Criminal law

Police powers

The implementation of the Anti-terrorism, Crime and Security Act 2001 has given the police additional powers on the detention of suspects at the police station.

Also, the modification to code D, made under the Police and Criminal Evidence Act 1984 (PACE) on 1 April 2002 changes the procedures for the identification of suspects.

By section 54A of PACE, a person detained in a police station may be searched and examined to ascertain whether he has on him any mark that would tend to identify him as a person involved in the commission of an offence or to facilitate the ascertainment of his identity.

The police must have reasonable grounds for suspecting that the person is not who he claims to be.

Section 61(4) of PACE has also been amended, so that the taking of fingerprints may also be authorised where the fingerprints would help identify the suspect.

More generally, section 64A of PACE enables any person who is detained in a police station to be photographed either with or without consent.

The person taking the photograph may require the removal of any item or substance worn on or over the whole or any part of the head or face - and if the requirement is not complied with may remove the item or substance in question.

Any such photograph may be used for the prevention or detection of crime, the investigation of an offence, or the conduct of a prosecution - and may then be retained.

Code D

The modified code D indicates that identification procedures are designed to test the ability of a witness to identify the person he saw on a previous occasion and (importantly for defence solicitors making representations) to provide safeguards against mistaken identification.

A record must still be kept by the police of the description of the suspect first given by each potential witness.

A copy must be provided to the suspect or his solicitor.

There are three groups of persons to whom the code applies.

The first is the group of known and available suspects.

In this situation the police, at their discretion, may choose either a video identification procedure (annex A) or an identification parade (annex B).

A group identification (annex C) may be offered where the officer in charge of the investigation considers that it is more satisfactory.

An identification officer should always listen to representations about the method to be used from the suspect or solicitor.

A suspect is 'available' within the meaning of the code when he is immediately available to take part in the procedure or will become available within a reasonably short time.

The second group of suspects is made up of those who are known but are not available.

This will also include a known suspect who fails or refuses to take part in any identification procedure or takes steps to prevent himself from being seen by a witness in such a procedure.

Police will first consider a covert video (solicitors should obtain a client's specific authority to take part in any aspect of this procedure) and in the alternative a covert group identification.

Only in a last resort would they proceed to a confrontation (annex D).

An identification procedure must be held whenever a suspect disputes an identification but need not be held if in all the circumstances it would serve no useful purpose.

In these provisions, the code echoes the decision of the House of Lords in R v Forbes [2001] Crim LR 649.

That case will continue to apply also to the third group of suspects which comprises those where there was no known suspect.

Street identifications may continue to be used in these circumstances, but paragraph 2.26.

lays down a series of detailed provisions which will need to be followed with great care by investigating officers if they are not to run the risk of having evidence excluded under section 78 of PACE.

Before asking any witness to make an identification, where practical, a record should be made of any description given by the witness of the suspect.

The person accompanying the witness on a street identification is required to make a record in their pocket book of the action taken as soon as practical and in as much detail as possible.

The record should include the date, time and place of the relevant occasion, the witness claims to have previously seen the suspect, where any identification was made, how it was made, and the conditions at the time (for example the distance of the witness from the suspect, the weather and the light.) Where there is more than one witness every effort should be made to keep them separate, and where practical, witnesses should be taken to see whether they can identify a person independently.

Custodial sentences

The Court of Appeal has had to give careful consideration to the appropriate circumstances for the imposition of a prison sentence.

The prison population is such that there will shortly be no prison space available anywhere for use.

The Court reviewed the matter in R v Mills [2002] Crim LR 331.

The defendant was a woman of good character who had child care responsibilities but who engaged in a series of acts of dishonesty to obtain services by deception.

The total was more than 11,000.

It was emphasised that a court should consider carefully whether a prison sentence was necessary and if so what was the shortest appropriate length.

It was conscious that short prison sentences could achieve little that was positive.

This was particularly so in the case of a woman with young children, with the limited number of female prison places available.

The court considered that in a borderline case, where the offence did not involve violence but had financial consequences to a commercial concern, a community penalty would be an appropriate outcome.

A sentence of eight months' imprisonment was replaced by a community rehabilitation order.

Had the defendant not spent some time in custody the court would have imposed a community punishment order.

A similar case was R v Kefford [2002] Crim LR 432, though this involved a man.

He pleaded guilty to theft and to false accounting.

While employed by a building society, he had taken advantage of his position to obtain windfall payments through a series of false accounts.

Again, more than 11,000 was involved.

The defendant was of good character and made full and frank confessions.

He was sentenced to 12 months' imprisonment.

The court describes certain types of case as being appropriate for community punishment orders or a fine, rather than imprisonment.

In the case of economic crimes, prison was not necessarily the only appropriate form of punishment.

It could be better that an offender repaid his debts to society by performing a community punishment order rather than spending a short time in prison.

In the particular case, the sentence was reduced from 12 months to four to allow an immediate release.

These cases have great significance at the plea before venue stage as they suggest that magistrates' courts now have jurisdiction to handle significantly more cases than previously.

By Anthony Edwards, TV Edwards, London