CHAPTER TWO ARREST PROCEDURES
It is not really necessary for the police to have search warrants. There is very little anyone can do on opening the door to five policemen, a policewoman and dogs. If the police are there, they will come in. In fact, the police can usually do exactly what they want:
".. . Having just got out of bed, four policemen and one policewoman just walked straight into my room... . As to how they entered the house in the first place is not known, the front door is always kept locked but there is a side window. ... They started to search the place. We objected on the grounds that they had no search warrant. PC -- asked if we had anything to hide and if not, why should we object,"
There Is no way, practically speaking to keep the police from stopping and searching people, or preventing them from entering any premises and searching.
By holding 'a person incommunicado, the police can usually achieve the conviction which they aim for by making an arrest. If it seems likely that one charge alone will not ensure conviction, another minor charge can be added. This can be done after the initial arrest and the defendant will not -know about it until he is in the dock.
Under the terms of the Dangerous Drugs Act 1967, Secton 6 (1), the police now have the power to search anyone suspect of carrying drugs. This means that young people with long hair may be stopped and searched for really no other reason than they are perceived as being of a suspect generation. Their pockets will be gone through and, if the police are not convinced of their innocence, they will be taken to the police station for a more thorough search. Any sign of reluctance or lack of co-operation may result in charges of "obstructing the police in the course of their duties." If any substances are found which the officer suspects are illegal drugs, the persons will be charged even before the substances have been identified by an analyst. This the usual procedure which is followed in London, where the police seem to want to charge a person as quickly possible, contrary to the provisions of the law. In the provinces, the correct procedure is followed more often.
In the Dangerous Drugs Act 1967 and Drugs (Prevention Misuse) Act 1964, it is made quite clear that, except under special circumstances, a person should not be arrested and charged with a drugs offence until the substance has been identified by analysis and found to be scheduled.
Most drug-related arrests are for being in "possession" of a dangerous drug. We were very pleased when Lord Chief Justice Parker said in May 1968, "It seems nonsense to me to say that I have custody of a nice steak I have just consumed" Before this judgment, people were charged with being in possession of a drug on the day of arrest when in fact only traces of a drug had been found in blood or urine. Now the police can still arrest a person for "internal" possession on the evidence of a blood or urine analysis, but they have carefully reworded the charge and do not specify the exact time that the offence was alleged to have been committed.
Unless there is absolute proof of distribution or conspiracy to distribute, the police are satisfied to merely imply this during the court appearance, rather than make out a separate charge. If there is no concrete evidence that an individual is "pushing" (supplying others with illegal drugs), 7 a police officer can draw attention to a substantial amount ; of a substance possessed by the arrested individual, more than an individual is thought to need for himself. A magistrate may thus be led to believe that the arrested individual is "pushing" drugs. Also, any unusual amount of money which can not be readily explained can be used to place a person's character in question. It may be necessary to produce a bank withdrawal slip to prove that the money has not been obtained from a business transaction in drugs. If no reasonable explanation is given, a magistrate may be more severe with this defendant than he would be if it appeared that the defendant possessed drugs only for his own personal use.
We had thought that a large percentage of the people contacting us would claim to have been "planted". We were mistaken, as only a very small number of our cases made this allegation. Nearly all those who did allege "planting" appeared to be absolutely correct. It should be well established by now that the method of "planting" is used by the police to obtain convictions. Two of our cases described typical methods of "planting" used by the police:
At about 11.15 a.m. two detectives called to search my house. One of these began talking to me while the other detective searched my room. I was watching them both at the same time, when I saw one of them drop a 'piece of gold foil paper, and pick it up again. He said. 'Hallo, what's this then?' and he started to unwrap the piece of gold foil."
" . . . After producing a search warrant which said they were looking for cannabis resin, as Mr. — was positive that he and the house were clean (free of illegal drugs), he let them both in. On entering the house a policewoman went straight upstairs into the child's bedroom and throwing clothes and toys about claimed to have found four pieces of hash in amongst the child's clothes."
The writer then described the police "glancing" around the front room, making a "superficial search" of the bedroom, andignoring the kitchen and its cupboards. It was also claimed that the police had told others that they would "get him (the defendant) whatever happened". It seems a just conclusion in this case that there was a "plant".
Additionally, threats are made to persons with previous convictions on drug charges, who are then used as bait to get suspects to arrive at specified locations carrying drugs or to purchase drugs. One of our cases arranged to meet a contact through a telephone call. When he arrived at the place specified, he was approached by two policemen with warrants and was then arrested (case 12, p. 94). Another, arriving at a meeting place to find his contact missing but the police waiting, was then subjected to pressures on the part of the police to set up the same type of trap or be accused of "pushing".
Another tactic is the use of warrants to enter houses on pretexts other than to search for drugs. The "plant" can then be arranged.
It is almost impossible to prove that a "plant" has taken place as magistrates do not wish to reprimand the police. In a case dismissed because of a lack of substantiating evidence, the magistrate refused to criticise the police for bringing a prosecution. This is understandable. The police forces are already undermanned and already subject to public criticism. If magistrates criticised the police, it would make the recruiting of officers even more difficult.
Lawyers discourage the use of "plant" as a defence, knowing how high the chances are that the case will be lost They would rather suggest to a magistrate that the police have found it difficult to substantiate their charges, hoping that the case will be dismissed because of insufficient evidence.
"Plants" are most successful where the person "planted" is known to the police through his previous criminal record. The courts tend to assess character on the basis of previous convictions. Someone who has pleaded "guilty" once stands very little chance, especially if undefended, of being acquitted in the case of an unjust arrest. When the question arises as to whether the word of the defendant or the arresting officer is to be taken, the officer has the advantage.
Upon finding an illegal substance, or a substance that is suspected of being illegal, the police are required to take the defendant to the police station where he can be put on "police" bail. This means that he is under obligation to report to the police station on the day specified by the officer investigating the case. The substance seized during search is then sent to a forensic laboratory for analysis. If the substance is proved to be illegal, the person can be charged with the appropriate offence when he turns up for his appointment. If he does not turn up, a warrant can be issued for his • arrest. If the substance does not prove to be illegal, no time will have been spent unnecessarily in court. Also, this pro. , cedure reduces the possibility of a person being remandecrin custody.
It is not uncommon for the police to add the extra "holding" charge, such as obstruction or an offensive weapon charge, to the drug charge in case the drug analysis is returned negative.
Cases have come to our notice of people who have made admissions of guilt because they accepted the police allegations that the substances of which they were in possession were illegal. Subsequent analysis by laboratories showed that the substances were not illegal and the persons innocent. An absurd situation arose in one case. As evidence of the possession of illegal drugs, the police produced:
". .2 bottles of Vitamin 'C' tablets, 1 bottle of laxative tablets, two cigarette holders and one tube of qiiinine, which they told us was on the dangerous drugs list next to heroin."
Far too frequently we have become aware of circumstances in which prisoners are remanded, often in custody, only to be told two or three weeks later that the police were not prosecuting because analysis showed the "drugs" seized were not illegal. These circumstances are allowed, if not encouraged, by statements such as the following:
"Most powers of arrest may be exercised on reasonable suspicion that an offence has been committed. It is therefor not (our italics) essential for the police to have analysed a substance which they suspect to be a dangerous drug before arresting the person possessing it." (Quote by - Home Office)
When a person has been charged, he is brought before a court the next morning for a remand. "Remand" means that a case is put off until such time as the police, the court, and the defendant are prepared for the case to be heard. The police cannot proceed with a drugs case until they have had the seized drugs analysed. This means that the first appearance in court on a 'drugs charge is for a formal remand so that the police may have time to send the substances seized to a forensic laboratory. On the other hand, the police may request remands for other reasons which cannot be helped but seem absurd miscarriages of Justice to the defendants who must then spend extra time in custody awaiting trial for these reasons:
"I went to court yesterday but was remanded until 3rd May. Reason being that the other officer was at the Old Bailey giving evidence."
Remands may be requested by both police and defendants. The defendant may tell the magistrate that he wishes to be advised by a solicitor and ask that the trial be put off until a solicitor has been consulted. A magistrate will usually grant this request. A defendant will then either be remanded in custody or on bail.
A magistrate can also ask for a case to be remanded if he wishes to have a probation or medical report on the defendant who is to appear before him.
If the remand is in custody, the defendant will appear in court for a further remand every eight days until the date of the trial is set by the court. This weekly appearance in court Is to ensure that no one is held in custody without periodic appearances before a magistrate. It is not necessary to be held in custody during a remand. Bail should be asked for by everyone before a court.
The necesiary remand pending analysis of the drugs seized can be a period up to three weeks and sometimes more. When a person, who is unable to find a surety, is told by the police that he will spend three weeks in custody if he does not plead "guilty", the person is more than likely to want the whole business over with, and will plead guilty to that end. People have made incriminating statements to the police as they have been given the impression, directly or indirectly, that only then will they be granted bail. It is regularly reported that the arresting officer has made some approach to a defendant to plead "guilty". The suggestion is also frequently made that the officer can make the sentence lighter. The prisoner cannot know that the arresting officer has no power to affect the-sentencing process,
There are occasional cases of threats or physical force being used by the police to gain either statements of guilt or information which might lead to the arrest of other drug users.
• . • he immediately started screaming that I was using
When I denied this I was struck around the head and body in a way as not to show bruises. I was asked for the names of people selling drugs. On replying that I didn't know any, the beating up was repeated."
"At the police station there was, as the arresting officer said, no bail' and the only two copies of the bail sheet are in Brown's possession and the arresting officer's. The deal Is that if Brown gives information (names and addresses) the bail sheet will be destroyed and the affair forgotten about (?) If he doesn't give information (which he isn't 'going to) the police say that they will do their best to prove, he was pushing (the half-ounce was marked into deals) and may be they can get statements to back this up."
Sometimes methods of police persuasion will be more subtle. Two officers will be with the accused in the interrogation room. One will be unpleasant and aggressive to the accused while the other will be silent. When the aggressive one leaves the room the other officer will attempt to gain the accused's confidence through a few derogatory comments about the absent officer. By being friendly and apparently sympathetic, he can encourage the prisoner to talk about his alleged offence and to make incriminating statements.
The police prefer undefended cases and the advantages to them of such cases are obvious. Their evidence is uncontested. The cases involve less work. They are less time consuming and will lead, most probably, to convictions when otherwise the case might have been successfully contested.
A person who has been arrested will be asked by the arresting officer to allow his fingerprints to be taken. The police use fingerprints to check on the existence of previous convictions.
It is not necessary to give fingerprints (See p. 43). However, the refusal to do so will merely lead to further delay and the likelihood of bail being refused. The police will ask the magistrate to order fingerprints to be taken and this request will usually be granted.
All of these circumstances create a situation in which people are held incommunicado - perhaps aware of their rights to a defence and legal aid - but likely to accept any apparently more real suggestion offered by the police. In many cases handled by Release, the police have contrived, often in the guise of being helpful, to make sure their allegations stick. The advantage to the police of immediately charging a person and opposing "police" bail is immediately obvious. The prisoner is completely in their hands. The • police are required to inform the prisoner of his rights and allow him contact with friends and solicitor. In fact, the police often find it more convenient not to do so.
The young drug user, without any experience of police methods or legal procedure, will do almost anything to get out of his immediate situation. Once in custody, awaiting trial, it is extraordinarily difficult to find someone able to stand bail. By being kept incommunicado, the prisoner can do little but hope that his friends are in contact with -the police. Under these circumstances it is much easier for the police to obtain incriminating statements and to make it difficult for an accused to make arrangements for defence and representation.
A statement should not be taken without the police officer first cautioning the defendant:
"You are not obliged to say anything unless you wish to do so, but what you say may be put into writing and given In evidence." (See Judges' Rules and Administrative Directions to the Police, Home Office 1964)
The statement will be taken down in shorthand, typed and - given to the defendant to sign. If, on reading it through, there are inaccuracies, the defendant can refuse to sign the statement: and it will not carry so much weight in court
The Judges' Rules and Administrative Directions to the Police 1964 lays down the correct manner in which statements are to be obtained, if indeed the defendant wishes to make any statement at all. No pressure should be put upon a person to make a statement, especially if he has not been allowed to telephone anyone for advice.
However, the Judges' Rules do not take into account situations where, unknown to the accused, custody is not obligatory and, in itself, constitutes a threat. Although the Judges' Rules also oblige the police to inform a person of his rights when under arrest, this is rarely done in practice.
"At this point they took each of us away to make a statement. I kept asking if I could phone a solicitor or a friend, they refused. Unfortunately, they wormed a statement out of me. I really don't know how they did it. I even signed the wretched thing."
There is information printed on the back of a charge sheet, but a person only receives this as he is leaving the police station. Even if a person has been informed briefly and generally of his rights, he still has no clearer knowledge of the use of the particular, specific rights to which he is entitled, especially if he is a first offender. In this situation, he is very likely to make incriminating statements and often to plead "guilty" when the evidence is not substantial enough to procure a conviction.
Once a person has appeared in court and has been remanded in custody, it is almost impossible to arrange bail.
On arriving at the remand centre or prison, it is possible to write a letter. This is no solution to the problem for the person who has no knowledge of the system or no one to write to. One of our 'cases' did not apply for legal aid, even after our letter explaining the procedures. It was discovered later that be did not know how to write and was too ashamed to ask for help (Case 22 page 107. The police can undertake to contact sureties but their attempts could hardly. be described as enthusiastic. The mother of a 17-year-old girl, who had been granted bail but sent to Holloway to await the arrival of her surety, was asked if she could stand £50 bail for her daughter. She refused thinking she had to be able to find the £50 in cash, which she did not have. (Case 2, page 80.)
In order to present himself to the police and court as a surety, a person must be over 21, a householder and have no previous convictions. It is not necessary to give money to the court but a form must be signed which states that if the arrested person does not show up in court on the specified day, his surety can be asked to forfeit to the court the amount of money mentioned on the form.
It is up to the police to agree or object to bail. Their' criteria for bail are arbitrary and haphazardly applied:
"I asked for hail which — refused on the grounds that none of my friends were suitable in 'his opinion'."
"I had a surety in court but he was unacceptable. The important thing is that they also had £100 in cash to give to whoever stood for me so that in the unlikely chance of me not appearing who ever stood would not lose anything."
The circumstances in which refusal is most justified and most certain is when the accused has no fixed abode. When objecting to bail, substantial reasons must be given, and the bench will very often overrule police objections if it is thought that a remand in custody is unnecessary. A magi*. trate may, however, be satisfied by the statement that "We have not completed our enquiries," and comply with poll** objections to bail. Even if the magistrate does grant bail, the 'prisoner cannot be released until he has a suitable surety. The police can object to anyone who presents himself in this capacity. Without the co-operation of the police it is difficult fo a person to get bail, even after the magistrate has granted it, because the only contact with the outside world for someone in custody is through the police.
It is not uncommon for friends and relatives to refuse to stand surety because they are under the mistaken impression that money has to be produced immediately. Even if the police have raised no formal objection, it is still within their power to prevent bail.
If a person is remanded in custody pending trial in a magistrates' court, the case will be dealt with within one to three weeks. If the defendant elects to go for trial by jury or is taken before a higher court because of the seriousness of his case, his remand in custody is likely to be a matter of months. In principle, one cannot question the right of the police to object to bail if they have real grounds for believing bail to be wrong in an individual case, but some people have been acquitted after spending several weeks in custody and they have little chance of compensation.
A nineteen-year-old girl was arrested twice in quick succession, the second time while on bail for the first arrest. On the second occasion, she was refused bail. On both occasions, she protested her innocence and elected to go for trial. Bail was granted after an application had been made to a judge in Chambers. Legal aid does not cover this expense and the application cost over £100. The first charge was dropped at committal proceedings, as was the second a few weeks later. If this girl had not had the support of some organisation, it would have meant that she would have spent some considerable time in Holloway. This is obviously very unjust, and it is up to the police to make sure that such circumstances do not occur.
In order to organise a defence while in custody, a defendant must be alert and intelligent. He must not be panicked or allowed to be intimidated in any way. In many cases, an addict is too ill to do anything. Other young people may be too inarticulate or too panicked to be able to arrange their defences correctly.
There is no necessity to do anything at all in the police station. After the police know the name and address of their prisoner, they are not entitled to any more information unless it is volunteered. Withholding information is not likely to please a police officer who will consider this behaviour "obstructive" and "unco-operative". A longer stay at the police station can be anticipated if a person has not "co-operated", but a few extra hours in custody can only be inconvenient and uncomfortable. Coping with arrest should be considered purely a pragmatic problem. When in doubt, say nothing!
Adopting this attitude would mean fewer people giving statements to the police which they later regretted.