A gardener is prosecuted for possesion of a gardening tool.
Iceland is pursued under anti-terrorism laws.
Concerned parents are spyed on under the same anti-terrorist laws.
Too much rubbish in your bin attracts a higher penalty than flytipping.
And so on. But the worst thing, surely, is that none of this surprises us any more. Frankly, if this is what the experts have given us, maybe it is time for a novice to be put in charge.
CJA 1988 s139 gives a defence of "lawful excuse" but it is for the defendant to prove that he had a lawful excuse! It is a "reverse burden" which modern law is very fond of imposing.
s139(4) - "It shall be a defence for a person charged with an offence under this section to prove that he had good reason or lawful authority for having the article with him in a public place."
There appears to be so much reason to believe that this man had a lawful excuse that it beggars belief that he was even charged. How counsel for the CPS could say that it was "not an obvious decision" just amazes me and, the fact that counsel said it, means that the man has not received any worthwhile apology whatsoever,
As for the DNA, Bystander is right. It will almost certainly NOT be removed from the database. The decision to remove rests with the Chief Constable alone and there is no court or tribunal to which one can appeal.
Judgment of the European Court of Human Rights in the Marper case is imminent.
http://www.privacyinternational....ticle.shtml?
cmd[347]=x-347-528475
I think it unlikely that the court will actually state that keeping DNA samples is contrary to the convention. However, the court may well note the absence of any recourse to the courts in this matter apart, that is, from the very difficult road of judicial review. The outcome may be an improved system from the viewpoint of being able to challenge police decisions in some form of tribunal. The outcome of Marper is awaited with great interest.
Seems silly to me.
And I thought the world went mad when the financial system collapsed....
No doubt the arresting officers will be incensed that he has walked free from court.
I would hazard a guess that he really got arrested for the age old offense of been cheeky to the police who stopped his van.
"Mr Drew was accused under the Criminal Justice Act 1988 which states that anyone who has a pointed or bladed article in a public place is guilty of an offence unless he or she can show good reason or lawful authority."
So are we even allowed to carry a toolkit in the car in case of breakdowns any more?
@snaprails
I will venture to answer that. As the Telegraph said (though in several version, mostly wrong), you are not guilty of an offence if you have lawful authority, or reasonable excuse. Whether it's a reasonable excuse is a matter of fact, which means that the tribunal of fact (jury or magistrates) decides.
To answer your specific question, I don't know. A toolkit in your car sounds reasonable to me.
What really beggars belief is that the police even bothered with this case.
"I think it unlikely that the court will actually state that keeping DNA samples is contrary to the convention."
Surely it's a very clear case of the police having no right whatsoever to keep samples and profiles of innocent people. The law as it stands it certainly unfair.
I wondered why the police weren't criticised as well, but other news sources say
A spokesman for Devon and Cornwall Police said officers found a bread knife and a machete behind the sun visor of his van. Two axes in the driver's door pockets and a scythe in the passenger footwell were also found.
He added: "An officer might assume a professional gardener would keep his tools in a bag in the back of the van."
A bread knife eh, very dangerous.
In my experience of of tradesman's cars/vans theres tools scattered around everywhere.
I'm sure if you were to look in the average police van you'd see the tools of their trade (fluorescent jackets, hats, donuts, coffee cups) lying around.
'a machete behind the sun visor'?
Does that even sound possible?
@ Anonymous - Quote - "Surely it's a very clear case of the police having no right whatsoever to keep samples and profiles of innocent people. The law as it stands it certainly unfair."
It is actually far from being a clear case of the police having no right. Our Parliament has given them that right. Whether Parliament should have done so is another (and more political) question.
Many people consider that the DNA database is a good thing. For example, the fact that the police could take DNA finally led to the killer of Leslie Molseed being convicted. It also has the potential to clear the falsely accused.
Also, in what way is the law unfair? It would be good if you could support your comments with some reasoning.
When the Marper case got to the House of Lords, all except Baroness Hale thought that Article 8 of the European Convention was not engaged. They also argued that even if it were engaged then the interference with the right could be justified under some of the various permitted heads such as "prevention of crime or disorder." This is why I said earlier that I think it unlikely that the European court will actually state that keeping DNA samples is contrary to the convention.
Good sweet christ. You people have a lot of gall to talk about the US having a problem with airline and border security. The idea that you can't carry a Stanley knife in public is just absurd. Shall I turn in my cell phone, which has a removable stylus?
I fear for my British friends, who one day will need permission to be dressed outside their houses.
"'a machete behind the sun visor'?
Does that even sound possible?
ewan | 10.11.08 - 6:19 pm |"
Between the visor and the roof, possible. Sounds unlikely and stupid to me. Forgetting and lowering the visor could ruin your whole day.
I fear for my British friends, who one day will need permission to be dressed outside their houses.
John,
Wearing a T-shirt or a badge carrying a political slogan is enough to deem that we are taking part in a political protest. Doing so within the designated zone around Parliament without having submitted a written request 24(?) hours in advance is an offence.
So, in some ways, we do indeed need permission to be dressed outside our houses.
The amazing thing is that we actually voted for this bunch of monkeys.
A machete behind the sun visor?!
If this (along with the other weapons found) were true, then the CPS would surely have mentioned it.
As it was not, then we assume it is bollocks. Who on earth would put a 2ft blade behind their sun visor?
As has been mentioned, the POLICE arrested this man. Nice work boys. (and girls)
I'm amazed he was arrested, and if he was, that it got past the custody sgt, never mind through post interview review and through cps.
Truly laughable. This stuff is week two in training school.
Provided, that is, that there was no more to it than there appears to be from the article.
Hmm, newspaper articles - the truth, the WHOLE truth, and nothing but the truth, and all that...
radams | 10.11.08 - 5:34 pm |
Yesterday I locked up a bloke who had just stabbed someone who owed him £20 with a bread knife.
So yes, an 8" blade can be very dangerous, actually.
If you don't believe me, feel free to come with me to my next violent domestic; I'll talk to the woman and fill out the useless form, and you disarm the bloke waving said knife in your face.
Edited By Siteowner
"A machete behind the sun visor?!
If this (along with the other weapons found) were true, then the CPS would surely have mentioned it.
Hibbo"
Bearing in mind - first- that the CPS made the decision to charge (and believe me that's a hard decsion to get them to make) -second - the file was probably seen by the barrister prosecuting about 20 minutes before the trial started -third- barristers DON'T criticise judges unless they want very rough rides in the future -
then it doesn't surprise me in the slightest that the CPS didn't mention it.
Why does everyone assume that the cops would have arrested this man unless they had a good reason - have you any concept of the amount of paperwork it generates 
I'd imagine their reason for arresting him would have been the hope that he could be pressured/intimidated into accepting a caution. When he didn't they'd have found it hard to just let it drop.
"For example, the fact that the police could take DNA finally led to the killer of Leslie Molseed being convicted."
Nobody is arguing the police shouldn't take DNA. I'm saying it is unfair to allow the police to *keep* DNA of innocent people.
In the Moseed case, it was the *taking* of DNA (not the keeping of it) that led them to the offender.
The case of Marper has nothing to do with the *taking* of DNA. It has to do with the *keeping* of DNA.
I agree that many people think a DNA database of crime scenes is a good thing. This allows the police to solve crimes such as the Molseed murder.
I even agree that many people think a DNA database of convicted criminals is a good thing, although this is less clear. For certain types of crime it's easy to argue that this is warranted.
But who thinks a DNA database of innocent people is a good thing ?
The Molseed murder has no relevance to the Marper case. Let's discuss an example of an unconvicted person being put on the DNA database, and then matched not to a past crime scene (which can be done simply by *taking*, rather than *keeping* the DNA), but to a subsequent crime at some point in the future.
A case like that could support the keeping of the DNA profiles (not samples, though) if unconvicted people. Are there any such cases ?
"Also, in what way is the law unfair? It would be good if you could support your comments with some reasoning."
My reasoning is simply that the DNA is mine, not theirs.
The law is unfair if it allows the police to either take it or keep it without good reason.
I can see good reasons for taking DNA samples of people - even perhaps people who are innocent.
But I can see no good reason for *keeping* of DNA samples of innocent people.
In the same vein:
Mobile hairdressers cannot carry scissors.
Mobile mechanics cannot carry heavy tools.
A carpet fitter cannot carry a knife en route to a fitting.
I cannot carry a knife in my front garden to cut the string I use to put the bird feeders on the trees.
I cannot use a garden fork - too easy to use as a stabbing weapon.
These are all daily tools and everyone has a valid reason for using them - just like the gardener in the article.
By the way, both the Conservatives and the Liberal Democrats oppose the keeping (not the taking) of DNA profiles and samples of innocent people, for the reasons I have outlined above.
@Vic
Remember the gardener was acquitted. Let's keep a sense of proportion here.
"...led to the killer of Leslie Molseed being convicted. It also has the potential to clear the falsely accused."
Again, it's a great idea to *take* DNA to clear a falsely accused person, especially if the accused person consents to the DNA being taken.
On the other hand, *keeping* that DNA in a database doesn't help in clearing falsely accused people.
The gardner wasn't aquitted, it didn't come to trial. The case was thrown out by the trial judge. The gardner had committed no crime, his arrest and detention were illegal as were the taking and keeping of DNA swabs.
Dai,
Not exactly. According to the Telegraph story, the case went to trial and the prosecution did not offer any evidence. The CPS normally do this to save time and expense when they don't think they can prove their case.
The judge's comment was that the CPS should have made their decision months earlier, rather than waiting until the day of the trial. That way they could have saved even more time and expense, and also saved some considerable grief suffered by the defendant and to a lesser extent the jurors.
The defendant might have a case for malicious prosecution, but that won't get his DNA profile removed.
His arrest is probably legal as long as the arresting officer reasonably suspected he had committed the crime he was arrested for. If he can prove that the arresting officer couldn't have reasonably thought he was guilty, then I think he's entitled to compensation including the removal of his DNA profile. I think in order to get this compensation he'd have to sue the police force in a civil court.
Anonymous should read - or maybe read again - the speech of Lord Brown in this link:
http://www.privacyinternational....ticle.shtml?
cmd[347]=x-347-528475
Lord Brown masterfully destroys every argument anonymous has put up on this blog about the retention of DNA information.
Even anonymous agrees with the taking of samples but disagrees with their retention.
Of course, there is the possibility that the European Court may take a very different view to the House of Lords. I have merely expressed the view that it is unlikely.
We can see in the present police policy about retention that there is an ill-defined discretion to remove the DNA information. On what basis precisely is that discretion exercised and why is there no challenge to it other than by the possibility of a judicial review? It may be that the European Court will have something to say about this aspect of the law.
or (hopefully) this link to the Marper case will work
http://www.publications.parliame...0722/york-
1.htm
"A spokesman for Devon and Cornwall Police said officers found a bread knife and a machete behind the sun visor of his van. Two axes in the driver's door pockets and a scythe in the passenger footwell were also found." - Simply don't believe it. If true, these "weapons" would surely have been cited along with the scythe.
What happened to the CPS test of prosecuting only cases where there is a fair chance of obtaining a conviction? This was a flakey case right from the outset. But as I am involved (in my professional - non-magisterial job) in preparing a defence to a clearly no-hope, no legs case which the police seem determined to pursue to the last, nothing would surprise me any more. Let's hope the CPS see sense in the case I'm involved in before it wastes many (more) thousands of taxpayers' money and blights the life of the individual concerned for another year.
By all means keep DNA on conviction, but not if acquitted or found not guilty or not charged at all. When arrested, regards DNA you are put in a difficult position - give it and you know it will be on file forever, refuse it and it will be taken by force and if in using that force, police officers are injured then that attracts a charge even if you were innocent of what you were arrested for in the first place. Even if you were to be assured that your DNA was destroyed, you can bet it will be on file nevertheless - the way forward is for every person employed in local and central government to be required to submit DNA as a condition of their continued employment - starting with the Queen and Royal Family and the PM and ending with the junior clerk. Only when that has been done will it be more acceptable to make the rest of us provide it to make a national database. At the moment, DNA taking implies the person has done something wrong - reverse that and make it "something right" to provide DNA
At last, a cast-iron excuse not to mow the front lawn: part of it is a public place and a rotary mower has a sharp blade in it.
To be fractionally serious, I am now reluctant to go shooting pheasants in case a passer-by sees me carrying a gun and, given the current febrile atmosphere regarding weapons, calls the police.
The fact I'm on my own property and not committing an offence would not ameliorate the nastiness of being arrested and hauled away at gunpoint.
This must make the pheasants happy.
"Lord Brown masterfully destroys every argument anonymous has put up on this blog about the retention of DNA information."
The posted link doesn't seem to work, but from what I can tell Lord Brown's argument (which is flawed - see below) consists of four paragraphs numbered 85-88. Let's look at them one-by-one.
Paragraph 85. Brown states that he agrees with Lord Steyn. Steyn's main argument seems to be that there are a few cases where the police kept profiles unlawfully (before the law was changed to allow this) and these profiles later helped them identify a suspect.
However, within this pool of DNA profiles of unconvicted people, there is a very low rate of matches to subsequent crime scene DNA.
In fact, if the police just profiled *everybody*'s DNA, they would get crime scene matches at about the same rate. This is because the unconvicted people are mostly innocent people who never go on to commit any crimes.
Steyn's argument supports keeping DNA profiles of the entire population just as strongly as it supports keeping profiles of unconvicted people.
Thus Lord Justice Sedley's call to profile everyone, because applying Steyn's argument to just a subset of the population is indefensible.
Paragraph 86. Brown states that nobody should worry because we can trust the police and the government not to misuse the samples.
However we already know that the government is selling the samples to companies who want to use them for research. There is a huge potential for further misuse.
Brown argues that if misuse is a concern, then shouldn't we destroy the samples and profiles of convicted people too ?
I think Brown wanted this to sound like an absurd idea, but in fact the answer obviously is yes, except that there is a valid reason for keeping the profiles of those convicted of at least certain types of crime.
For innocent people, there doesn't appear to be a good reason to keep the samples and profiles.
And certainly, if no good reason exists to keep the samples and profiles, then destroy them. That doesn't sound absurd to me - it sounds like good sense.
Paragraph 87. Brown says people who are on the database shouldn't feel stigmatised, and that the the appellants have not been able to identify in whose eyes they would be stigmatised.
With all due respect to Lord Brown, I find this condescending. I don't need him to tell me what I should or should not feel, and I do not need my feelings validated by him or anyone else. I feel stigmatised. I don't like being on the database. I don't like it.
Why else would I be posting anonymously ? If I posted this under my real name, and you realised that you know me, would I feel stigmatised ? Damn right I would.
As for in who else's eyes I might be stigmatised, how about anyone I care to open up to and be honest with. Does Brown suppose that I should remain "un-stigmatised" by keeping my secret and telling no one ?
I am and will be stigmatised by every potential friend or lover that sees my inclusion on the police database as distasteful.
Paragraph 88. Brown states that he thinks the DNA database should be enlarged as much as possible. The implication is that he would be in favour of the entire population being profiled.
He's entitled to his opinion.
So, there it is. I would hardly call it masterful. Perhaps he made another speech, and I've read the wrong one ?
As someone who is a junior partner in a building firm.... The chances of finding a self employed tradesman who empties his tools from his van/estate-car-he-uses-as-a-van, when he is not using it for work is approximately zero.
So, you can get cheap detections by nicking builders outside the schools when they turn up to pick up their children.
We need as offence of misusing police powers. And a few landmark prosecutions. Personally I think that whoever decided that shouting bollocks at Jack Straw came under anti-terrorism legislation is trying to destroy the country. Hmmm... sounds a bit like terrorism to me....
@Peter Hargreaves
Lord Brown masterfully destroys every argument anonymous has put up on this blog about the retention of DNA information.
Mr Hargreaves, you make it sound like Lord Brown was an advocate rather than simply deciding the issues. I'm sure that's not what you meant.
Separately, I don't think DNA should be considered differently from photographs, fingerprints, and even names. The dread that people seem to feel about theirs being kept looks to me like the stories about people fearing pictures of them would steal their souls.
No mention of costs anywhere.
"The dread that people seem to feel about theirs being kept looks to me like the stories about people fearing pictures of them would steal their souls."
Sorry but DNA samples and profiles contain a wealth of extremely personal information.
A photograph, on the other hand, provides no more information that we give away freely simply by appearing in public.
Perhaps it is more comparable to nude photos, which do contain personal information.
Would you see any reason to object if you were forced to submit to a nude photography session ? Who do you think should be entitled to possess and control access to the negatives and the prints from that photo shoot ? What if it could somehow be argued that photographing you naked would help solve crime, even though you've never committed a crime and never will ? Are you still comfortable with that ?
What if an unconvincing argument were put forth for the negatives and prints from your forced nude photography session to be stored indefinitely ? Would that be ok ?
What if I said your nude photos will only be used to help solve crime, and that I can't see any reason for you to object, unless you are planning to commit a crime in the future ?
What if you were assured that you need not worry about your nude photos ending up in the wrong hands, because that would never, ever happen ?
I personally wouldn't be comfortable with this. And I'm not comfortable with my DNA samples and profile being retained.
Don't forget the DNA sample contains more personal information than a nude photo, not less.
@Anonymous
You "give away freely" your DNA every time you sneeze, shake hands, drink from a cup, use the toilet (onesies AND twosies), or shed skin (which you do all the time) - that's why DNA is such a powerful (and two-edged) weapon in criminal investigation.
I imagine that any caution potential friends and/or lovers would feel about your DNA being retained would relate to the reason you were arrested. Since you're anonymous, want to share that?
@Ed,
Falsely accused of assault, arrested, charged, and acquitted. This was eight months of hell.
I think your point is that there is stigma involved in being arrested. That is true.
The DNA retention stigma is along the lines of "well they wouldn't keep you on their database if they didn't think they had a good reason to keep suspecting you".
Ir's true that we leave DNA everywhere we go. But we leave it anonymously.
Rather, most of us leave it anonymously. My DNA, however, is no longer anonymous.
If your DNA is still anonymous, you might give a serious thought to keeping it that way, because you really have no choice but to leave it everywhere you go.
The picture of the bloke seemed to show he had what we used to call a sickle.
A scyth is much longer and was mostly used for harvesting wheat etc - in the good old day.
And 'death' carries one as well , I believe.
I hope we are not heading towards a ‘credit crunch’ type scenario in terms of crime. But I fear we are.
We are assured of the decrease in measured crime, but knife crime is certainly on the increase. Are we really to believe that those armed with knives are involved only in this criminal activity?
The figures just don’t add up and once the implosion happens the Government won’t be able to bail out the degeneration of society and its lack of values as it did with banks by throwing money at the problems.
First, as a former Casualty doc in sunny Whitechapel, I can assure that any sharp object is capable of being used to harm someone (including applying a bread knife to something as hard as a skull). But a lot of blunt ones are used by the public for the same purpose, too...examples that come to mind are hammers, fire-place tongs, and cricket bats in the off-season.
Net, a) "sharpness" as the test of whether something counts as an offensive weapon is daft, b) We need these things; like cars it is possible to use scythes, or even drawing pins, properly or aggressively.
However, the number of people who need Stanley knives while doing their shopping is probably fairly few. In my view, the lawful excuse (or whatever) should be within the diagnostic capability of a Police Constable when exercising his or her discretion whether to arrest.
A second thought about the arrest in this case itself. Was it quota driven ? One uniformed Police Inspector in the home counties told me that his Chief Constable has ordered that every PC on the response teams in that county should make at least four arrests a month. Unpleasant consequences for the careers of the Inspectors are threatened by said CC if this is not achieved.
Guess what happened ? Now, a majority of arrests take place early each month, mostly for minor things. When each PC has his or her four arrests, they then go back to doing whatever the longer-term priorities are for the rest of the month. It's the arrest that counts in the monthly statistics, not the number of successful prosecutions. And there's no negative points for failed prosecutions - which is always the fault of the CPS (of course).
I ask you. Cannot we expect a bit more sophisticated thought from those supposedly leading / driving the criminal justice system ?
Tony Frost
I would have thought that upon the defendant saying he was a gardener that the PCs only further act would be to tell him to store them more safely in the vehicle.
Given he didn't I can only assume the story isn't quite as simple as "Gardener persecuted" and the CPS dropping the case has just led to people/the media assuming there was no case to answer in the first place.
Truro Crown Court ? - What happened at the first hearing / plea before venue stage then?
Ed, find me evidence to back up tour claims that speed cameras are a universally good idea and are beyond question, remember I only stated that in my limited research their use was questionable, not proven to be wrong.
Joseph K.
@Joseph K
Nothing is "beyond question". If you claim something (cameras have caused there to be fewer police) then YOU have to back it up. I don't have to disprove it.
And you've posted your comment on the wrong thread. This is the police-abusing-their-powers thread, not the Mr-Toad thread. Do pay attention.
I reckon Tony is spot on; some lazy-arsed plod needed an easy arrest to make his quota, hey presto, nice easy one (so he thought, "everyone just takes a caution...") job done. Home for tea and medals, sleeping soundly that he's made his contribution, the streets are now safer thanks to his selfless actions.
Hooray for the filth!
@Hibbo
"Filth". Nice.
May be they thought he was a Communist. Did he have a hammer, too?
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