"Nothing to hide, nothing to fear?", HGC report alleges police abuse of DNA database

[detective-boy]

So length of detention should be determined by the state of technology and resources? If a new technique is developed that takes two months to carry out, should the length of detention be extended to two months? This kind of investigation can be carried out after charge. The point is that there should be enough evidence for a prima facie case before anyone is arrested. Otherwise, you are simply depriving innocent people of their liberty on the say-so of a policeman's hunch. Sorry, d-b, but my experience with the police has shown me that most coppers are simply not bright enough to be entrusted with such power.

ETA: What is nuts is the idea that a person's right to liberty should be a movable feast, to be changed at the whim of the authorities as technology improves, as decided by coppers. What you advocate is a police state, nothing less.

No, it isn't. You clearly do not understand what I am posting. This much is clear from the fact that you immediately confuse "arrest" and "charge". They are NOT the same thing and they are NOT (and have never been) based on the same levels of evidence.

Arrest is, and always has been, based on reasonable grounds to suspect. This is usually pretty much prima facie case ... but not always. I could provide you with lots and lots of situations in which you would agree that arrest is more than justified but there is not a prima facie case (that term has a specific legal meaning and, effectively, it is sufficient evidence that a jury, properly directed, could convict).

The level of evidence required for charge (and, hence, the length of time needed to establish that level of evidence in an admissible format - statements, transcripts of interviews, scientific test results, etc.) has changed. Until the introduction of the CPS in the mid-80s (at the same time as, but not directly connected with, the introduction of PACE) the test for charging was the prima facie case. This meant that charges could be laid at a very, very early stage in an investigation. What then happened was that the prosecution applied for (and were invariably granted) remand after remand after remand whilst the investigations were completed. As the world became more complex, and as the ines of enquiry became more complex and took longer to complete, these remand periods got longer and longer. If you go back to the 80s you will find it was not at all unusual for a defendant to be charged within a few days ... and then spend three years in custody pending trial.

The CPS brought with them a variety of time limits for proceeding with a case which had the effect of truncating the time available for investigation between charge and trial. They also brought in a test for proceeding with a case (which they applied very early after charge and which they have now moved back to pre-charge) of the case being ready to go with a conviction more likely than an acquittal.

"Charge" therefore now requires way, way more than a prima facie case.

There also used to be something called the "holding charge" - this would be where there was sufficient evidence to charge a lesser offence (perhaps possession of a firearm) which would then be used to remand the defendant in custody whilst enquiries continued into other, more complex serious offences (perhaps murder or armed robbery). That has been outlawed in the UK since the introduction of the CPS.

This has meant that dangerous offenders are released on investigative bail, pre-charge in far, far more cases than was ever the case before. Some commit more offences. Some go missing. Some interfere with witnesses or other evidence, things they couldn't do if in custody. To a certain extent this has been addressed by the CPS allowing charge in serious cases where there are substantial fears of further offences, etc. without the case being ready to go ... but that is not the norm.

Between arrest and charge comes investigative detention. Investigations take time - you simply cannot do all that is required (most of which cannot be argued with as it demonstrably provides "best evidence" to the Courts and thus maximises the chances of a just outcome), to the level it is required (again most of which cannot be argued with) in a few hours or days. The options are therefore:

1. Keep the high level of evidence required to justify charge and live with extended periods of investigative detention.

2. Keep the high level of evidence required to justify charge and live with the fact that lots of dangerous offenders will be released on bail whilst investigations continue (and thus be free to abscond / commit further offences / interfere with witnesses).

3. Reduce the level of evidence required to justify charge to prima facie case and permit post charge interviews to deal with evidence coming to light subsequently and live with the fact that there will be more post-charge delay before trial.

4. Reduce the level of evidence required to justify charge to prima facie case and NOT permit post charge interviews about new evidence and live with the fact that you are not presenting the best evidence to the Courts at trial, not least because you have not allowed the defendant to explain any of this new evidence and open up new lines of enquiry which may undermine it.

What you simply cannot have is no significant opportunity to investigate pre-charge, trials as soon as possible after charge AND thorough, competent investigations. It just doesn't work. You cannot shrink time and investigations take time. End of.

 

[detective-boy]

As I understand it, the level of evidence you need to make a charge is not the level you need for conviction. I repeat – before arrest, there should be enough evidence for a charge. Take someone in for questioning, fine. But 'questioning' is something that should be measured in hours, not days.

Why don't you actually take some time to try and understand what I am saying?

Arrest is NOT the same as charge.

IF, as you suggest, the evidence required for charge (i.e. a conviction being more likely than not, and that evidence all available in admissible form) were required for arrest then if someone stabbed you in the pub tonight and the police turned up they would NOT be able to arrest the suspect even if he was stood their laughing at them.

And your suggestion that it would be OK to take someone in for questioning is simply bollocks. If, to make an arrest (which is the ONLY way you can "take someone in for questioning") you need sufficient evidence to charge you CAN'T fucking question them - the law (PACE) says that if you have sufficient evidence to charge you cannot continue any interview and you must charge them forthwith.

The issue you have is valid (and I share it). The simplistic "It's the police not wanting to change / It's only cos it suits the police" approach you have to the suggested change is quite simply bollocks. If you want the issue addressed you will have to engage in a lengthy debate about varous suggestions and work out which compromises you are willing to make.

 

[detective-boy]

Detention solely on the say-so of the police is arbitrary detention.

But we don't have that. Every arrest must be justified by reasonable grounds to suspect (and, since the Serious Organised Crime and Police Act 2005, specific grounds for why arrest was necessary) an offence for which there is a power of arrest. The prisoner must be put in front of a custody officer (independent of the investigation - if you want to make a sensible change, suggest that cusody officers should not be police officers) who must then certify (a) that the grounds for arrest justify arrest and (b) that pre-charge detention is necessary. Decision (b) is then regularly reviewed throughout the detention period, initially by the Custody Officer, after 6 hours by an Inspector independent of the investigation and then over 24 hours by a Superintendent independent of the investigation and over 36 hours by a Magistrates Court. The prisoner and any defence lawyer are entitled to contribute their views at each review. The reviews are recorded in writing. The custody record is available to the defendant and / or their lawyer at any time.

If at any stage any of the reviewing officers consider the need for detention has lapsed they can release the defendant.

All of these decisions and records are available. Very, very few defence lawyers take issue with the arrest or detention of suspects. Even fewer ever succeed with any court action for the arrest or detention being unlawful.

There simply is no evidence at all that there is "arbitrary detention" on the "say so" of the police. You will simply not be able to find any. It is a bollocks statement to make.

 

[littlebabyjesus]

Ok, I got that slightly wrong. I'll put it this way: If the grounds for suspicion that led to the arrest cannot be confirmed either way within a few hours, then there was something fundamentally wrong with those grounds. Investigative detention is, simply, an affront to the concept of innocent until proven guilty.

 

[detective-boy]

I'll put it this way: If the grounds for suspicion that led to the arrest cannot be confirmed either way within a few hours, then there was something fundamentally wrong with those grounds.

Maybe ... but it depends what you mean by "confirmed" and "a few hours" ...

For instance, there may be a dead body and some suspicion the suspect had something to do with the death (maybe because they had a fight immediately beforehand). Until the post mortem it is impossible to know ... and that may take many hours to arrange and complete, especially if it is midnight on Saturday night ...

Or there may be some white powder, found hidden in the panels of a car coming off a ferry at Dover ... and it may take some time to establish if they are drugs.

And if by "confirmed" you mean not only knowing the result but having it in a statement form, complete with supporting exhibits, etc., that takes even longer as it has to be written, checked and double-checked.

Personally I think that PACE has it about right - 24hrs for most offences and up to 72 hours for serious / complex offences (subject to the reviews I mentioned and the continuing need for detention and the investigation being pursued "expeditiously"). There are some issues with that - not least the fact that the clock does not stop for mandatory rest periods or whilst waiting for a solicitor or appropriate adult to turn up (and I have encountered many dodgy solicitors who deliberately waste custody clock time ...) but broadly speaking it is do-able.

I think there is some scope for arguing for longer for terrorist offences (primarily as the possible future offences if someone has to be released pending the completion of investigations, or if initial arrest is delayed until more evidence has been obtained) are so much more devasating if they happen that there is an argument to mitigate against that ... but I do not accept the justification used to get to 28 days, let alone 42 or 96 days. If a competent SIO and team of 30 or 40 officers can investigate a complex multiple murder, linked series of stranger rapes or a string of serious armed robberies across several counties in 72 hours then a competent team of SIOs and dozens and dozens of officers can get their act together and investigate a terrorist cell.

I think the main issue is the pressure society (and especially the media) put on the police to avoid an attack being committed by someone they have heard of (like 7/7 again). This pressure very much forces the police to jump as soon as they have the absolute minimum grounds to intervene ... and that means there is a shed load more investigation to do to reach the stage where charges can be laid than in a "traditional" proactive investigation where it is pretty usual practice to be pretty sure of the evidence before intervening and making arrests. If we don't want people arrested before there is lots of reliable evidence and / or we don't want to have to hold them for ages whilst we get the investigation to the charge stage, we must accept that sometimes bad things will be done by people the police are in the process of investigating or by people the police have had in their custody but who they have had to release without charge.

 

[Azrael]

I have no problem with suspects having rights. My point is that what you are advocating would actually make no (or, at best, very little difference) and cost a huge amount in added bureaucracy.

Getting a judge's or magistrate's signature on a warrant is not a foregone conclusion in the USA and Canada. (Which is probably why American police keep getting caught trying to circumvent it.) If our JPs are too lax, make some of the changes I suggested, or transfer the power to a judge. Giving the police special powers is a slippery slope that leads to the gendarmerie-in-embryo we currently have. Your suggestion of reviewing police decisions fails to serve the shield function. A warrant is there to stop unreasonable searches, not compensate their victims. And given that search warrants are rooted in the assumption that power shouldn't be concentrated in any one body, they're anti-idealist and wholly pragmatic.

I am afraid you are in a tiny minority […]

Have the majority considered, in detail, why biometric dragnets violate due process and the presumption of innocence?

7/7. The police knew of links but were gathering more evidence when the attack happened. Surely you've noticed how they've been slagged off for that!

Pre 7/7, the police had either one or two weeks investigative detention, depending on whether the extension in the 2003 CJA was in force. Are you saying they didn't arrest the 7/7 suspects because this was insufficient time? What are you basing this on?

You must, therefore, accept massive post-charge delays, and the right to carry out post-charge investigative interviews, before the prosecution are expected to be able to proceed with the case. If you do not, you simply display your absolute ignorance of the investigative process.

Scotland must get suspects to trial within 110 days of the indictment. New York State passed a law that gave the prosecution six months (excluding murder charges). Scotland allows the procurator fiscal to interrogate the accused post-charge, but since New York is bound by the Fifth Amendment, the NYPD has no lawful power to interrogate suspects without their consent. New York enjoyed a steady drop in crime while these things were in place. So delays don't look inevitable.

Your ignorance is fucking spectacular!

Canada is my co-accused in being nutty and ignorant. New Zealand; Australia; the USA; Ireland: all tonto? Scotland, with its six hours, must be positively doolally.

It's clearly possible to charge or release suspects within 24 hours. This isn't my utopian pipe dream: it's the functioning justice system in much of the common law world. I don't suggest the police do all the things you suggest within 24 hours: I suggest they arrest when they have a reasonable belief that the suspect is guilty, and have a prima facie case within 24 hours. As I've said before, I think the arbitrary CPS tests should go.

Arrest is, and always has been, based on reasonable grounds to suspect.

This may be correct in England, but since, pre-1965, a constable was obliged to get a suspect before a magistrate "as soon as is practical", and the common law explicitly banned extending detention to gather more evidence, it seems likely the police needed more upon arrest.

In Canada and the USA, the burden for arrest and charge is the same, reasonable and probable grounds and probable cause, respectively. Ditto Scotland, especially before they introduced investigative detention in 1995.

Azrael is arguing for a return to the days when investigative detention was not used (not least because anything said by the defendant was simply not admissible at trial at all, even if they wanted it used!).

It's a mighty big leap to assume that I want the justice system to revert to how it was before 1898! Nor do I want it to revert to how it was when you joined the force, when it was, by most accounts, in a mess. I see no reason why we can't return protections that contemporary Canadians, Americans and Aussies enjoy back to the system that invented them.

IF, as you suggest, the evidence required for charge (i.e. a conviction being more likely than not, and that evidence all available in admissible form) were required for arrest then if someone stabbed you in the pub tonight and the police turned up they would NOT be able to arrest the suspect even if he was stood their laughing at them.

Since I think the CPS tests should go, it's "conviction technically possible", and the police should have 24 hours to get their evidence in an admissible form. Are you suggesting that Mounties would be unable to make an arrest in the circumstances you describe?

And your suggestion that it would be OK to take someone in for questioning is simply bollocks. If, to make an arrest (which is the ONLY way you can "take someone in for questioning") you need sufficient evidence to charge you CAN'T fucking question them - the law (PACE) says that if you have sufficient evidence to charge you cannot continue any interview and you must charge them forthwith.

The Scots already have this system, with six hours of detention for questioning allowed. (Not called an arrest in Scots law.) I wouldn't support it, but it currently exists north of the border.

 

[Azrael]

I think the main issue is the pressure society (and especially the media) put on the police to avoid an attack being committed by someone they have heard of (like 7/7 again). This pressure very much forces the police to jump as soon as they have the absolute minimum grounds to intervene ... and that means there is a shed load more investigation to do to reach the stage where charges can be laid than in a "traditional" proactive investigation where it is pretty usual practice to be pretty sure of the evidence before intervening and making arrests. If we don't want people arrested before there is lots of reliable evidence and / or we don't want to have to hold them for ages whilst we get the investigation to the charge stage, we must accept that sometimes bad things will be done by people the police are in the process of investigating or by people the police have had in their custody but who they have had to release without charge.

It's true that people should stop demanding the impossible of the police. But I'm not at all convinced that extra police powers make us safer. Leaving aside the fact that they put innocent people in danger from the state, as the recent debacle with the Pakistani terror suspects showed, they can help lead to the police jumping the gun.

Say Mr Suspected Terrorist is arrested under traditional common law powers, and is released by a magistrate because the evidence is insufficient. Is this person, guaranteed to be under continued surveillance, of any use to a terrorist organization? I don't see how. He's damaged goods, to be dumped as quickly as possible before the entire plot collapses.

 

[detective-boy]

If our JPs are too lax, make some of the changes I suggested, or transfer the power to a judge.

I am not saying they are too lax. I am saying that the required level of evidence or suspicion is there is the vast, vast majority of cases. There is no evidence at all of wholesale abuse of the system. Bearing in mind the millions of search and other authorities granted every year, the vast, vast majority of which are known to defence solicitors and which would, if unlawful, undermine the prosecution case, where are the thousands of successful complaints? You are inventing a system to deal with a "problem" you have invented.

Pre 7/7, the police had either one or two weeks investigative detention, depending on whether the extension in the 2003 CJA was in force. Are you saying they didn't arrest the 7/7 suspects because this was insufficient time?

No. I'm using it as an example of what happens when the police set about evidence gathering and investigation before arrest and unfortunately something bad happens whilst they are doing so.

As I've said before, I think the arbitrary CPS tests should go.

So why not make that fucking clear every time you make the argument for shortened pre-charge detention which otherwise appears to be with reference to everything else being as it is?

... it seems likely the police needed more upon arrest.

No. The Courts needed (way, way, way) less for a conviction - the theoretical burden of proof may have been the same but what was actually needed to achieve that was tiny compared to now. (Which I think is actually a good thing - I am quite happy to trade some delay pre-charge and pre-trial to get the best possible evidence before the Court by allowing a thorough investigation for speedy "justice" based on what happens to be to hand within ten minutes ...)

I see no reason why we can't return protections that contemporary Canadians, Americans and Aussies enjoy back to the system that invented them.

Then the only change you need is to the evidential requirement for charge. Move that back to prima facie case. But that will mean that time between charge and trial is likely to rise on average.

Since I think the CPS tests should go, it's "conviction technically possible", and the police should have 24 hours to get their evidence in an admissible form.

Please tell us how the fuck the police are meant to examine the scene of the stabbing in a competent way, get all the evidence they find to the FSS, get the FSS to do all the tests, get the FSS to write up the results, review those results and, if necessary, request further tests and get all of that is a witness statement in 24 fucking hours. As I said, you are simply fucking mad.

Are you suggesting that Mounties would be unable to make an arrest in the circumstances you describe?

I'm not (I'd be very surprised if they could not) ... but YOU would appear to be by stating the requirements for evidence at that point that you say apply to them (which I strongly suspect to be bollocks because policing simply could not operate on that basis).

The Scots already have this system, with six hours of detention for questioning allowed. (Not called an arrest in Scots law.) I wouldn't support it, but it currently exists north of the border.

To refer to "being taken in for questioning" as not the same as "arrest" is (a) semantics and (b) fucking stupid. An arrest, in it's simplest terms, is stopping someone going where they want to go / taking them somewhere they don't want to go / keeping them there. Being taken in for questioning (when there is no real choice in the matter) is arrest. To deny that it is is bollocks.

 

[detective-boy]

...they can help lead to the police jumping the gun.

I disagree that additional police powers cause that. It IS caused by the fuckwitted media outrage when something goes wrong whilst police are (properly) gathering and analysing evidence and working out what is actually going on as best they can before making arrests.

I cannot see how any police powers lead the police to intervene sooner. All the powers they used in the intervention were available to them from the outset and there was nothing to be gained (and, investigatively, everything to be lost) by jumping sooner.

Is this person, guaranteed to be under continued surveillance, of any use to a terrorist organization? I don't see how. He's damaged goods, to be dumped as quickly as possible before the entire plot collapses.

See, you're fucking making assumptions again. The law doesn't just apply to well organised terrorist bodies with disciplined staff who do what they are told. It applies to lone lunatics. And fundamentalist idiots who simply don't give a fuck.

 

[Azrael]

You are inventing a [warrant] system to deal with a "problem" you have invented.

I've hardly invented a system that's exited for hundreds of years! I'm simply supporting the old common law principles of limited police powers.

I didn't restate the CPS test because you already know my position, since we've argued it at length before, and it wasn't particularly relevant to the thread. Although I'm happy to add it in future. Perhaps charging prima facie would lead to delays in some cases, although given timetables like New York's six month rule, and Scotland's 110 day rule, I'm not convinced delays would be inevitable.

Did the courts need less for a conviction in the recent past? It's still possible to convict without forensics, although I wouldn't be surprised if jurors expected them now, thanks to the CSI effect.

Please tell us how the fuck the police are meant to examine the scene of the stabbing in a competent way, get all the evidence they find to the FSS, get the FSS to do all the tests, get the FSS to write up the results, review those results and, if necessary, request further tests and get all of that is a witness statement in 24 fucking hours. As I said, you are simply fucking mad.

Leaving aside debates about my sanity, I think we're at cross-purposes here. I'm not suggesting the police compile the level of evidence you suggest within 24 hours. I'm suggesting they charge, on a prima facie standard, within 24 hours. This is clearly possible, because other jurisdictions do it all the time. Scottish police would have to charge the attempted-murderer within six hours.

I'm not (I'd be very surprised if they could not) ... but YOU would appear to be by stating the requirements for evidence at that point that you say apply to them (which I strongly suspect to be bollocks because policing simply could not operate on that basis).

What part of the Canadian system do you think I've misrepresented? It it's the Canadian burden of proof for arrest, "reasonable and probable" grounds is what their criminal code says, and the Canadian courts have ruled that "mere suspicion" isn't enough. The author of the policeman's blog, currently working in the Edmonton PD, has said that he needs the same level of evidence for charge and arrest.

To refer to "being taken in for questioning" as not the same as "arrest" is (a) semantics and (b) fucking stupid. An arrest, in it's simplest terms, is stopping someone going where they want to go / taking them somewhere they don't want to go / keeping them there. Being taken in for questioning (when there is no real choice in the matter) is arrest. To deny that it is is bollocks.

It's Scots law that makes the distinction. It might be bollocks, but that's the wording it uses.

I cannot see how any police powers lead the police to intervene sooner.

If you can arrest on reasonable suspicion for the purpose of investigation, it stands to reason that the police will arrest earlier in the process. Comparing police blogs from here and abroad seems to back it up. Although I freely admit that media hysteria and political pressure may have caused the police to arrest too soon in the Pakistani case, if they knew they had to charge or release the men within 24 hours, would they have given into it?

See, you're fucking making assumptions again. The law doesn't just apply to well organised terrorist bodies with disciplined staff who do what they are told. It applies to lone lunatics. And fundamentalist idiots who simply don't give a fuck.

I was referring to the 7/7 lot, and similar, who so far as I know were working in groups. I'm sure there will be lone lunatics, but then, they'll be a thorn in the side of any system, and just as likely to commit murder as crimes marked as terrorist. Is, say, Scotland at more danger from them?

 

[detective-boy]

I didn't restate the CPS test because you already know my position, since we've argued it at length before, and it wasn't particularly relevant to the thread.

It's absolutely central to your proposition - if you are arguing for a shorter time period then what is expected to be achieved in that time period is an absolutely central consideration.

Perhaps charging prima facie would lead to delays in some cases, although given timetables like New York's six month rule, and Scotland's 110 day rule, I'm not convinced delays would be inevitable.

Did the courts need less for a conviction in the recent past? It's still possible to convict without forensics, although I wouldn't be surprised if jurors expected them now, thanks to the CSI effect.

We need to be careful not to trade speed for best evidence. The world is a lot more complex now. Investigative science is a lot more advanced and lots more things are possible (all of which take time) that weren't previously. This applies in non-scientific ways too. An investigator would always like to puruse associations with a possible member of a criminal conspiracy or gang for instance ... but before mobile phones and things the only possibility of that would be by finding a diary or address book or something (or having surveillance evidence) and so it simply was not possible and so no time was needed for it. Now it is and to a massive degree... and if we want to investigate it it takes time.

If we want to have investigations pursued as thoroughly as possible (and I am sure you would agree that this is a good thing) and for the best possible evidence to be placed before the Court (and again I am sure you would agree that this is another good thing) we need to be realisitic about how long such things take and work out how to reach the best compromise between speed and thoroughness.

Simply harking back to time limits which applied in a very different world is not the way and is simply going to lead to miscarriages of justice.

Scottish police would have to charge the attempted-murderer within six hours.

Indeed. But they do NOT have to have all the evidence available in an admissible format at the point of charge (or within 24 hours) which is the requirement you keep blathering on about and which is absolutely impossible.

It it's the Canadian burden of proof for arrest, "reasonable and probable" grounds is what their criminal code says, and the Canadian courts have ruled that "mere suspicion" isn't enough. The author of the policeman's blog, currently working in the Edmonton PD, has said that he needs the same level of evidence for charge and arrest.

Mere suspicion, as I have said many times, is NOT enough in the UK. Why do you keep misrepresenting that fact? You are like the Daily Mail, scaring people by misrepresenting that something is what it isn't.

My point arose from littlebabyjesus suggesting that evidence required for arrest should be the evidence required for arrest. That is clearly not what the case is in Canada if your post is accurate (which I have no reason to doubt as anything else would be unworkable).

If you can arrest on reasonable suspicion for the purpose of investigation, it stands to reason that the police will arrest earlier in the process.

I can see how you may think that ... but the fact that some investigations could be carried out after arrest would not really be a big reason to jump sooner - all investigators know that it is far better to get as much evidence together as possible before arrest as you always have a time-clock running once people are in custody, even if it is for 28 days. They also know that the different types of enquiries (surveillance, etc.) which can be done whilst suspects are not yet arrested are different from those which can be done afterwards. Some can only be done before, some can only be done afterwards, but the more that can be done beforehand the better use can be made of any available investigative detention time.

Is, say, Scotland at more danger from them?

My guess would be yes. (Except that the terrorism laws extend to Scotland and so suspects for terrorist offences there are subject to 28 days investigative detention anyway).

 

[Azrael]

[Removing the CPS test is] absolutely central to your proposition - if you are arguing for a shorter time period then what is expected to be achieved in that time period is an absolutely central consideration.

With charging, I agree, although like I said, you already knew my opinion about the CPS test, and my main point was about search warrants for biometrics.

Simply harking back to time limits which applied in a very different world is not the way and is simply going to lead to miscarriages of justice.

I don't think they do apply to a different world, as many countries still use them. As I said a page or so back, Canada introduced extra time for terrorism cases in 2001. It was used once, and repealed in 2007. I agree that cases should be as strong as possible, but it shouldn't be used as grounds to undermine the presumption of innocence or the right not to be held without charge.

Indeed. But they do NOT have to have all the evidence available in an admissible format at the point of charge (or within 24 hours) which is the requirement you keep blathering on about and which is absolutely impossible.

I don't think the police should be expected to have all the evidence ready and admissible after 24 hours. I support the same prima facie burden of proof that Canada and Scotland use.

Mere suspicion, as I have said many times, is NOT enough in the UK. Why do you keep misrepresenting that fact? You are like the Daily Mail, scaring people by misrepresenting that something is what it isn't.

The Canadian court was, I think, referring to any kind of suspicion.

My point arose from littlebabyjesus suggesting that evidence required for arrest should be the evidence required for arrest. That is clearly not what the case is in Canada if your post is accurate (which I have no reason to doubt as anything else would be unworkable).

The comparison comes from the author of the policeman's blog. America seems to require probable cause for both charge and arrest.

 

[Azrael]

A bit more on the parity between charge and arrest in Canada: while the blog's description may have been a rough guide, the Canadian supreme court clearly says that reasonable suspicion isn't enough to justify an arrest, or search, in this ruling.

"[45] In M. (M.R.), the issue was the constitutionality of the body search of a student for drugs at a school dance by the vice‑principal. The Court specifically held that if the body search had been conducted by the police, or the school authorities acting as agents of the police, reasonable and probable grounds of belief would have been required. However, reasonable suspicion was sufficient for school authorities.

"[77] The suggestion that sniffer-dog searches be permitted on reasonable suspicion, based on objective grounds, rather than 'reasonable belief' as laid down in the circumstances of Hunter v. Southam should, of course, be approached with caution."

 

[detective-boy]

A bit more on the parity between charge and arrest in Canada:...

You keep comparing different terms, from different jurisdictions which, no doubt, have different and very detailed definitions. This is a meaningless exercise.

I have seen absolutely nothing to suggest that the actual circumstances required for arrest (no matter what you label them) are pretty much the same here as anywhere else (and you even posted approvingly of the Policeman's Blog entry to that effect between here and Canada). No criminal justice system would function with anything like effectiveness otherwise.

 

[detective-boy]

With charging, I agree, although like I said, you already knew my opinion about the CPS test, and my main point was about search warrants for biometrics.

Where my point about the need for a warrant being an absolutely meaningless exercise would have almost 100% applicability.

The law allows prints and DNA to be taken on arrest for an imprisonable offence. As soon as someone was arrested for such an offence the issue of a warrant would be automatic. It would only make any meaningful difference if you could demonstrate that samples were currently being taken (a) without arrest or (b) following unlawful arrests. You can't.

(Note: Unnecessary arrests, as in arrests made where discretion could have been exercised to administer a warning or issue a fixed penalty notice, are not the same as unlawful arrests.)

You have a bizarre and unfailing habit of attacking something two steps removed rather than the actual issue that you have a problem with.

 

[Azrael]

You keep comparing different terms, from different jurisdictions which, no doubt, have different and very detailed definitions. This is a meaningless exercise.

"Reasonable suspicion" might be slightly different in Canada, but I don't think the comparison is meaningless, since we're both common law countries, and the Canadian supreme court refer to British rulings all the time.

I have seen absolutely nothing to suggest that the actual circumstances required for arrest (no matter what you label them) are pretty much the same here as anywhere else (and you even posted approvingly of the Policeman's Blog entry to that effect between here and Canada). No criminal justice system would function with anything like effectiveness otherwise.

The blog said arrest and charge required the same evidence in Canada. No doubt he was simplifying it, which is why I went and looked at what their supreme court had to say.

I know that international comparisons aren't an exact science. But they're surely the best way of finding the flaws in our system, and suggesting an alternative.

The law allows prints and DNA to be taken on arrest for an imprisonable offence. As soon as someone was arrested for such an offence the issue of a warrant would be automatic. It would only make any meaningful difference if you could demonstrate that samples were currently being taken (a) without arrest or (b) following unlawful arrests. You can't.

I've said there should be both a warrant requirement and a need to seize DNA for investigation from my first post. The current power to automatically seize DNA from everyone arrested should be abolished.

Right now, so far as I'm aware, the police can only seize DNA from arrested people, and people who've been convicted. A search warrant would allow the police to seize DNA from people without the need to arrest them, giving them extra flexibility.

 

[detective-boy]

Right now, so far as I'm aware, the police can only seize DNA from arrested people, and people who've been convicted. A search warrant would allow the police to seize DNA from people without the need to arrest them, giving them extra flexibility.

How? Are you suggesting you'd allow the police to seek a warrant to obtain someone's prints or DNA even if they have not been arrested? Didn't think you liked fishing expeditions?

 

[Azrael]

How? Are you suggesting you'd allow the police to seek a warrant to obtain someone's prints or DNA even if they have not been arrested? Didn't think you liked fishing expeditions?

Yes, the police should be allowed to seek a warrant to take biometrics from a person who hasn't been arrested. And if the warrant is issued on reasonable grounds, I don't see how it's a fishing expedition.

 

[Azrael]

And following up on the Canadian burden of proof for arrest, I've managed to track down the two relevant posts from the policeman's blog.

In this post ("AERO-SOLES"), he says, "Unlike in the UK, a simple allegation isn't enough to make an arrest and without any corroboration I couldn't charge anyone (you need the same level of evidence to arrest as you do to charge here)."

And in a comparison between English and Canadian police powers, he says, "I certainly have fewer powers than I did before: I'm not allowed to arrest suspects, I have to have (in UK terms) sufficient evidence to charge before I can arrest."

 

[detective-boy]

And if the warrant is issued on reasonable grounds, I don't see how it's a fishing expedition.

Because, if there is not enough evidence to arrest someone that's all it could. And I thought you were arguing that the levels of evidence needed for arrest here were too low anyway ... I find this sort of fucking inconsistency in your arguments so bloody infuriating.

You just seem to randomly make statements about interlinked parts of the criminal justice process without thinking how they align with others and I haven't got the faintest fucking idea what the hell you are on about.

Why can't you think things through in a bit more (i.e. any) detail.

 

[detective-boy]

In this post ("AERO-SOLES"), he says, "Unlike in the UK, a simple allegation isn't enough to make an arrest and without any corroboration I couldn't charge anyone (you need the same level of evidence to arrest as you do to charge here)."

If he thinks that a simple allegation would be sufficient grounds for an arrest here he is sadly mistaken. It isn't.

Corroboration is quite specifically NOT required in Engalnd, Wales and Northern Ireland (except in some very specific sitautions). In Scotland I believe it is still required for everything ... which seems to lead to the Scottish CJS tying itself in knots finding corroboration where there is actually no such thing by any sensible reading of the definition ...

And in a comparison between English and Canadian police powers, he says, "I certainly have fewer powers than I did before: I'm not allowed to arrest suspects, I have to have (in UK terms) sufficient evidence to charge before I can arrest."

That must be bollocks. There is no way in a million years that a police service can operate where arrests can only be made where the evidence is such that a conviction would be more likely than an acquittal. It would simply be rideen roughshod over by the bad guys.

 

[Azrael]

Because, if there is not enough evidence to arrest someone that's all it could.

Don't see why. A fishing expedition is where the police conduct searches without a specific objective or reasonable grounds, in the hope of finding something incriminating. So far as I'm aware, search warrants are only issued if the police show reasonable grounds to search for evidence linked to a specific crime.

I think the burden of proof for arrest should be raised, yes. The same can be done with search warrants. Canada requires "reasonable and probable grounds for belief" for both. Where's the inconsistency?

If he thinks that a simple allegation would be sufficient grounds for an arrest here he is sadly mistaken. It isn't.

What do you mean by a simple allegation? Arrests are clearly possible based on some allegations.

Corroboration is quite specifically NOT required in Engalnd, Wales and Northern Ireland (except in some very specific sitautions). In Scotland I believe it is still required for everything ... which seems to lead to the Scottish CJS tying itself in knots finding corroboration where there is actually no such thing by any sensible reading of the definition ...

Not required in Canada, either, so far as I've been able to find. I think he was just saying that, in the case mentioned, the allegation alone was insufficient to level a charge.

That must be bollocks. There is no way in a million years that a police service can operate where arrests can only be made where the evidence is such that a conviction would be more likely than an acquittal. It would simply be rideen roughshod over by the bad guys.

So far as I'm aware, Canada has no CPS tests, so it's a conviction technically possible, not likely. "Reasonable and probable grounds" isn't identical to prima facie, but it appears to be close.

 

[detective-boy]

What do you mean by a simple allegation?

My money has been stolen. Azrael stole it.

 

[Azrael]

I think, "That man hit me" *points at detective-boy* is more what the blogging copper has in mind. Unless he's been having his arrests overturned by the custody sergeant for years, he must have an accurate idea of what allegations are substantive. It's just that you disagree about whether the phrase "simple allegation" is appropriate.

 

[detective-boy]

I think, "That man hit me" *points at detective-boy* is more what the blogging copper has in mind.

In which case to make an arrest on that basis alone would be unlawful. There is absolutely no difference between an allegation of theft and an allegation of assault.

 

[Pickman's model]

There is absolutely no difference between an allegation of theft and an allegation of assault.

quite right. chances are neither would be investigated.

 

[Azrael]

In which case to make an arrest on that basis alone would be unlawful. There is absolutely no difference between an allegation of theft and an allegation of assault.

I was distinguishing between accusing someone face-to-face and on a bulletin board. If the police arrive at an incident where one man points to another and says "He assaulted me", isn't it lawful for the police to make an arrest?

 

[detective-boy]

If the police arrive at an incident where one man points to another and says "He assaulted me", isn't it lawful for the police to make an arrest?

No. Not if that is all there is (i.e. it is based on a simple allegation).

 

[Azrael]

No. Not if that is all there is (i.e. it is based on a simple allegation).

What sort of allegation is needed then? So far as I was aware, one that gives rise to reasonable suspicion is enough.

I think we're at cross-purposes over the phrase "simple allegation", as the man who used it is a police officer with several years experience who clearly knows the burden of proof for arrest.

 

[detective-boy]

What sort of allegation is needed then? So far as I was aware, one that gives rise to reasonable suspicion is enough.

Reasonable grounds to suspect an offence is sufficient. A simple allegation "He did whatever" is not enough to amount to reasonable grounds to suspect an offence on its own - there must be something else which corroborates it in some way and to some extent. How much and how far is a variable feast dependant upon the circumstances.