Sport and the criminal law: Arrest, search and interview

Context

The recent imprisonment of a co-owner of both Leeds United and the San Francisco 49ers following a sting operation in New York and likewise the involvement of a number of Sydney Swans Australian Rules Football players in a police investigation relating to allegations of sexual assault, were a timely reminder that the world of sport is not immune from police action and potential prosecution.

The early stages of a police investigation will often involve the arrest of a suspect, which can have serious implications and consequences, even if ultimately there is no prosecution, or conviction.

It is critical that anyone under investigation takes expert legal advice to ensure their rights are fully protected and this article provides a summary of the investigatory powers the police have in relation to:

• Arrest
• Search and seizure
• Police interviews

These powers are principally set out in the Police and Criminal Evidence Act 1984 (‘PACE’) and the PACE Codes of Practice.

Arrest

An individual can be arrested for any offence without a warrant if two conditions are met:

1. The police must have reasonable grounds for suspecting the individual’s involvement in the commission of an offence, whether the offence is about to be committed, is being committed, or has already been committed1; and
2. The police must have reasonable grounds for believing that the individual’s arrest is necessary.

This is a low threshold, but the necessity for an arrest is an important factor that can sometimes be overlooked by the police.

Whilst there may be reasonable grounds for suspecting that an offence has been committed and to require a person to attend an interview under caution, an arrest itself may not be necessary, and the individual could be invited to attend a voluntary interview without being arrested.

An arrest will only be necessary if needed to2:

• enable the name and address of the person to be ascertained (if the police do not know this information or there are reasonable grounds for doubting that information given by a suspect is correct).
• Prevent a person from:
  • causing physical injury to themselves or any other person;
  • suffering physical injury;
  • causing loss or damage to property;
  • committing an offence against public decency; or
  • causing an unlawful obstruction of the highway.
• Protect a child or other vulnerable person from the person in question.
• Allow the prompt and effective investigation of the offence. of the conduct of the person in question.
• Prevent any prosecution for the offence from being hindered by the person’s disappearance.

This is an exhaustive list, so where one of these conditions is not present, the suspect must not be arrested, and an arrest would be unlawful.

• The police should therefore be required to explain why arrest necessary, so that, if possible, the individual can be interviewed on a voluntary basis.

This is highly significant because when a person is arrested they:

• will be entered on the Police National Computer;
• will have their fingerprints and photograph taken;
• may be subject to a search and risk having their property seized;
• may be required to provide samples;
• may have to disclose the fact of their arrest to third parties, such as employers.

Accordingly, whenever possible, legal advisors should make representations to the police to try and avoid their client being arrested.

What are a person's rights following an arrest?

If a person is arrested the following rights arise:

• the right to know the allegation that is being made3;
• the right to a solicitor4;
• the right to have somebody informed as to where they are being held (subject to certain exceptions)5;
• the right to be provided with a copy of the Code of Practice;
• The right to be given adequate food, rest and if necessary medical attention6;
• The right to see the police Custody Record7.

The police should only use reasonable force to make an arrest, and they should inform the person that they are under arrest as soon as possible. The police must caution (see below) the suspect unless it is impractical to do so or unless they cautioned him immediately the suspect was cautioned immediately before the arrest. If the arrest does not take place at a police station, the person must be taken to a station as soon as possible.

An arrested person cannot usually be held for more than 24 hours without being released or charged. For serious offences, a police officer (of at least the rank of superintendent) may authorise continued detention for an additional 12 hours. A magistrate's court can authorise detention to be extended to 96 hours in total8.

Search and Seizure:

Ordinarily, police can only search for and seize property if they obtain a search warrant from a court.

If a warrant has been issued, legal advice should be taken to ensure that it has been lawfully obtained and that the police only act as permitted by the terms of the warrant.

However, following an arrest the police have quite significant search powers without the need for a warrant. They are permitted to enter and search any premises occupied or controlled by a person who is under arrest for an indictable offence9, if they have reasonable grounds for suspecting that there is evidence on the premises that relates to the offence for which the person has been arrested or a similar offence.10

Such searches normally need to be authorised in writing by an Inspector, but if the person is arrested at the premises where the search is to take place, the authorisation can be obtained later.

Section 32 PACE further allows a person to be searched immediately after an arrest that has not been made at a police station if there are reasonable grounds to believe that the person has property that could be dangerous, be used to escape, or be relevant to the offence for which they have been arrested. If that offence is an indicatable offence, the power also authorises the police to enter and search the property a person was in when arrested or immediately before that arrest for evidence relating to the offence

A police officer searching following an arrest is not permitted to seize material that is covered by legal professional privilege, and again urgent advice should be taken if this becomes relevant.

Digital evidence, for example on a computer, may also be seized, and the police are allowed to take away complete files/hard drives to later sift for relevant evidence, even if there is other non-relevant material that will need to be taken to do so. In these circumstances, expert legal advice may assist is negotiating a methodology for the speedier searching of digital material.

Interviews:

For the reasons given above, if possible, an interview should be given on a voluntary basis, rather than following an arrest. However, even a voluntary interview, will be under caution, and so will carry risks for the person being interviewed.

Whilst the police are required to give reasonable disclosure of the matters they want to put to person in an interview before it commences and allow the person a reasonable opportunity to consult with a solicitor, they are not required to disclose everything. The police will quite often drip-feed disclosure in an attempt to catch a person out who they believe may be providing false or incomplete evidence.

The caution will be administered at the start of the interview and again after any lengthy breaks. It will be explained to the person being interviewed who will be asked to confirm that they understand the caution, which is as follows:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something you later rely on in court. Anything you do say may be given in evidence.”

Critically, a person who is being interviewed has the right to remain silent and not respond to any of the questions put. However, if the interviewee does so, and is subsequently prosecuted, if a court concludes that it would have been reasonable for that person to have answered the questions in the interview, and an adverse inference may be drawn, which could then see the person being convicted of any charge(s) brought to trial.

On the other hand, if a person responds to the questions put in interview, the information provided they provide may later be used to support a prosecution, if, for example, the police looked for evidence after the interview that would undermine what had been said in the interview.

The decision as to whether to respond to questions put in interview, can be very finely balanced, and expert legal advice should always be sought before the person being interviewed decides how to proceed. Of note, if a person has relied on legal advice in not responding to interview questions, that fact alone may not prevent an adverse inference being drawn if the matter comes to trial.

However, if there is no prosecution there will not be any adverse inference and so the decision not to comment may ultimately be without risk.

As that will not be known at the time of the interview, often it may be appropriate, and the safest way forward, to submit a prepared written statement responding only to the matters disclosed by the police, but then to exercise the right of silence. This may avoid any adverse inference, if there is a prosecution, but enable the person being interviewed to retain control of what information they gives to the police, and so not risk becoming a hostage to fortune.

Conclusion

Criminal investigations involving people from the world of sport, are often high profile and highly pressured.  Because of that, investigators may be tempted to take short cuts or to seek to obtain an advantage over the people they see as suspects.

Investigations, even if apparently quite simple, can often take many weeks or months, and so a careful and strategic response is required to give the best chance of avoiding prosecution.

Authored By 

Jeremy Summers
Consultant