Essentials of Arrest in English and Welsh Law
The sources of criminal procedural law in England and Wales are, first of all, legislative acts, which for the most part, simultaneously regulate the issues of the judiciary. The criminal process is what happens in court. But today, there is a regulated pre-trial stage of the process. Now the evidence process before the trial is also regulated. The symbol of the English process is competitiveness. This competition also exists in the pre-trial stages. The side of the accusation is clearly expressed – a private person or the police, which acts in this case as a special kind of private person. The English criminal process does not allow for joint consideration of issues of a criminal and civil nature.
A civil action must be filed in a civil court. This allows you to get rid of the extreme strengthening of the prosecution. In English and Welsh law, due to the peculiarities of the historical development of the institution of measures of criminal procedural coercion, there is no sufficiently clear distinction between preventive measures and other measures of procedural coercion. In particular, police arrest (detention) and pre-trial detention are not distinguished.1 However, it should be noted that almost all measures of procedural coercion affecting the essential rights of citizens are carried out under judicial control.
There are two main forms of measures of criminal procedural coercion: arrest and release on bail, the amount of which is determined by the judge, taking into account the financial situation of the accused and the degree of proof.2 If the defendant does not agree, he may appeal the amount of the bail to the Queen’s Bench of the High Court. In general, when characterizing the powers of the English and Welsh police to apply measures of procedural coercion or to perform other actions involving interference with the private life of a citizen, one must proceed from the general rule according to which she can only do what is expressly permitted by law or other regulations. In cases where the police need to go beyond the powers granted to them, they are obliged to apply to the court for the issuance of a writ – a procedural act that allows them to perform a certain action.
In order to obtain such an order, the police must present to the court the grounds for the act or the application of a measure of procedural coercion, i.e., in fact, formulate a charge. To this end, the investigating officer draws up a procedural document called “information”, which contains information about the crime and the person suspected of committing it. The procedure for compiling and submitting information to the court is regulated by the Magistrates’ Courts Act 1980,3 as well as the Magistrates’ Courts Rules 1981.4 The information is addressed by the police to the Magistrates’ Court, which considers the existence or absence of grounds for issuing an order.
If the decision of the issue is positive for the police, it acquires the right to take action or apply the measure indicated in the order issued by the magistrate’s court.5 Execution of court orders on the application of measures of criminal procedural coercion is not the exclusive prerogative of the police. Under the Access to Justice Act 1999, the execution of orders is also the responsibility of special bailiffs who are in the civilian service.6 The institution of bailiffs was created with the aim of strengthening the judiciary, which should be able to apply coercive measures regardless of the activities of the police.
Police’s Actions and Arrest
The Criminal Law Act introduced the division of all crimes into “arrest” (providing for punishment in the form of five or more years in prison, as well as some other crimes for which the law determines a strictly fixed amount of punishment) and “non-arrest” ( all other crimes).7 The police can arrest an individual without the order of a judge for cases and “non-arrestable” occasions grounding on the following aspects:
- the name or address of the suspect is unknown, or there is doubt that he gave his true name or address;
- there is reason to believe that the arrest is necessary to prevent the physical impact on people or property by the suspect;
- there is reason to believe that the arrest will prevent the physical impact on the suspect himself;
- an arrest is necessary to prevent the suspect from re-offending;
- it is necessary to protect the child or other helpless person from the actions of the suspect.8
Police arrest (detention) is a short-term measure; it is restricted by fairly strict time limits,. Initially, the duration of the arrest should not exceed 24 hours, and for most crimes, this is the maximum period. However, in cases of “serious arrest crimes”, the list of which is determined by the abovementioned law (for example, murder, violence, other criminal acts that can cause significant damage to the state or public order, or cause someone’s death or serious bodily injury), a senior police officer has the right to extend the period up to 36 hours.9 Its further extension is allowed only by the decision of the magistrate’s court, to which the arrested person must be delivered.
At the first consideration of the issue, the magistrate has the right to extend the arrest (detention) up to 72 hours and then again – up to 96 hours. This is the time limit for a police arrest, before the end of which the police are required to formulate an accusation in a document called “information” and submit it to the court or release the arrestee. Special periods of police arrest apply in cases of crimes of a terrorist nature; after 48 hours, the period of arrest may be extended by the Minister of the Interior until seven days, after which the person must be released or charged and brought before a judge.
The power to detain suspects is vested not only in the police but also in the army. The British army regulations, which recognize the duty of every soldier to maintain law and order, provide that in the absence of a judge, an officer is not obliged to wait for his appearance in order to take energetic measures to prevent crimes against person or property.
Arrest and Preliminary Investigation Stage
At the preliminary investigation stage, the most common measure of restraint is an arrest. This is a long-term preventive measure, which distinguishes this type of arrest from a short-term police arrest (detention). The specificity of the English criminal process historically was that it did not provide for time limits for arrest before the start of the trial.10 Many years of criticism of this provision, largely caused by the experience of neighboring Scotland, led to the fact that article 22 of The Prosecution of Offences Act 1985 directed the Minister of the Interior to issue instructions on the time limits for detention.11 As a result a by-law on the regulation of criminal prosecution for crimes (limits for detention) appeared. According to this act, the period of arrest from the moment the police detention ends and until the magistrates begin consideration of the issue of bringing the Crown Court to trial (in summary cases, until the magistrates start hearing the case on the merits) cannot exceed 70 days. In cases of crimes prosecuted with an indictment, there is another time limit for arrest
– 112 days from the date of bringing to trial until the commencement of trial. At the same time, a writ of arrest cannot be issued immediately for the entire specified period: it is issued for no more than eight days, after which the magistrates decide on the extension of the arrest (again, no more than eight days, and so on until the deadline for arrest expires).
The Concept of Bail
In England and Wales, any release of a person for whom there are grounds for arrest is treated as an application of the bail institution. Within the framework of this phenomenon, there is a distinction between unconditional bail, when the police or the court leaves a person at large without any additional conditions, and conditional bail when the refusal to use real arrest is associated with certain conditions.12 Conditions can be positive”(make a deposit, provide a guarantee) or negative (do not perform any actions, do not travel outside a certain territory, etc.). It is important to note that the use of a “conditional positive” bail in the form of bail or surety requires special grounds and therefore is used less frequently than other options offered to the accused person for the conditions of his or her release from detention.
The decision to use bail can be made by both the court and the police (in case of police arrest without a court order), which determines the specific conditions for release. Moreover, the court, when issuing an arrest order to the police in the case when a person has not actually been detained yet, has the right to stipulate in advance the conditions for the immediate release of this person. In such a situation, the police, executing the arrest order, i.e., actually arresting a person, immediately invites him to fulfill all the conditions specified in the order, which entails the automatic release of the arrested person. This is the case when the arrest warrant is based on a conditional release.
Unlawfully Obtained Evidence
Essentials of Evidence in English and Welsh Law
Any state in the formation of legal institutions takes into account its national characteristics. In English criminal procedure law, the rules on evidence and proof occupy a special place. There is every reason to consider the set of rules on proof and evidence as an independent branch of law – the law of evidence.
Due to the lack of a code, a distinctive feature of the law of evidence in England and Wales is the dispersion of the rules of proof in various regulations, a significant part of which are judicial precedents. In addition, the specificity of the English law of evidence lies in the fact that compliance with the rules for collecting evidence is not recognized as the main criterion for the admissibility of evidence.13 The quality of the evidence is determined mainly on the basis of its ability to prove the circumstances to be established in the course of the trial. For example, if the evidence, in the opinion of the English judge, is beyond doubt, even if it was obtained in violation of the procedure prescribed by law, and is capable of fulfilling its purpose, connected with establishing the circumstances of the case for sentencing, then there is no reason to recognize such evidence as inadmissible.
Thus, the key properties of evidence in the English doctrine are not its admissibility but relevance and reliability. Relevance is considered as one of the grounds for the admissibility of evidence, and only relevant evidence is recognized as admissible.14 As can be seen, no great distinction is made between the admissibility and relevance of evidence.
The most time-consuming is the verification of the reliability of evidence, which depends on the totality of the circumstances of the case, on the ratio of the newly obtained evidence to the evidence already available in the case.15 Therefore, one of the tasks of the English law of evidence is to create rules that ensure the verifiability of evidence in court. For the English court, the procedure for obtaining evidence is not at all interesting. The main thing is the content of the evidence its ability to be useful for use in legal proceedings.
The most common methods of proof in English law are the testimony of a witness, examination, material evidence, documents, the testimony of the accused, etc. The concept of witness in English and Welsh criminal trials is somewhat different. According to the rules, the testimony of the accused, the victim, the expert, etc., can be recognized as evidence if they have expressed a desire to testify.16 The list of persons who can act as witnesses under the evidentiary law of England has undergone noticeable changes in its historical development.
If, until the 1950s, children, the mentally ill, atheists, the spouse of the accused, and others could not be questioned as a witness because they were not considered capable of testifying under oath, then the Criminal Justice Act 1991 excluded from this number.17 To date, the list of persons whose interrogation as a witness is undesirable includes only persons who are unable to testify due to their mental illness. The ability or inability to testify due to mental illness may be the subject of a dispute between the parties in a criminal case.
One of the fundamental provisions of the English law of evidence is the institution of hearsay. For example, a witness has the right to speak about the fact of a conversation with someone, but not about the content of the information obtained during this conversation. The English court uses only original testimony; derivative testimony is not recognized as evidence.18 In other words, if necessary, derivative testimonies are subject to transfer to the category of initial ones by interrogation of the information carrier.
That is why, in English criminal proceedings, the use of police interrogation records in court is generally excluded. The police interrogating officer who conducted the extrajudicial interrogation in the case is recognized as only a witness. In order to recognize the information contained in the protocol of police interrogation as admissible as evidence, it will be necessary to call and directly interrogate in court a witness previously interrogated by a police officer, that is, another witness.
Recognition of Guilt
Of interest is the institution of recognition by the accused of their guilt. The English law of evidence is characterized only by an admission of guilt made during a police interrogation. The results of such interrogation are of particular importance when the accused retracts this confession during the trial. The full recognition by the accused of his guilt in court means the rejection of the dispute and the absence of the need to prove the circumstances of the case by the parties. The court, in most of these cases, turns to the issue of punishment. The burden of proof in English and Welsh criminal proceedings lies with the prosecution.19 This provision follows from the fundamental principle of criminal procedure – the presumption of innocence. However, it is not unconditional and allows for significant exceptions.
First, the prosecution is obliged to prove the guilt of the accused when the latter denies it. If the defendant pleads guilty, the prosecution is relieved of the burden of proof, and the court may proceed to sentence. Second, if in the court session the event of the crime and the fact of its commission by the defendant is established and not disputed, and the defense refers only to the circumstances that serve as the basis for the release of the perpetrator from criminal liability. For example, insanity, then the burden of proving the validity of this circumstance passes to the defense. There are other features when the defence has to prove the absence of guilt of the accused in the commission of a crime.
According to the English rules for evaluating evidence in a criminal case, the criterion should be “beyond a reasonable doubt”. The essence of the approach is that the prosecution, which mainly bears the burden of proof, and in some cases the defense, must prove the circumstances of the case in such a way that the court does not have a reasonable doubt about the truth of the arguments presented by them.
The concept of absence of reasonable doubt means establishing the conviction of the court in the truth of those theses (position) on which the prosecution or defense insists. The presence of a reasonable doubt according to the English system is regarded as the privilege of the defendant.20 That is, the court must resolve the case on the basis of the evidence presented or collected by him in their entirety. This means that the evidence binds the court, obliges it to bear in mind, and can be rejected only as a result of other contrary evidence.
Section 78 PACE
It should also be emphasized that illegally obtained evidence is not excluded automatically but at the discretion of the court. In one of the precedent decisions, the House of Lord’s court significantly narrowed the scope of this discretion when deciding on the exclusion of wrongfully obtained evidence. Pursuant to this decision, the Police and Criminal Evidence Act was supplemented with section 78, which allows the judge to exclude evidence if it is relevant to all circumstances, including those already proven, and the admission of such evidence could adversely affect the impartial consideration of the case.21
A guilty plea may be excluded from evidence under section 78, subject to the rules provided for in section 76 of that Act. The main criterion for the admissibility of this kind of evidence is the reliability of their receipt. A confession of guilt will not be accepted if, during the course of the judicial investigation, it turns out that it was obtained unlawfully, i.e., if a person admitted guilt under pressure, or he was forced to do so under a combination of certain circumstances, whereas in a normal situation such a confession would not have been made. In this case, the court finds out the circumstances of the confession and, having come to the conclusion that it was illegal to obtain it, rejects this type of evidence.22 Hence, when considering a case in the Crown Court, the clarification of the named circumstances takes place without jurors, and, in the event that confession of guilt is excluded from the evidence, it is not announced to the jury at all and cannot be taken as the basis for a court verdict.
Access to Justice Act 1999.
Austin v United Kingdom (2012) 55 E.H.R.R.
Burton M, Cammiss S, Sanders A, and Young R, Sanders & Young’s Criminal Justice (5th ed, OUP 2021).
Choo A, Evidence (6th ed., OUP, 2021).
Choo AL-T and S. Nash, ‘Improperly Obtained Evidence in the Commonwealth: Lessons for England and Wales?’  11 IJEP 75.
Criminal Justice Act 1991.
Criminal Law Act 1967.
Edwards R, ‘Police Powers and Article 5 ECHR: Time for a New Approach to the Interpretation of the Right to Liberty’  41 LLR 331.
Giannoulopoulos D, Improperly Obtained Evidence in Anglo-American and Continental Law (BP 2019).
Keane A and P McKeown, The Modern Law of Evidence (11th ed, OUP 2016).
Lord Hanningfield v. Chief Constable of Essex Police  EWHC 243 (QB).
Magistrates’ Courts Act 1980.
Magistrates’ Courts Rules 1981.
Martin BR, ‘Beyond Reasonable doubt’  10 JR 83.
Meese J, ‘The Use of Illegally Obtained Evidence in Criminal Cases: A Brief Overview’  18 ERA F 297.
Police and Criminal Evidence Act 1984.
R v Leatham  8 Cox CC 498 at 501.
R v Sang  AC 402, HL.
R v The Commissioner of the Metropolitan Police  UKSC 79.
The Prosecution of Offences Act 1985.
- Mandy Burton, Steven Cammiss, Andrew Sanders, and Richard Young, Sanders & Young’s Criminal Justice (5th ed, OUP 2021), 124.
- Austin v United Kingdom (2012) 55 E.H.R.R.
- Magistrates’ Courts Act 1980.
- Magistrates’ Courts Rules 1981.
- R v The Commissioner of the Metropolitan Police  UKSC 79.
- Access to Justice Act 1999
- Criminal Law Act 1967.
- Mandy Burton, Steven Cammiss, Andrew Sanders, and Richard Young, Sanders & Young’s Criminal Justice (5th ed, OUP 2021), 128.
- Richard Edwards, ‘Police Powers and Article 5 ECHR: Time for a New Approach to the Interpretation of the Right to Liberty’  41 LLR, 335.
- Lord Hanningfield v. Chief Constable of Essex Police  EWHC 243 (QB)
- The Prosecution of Offences Act 1985.
- Burton M, Cammiss S, Sanders A, and Young R, Sanders & Young’s Criminal Justice (5th ed, OUP 2021), 123.
- Adrian Keane and Paul McKeown, The Modern Law of Evidence (11th ed, OUP 2016), 12.
- R v Sang  AC 402, HL
- R v Leatham  8 Cox CC 498 at 501.
- Andrew Choo and Susan Nash, ‘Improperly Obtained Evidence in the Commonwealth: Lessons for England and Wales?’  11 IJEP, 79.
- Criminal Justice Act 1991.
- Andrew Choo, Evidence (6th ed., OUP, 2021), 285.
- Joachim Meese, ‘The Use of Illegally Obtained Evidence in Criminal Cases: A Brief Overview’  18 ERA F, 301.
- Brian Martin, ‘Beyond Reasonable doubt’  10 JR, 85.
- Police and Criminal Evidence Act 1984.
- Dimitrios Giannoulopoulos, Improperly Obtained Evidence in Anglo-American and Continental Law (BP 2019), 76.