01 January 2020
Not reviewed after the date of publication
Can a special warning be issued in relation to an object located at a suspect's address during a section 18 PACE search (i.e. in their 'constructive possession') or does the object have to be on the person at the time of their arrest?
Section 36 of the Criminal Justice and Public Order Act 1994 puts an onus on a suspect to account for objects, marks or substances found on him at the time of arrest.
Section 36(1) clarifies the meaning of 'found on him' by stating:
'(i) on his person; or
(ii) in or on his clothing or footwear; or
(iii) otherwise in his possession; or
(iv) in any place in which he is at the time of his arrest,'
'Otherwise in his possession', could be interpreted to mean near to the suspect when arrested. However, the full legal meaning of 'possession' for other legislation would include property, which is, for example in his desk at his residence twenty miles away. Until the definition is clarified, it would be wise to give the special caution in all circumstances where objects, which are the subject of questioning, are in the possession of the suspect. A Court will be much more critical if a special caution is not given than circumstances where it is given unnecessarily.
Therefore, we are of the opinion that a special warning would be prudent in the circumstances as you have described. It would then be for the court to decide whether any inference could be made should there be a failure to account for the presence of the object.
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