The Courage Of One Man To Say No
THE COURAGE OF ONE MAN TO SAY NO
Mr P said no to the Police and as consequence he was prosecuted for an offence that does not exist under UK law. Mr P was eventually cleared of any wrong doing and a formal complaint to the Independent Police Complaints Commission regarding the conduct of the Police Officers involved was upheld; however this case could easily have ended in a conviction if Mr P had not received properly considered legal advice from a qualified Duty Solicitor.
The background to this case is that Mr P was stopped and searched by a Police Officer because the Officer said he smelt cannabis and therefore had reasonable grounds for believing Mr P was in possession of cannabis. Mr P consented to being searched and no drugs were found. The Officer then arrested Mr P and took him to Hammersmith Police Station in order to conduct a more thorough search of Mr P. The second search found no drugs.
Mr P was then given a pamphlet about the testing for class A drugs and told that unless he agreed to be tested for the presence of a class A drug in his system he would be prosecuted and could face up to three months imprisonment. Mr P politely said No. Mr P was subsequently charged with the following offence:-
"at London Borough of Hammersmith and Fulham, being a person in police detention arrested for and at the time the requirement was made had not been charged with an offence, namely obstruction of a constable in the execution of their duty, contained within Schedule 6 to the Criminal Justice and Court Services Act 2000, failed without good cause to provide a non intimate sample for the purpose of ascertaining whether you had a Class 'A' drug specified in Part 1 of Schedule 2 of the Misuse of Drugs Act 1971 in your body"
When Mr P appeared before Hammersmith Magistrates' Court he entered a plea of not guilty. The Magistrates', who receive limited legal training, advised Mr P. to speak with the Duty Solicitor as they thought he needed proper legal advice before pleading not guilty.
The Duty Solicitor was Mr Liam Gregory of Saunders Law and upon reading the papers immediately recognised that the prosecution was flawed because obstructing a Police Officer in the execution of their duty is not a "trigger offence". In other words if someone obstructs a Police Officer it does not give the Police the power to order that to provide a sample for analysis of class A drugs. The request to provide a sample was unlawful and therefore the subsequent prosecution for failing to do so was also unlawful.
The Police have the power to require that people be tested for the presence of class A drugs if they are arrested for a trigger offence which is an offence involving class A drugs or an acquisitive offence such as theft. If a trigger offence has not been committed then a request for class A drug test can be made by an Inspector if they have reasonable grounds for suspecting that misuse of a class A drug caused or contributed to the offence.
Mr P was originally searched because the first Police Officer thought he smelt cannabis which is a drug of class B so at no point was there ground to suspect that a class A drug was involved in this case. Mr P understood what his legal rights were because he had read the leaflet he was given explaining when the Police could request a sample for analysis for the presence of a Class A drug. It was because Mr P understood his legal rights that he said no.
Mr Liam Gregory explained to the Magistrates' the issues in this case and expressed his concern that the prosecution of Mr P was unlawful. The Magistrates' were understandably concerned and directed that the Crown Prosecution Service review the case as a matter of urgency; unfortunately the Crown Prosecution Service Associate Prosecutor, who was neither a Barrister nor a Solicitor, did not have the authority to review the merits of the case and therefore the matter was set down for trial.
Mr Gregory made written representations to the Crown Prosecution Service regarding the merits of prosecuting this case but received no response.
The case was eventually dismissed on the day of trial because the Crown Prosecution lawyer who attended to conduct the trial was refused an adjournment to review the case and was forced to concede that the prosecution was without merit.
This case is a particularly sad example of how the cuts to the criminal justice system can lead to injustice. Mr P spent over 12 hours in Police custody and was prosecuted for an offence that he did not commit because he understood his legal rights better than the Police Officer who arrested him, the custody sergeant that booked him in to Hammersmith Police Station, the Inspector who reviewed the lawfulness of his detention, the prosecutor who reviewed the decision to charge him, the lay Magistrates' who thought he should be pleading guilty and the prosecutor who pressed on with the prosecution.
It was Mr Liam Gregory the Duty Solicitor who was the first to review the case properly and who articulated on behalf of Mr P why the prosecution was wrong. If Mr P had said Yes then he would have been released shortly after the drug test had been completed and that would probably have been the end of the matter. How many other people put in Mr P's position and told that they have to provide a sample provide a sample even though the request is unlawful?
It was only because Mr P had the courage to say no that a failing in the procedures being used at Hammersmith Police Station was brought to light.