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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An article in the Guardian on 2nd October has highlighted some of the problems surrounding DNA evidence. Since it was first used to secure a conviction in 1986, DNA evidence has developed something of an unshakeable aura about it. It is common to hear in court ‘there is DNA evidence’ as if that somehow proves guilt beyond any doubt, let alone beyond a reasonable doubt.
Whilst science has developed to the extent that in many cases there is no doubt about who the DNA is from, what science cannot yet do is tell us how someone’s DNA found it’s way to a particular place. Some years ago, I defended in a burglary case, where the sole evidence against my client was a cigarette butt with his DNA on it found inside the burgled premises. That was sufficient for him to be charged and the case to proceed to trial. There was no evidence of the circumstances in which his DNA came to be on the cigarette butt or when and how the cigarette had found it’s way into the building. Fortunately, the District Judge trying the case recognised this and he was found not guilty, but both the police and the CPS thought they had the right man.
DNA evidence problems
Scientific developments have brought their own, fresh set of problems. Early DNA profiling was restricted in the profiles it could produce, as it required larger amounts of material for testing. Modern technology can develop a profile from smaller and smaller quantities of cellular material, and can often identify more than one person’s profile within a small sample. This gives rise to problems of cross-contamination, where one person’s DNA finds its way onto a second person, who then deposits the DNA at a different location; or cases where a DNA deposit is left at a location that becomes a crime scene later on.
DNA technology is clearly a vital tool for the police and prosecuting authorities, but there remains a need for caution when a case is substantially dependent on DNA evidence.
John Howey, Senior SolicitorRead More