Why hasn’t Michael Gove been arrested?
A question on many people’s lips since the former Justice Secretary admitted to using cocaine several times earlier in his career.
So, could he face the legal consequences of this?
Cocaine is a Class A drug, the most serious category. Drug offences are governed by the Misuse of Drugs Act 1971 and whilst buying a controlled drug in this scenario is not an offence, possession is. It carries up to seven years in prison.
Is Michael Gove’s confession enough?
Possibly. The Prosecution will usually have to prove that a substance is in fact a controlled drug, and the most convenient way to do that is through a forensic report.
In this case, though, the drugs are long gone and can’t be analysed. The prosecution would have to rely on his public confession.
A confession was relied on in R v Chatwood  1 All ER 467 where the Court of Appeal said that a confession could amount to evidence that, on the face of it, the defendant had been in possession where he was expressing an informed opinion. However, the confessions in that case were made to police officers when the defendants were being questioned about the offences.
Whether Michael Gove’s opinion could be described as ‘informed’ will be the key question and would likely depend on how often he used the drug. He would probably be invited to attend an interview under caution first of all, to see if he repeated his allegations.
His confession could be used as evidence, however, if he were to be charged with attempted possession under the Criminal Attempts Act 1981.
The prosecution could accept that Gove did not actually possess cocaine but allege instead that he had tried to possess it. The maximum sentence is the same.
Has it been too long to charge Michael Gove with a drugs offence?
No. There is no general ‘Statute of Limitations’ in England and Wales. Offences only triable in the Magistrates’ Court usually have a limit of six months, but possession of a drug is not one of those.
He could, theoretically, still be charged.
Will Michael Gove be prosecuted?
The Crown Prosecution Service would make a decision as to whether a prosecution should proceed.
To do this, they apply the Full Code Test set out in the Code for Crown Prosecutors. This is the same for every offence.
The Full Code Test has two stages which need to be met. These are the evidential stage, and the public interest stage.
In short, there needs to be enough evidence for a realistic chance of conviction, and it must be in the public interest to bring a case. If a case fails either test, it will not be prosecuted.
The confession is potentially enough evidence for a case to be brought. A Crown Prosecutor would have to be satisfied that it, and any other evidence, is admissible and leads to a realistic prospect of conviction.
Any evidence from Owen Bennett, the City AM political journalist who outed Gove’s cocaine use in his unauthorised biography of the Environment Secretary, or Gove’s political advisors to whom he confessed would need to be carefully considered, and a prosecutor may have grave doubts as to its admissibility.
In the event there was enough evidence, the case would also have to pass the public interest stage. A case will usually pass this stage unless there are factors against the prosecution that outweigh those in favour.
This stage takes into account a lot of factors, including the seriousness of the offence, the circumstances, any harm caused, impact on any victims, and whether a prosecution is proportionate.
The likely penalty would be a small fine or community punishment at most.
Therefore, Gove could be prosecuted but it is unlikely in all of the circumstances. Reputationally and politically, this admission could exact a great cost.
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The 2015 documentary series Making a Murderer follows the story of two men from Wisconsin whose confessions helped to convict them of sexually assaulting and murdering a woman.
One of the convicted was an impressionable teenager called Brendan Dassey. Dassey’s conviction was overturned in 2016 (confirmed on appeal in 2017) on the basis that his ‘confession’ to the murder was coerced by police officers who exploited his vulnerable nature.
What is the law in the England and Wales?
Provisions in the Police and Criminal Evidence Act 1984 allow courts to reject confessions of this kind on the basis that they were obtained ‘oppressively’ or are unreliable. The relevant statutory provisions are ss. 76(2)(a) and (b) and 77 of the Act.
What does “oppressive” mean?
The term ‘oppressive’ has caused problems for the courts. It seems to be agreed that oppression implies some “impropriety” which compromises the confession’s veracity: Fulling  QB 426.
Uncertainty exists, however, as the same sort of behaviour in different cases has led to the confession being excluded in one but not the other: Paris (1993) 97 Cr App R 99; L  Crim LR 839.
What about unreliability?
Aside from oppression, confessions may be excluded on the basis of unreliability. This unreliability may come about via “anything said or done” or something problematic concerning the circumstances in which the ‘confession’ was made.
An important point to note is that the suspect’s own conduct cannot undermine a confession: Goldenberg (1988) 88 Cr App R 285.
Another important reason to exclude a confession on the basis of unreliability is where the suspect is mentally unfit. There is a separate section of the 1984 Act dealing with this: section 77. In particular, this seeks to protect suspects who may be suggestible and may simply go along with police officers’ leading questions about an alleged offence.
Deciding on the admissibility of confessions
The actual process for deciding whether a confession can be admitted is a ‘voir dire’. That is essentially a mini-trial within or alongside the main trial. Section 76(2) of PACE gives guidance on this point.
The prosecution must prove to the criminal law standard that the confession was not obtained in the way alleged by the defence, otherwise it will be excluded. And, although there is some disagreement, the standard position appears to be that the defendant’s evidence at the voir dire cannot be admitted during any trial for the substantive offence: Wong Kam-ming  AC 247.
How we can help
If you are concerned about the conduct of police officers and/or the reliability of a confession made while in custody, please contact John Howey on 020 7388 1658, or firstname.lastname@example.org.Read More