, Published 1999 Martinus Nijhoff Publishers, ISBN 9041112693 Fennelly Lawrence, 2004, Effective Physical Security, Published 2004 Elsevier, ISBN 0750677678 Hirschel David and Wakefield William, 1995, Criminal Justice in England and the United States, Published 1995 Praeger/Greenwood, ISBN 0275941337 Quinton Paul, Bland Nick, and Miller Joel, 2000, Police Stops, Decision-making and Practice, Police Research Series Paper 130, Home Office, ISBN 1-84082-534-0 PACE , 1984, Police Officers of Statutory Powers of Stop and Search, Police and Criminal Evidence Act 1984, Code A,, United Kingdom PACE , 1984, Detention, Treatment and Questioning of Persons by Police Officers, Police and Criminal Evidence Act 1984, Code C, United Kingdom Read More