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Reasonable suspicion for arrest in the era of Operation Midland

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On 21 September 2015 the Metropolitan Police Service (MPS) released a statement into Operation Midland. Within this statement the MPS provide a description of the current practice of investigating claims of child sexual abuse or serious sexual assault: “Our starting point with allegations… is to believe the victim until we identify reasonable cause to believe otherwise.”

The practical reasons for such a position are clear; those who have suffered an assault of this nature are likely to be vulnerable, and it is beyond doubt that disclosing information of this sort to a police officer can be a highly traumatic experience. By adopting this start point, the MPS provide immediate support and reassurance to complainants; Operation Midland provides a demonstration of this policy in practice:

“…At the point at which we launched our initial appeal on Midland, after the witness had been interviewed for several days by detectives specialising in homicide and child abuse investigations, our senior investigating officer stated that he believed our key witness and felt him to be ‘credible’. Had he not made that considered, professional judgment, we would not have investigated in the way we have”.

“We must add that whilst we start from a position of believing the witness, our stance then is to investigate without fear or favour, in a thorough, professional and impartial fashion, and to go where the evidence takes us without prejudging the truth of the allegations”.

Grounds for Arrest / Reasonable Suspicion

Does a starting point of belief, in the absence of further investigation, meet the test of reasonable suspicion in the absence of other evidence?

The power of arrest (without warrant) is contained within s. 24 Police and Criminal Evidence Act:

1. A constable may arrest without a warrant—

i. Anyone who is about to commit an offence.
ii. Anyone who is in the act of committing an offence.
iii. Anyone whom he has reasonable grounds for suspecting to be about to commit an offence.
iv. Anyone whom he has reasonable grounds for suspecting to be committing an offence.

2. If a constable has reasonable grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.

3. If an offence has been committed, a constable may arrest without a warrant—

i. Anyone who is guilty of the offence.
ii. Anyone whom he has reasonable grounds for suspecting to be guilty of it.

‘Reasonable suspicion’ is a low threshold, two stage test:

Does the arresting officer honestly suspect ‘A’ has committed the offence; and
Would a reasonable man be of that opinion, having regard to the information which was in the mind of the arresting officer.

The concern with the current MPS policy is simple – does a starting point of belief, in the absence of further investigation, meet the test of reasonable suspicion in the absence of other evidence? The first element of reasonable suspicion is subjective; it is concerned with what is in the mind of the officer at the point of arrest. This stage would seem to be met by MPS policy. If the arresting officer believes the complainant, then it follows that the officer would hold a reasonable suspicion that the suspect has committed the offence under investigation.

Therefore, we move to the second, and objective, test. Would a reasonable man, having regard to all the information, form the same view as the arresting officer? The reasonable man is not subject to MPS policy and therefore the starting point of belief cannot apply to this stage of the test. In itself, this causes difficulties as it is hard to see a position where an officer can ‘believe’ a complainant whilst objectively assessing the account. Therefore, MPS policy cannot differentiate between an offence subject to this policy and an offence which falls outside the scope of this policy. The objective test for reasonable suspicion must be met before a lawful arrest can be made.

The police may be reluctant to disclose information about the investigation on arrest. However, PACE Code C para 3.4(b) provides ample assistance to advisors seeking information:

“Documents and materials which were essential to effectively challenging the lawfulness of the detainees arrest and detention must be made available to the detainee or their solicitors. Documents and materials will be essential for this purpose if they are capable of undermining the reasons and grounds which make the detainees arrest and detention necessary”.

While the threshold for reasonable suspicion is low, if an arrest is based on the account of a complainant alone, those advising must be alive to this issue, to ensure that their client is not unlawfully detained.

Originally published on the OUPBlog click here  to see original article.

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