Police Powers Cases Flashcards
Guzzardi v Italy
ECHR Art 5
• Applicant arrested on suspicion of being involved with the mafia
• Put in prison, awaiting trial
• Law in Italy at that time said people could be held in prison for up to two years while awaiting trial, after that time they must be set free
• After 2 years, police took him out of prison, put him on a remote island near Sicily where they forced him to be a resident
o Didn’t have enough to take him to trial, but also weren’t allowed to keep him in prison, so…
• Italy tried to argue that he wasn’t deprived because he was “free” and not in prison
• ECHR didn’t agree with Italy’s argument”
• “In order to determine whether someone has been ‘deprived of his liberty’, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effect and manner of implementation of the measure in question”
R (Gillan) v Commissioner of Police of the Metropolis (2006)/ Gillan and Quinton v UK (2010)
ECHR Art 5
• UK domestic case on this issue
• Became Gillan v Quinton…
• Gillan was PhD student on his way to protest arms fair; Quinton was a journalist who was also going to this arms fair but was there to cover the protests for work
• Both stopped by police, searched
• PhD student had some papers confiscated
• Police ignored journalist’s press credentials, wouldn’t let her take photos of being stopped and searched
• Police had carried out the stop and searches under s. 44 Terrorism Act (2000)
• Gave them the power to stop and search individuals without reasonable suspicion
• G and Q challenged under art 5
• HoL did not accept this challenge
o “I would accept that when a person is stopped and searched, the procedure has the features on which the appellants rely. ON the other hand, the procedure will ordinarily be relatively brief. The person stopped will not be arrested, handcuffed, confined or removed to any different place. I do not think, in the absence of special circumstances, such a person should be regarded as being detained in the sense of confined or kept in custody, but more properly of being detained in the sense of kept from proceeding or kept waiting. There is no deprivation of liberty” (Lord Bingham)
• Applicants took case to ECHR -> case became Gillan and Quinton v UK (2010)
• “The court observes that although the length of time during which each applicant was stopped and searched did not in either case exceed 30 minutes, during this period the applicants were entirely deprived of any freedom of movement. They were obliged to remain where they were and submit to the search and if they had refused they would have been liable to arrest, detention at a police station and criminal charges. This element of coercion is indicative of a deprivation of liberty within the meaning of Article 5 s. 1”
o Eventually, ECHR found UK in violation of Art. 8
Fox, Campbell and Hartley v UK (1990)
ECHR Art 6
• Case from which the Reasonable Grounds test was derived
• Test:
• 1. If the suspicion is honestly held (subjective test), it is for the accused to prove that the suspicion was unreasonable
o Police officer themselves must have an honest belief that the individual has done something warranting a stop and search or arrest
• 2. This suspicion must be based on objectively reasonable grounds (objective test)
o Looking at specific circumstances of the case, a fair minded observer would also have reached the same conclusion as the police officer (that individual and done something worth of stop and search or arrest)
• Both parts of test ^^ must be met
o If both are met, reasonable grounds valid even if the belief was mistaken
- Applicants were former members of the IRA
- Had been convicted in the past for crimes relating to the IRA, but had served their time and were out free
- Every time police were concerned about IRA activity, they would keep arresting the applicants
- Police would say they had a reasonable suspicion because they had been convicted in the past for IRA activity
- Held: failed to meet requirements of objective observer
- “Reasonable suspicion presupposes the existence of facts or information which would satisfy an objective observer that the person concerned may have committed the offence. What may be regarded as “reasonable” will, however, depend upon all the circumstances”
- Terrorism concerns cannot lead to suspension of “reasonableness” requirement
Salduz v Turkey (2009)
ECHR Art 6
• Young man (minor) arrested on charges that he had participated in an unlawful protest
• Arrested and taken to station, interrogated, without being given access to a solicitor
• ECHR found this violated his rights under art. 6, because he hadn’t been provided access to a lawyer
• “In order for the right to a fair trial to remain sufficiently ‘practicable and effective’, Article 6 ECHR requires that, as a rule access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated that there are compelling reasons to restrict this right”
Cadder v HM Advocate (2010)
ECHR Art 6
• Scotland
• Young man (minor) detained on suspicion of having attacked a father and son
• Arrested
• At time, in Scotland, under s. 14 Criminal Procedure (S) Act 1995 a person detained had no right to consult a solicitor, only to have the fact of their detention intimated to a solicitor
o No access to a solicitor before your interrogation
• High Court: declined to follow Salduz
• Said Salduz applied specifically to the situation in Turkey, interrogation procedures in Scotland are different and are overall rights compliant
o TF decided against petition of applicant
• UKSC: it is a breach of art. 6 for the prosecution to rely on evidence obtained during an interview where the suspect had not been afforded an opportunity to consult a solicitor
• HC should have followed Salduz
Chalmers v HM Advocate (1954)
ECHR Art 6
• Purpose of questioning not to extract a confession
• Interrogations should have the sole purpose of fact finding
o Clarifying the facts of what happened
• Can’t place individual under such an amount of stress that they feel compelled to confess
• Questioning which amounts to cross-examination will probably be excluded
Cudona v HM Advocate (1996)
ECHR Art 6
• Young girl arrested on suspicion of murder
• Questioned for uninterrupted period of 3 and a half hours
• Broke down and confessed
• Interrogation found to be in violation of art. 6, therefore her confession could not be used
• Suspect statements must be spontaneous and voluntary
• Cross-examination or interrogation problematic
• Leading or repetitive questioning likely to lead to exclusion of evidence
Peggie v Clark (1868)
CRIMINAL JUSTICE (SCOTLAND) ACT 2016
Arrest w/out a warrant?
• Circumstances must be exceptional
• There must be reasonable grounds to suspect an offence has been committed
• Prompt arrest must be justified by the seriousness of the crime
Saunders v UK (1996)
CRIMINAL JUSTICE (SCOTLAND) ACT 2016
• Held by ECHR: an obligation to testify imposed by the law under the threat of a sanction violates convention
o Can’t be forced to testify to incriminate oneself
• The right not to incriminate oneself lies at the heart of a fair procedure and applies to all types of criminal proceedings. it is primarily concerned with respecting the will of an accused person to remain silent
• The right to incriminate oneself… does not extend to the use in criminal proceedings of material which may be obtained from the accused through the use of compulsory powers but which has an existence independent of the will of the subject such as, inter alia, documents acquired pursuant to a warrant, breath, blood and urine samples and bodily tissue for the purpose of DNA testing
