Many suspects now surrender themselves to the police when it is known that they are subject to an investigation. They attend the police station as volunteers. Police culture is still deeply committed to making an arrest at that point. However, every arrest must be justified under section 24 of the Police and Criminal Evidence Act 1984 as amended.

In the Northern Ireland case (based on the same law) of In the matter of an application by Alexander Bull Farrelly and Fox [2009] NIQB 2, the court held that, when carrying out a criminal investigation, every officer must consider if it is necessary to make an arrest and have regard to all relevant circumstances. There must be some evaluation of the feasibility of achieving the object of an arrest by alternative means. It does not require that there is no viable or practical alternative. An officer who therefore arrests as a matter of course will be acting unlawfully and strong representations should be made.

On the other hand, the court held that if there was reason to believe that when faced by a certain line of questioning the volunteer might decide to leave, so that an arrest became necessary during the course of an interview, an arrest at the outset would be justified. Solicitors will wish to make representations with the authority of their client that the client will remain in the interview until its conclusion, whatever questions may be asked. The fact that a suspect, as a volunteer, may make no comment in interview is not a relevant consideration.

Legal privilegeThe House of Lords has confirmed that it is proper, subject to the necessary authorities, for officers to listen in to the privileged consultation at which a solicitor advises a suspect during an investigation. In McE (appellant) (Northern Ireland) (in re: M) (in re: C (AP) and another (AP) 2009 UKHL 15, the Lords held that the provisions of the Regulation of Investigatory Powers Act 2000 over-rode that privilege, notwithstanding the reluctance of the court in normal circumstances to make that finding. However, the Lords also held that the higher level of authority necessary for an intrusive surveillance warrant was required rather than the directed surveillance warrants that had, until then, been issued. An intrusive surveillance warrant requires the supervision of a surveillance commissioner and thus introduces the necessary element of independence into their issue and review. In his judgment Lord Hope expressed doubt that the product of any such intrusive surveillance would be admissible as evidence in court, but clients will need to be warned of the dangers of intelligence information being made available because of the discussion they have had with their lawyer, from which evidence may be obtained. Without express confirmation that no listening will take place, it will be difficult for solicitors in major cases to take detailed instructions from a client, and this will almost inevitably lead to a no-comment interview at that stage of the investigation.

Preserving evidence: CCTVSolicitors should always have regard to the need to preserve evidence, particularly of evidence caught on CCTV. When what occurs in the custody area may be of significance, a clear written request should be made for the preservation of the relevant material. Police forces have different retention periods. In Morris v DPP [2008] EWHC 2738 (Admin), it was held that it was not unreasonable to destroy CCTV and voice tape evidence from the custody office after three months where there had been no such request for preservation. The defence, at a later stage, indicated that they were relevant to issues around the drink-drive procedures.

Diversion from prosecution: ­cautionsNew rules on rehabilitation came into force on 19 December 2008, under the provisions of section 49 and schedule 10 of the Criminal Justice and Immigration Act 2008. Cautions are now spent as soon as imposed, and conditional cautions are spent three months after their imposition. If the conditions are not complied with and a prosecution takes place, a new rehabilitation period will take effect. However, all of the exceptions to rehabilitation which apply to court proceedings also apply to cautions – those seeking a wide range of employments will still have to disclose the background circumstances. For these purposes a caution includes a warning and reprimand, as well as a simple and conditional ­caution.

The effect of the quashing of a caution on the bringing of criminal proceedings was considered by the High Court in R (Guest) v DPP [2009] EWHC 594 (Admin). The court held that in normal circumstances if a caution is quashed, a prosecution may properly follow. Solicitors will need to give this advice to clients when they seek to challenge a caution they had initially accepted.

Diversion from prosecution: fixed penalty notices The rehabilitation provisions do not apply to fixed penalty notices, which will still need to be disclosed if the appropriate questions are asked.

The government has issued two circulars in relation to penalty notices for disorder to control their use. These make clear that the notices should only be used for possession of cannabis in the case of adults using the drug for their own purposes and should be seen as part of an escalation of procedures to discourage the use of the drug. In relation to retail theft and criminal damage, the circulars make clear that these are not intended to be used against substance misusers; nor in the case of theft from a shop against employees or where the value exceeds £100; or for criminal damage exceeding £300. In R v Gore and Maher [2009] EWCA Crim 1424, the court considered the effect of a fixed penalty notice upon a later prosecution for a more serious offence arising from the same incident. The court held that, in normal circumstances, the Crown would not be abusing its position by proceeding in such a way.

Pre-charge bailThe number of challenges to pre-charge bail conditions imposed by the police is now increasing substantially. In R (Ajaib) v Birmingham Magistrates’ Court [2009] QBD (Admin), it was held that the court was entitled to have regard to police assertions that they held material which it would prejudice their enquiries to disclose, suggesting that the suspect was liquidating his assets to travel abroad. Bail proceedings were not criminal proceedings within article 6 of the ECHR. A form suitable for use in making an application to the court under section 43B of the Magistrates Court Act 1980 is set out in the box, right.


CharacterThe importance of advising clients not to make any comment on the facts of their previous convictions or reprehensible behaviour is again emphasised in R v K [2008] EWCA Crim 3177. At trial, the Crown was allowed to use admissions made by the defendant in interview as sufficient evidence of the circumstances of his previous convictions. Normally the Crown would have to prove such detail by admissible evidence (R v Humphris [2005] EWCA Crim 2003; R v Ainscough [2006] EWCA Crim 694).

Anthony Edwards, TV Edwards, London