Esther was arrested by a ‘person other than a constable … without a warrant’. The lawfulness of such “citizens’” arrests is regulated in s.24A of PACE which authorises (subject to a necessity test discussed below) a summary arrest where ‘anyone … is in the act of committing an indictable offence.’ Solely from the information provided, ‘indictable’ is not defined so we do not know whether theft is indictable. If it is not, then Esther’s arrest was unlawful.
If theft is an indictable offence, there remain other relevant considerations.
S.24A(3) provides that Safi, in her capacity as a ‘person other than a constable’ can only exercise her power of summary arrest if it is ‘necessary’ as defined in terms of reasons given in s.24A(4).
S.24A(4)(c) gives one of these reasons: ‘causing loss of … property.’ It is therefore highly arguable that Safi, having heard the shout ‘stop thief’ and seeing Esther running had ‘reasonable grounds’ in relation to the ‘necessary’ test.
Doubtless Safi felt her knowledge of Esther’s previous relevant convictions would add weight to the reasonableness of her actions. However, s.24A(3)(b) provides that an arrest ‘is exercisable only if … it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead.’ PC Patel (a man) could surely run faster than Esther and would have caught her in any case? Since Safi could see PC Patel chasing after Esther it can be strongly argued that Safi’s action was not lawful since it would have been ‘reasonably practicable’ for PC Patel to make the arrest.
Esther should consider alternative interpretations of the facts available however. S.24A(3)(d) allows a citizen’s arrest to ‘prevent the person in question … [Esther] … making off before a constable can assume responsibility for [her]’ It is not clear who shouted ‘stop thief’. If it was PC Patel then it might be argued that he shouted because the suspect was escaping him which would likely justify Safi’s actions and negate the argument developed in the previous paragraph. Similarly if the unidentified person was shouting because he or she felt that Esther was getting away from PC Patel this might also well mean that Safi’s s.24A(3)(d) authorisation was clear and the arrest lawful.
If it is should be inferred from the facts at hand (which from my reading of them I believe it should) that the person who shouted is unidentified (i.e. not PC Patel) then the argument that Safi’s arrest of Esther was unlawful has good prospects because it is more likely that PC Patel (a man) could catch up with Esther to arrest her and thus Safi’s actions were not necessary. Because this construction uses known facts rather than conjecture I find it more persuasive on balance.
In conclusion, my advice is that Esther may be able to demonstrate her arrest was unlawful. I would wish however to add the warning that she risks the appearance of seeking to avoid justice by using a technicality. Many of the facts conspire against achieving favourable interpretive discretion, making the outcome uncertain.
Fred.
In drafting this advice as to whether the Crown Prosecution Service (CPS) has made the wrong decision in deciding to prosecute Fred I have considered the Code for Crown Prosecutors, November 2004 (fifth edition) (the ‘code’).
The charge is the gravest non-fatal charge possible. Section 5.9 of the Code provides that ‘the more serious the offence, the more likely it is that a prosecution will be needed in the public interest.’ Analysis of the facts available would therefore have to yield substantive and highly persuasive arguments to reverse the CPS’s stance.
The CPS will have had to apply ‘the full code test’, comprising the ‘evidential’ and ‘public interest’ stages.
Relative to the evidential stage, s.5.2 requires ‘a realistic prospect of conviction’, defined at s.5.3 as ‘more likely than not’ that Fred will be convicted of the charge alleged. S.5.4 compels the CPS to ‘consider whether the evidence can be used and is reliable’. Some of the evidence against Fred has been given by children and depending on their age and capacity to give evidence, its ‘reliability’ may be questionable. The facts provided do not state that Fred pushed John, only that John was pushed by someone. Are the witness statements unequivocal that it was Fred?
On balance, while there may later be difficulties in demonstrating that the evidence condemns Fred ‘beyond reasonable doubt’ and ‘with intent’ to grievously harm John (and that the extent of John’s injuries was intended), the ‘realistic prospect’ test is likely satisfied.
Turning to the public interest stage, the CPS guidance states (at s.5.7) a ‘prosecution will usually take place unless there are public interest factors tending against prosecution which clearly outweigh those tending in favour, or’ … ‘suitable rehabilitative, reparative or restorative justice processes’ apply (s.8.1).
The CPS will have discounted the possibility of s.8.1. alternatives given the seriousness of the matter. This leaves the public interest test.
S.5.9 discusses typical arguments for prosecution and Fred needs to be advised that many of these point towards prosecution. John’s injuries were sustained after the match while leaving the pitch and not ‘in the heat of battle.’ It is assumed that the CPS will therefore argue ‘there is evidence that the offence was premeditated.’ (s.5.9.i) as reflected in the choice of charge. Further, the ‘offence was committed in … close proximity to … child[ren]’ (s.5.9.j). In general, the match involving the ‘Sport in the Community’ project would have heightened the expectation on Fred to set a good example.
Having analysed s.5.10 (public interest factors against prosecution), none of the factors listed seem applicable. Even though the list is illustrative rather than prescriptive, I cannot develop any substantive arguments from the facts available which assist Fred. Thus the CPS should bring charges in terms of the public interest stage of the test since the ‘public interest factors tending against prosecution … [do not] … outweigh those tending in favour’ (s.5.7 refers) – in fact quite the contrary .
The CPS might be challenged on their choice of charge. Section 7.2 clearly requires that ‘they should never go ahead with a more serious charge just to encourage a defendant to plead guilty to a less serious one.’ There is scant evidence that Fred intended the extent of John’s injuries (as required for a section 18 charge).
Overall however I conclude that the CPS correctly applied the code. Fred is therefore advised that I would expect to fail to defend him in the manner requested.
Ann.
Advising Ann requires analysis of the same ‘code’ as discussed in David’s case. Similarly, the full code test, involving both ‘evidential’ and ‘public interest’ stages will have been applied by the CPS in reaching their decision to prosecute Ann.
By way of preface, s.12.1 of the code states ‘People should be able to rely on decisions taken by the Crown Prosecution Service.’ The CPS’s self-generated guidance infers that the accuracy of their work is such that there are only ‘rare cases where a new look’ is necessary (s.12.2.a). Ann therefore needs to appreciate that there are public confidence issues at stake here (the CPS needs to be seen to be as infallible as possible) and also that a modicum of ‘institutional pride’ may need to be overcome to ensure that they apply their ‘general principles’ to be ‘fair … and objective.’ (s.2.2).
Happily for Ann however there are excellent reasons why the CPS’s decision should be challenged.
First, the quality of evidence merits scrutiny. S.5.4 instructions that ‘Crown Prosecutors must consider whether the evidence can be used and is reliable’.
Clearly, Ann’s neighbour’s children telling their mother what they saw being subsequently written up as a witness statement is highly questionable. Possibly the witness statement would be excluded as evidence by the court (s.5.4.a) but there is insufficient information available to know.
Second, the public interest stage allows that a prosecution need not take place. I can advise Ann that I would be happy to argue this. S.5.9 states that ‘the more serious the offence, the more likely it is that a prosecution will be needed in the public interest’. Since the alleged offence is minor, there is a good argument that the public interest is not served by prosecuting Ann, for example on grounds of cost and court time relative to the ‘value of justice’ being done. Why hasn’t the CPS proposed the various alternatives to prosecution as required by s.8.1? In any case, there are sufficient arguments available to Ann to press to simply drop the matter. There is scant evidence that any substantive factors in favour of prosecution (s.5.9) apply. (If necessary, Ann can plausibly argue that she was unaware of the proximity of children relative to s.5.9.j).
Turning to ‘common public interest factors against prosecution’, those that seem directly applicable are that the ‘court is likely to impose a nominal penalty’, and ‘the … harm can be described as minor and was the result of a single incident, particularly if it was caused by a misjudgement.’ (s. 5.10.a and d).
Further, the CPS must reconsider their decision following Ann’s neighbour’s letter asking for the case to be dropped since s.5.12 compels ‘Crown Prosecutors [to] … always take into account … any views expressed by the victim.’
In short, prosecuting a retired police officer is most unlikely to ‘have a significant positive impact on maintaining community confidence.’ (s.5.9.q) and I would advise Ann to contest the CPS’s decision.
Bibliography
Open University, course W100, Block 1, “Rules and rule making”.
Open University, course W100, Block 3 “Enforcing Rules”.
Open University, course W100, Assessment Guide Part 1.
Open University, course W100, Reader 1, Reading 48 “Code for Crown Prosecutors, November 2004” (fifth edition)
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