No obligation to give name and address to police suspecting COVID violation

[island]

Today in the High Court, Judge Steyn and Judge Dingemans quashed the conviction of a Mr. Neale who was convicted of obstructing a police officer.

Mr. Neale was suspected of breaching one of the Coronavirus regulations and a police constable demanded his name and address in order to issue a fixed penalty notice. Mr. Beale refused, and was in due course convicted of obstructing a police officer.

The High Court ruled that the regulations do not provide an express legal obligation to provide any personal details to a constable, and it is not possible to imply such a duty. This High Court ruling is precedent-setting.

There are some additional details on Twitter @gardencourtlaw; I have not yet seen any media coverage but will add anything I do find.

 

[Watershed]

I haven't found a published judgment for this yet. But the positive outcome should not be misunderstood to mean that people can break Coronavirus Regulations with impunity simply by refusing to give their details.

From the press release, the judgment seems to decide that it's legal to refuse to give your details for the purposes of the issuance of a Fixed Penalty Notice.

Under existing (and widened) PACE powers, a police officer can still arrest a person they reasonably suspect of breaching the Regulations, if the suspect refuses to give their details or the officer reasonably doubts the accuracy of any provided details.

The officer could then take the suspect to the police station (or ultimately the Magistrates' Court) to enable their name and address to be determined.

The suspect would not be committing any offence in refusing to give their details until ordered to do so by Magistrates. But it would clearly be a pyrrhic victory.

 

[Tazi Hupefi]

There has never been a legal obligation to cooperate or assist the police (or law enforcement) in England or Wales (or most common law jurisdictions). That is not obstructing police [or other officials].

What IS obstruction is doing something misleading like providing false or incorrect details - or running away.

However, this needs to be caveated massively. Whilst you are not obliged to provide your name and address, you CAN be arrested for the underlying offence (even something trivial). You will likely be detained until you can appear before the next Magistrates' Court sitting, which could be the next morning.

At court, you cannot refuse to provide your name, address and date of birth (and nationality if convicted).

I did notice in the Railway Byelaws an ultra vires bye-law (23) around ia requirement to provide your name and address, and 24(1) that appears to suggest failure to do so is an offence. Although it doesn't appear to have been tested, you are likely not obliged to provide your name and address (so long as you don't provide a false/incorrect one). As railway staff, under the Railway Byelaws, have no powers of arrest, they would have to summon a police officer to make the arrest, (for the underlying Byelaw offence, not the refusal to provide details). So in many ways, it will be impractical to enforce.

However, the Regulation of Railways Act 1889 is in better shape and properly drafted. Again, it does not mandate that you have to provide your name or address, (only that you cannot provide a false one, else you commit a separate offence). However, it does state that if you choose not to, you can be arrested (not only by police, but railway officers/staff too) until you can be dealt with alternatively, (i.e. brought before the next available court).

Most police officers are extremely (shockingly) unaware of the common law right not to assist them or cooperate, and arrests for wilful obstruction are very common, (as are additional charges for failing to cooperate with the custody officer in providing details). If challenged, however, these provide a quick way to a compensation claim against the police, which normally is settled long before the court. This is especially the case where the underlying offence that caused the officer to request name/address in the first place is either not proven, dismissed or never pursued.

See Rice v Connolly [1966] 2 QB 414, [1966] 2 All ER 649, [1966] 3 WLR 17, 130 JP 322

Rice v. Connolly (1966) is an English legal precedent holding that there is no strict, general legal duty to assist a police officer prior to any possible arrest or caution, with even basic police enquiries nor to accompany the officer to a requested location.

I should, however, caveat that drivers of motor vehicles or bicycles committing (or suspected of committing) various traffic/road offences do not have this protection.

 

[Watershed]

Bindmands (the defendant's solicitors) have published further details as to the case.

The supposed checks and balances in the justice system have failed this defendant at every stage of the process until now - the police acted disgracefully, the CPS continued the prosecution despite representations, and the Magistrate(s) interpreted the law against the defendant because "it would be unworkable otherwise".

The defendant only had the opportunity to clear his name after the intervention of Big Brother Watch, who enabled him to have strong legal representation and to appeal his conviction to the High Court. Clearly that is not a privilege every recipient of a FPN or defendant in a Coronavirus Regs prosecution will have, and it is likely that a significant number of unsafe convictions/FPNs will remain unchallenged as a result.

 

[PG]

I've not been able to find anything in the media but the Garden Court website has a summary of the outcome:

https://www.gardencourtchambers.co....o-suspected-breach-of-coronavirus-regulations

Administrative Court overturn conviction for refusing to provide name and address in relation to suspected breach of Coronavirus Regulations

TUESDAY 23 FEBRUARY 2021

Tom Wainwright of the Garden Court Criminal Defence and Protest Teams represented Neale, instructed by Patrick Ormerod of Bindmans Solicitors.

The Administrative Court sitting at Cardiff today issued an important judgment on the right to silence, the legal duties of citizens and the scope of the Coronavirus Regulations.

In Neale v DPP, the court quashed the applicant’s conviction for obstructing a police officer by failing to provide his name and address when requested to do so in order that a Fixed Penalty Notice be issued for allegedly breaching the Coronavirus Regulations.

No express legal duty to provide personal details to a police constable was created by the legislation and the High Court concluded that it was not possible to imply such a duty.

In giving judgment Mrs Justice Steyn, sitting with Lord Justice Dingemans, observed that ‘the right to remain silent is not reserved only for those who are innocent and beyond suspicion’ and the court should be wary of expanding police powers by implication.

 

[matt_world2004]

Would this apply to organisations like kingdom security too?

 

[Mojo]

Would this apply to organisations like kingdom security too?

Is this relevant, as private companies (except for TfL officers, if you count them as a private company) are not entitled to issue Fixed penalty notices to individuals for breach of any of the Coronavirus Regulations?

 

[matt_world2004]

Is this relevant, as private companies (except for TfL officers, if you count them as a private company) are not entitled to issue Fixed penalty notices to individuals for breach of any of the Coronavirus Regulations?

People are also talking about the regulation of railways act offense accusations in this thread as well. So asking weather the precedent set by refusal to give details. Would also apply to litter police does seem relevent in assertaining how broad this precedent applies.

 

[Bertie the bus]

If we ignore the legal side, an extremely striking aspect of this is that the defendant’s behaviour, irrespective of whether what he was doing was legal or not, was in no way endangering public safety and public safety was only jeopardised when the police enforced public safety legislation.

 

[Watershed]

People are also talking about the regulation of railways act offense accusations in this thread as well. So asking weather the precedent set by refusal to give details. Would also apply to litter police does seem relevent in assertaining how broad this precedent applies.

The only precedent here is that you can't interpret non-existent requirements into laws, just because they would otherwise be difficult or unworkable to enforce. Really, that's just a restatement/reinforcement of previous precedent.

The Coronavirus Regs do not contain any provisions entitling the police to demand a name and address so they can issue a FPN, and only "authorised persons" as defined in the Regs (i.e. not including railway employees or contractors, apart from authorised TfL officers) can issue FPNs. Therefore the defendant did not commit obstruction in refusing to provide his details.

RoRA requires passengers to either show a ticket, or pay their fare, or give their name and address. This requirement can be enforced by any servant of the railway, i.e. whether an employee, contractor, police officer, etc. Therefore a prosecution can entirely legally be brought if a passenger refuses to do all of those three things.

 

[Ediswan]

Looking at the link in post #4, it seems his behaviour was entirely legal, twice over. Also note the involvement of PCSOs.

 

[LMS 4F]

I haven't found a published judgment for this yet. But the positive outcome should not be misunderstood to mean that people can break Coronavirus Regulations with impunity simply by refusing to give their details.

From the press release, the judgment seems to decide that it's legal to refuse to give your details for the purposes of the issuance of a Fixed Penalty Notice.

Under existing (and widened) PACE powers, a police officer can still arrest a person they reasonably suspect of breaching the Regulations, if the suspect refuses to give their details or the officer reasonably doubts the accuracy of any provided details.

The officer could then take the suspect to the police station (or ultimately the Magistrates' Court) to enable their name and address to be determined.

The suspect would not be committing any offence in refusing to give their details until ordered to do so by Magistrates. But it would clearly be a pyrrhic victory.

Section 25 of PACE 1984 covers powers of arrest for all those offences which are not classed under Section 24 as Arrestable Offences.
It states where an offence has been committed but I am not sure that a lot of things being reported are actually offences, in which case a lot of these are not covered by Section 25.
Likewise there is no obligation to accept any Fixed Penalty notice and the alternative is then process by way of summons. This means more work for the officer and the system with the possibility of harsher penalties but should be reviewed before it gets to court.

 

[Tazi Hupefi]

I appreciate this is somewhat of a generalisation, but innocent or not, being helpful or not, if you are stopped by the police (or ticket inspector etc) either randomly, unexpectedly or even in connection with a possible offence:

NEVER SPEAK TO THE POLICE (OR ANYONE ENFORCING LAWS) WITHOUT LEGAL REPRESENTATION

No matter how 'helpful' or 'cooperative' you want to come across, or how confident you are about your innocence and version of events - it is often a 'no win' situation and things can, and do, take unexpected turns. A word can be recorded incorrectly, a version of events from the police can have a different slant to what you remember etc. A police officer's (or other official) word is almost certainly going to be judged to be more accurate than your own recollection in later proceedings, especially if a jury is involved.

Generally, I would recommend providing your name and address etc as required (unless you fancy being arrested purely because they cannot identify you) then:

Ask "Am I being detained?". If no, simply walk away. If yes, "I would like a solicitor" and do not say another word - silence. No body language whatsoever, no nodding or shaking your head. No aggression. If you unwisely choose to speak, the only words in your vocabulary are 'No Comment'. Once legal representation arrives or is sought, do as recommended, which the majority of the time is still, "No Comment" or "I am exercising my right to remain silent and will not be responding to your questions".

Even if you are a victim of crime, you should be extremely careful about your narrative, especially if you are feeling especially emotive or vulnerable, where things can be said in the heat of the moment. You can easily find that maybe a suspect subsequently arrested gives a totally different version of events, contradicting your on the record statement.

Unfortunately, this comes across as anti-police or anti-authority. That is not the case. However, our police force is increasingly out of step with legislation, training and development is severely lacking, (or directed by people who did things "the old fashioned way" i.e. unlawfully) - and it would be fair to say that most forces are placing an undue emphasis on recruiting people who they believe will present well to a community, with increasingly less emphasis on their ability to make rational and legal decisions. Most officers almost expect you to be automatically 'compliant', and therefore a "tick box" case. When you are not compliant, (but not obstructive), a proportion of newer officers will mentally 'panic' and naturally feel ill equipped to handle the situation, which results in disproportionate (and sometimes unlawful) reactions. This most frequently reveals itself as unexpected references to things like "terrorism", "terrorism act", "obstruction", "public order offence", "malicious communication". When reporting an actual criminal offence (i.e. as a victim), a common reaction is "it's a civil matter" or "it's a private dispute not for the police" or "report it to Action Fraud". This is mostly out of sheer ignorance/understanding, not laziness.

The other thing worth mentioning is that you do not necessarily need to be cautioned (You do not have to say anything etc etc...) for your words or statements to be used as evidence.

 

[MikeWM]

It may well not invalidate the above advice, but it may be worth pointing out that unfortunately there is no longer an absolute 'right to silence' post-caution/arrest since the 1994 Criminal Justice Act - it is caveated by the weasel words 'it may harm your defence if you do not mention when questioned something which you later rely on in court', with (very wide) examples listed in the 1994 CJA as to what inferences a court may take from silence on being questioned.

Which is a dismal state of affairs, but that's part of the ever-worsening erosion of civil liberties that has been going on more-or-less continuously for the last 30 years or so.

At least at the time, there were a lot of people very vocally opposed to that Act. That opposition to such unpleasant erosions in civil liberties unfortunately seemed to mostly fade away during the 'new' Labour years that followed.

 

[Tazi Hupefi]

It may well not invalidate the above advice, but it may be worth pointing out that unfortunately there is no longer an absolute 'right to silence' post-caution/arrest since the 1994 Criminal Justice Act - it is caveated by the weasel words 'it may harm your defence if you do not mention when questioned something which you later rely on in court', with (very wide) examples listed in the 1994 CJA as to what inferences a court may take from silence on being questioned.

Which is a dismal state of affairs, but that's part of the ever-worsening erosion of civil liberties that has been going on more-or-less continuously for the last 30 years or so.

At least at the time, there were a lot of people very vocally opposed to that Act. That opposition to such unpleasant erosions in civil liberties unfortunately seemed to mostly fade away during the 'new' Labour years that followed.

I find that many learned members of the Judiciary will pay little regard to that aspect of law, or allow it to be "negated" or 'diluted' somewhat by explaining to a jury that such a response was made "on advice of their legal representation" or that the defendant could have been in shock, or distress, confused etc.

I also often find where a Prosecutor makes a deal out of this during closing remarks - the judiciary are fairly quick to remind everyone that the defendant has an absolute right to silence, and is innocent until proven guilty and consequently it is infrequent that an adverse inference is problematic.

The irony also is that most non-violent/serious cases barely have enough evidence as it is, that "going no comment" ordinarily prevents the case from getting to the court in the first place, or it being quickly dropped once someone from the CPS sees how thin it is, regrettably often not discovered until minutes before the hearing commences.

Unless there is clear CCTV evidence, clear forensic evidence or multiple unbiased, independent witnesses attesting with certainty that my client had done something illegal, "no comment" will virtually always result in NFA or the case being dismissed. Very often the only evidence the police have which is of any use, is the interview itself!

 

[MikeWM]

I find that many learned members of the Judiciary will pay little regard to that aspect of law, or allow it to be "negated" or 'diluted' somewhat by explaining to a jury that such a response was made "on advice of their legal representation" or that the defendant could have been in shock, or distress, confused etc.

I also often find where a Prosecutor makes a deal out of this during closing remarks - the judiciary are fairly quick to remind everyone that the defendant has an absolute right to silence, and is innocent until proven guilty and consequently it is infrequent that an adverse inference is problematic.

The irony also is that most non-violent/serious cases barely have enough evidence as it is, that "going no comment" ordinarily prevents the case from getting to the court in the first place, or it being quickly dropped once someone from the CPS sees how thin it is, regrettably often not discovered until minutes before the hearing commences.

Unless there is clear CCTV evidence, clear forensic evidence or multiple unbiased, independent witnesses attesting with certainty that my client had done something illegal, "no comment" will virtually always result in NFA or the case being dismissed. Very often the only evidence the police have which is of any use, is the interview itself!

That's all really good to hear, thanks for this reply. I've wondered for some time what the practical effect of this change actually was; I'm very pleased that by this account it appears to not amount to much.