24 December 2020
Written by: Zoe McDonald, PNLD Legal Adviser
Not reviewed after the date of publication
A query received by the Legal Team at PNLD recently, divided opinion. Although a definitive answer could not be found due to an absence of case law on the matter; the differing perspectives made for interesting reading. As such, PNLD Legal Adviser, Zoe McDonald, has provided an overview of the issue and the varying perspectives.
The query received, related to the use of special warnings under sections 36 and 37 of the Criminal Justice and Public Order Act 1994. Section 36 puts an onus on a suspect to account for objects, marks or substances found on him at the time of arrest. Section 37 puts the same onus on the suspect to account for their presence at a place, at or about the time when the offence was alleged to have been committed. The question was essentially whether a suspect has to be ‘under arrest’ or ‘have been arrested’ in order for such warnings to be given.
To put into context, the scenario given to us was in relation to a person attending a voluntary interview and whether a special warning could be given to them during that interview. We have two possible situations here: firstly, a person who attends a voluntary interview without having been arrested for the offence about which they are to be interviewed; and secondly a person who is arrested for an offence, released under investigation or de-arrested and then attends an interview voluntarily.
The first school of thought on the above is that neither scenario allows for the issuing of a special warning unless the person is arrested in the interview and is therefore ‘under arrest’ at the time that the special warning is given. The view held by many is that a special warning can only be given to a person who is under arrest at the time of the interview in which it is given. This view reflects that Code G Para 2.9(e)(i) gives the use of a special warning as one of the reasons an arrest may be necessary. It is believed that the wording of the legislation in sections 36 and 37 is to be read in the present tense and this view is supported by the ACPO position statement with regard to voluntary interviews, which states:
‘The conduct of a voluntary interview (with the exception of special warnings) is no different to that of a person under arrest and should be completed accordingly to achieve clear relevant objectives.’
The second school of thought is that the warning cannot be given if the person has not been arrested previously for the offence, but that if they are arrested and then released under investigation, or de-arrested and then attend a voluntary interview, then the warning may be given and a further arrest is not necessary.
The reasoning behind this view is two-fold: firstly the wording of the legislation in sections 36 and 37 states ‘where a person is arrested by a constable’ which is distinct from the wording in say, section 18 of PACE, which stipulates that a person be ‘under arrest’. In theory, as long as the person has been arrested at some point for the offence for which the warning is to be given then the requirements of the legislation are met. Secondly, the PACE codes of practice appear to provide an exception to the requirements with regard to special warnings in the case of a person not detained. This is examined in more detail below.
The thought process / argument for the second opinion starts with the words of Professor Michael Zander in his book on PACE (8th Edition – para. 6-39) and continues to examine the codes in order.
‘Where this is relevant, the suspect must also be cautioned about the adverse inferences that may be drawn from his failure to account for objects, marks, or substances found on or about his person or his presence at the place where he was arrested at or about the time the crime was allegedly committed. In order for an adverse inference to be drawn in regard to marks, etc., the officer must first have told the person being questioned: what offence he is investigating; what facts he is asking the suspect to account for; that he believes the suspect has taken part in the commission of the offence; that the court can draw a proper inference if he fails or refuses to account for that fact; and that a record is being made (para.10.11). The 2012 revision of Code C specified that this special warning can only be given to a juvenile or a vulnerable person if an appropriate adult is present (para.10.11A). Sections 36 and 37 of the CJPOA only apply if the suspect has been arrested by a police officer or Revenue and Customs officer (Note 10F).’
Subsections 36(4A) and 37(3A) state that where the accused was at an authorised place of detention at the time of the failure or refusal (i.e. a police station), the inferences cannot be relied upon if they had not been allowed an opportunity to consult a solicitor prior to the request being made. This overriding restriction however, is countered in PACE Code of Practice C - Annex C, where in the notes for guidance, it states:
‘C1 The restriction on drawing inferences from silence does not apply to a person who has not been detained and who therefore cannot be prevented from seeking legal advice if they want to, see paragraphs 10.2 and 3.21.’
This wording above led some of us to believe that as there was no such restriction in relation to persons who had not been detained, that must mean that an inference could be drawn. A person who has not been detained would by that view, include a Voluntary Attender (VA).
Indeed, Paragraph 10.2 states:
‘Whenever a person not under arrest is initially cautioned, or reminded that they are under caution, that person must at the same time be told that they are not under arrest and must be informed of the provisions of paragraphs 3.21 to 3.21B which explain that they need to agree to be interviewed, how they may obtain legal advice according to whether they are at a police station or elsewhere and the other rights and entitlements that apply to a voluntary interview. See Note 10C.’
The notes for guidance, at Note 10C, state again that:
‘The restriction on drawing inferences from silence, see Annex C, paragraph 1, does not apply to a person who has not been detained and who therefore cannot be prevented from seeking legal advice if they want, See paragraph 3.21.’
However, paragraph 3.21 then states:
‘3.21 Anybody attending a police station or other location (see paragraph 3.22 and Note 3I) voluntarily to assist police with the investigation of an offence may leave at will unless arrested. See Notes 1A and 1K. The person may only be prevented from leaving at will if their arrest on suspicion of committing the offence is necessary in accordance with Code G. See Code G Note 2G.’
Notes 1A and 1K are fairly irrelevant to the current discussion, however, Code G Note 2G states:
‘When the person attends the police station voluntarily for interview by arrangement as in Note 2F above, their arrest on arrival at the station prior to interview would only be justified if:
new information coming to light after the arrangements were made indicates that from that time, voluntary attendance ceased to be a practicable alternative and the person's arrest became necessary; and
it was not reasonably practicable for the person to be arrested before they attended the station.
If a person who attends the police station voluntarily to be interviewed decides to leave before the interview is complete, the police would at that point be entitled to consider whether their arrest was necessary to carry out the interview. The possibility that the person might decide to leave during the interview is therefore not a valid reason for arresting them before the interview has commenced. See Code C paragraph 3.21.’
This is where the codes become confusing in our view, as PACE Code of Practice G (elements of arrest under section 24 PACE) states at paragraph 2.9 (e)(i):
‘(i) interviewing the suspect on occasions when the person's voluntary attendance is not considered to be a practicable alternative to arrest, because for example: …..
arrest would enable the special warning to be given in accordance with Code C paragraphs 10.10 and 10.11 when the suspect is found:
in possession of incriminating objects, or at a place where such objects are found;
at or near the scene of the crime at or about the time it was committed.’
The first school of thought reads the above to mean that you have to arrest the person at the point you want to use a special warning. The second school of thought is that if a special warning is needed to be given as a result of information that comes out of that interview and the subject has not previously been arrested then an arrest is necessary. However, if the person has been arrested previously, released under investigation, and then attends an interview as a voluntary attender, then arguably the arrest is not necessary just to give the special warning. They have already been arrested for the offence which is the only requirement of the legislation. Moreover, we cannot see why else would there be the exception to the restriction on drawing inferences, mentioned throughout the codes as stated above.
For all the legal debate on the matter, it appears that the answer will not be provided unless it is tested in court and a decision is made on appeal as to the correct interpretation of sections 36 and 37 of the Criminal Justice and Public Order Act 1994. Until such a case exists, officers would be wise to err on the side of caution if they wish inferences to drawn as a result of the warnings and they should arrest if necessary. However, the result of doing this means it inevitably will never be tested in court!
The following links may also be of use on this subject: