Problem questions PACE act Section 24 and 24a

by ziqbal (student)

Zahoor Iqbal

A8767929

TMA 4

Scenario 1

The prosecution will need to consider section 4 of the full code test which consists of: (i) the evidential stage followed by (ii) the public interest stage when considering whether to prosecute Nathan for the offence of criminal damage to Nisha’s car.

The prosecution would only come to a decision to prosecute once they are content that the broad criminality has been established and are able to make a fully conversant decision of the public interest as highlighted in Section 4.3 of the code test.

In the first instance the prosecution would need to ascertain whether there is sufficient evidence and the possible defence put forward for a realistic likelihood of a conviction if the matter went to court. This is an objective test and is a different test to the one applied by the criminal courts as outlined in Section 4.5 and 4.6.

In Nathan’s case, he has agreed to pay through his solicitor for the repair of Nisha’s windscreen and the dent on her car. So the assumption would be that Nathan has accepted the act (actus reus) of throwing the stone. However if prosecuted the question that may arise is whether the suspects explanation is reliable as outlined in Section 4.7 (d). The courts may find it credible that Nathan’s action was due to drinking and did not have the guilty mind (men rea) even though the divorce proceedings are underway and are acrimonious particular in relation to money.

Furthermore, as emphasised in Section 4.7 (g), the prosecution would also need to assess the reliability and credibility of Clarke’s evidence as a witness because Nathan may well argue that Clarks has an alterior motive as they are business rivals and recently lost out on a substantial property deal to Nathan.

Nevertheless the prosecution can conduct a pre-trial interview with Clarke in accordance with the relevant code of practice to assess the reliability as highlighted in Section 4.8. However they should not ignore Clarke’s evidence because they are not sure about the reliability but rather look at the realistic prospect of conviction as outlined in Section 4.9.

In addition under Section 4.7 (h) the prosecution can ask the police or other investigators i.e. social workers via role play to ascertain what the couple’s five year old twins witnessed from their bedroom window. This would either support or undermine Clarke’s account.

Secondly, the public interest stage defined in Section 4.10 by Sir Hartley Shawcross and has ever since been endorsed by Attorney Generals stated that there should be a prosecution “wherever it appears that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest.”

As previously outlined, in Section 4.11 the prosecution has to contemplate whether there is sufficient evidence to validate a prosecution or to offer an out-of-court disposal and whether prosecution is essential in the public interest.

Furthermore Section 4.12 emphasises a prosecution will more often than not take place unless there are public interest reasons against prosecution compared to those in favour. Nevertheless, further on in the section, it highlights the more serious the offence or the offenders record the more likely a prosecution is essential in the public interest.

In Nathans case, he has a previous conviction of criminal damage ...

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In Nathans case, he has a previous conviction of criminal damage after an argument with a contractor resulted in a smashed office window. In addition the offence of criminal damage is an indictable offence carrying a maximum custodial sentence of three months imprisonment and or a level 4 fine. So therefore Section 4.16 (b) under public interest is in favour of a prosecution because the courts have a greater sentencing power upon conviction compared to a conditional caution.

Also the prosecution would argue that the offence was pre-meditated (section 4.16(e)) and highlight his previous conviction of criminal damage has similar undertone i.e. an argument ensued before Nathan’s criminal act.

Whereas Nathan could argue that there was no pre-meditation and he lacked the necessary intent due to being intoxicated.

Nevertheless prosecution would argue under section 4.16 (g) that the offence was committed in the presence of or in the proximity to their twin children whilst Nathan would claim that it did not happen in the presence of the children and they were not in close proximity.

Finally, the prosecution would have a considerable positive bearing on upholding community confidence as outlined in section 4.16(r).

Therefore Nathan should be prosecuted for criminal damage as it meets the criteria of the evidential and public interest test.

Scenario 2

While members of the public are entitled to make arrests, the law regarding citizen’s arrest is complex and also open to interpretation. According to section 24A Police and Criminal Evidence Act 1984 states: (1) “A person other than a constable may arrest without a warrant: (a) anyone who is in the act of committing an indictable offence; (b) anyone whom they have reasonable grounds for suspecting to be committing an indictable offence.”

Melissa, a head teacher at a secondary school is concerned about a number of pupils may be using ecstasy, a class ‘A’ drug. Furthermore at a local head teachers meeting concerns were raised about a well dressed women who is suspected of dealing drugs. Therefore Melissa’s arrest of Tansy would fall in (1b) as Melissa had reasonable grounds for suspecting Tansy of committing an indictable offence which is one that is, or can be tried in the Crown Court (by jury) such as selling class ‘A’ drugs because not only concerns were raised in the meeting but over a two week period Melissa observed Tansy , a well dressed women waiting some days at the gates of the school but leaving with no specific pupil rather she is seen talking to two boys and a girl from the school and on the day of the arrest Tansy is seen handing something to one of the boys from outside the school gates thus also falling within the remit of s24 (1a).

As a result since Melissa has a reasonable ground for suspecting Tansy of committing an indictable offence it would also fall within subsection: (2b) “Where an indictable offence has been committed, a person other than a constable may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be guilty of it.”

In addition powers of arrest granted in subsection (1) and (2) can only be implemented only if Melissa can establish as outlined in subsection (3a) “that she had reasonable grounds for believing that for any reasons mentioned in subsection (4) it is necessary to arrest the person in question” and (3b) “it appears to the person making the arrest that it is not reasonably practicable for a constable to make it instead.”

Melissa would state that she arrested Tansy as outlined in subsection (4d) to prevent Tansy from “making off before a constable could assume responsibility for her” and “…it is not reasonably practicable for a constable to make it instead” as highlighted in subsection (3b) even though Mohammed, the deputy head who was accompanying Melissa, had taken steps by calling the police from his mobile.

However Tansy would argue that Melissa’s arrest was unlawful for the reason that she had no reasonable grounds for suspecting an indictable offence of drug dealing had been committed but was merely a concern she had about the possibility of some pupils using ecstasy, which was further heightened by the local head teachers meeting were it was discussed a well dressed women is suspected of being a drug dealer. This description was vague and could have been any women. Thus not meeting the powers of arrest conferred by subsection (1) and (2)

Furthermore the police could have been called by Melissa on occasion when she watched Tansy during the two week period who could have made the relevant enquiries to ascertain whether drug were being sold by her to pupils, as a consequence failing to meet the requirement highlighted in subsection (3a) and (4d).

In conclusion taking into consideration the circumstances of the case it was highly likely reasonable and most certainly necessary to arrest Tansy’s, therefore making the arrest lawful.

Scenario 3

Most of the powers granted to the police to arrest and detain suspects are covered by statute, and of particular importance is the Police and Criminal Evidence Act (1984) P.A.C.E. P.A.C.E also allows for the creation of a set of codes of practice that the police are required to adhere to when exercising these powers and if the police do not comply with legislation, then they are acting unlawfully.

In considering whether the arrest of Kelly by PC Khan is lawful must be given in relation to examining specific legal rules contained in section 24 of P.A.C.E, arrest without a warrant by a constable.

Section 24 (3b) outlines that “If an offence has been committed, a constable may arrest without a warrant…anyone whom he has reasonable grounds for suspecting to be guilty of it.” PC Khan reasonably believed that an offence had been committed as Lisa had informed him that three girls approached her and under the disguise of asking the time, one of the girls threatened her with a knife, demanding she hand over her brand new white iPhone4 mobile. The girl holding the knife snatched the phone and they all ran off.

Furthermore PC Khan may well still have had reasonable grounds for suspecting that an offence has been committed without the iphone 4 being taken as provided for in s24(2) “If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it,” based merely on PC Khan’s suspicion of the name provided by the girl as Kelly McDermot who he had recently dealt with and was considerably older (if she had done so) and the threatening Lisa with a knife.

Later the same morning PC Khan sees three girls showing a white iphone4 mobile phone to a young man, in tandem with the suspicion of been given a false name when asked by the girl holding the phone would quite unequivocally give reasonable grounds for suspecting them. However it might be possible to argue PC Khan's arrest was unreasonable due to no visual description given by Lisa other than that it was three girls and it was a white iphone4. Hence it could have been any three girls in a group with a white iphone4.

In addition for the arrest to be lawful s24 (4) has to be fulfilled, “…the powers of summary arrest conferred by subsection (1), (2) or (3) is exercisable only if the constable has reasonable grounds for believing that for any of the reasons mentioned in subsection (5) it is necessary to arrest the person in question.”

There are various reasons which amount to a necessary arrest outlined in s24 (5) and it is only required for any one of the given reasons to be fulfilled. In this case a number of reasons meet the criteria, one such reason is s24 (5a) “to enable the name of the person in question to be ascertained (…has reasonable grounds for doubting whether a name given by the person as her name (Kelly McDermot) is her real name)”, another is s24 (5c) “to prevent the person in question (i) causing physical injury to himself or any other person” (one of the girl had a knife that they used to threaten Lisa with) and (iii) “ causing loss or damage to property” (white iphone4). A further reason is s24 (5e) “to allow the prompt and effective investigation of the offence or of the conduct of the person in question” and finally s24 (5f) “to prevent any prosecution for the offence from being hindered by the disappearance of the person in question.”

In summary the arrest was most likely reasonable and certainly necessary and thus overall most likely lawful.

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