Memorandum submitted by Paul Kaufman (Solicitor)
— This submission is concerned with
the arrest of staff members under investigation; whether arresting
staff members is appropriate; the implications of arrest.
— The submission is made by a solicitor
with extensive experience of representing teachers under investigation
by police.
— In summary it is submitted that staff
are routinely arrested when it is inappropriate and that this
has potentially serious adverse consequences for staff in relation
to their morale, their civil liberties, any disciplinary inquiry
and their future career.
— One case summary is included to illustrate
the submission.
1. CREDENTIALS
I am a solicitor in private practice. I have
specialised in criminal law for over 25 years. I am on a panel
of solicitors instructed by the NUT to assist with teachers who
are being investigated by the police in relation to alleged criminal
offences. I have been on the panel for over 10 years. Cases are
referred by the London Regional Offices and the Eastern Region
of the Union. I deal with approximately 30 cases a year. I generally
try to attend the police station in person. I have also personally
represented teachers as an advocate in the Magistrates Court and
Crown Court.
2. LEGAL FRAMEWORK
There is no longer a distinction between arrestable
and non arrestable offences. Teachers are therefore liable to
be arrested in relation to all allegations of crime that are made,
no matter how trivial. The criteria which the police should apply
when determining whether arrest is appropriate are set out in
Code G to the Police and Criminal Evidence Act 1984.
3. CRITERIA FOR
ARREST. CODE
G
Under Paragraph 2.1 in order for an arrest to
be lawful the officer "must have reasonable grounds to believe
that the person's arrest is necessary." The criteria for
what may constitute necessity are set out in Paragraph 2.9(a)-(f).
It is submitted that, other than in the most exceptional cases,
none of the criteria apply to a teacher under investigation. Each
of the criteria will be considered below in the context of a typical
allegation and investigation. The criteria have, where appropriate,
been paraphrased.
(a) and (b) To enable the name or address
of the suspect to be ascertained.
These details will invariably be easy to
ascertain where a teacher is under investigation.
(c) To prevent the suspect:
(i) causing physical injury to himself or
any other person;
(ii) suffering physical injury;
(iii causing loss or damage to property;
(iv) committing an offence against public
decency; and
(v) causing an unlawful obstruction of the
highway.
It is highly unlikely that any of the above
will be relevant in the case of a teacher. The police will only
usually become involved some days or weeks after the teacher is
made aware of the allegation. Any risk of physical injury to other
pupils is usually precluded by the suspension of the teacher
(d) To protect a child or other vulnerable
person
As above, the suspension of a teacher will answer
any concern under this head.
(e) To allow the prompt and effective investigation
of the offence or of the conduct of the (suspect)
In practice the great majority of interviews
of teachers under investigation by the police do not take place
until at least several days, or more usually several weeks, after
an initial complaint has been made. The police will normally require
some time to carry out enquiries. This will often involve conducting
an interview of any child complainant or witness on CCTV using
the Achieving Best Evidence (ABE) protocol. It is only after the
initial investigation has been conducted that arrangements will
be made to interview the suspect. Consequently this head does
not apply to the great majority of cases. On the contrary, the
common complaint of teachers is that investigations take too long.
4. WHEN AND
WHY ARE
TEACHERS ARRESTED?
In my experience the majority of teachers under
investigation are not arrested by the police. However, a significant
number of teachers are arrested. Based on my experience there
are broadly speaking three sets of circumstances:
(a) Teachers who are not arrested
The police need to record an interview of the
teacher under caution. However, they are prepared to treat the
teacher as a "volunteer." Arrangements are made for
the teacher to attend for interview by appointment. The interview
can take place at a police station or at any other facility. As
the teacher is not arrested there is no need for a custody office,
booking in procedure, etc. This approach is sometimes referred
to as "Caution plus three." That is the suspect is cautioned
and advised of their three rights, ie that they are not under
arrest and are free to leave the police station; they may obtain
free and independent legal advice; they have the right to speak
to a solicitor on the telephone.
(b) Teachers who the police initially intend
arresting where the police are persuaded this is not necessary
There are a significant number of cases where
the police indicate in advance that it is their intention to arrest
the teacher when the teacher attends the police station by appointment.
In a number of these cases it has been possible to persuade the
police that this is not necessary. The police have then proceeded
by treating the teacher as a volunteer as per (a) above. This
never appears to have created a problem for the police. On the
contrary the approach in (a) is more straightforward procedurally,
involves less manpower (no custody officer is required), is less
confrontational and is quicker. It is reasonable to assume that
teachers who are not represented, or where their representative
is less proactive, are being routinely arrested simply due to
the decision to arrest not being effectively challenged.
(c) Teachers who are arrested
(i) There are very occasionally extremely serious
allegations made against teachers where it is imperative for a
prompt and effective investigation that the police arrest the
suspect. Cases of this type are exceptional. They generally comprise
cases where there is a genuine risk of a teacher disposing of
evidence or otherwise interfering with the course of the investigation
for example by talking to witnesses.
(ii) Teachers who are arrested simply because
the police take the view that the allegation is serious and/or
that the evidence of an offence being committed is credible. These
are not appropriate criteria under Code G.
5. ARGUMENTS
FOR AND
AGAINST ARREST
The police do not always give a cogent reason
to justify the arrest of a teacher. The reasons which are sometimes
given, and the fallacy of those reasons, are as follows.
(a) If the teacher is not under arrest then
there is nothing to stop them from walking out of the police station
at any time. This would include terminating an interview at will.
In practice this simply does not happen. Teachers
will happily attend by appointment. They wish to give their account.
As professional persons they appreciate that it would be counterproductive
to walk out during the course of an investigation.
(b) It is important from the perspective
of all parties that the police are seen to be carrying out a thorough
investigation as they would in any criminal investigation.
This is not a valid ground under PACE. In practice
the police can and do conduct thorough investigations where teachers
are not arrested.
(c) The allegation is serious.
This is not a valid ground under PACE.
(d) The allegation is credible.
This is not a valid ground under PACE.
6. THE EFFECT
OF ARREST
ON MORALE
The physical process of arrest is demeaning.
It follows automatically from an arrest that fingerprints and
a photograph will be taken. A scraping is taken from the inside
of the suspect's mouth for a DNA sample. Arrest by definition
involves depriving a suspect of their liberty. There are occasions
when they may be placed in a cell. In short, a teacher is treated
like any other criminal and will often feel that they are being
regarded as an ordinary criminal.
It is invariably the case that teachers subject
to suspension and a police investigation are upset and anxious.
The process of arrest exacerbates their upset and anxiety and
adds a strong sense of unfairness.
7. CIVIL LIBERTY
ISSUES
This issue is clearly identified in Code G Paragraph
1.
Paragraph 1.2 "The right to liberty is
a key principle of the Human Rights Act 1998. The exercise of
the power of arrest represents an obvious and significant interference
with that right."
Paragraph 1.3 "The use of the power must
be fully justified and officers exercising the power should consider
if the necessary objectives can be met by other, less intrusive,
means. Arrest must never be used simply because it can be used..."
In my experience teachers who have been arrested
feel a strong sense of grievance that their civil liberties have
been infringed. They are acutely aware of the stigma attached
to having been arrested, whether or not such stigma is justified.
In common with many others, they resent the fact that the police
retain their fingerprints, photograph and DNA sample even though
they have not been charged with a criminal offence.
8. THE EFFECT
OF ARREST
ON DISCIPLINARY
PROCEEDINGS
It is frequently the perception of teachers
that the fact of their arrest is likely to place them at a disadvantage
in any disciplinary proceedings. This is a reasonable perception.
As explained above, the decision to arrest frequently reflects
a view on the part of the police involved in the investigation
that the evidence of an offence having been committed is credible.
It is reasonable to assume that a disciplinary tribunal will,
consciously or otherwise, attach some importance to the police
view of the evidence. There is a risk that this will colour their
own assessment of the evidence even before they have commenced
to consider it independently.
9. THE EFFECT
OF ARREST
ON CAREER
PROSPECTS
It is frequently the perception of teachers
that the fact of their arrest is likely to place them at a disadvantage
in relation to their employment. The reasoning is similar to 8.
above. There is a sense of stigma attached to having been arrested.
There is a justified fear that the fact will be disclosed on an
enhanced CRB check. There is a risk that a prospective employer
will, consciously or otherwise, attach importance to the police
perception that the credibility of the allegation merited the
arrest of the teacher.
10. CASE STUDY.
METROPOLITAN POLICE
STATION 2009
Teacher x is accused of assaulting a child by
pinning him against the wall in a corridor. The incident is captured
on the school CCTV. The incident is witnessed at least in part
by other staff and by children in the corridor.
Teacher x is suspended following the allegation.
The case is referred by the Union. Some weeks following suspension
arrangements are made for Teacher x to attend the police station
by appointment for interview. The investigating officer states
that it is her intention to arrest teacher x. She is not prepared
to change her decision in the light of verbal representations
that this is not necessary. A letter is then sent to the Chief
Superintendent at her police station in the following terms:
TEACHER X (DOB 00.00.00): INVESTIGATION BY CHILD
ABUSE AND INVESTIGATION TEAM.
OFFICER IN THE CASE DETECTIVE SERGEANT XXXXXXX.
APPOINTMENT FOR INTERVIEW—MONDAY 00.00.09
AT 09.00.
This firm acts for the above-named. Our client
is a teacher. The case was referred to this firm by his Union,
the NUT.
Arrangements have been made for Mr X to attend
your police station by appointment on Monday...... at 9.00am.
It is the intention of the officer in the case to interview our
client regarding an allegation of assault against a pupil at his
school, XXXXXXX Secondary School.
We write due to our concern at the indication
given by the officer in the case that it is her intention to arrest
our client upon his attendance at the police station. During the
course of a conversation with the solicitor responsible for conduct
of the case she made it clear that she is not prepared to change
her view on this. However, she has failed to provide any satisfactory
reason for this decision. The officer did state that, in her view,
it was in the defendant's interests that he is arrested. We do
not agree. We take the view that the arrest of a professional
person in the circumstances of this case is inappropriate, totally
unnecessary and demeaning.
We respectfully remind you of the relevant codes
of practice of which you are no doubt fully aware. The exercise
of the power of arrest represents an obvious and significant interference
with the right to liberty (Paragraph G:1.2). The power of arrest
is only exercisable if the constable has reasonable grounds for
believing that it is necessary to arrest the person under paragraph
G2.9. We have been unable to identify any of the criteria under
G2.9 which could possibly amount to a good reason for arresting
our client.
Mr X is a man of positive good character. He
has been a teacher for XX years. He has taught at the school in
question for X years. He has an unblemished teaching record.
We understand that the youth, who is the complainant
in this matter, has a history of violence. According to our client,
he was summonsed to assist with an incident at the school where
the complainant was fighting. Following our client's intervention
he received serious threats of violence from the youth. The youth
also threatened to summons other persons to exact violence on
our client.
It is our client's firm intention to attend punctually
for interview. He has been anxiously awaiting his opportunity
to set-out his account in interview. There is no suggestion at
all so far as we are aware that our client had attempted to contact
any witness or potential witness since the date of the incident
on 00.00.08.
We will be grateful if you could let us know
on what specific ground under the PACE code it is intended to
arrest our client. In the event that no satisfactory ground is
provided we will advise our client regarding the action he may
take in the event that he is arrested.
The solicitor in the case is Paul Kaufman. We
await hearing from you.
No response is received to the letter prior
to the appointment to attend the police station. The teacher attends
punctually at the police station at the appointed time with his
legal representative. The officer acknowledges and is aware of
the contents of the letter to the Chief Superintendant. She indicates
that it is her intention to proceed with an arrest in any event.
Further verbal representations are made on behalf of the teacher
that this is not appropriate. It is emphasised in the presence
of the teacher that he has attended the police station to give
his account and has no intention of leaving until he has done
so. The arrest proceeds in any event.
The verbal representations are repeated to the
custody officer. She is not prepared to "de-arrest"
the teacher. She is not prepared to take or attach a copy of the
letter to the custody record as the custody record is now fully
computerised and there is apparently no provision for doing so.
She does agree to call the duty Inspector to review the decision
to arrest.
Further representations are made to the duty
Inspector. He reviews the teacher's detention but is not prepared
to change the teacher's status as a person under arrest. The police
proceed to take the teachers fingerprints, DNA sample and photograph.
His is then interviewed. He gives a full account, as he had always
intended. He is then bailed by the police.
At no point during this investigation is a cogent
reason given under PACE for arresting the teacher. It will be
noted that the police approach in this case was not that of just
one aberrant officer. The approach was endorsed by both investigating
officers, both of whom are experienced, by the custody officer,
by the Inspector and, apparently, by the Chief Superintendant.
This case is by no means an isolated example.
11. CONCLUSION
Teachers should, in relation to police investigations,
be treated as a special case for the following reasons:
(a) Teachers are unusually vulnerable, perhaps
more than any profession, to the making of false allegations of
criminal conduct. This is reflected in the unusually large number
of such allegations referred to the police and the fact that only
a tiny proportion of these allegations result in a criminal conviction
or caution.
(b) The arrest of teachers is particularly damaging
to their morale and to their career.
(c) The arrest of teachers is in the great majority
of cases unnecessary due to the way in which such investigations
are usually carried out and the willingness of teachers to cooperate.
It is therefore respectfully submitted that
clear guidance should be given to Child Abuse and Investigation
Teams to ensure that teachers are only arrested in those exceptional
cases where this is necessary.
April 2009
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