#19567 - 5 And 6. Criminal Litigation 2023 2024 Pace And Confessions, Interviews, And The Discretion To Exclude Evidence That Has Been Unlawfully, Improperly, Or Unfairly Obtained - BPC Criminal Litigation (formerly BPTC) 2024/2025

The defence should notify the prosecution of their objection to its introduction of evidence.

Further or alternatively, defence counsel should inform prosecution counsel of the objection before the latter opens the prosecution case to the jury. The prosecution counsel therefore makes no mention of the disputed evidence.

At the point at which the admissibility falls to be considered the jury will withdraw to allow the matter to be resolved by the judge alone.

It may be necessary to hold a voir dire if the disputed evidence raises collateral factual issues as to how it was obtained.

Whether or not there has been a voir dire, the parties make their representations to the judge about the admissibility of the disputed evidence.

The judge will announce their finds and any discretionary power to exclude material which is otherwise admissible.

The jury will then return. If the evidence is admissible, the defence are still entitled to cross-examine on matters they raised on the voir dire, although at this stage the cross-examination goes to the weight, if any, that the jury should attach to the disputed evidence, not to its admissibility.

The judge retains the discretion to review a determination on admissibility at a later stage.

The procedure raises difficulty in the Mags as they are the judges of both the facts and the law.

Police powers of investigation, including arrest, detention, interrogation, entry and search of premises, personal search and the taking of samples and various procedures for identification are largely governed by the PACE 1984 and/or the associated PACE codes of practice.

A failure of the police officer or other person required to have regard to provisions of the codes does not, of itself, render that officer liable to criminal or civil proceedings. However, to the extent that they are relevant, the codes are admissible in evidence in criminal or civil proceedings.

Definition of interview: ‘the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences, which must be carried out under caution.’

Caution must be administered at the commencement of an interviewed:

• Minor deviation from the caution words is permitted; and

• The suspect must be reminded that they are under caution after any break.

Caution is not necessary if questions are for purposes such as:

• Establishing their identity or ownership of a vehicle;

• To obtain information in accordance with a statutory requirement;

• In furtherance of the proper and effective conduct of a search; and

• To see verification of a written record of comments made by the person outside an interview.

The suspect must normally be interviewed only at a police station after a decision to arrest. There is an exception where delay would be likely to:

• Lead to interference with or harm to evidence, physician harm to other persons, serious loss or damage to property;

• Alerting of other persons suspected of having committed an offence but not yet arrested for it; and

• Hinder the recovery of property obtained in consequence of the commission of an offence.

The officer must remind the suspect of the entitlement to free legal advice and that the interview can be delayed for legal advice to be obtained (unless access to a solicitor has been delayed or one of the exceptions applies). Failure to do so may lead to the exclusion of evidence.

At the beginning of the interview, the officer must put to the suspect any significant statement. This is any statement which appears to be capable of being used in evidence, this may give rise to adverse inferences.

No officer may try to obtain answers by the use of oppression, nor indicate, except in answer to a direct question, what action the police will take if the suspect answers or refuses to answer questions or make a statement:

• The use of hypothetical questions may need to be approached with case;

• Police questioning which is carried on after repeated denials or refusals may become oppressive; and

• Hectoring and bullying is oppressive, questioning that was rude and discourteous, with raised voices and some bad language, was not deemed to be oppressive.

The interview of a person who is not charged must cease when the officer is satisfied that they have answered all relevant evidence and evidence has been put to them.

Interviews must be recorded as well as any relevant comments outside of interview.

A child or young person, or a mentally disordered or vulnerable person must be be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult unless the conditions for conducting an interview away from a police station under are satisfied or the interview is authorised by an officer of the rank of superintendent or above:

• Children and young people should normally be interviewed in their place of education.

Officers are unable to interview any persons who are unable to appreciate the significance of questions or their answers because of the effects of drink, drugs or any illness unless it is authorised by an officer of the rank of superintendent.

The court is obliged to hear evidence about the obtaining of the confession (as the prosecution have to prove that the confession was not obtained in the manner forbidden by s. 76), where the admissibility of prosecution evidence falls to be considered under the general exclusionary power in s. 78, the court has a discretion to hear evidence on the issue of admissibility but is not obliged to do so (and so may rule on the matter following submissions on behalf of the parties).

It is generally better for the magistrates to hear all the prosecution evidence (including the disputed evidence) before considering an application to exclude evidence under s. 78.

There must be reasonable suspicion, this requires both a genuine suspicion on the part of the officer and a reasonable objective basis based on some known facts or information. This includes anyone who is about to commit an offence, is in the act, or reasonable suspicion to have committed it.

• This is to be evaluated without reference to hindsight.

• The arrest will be unlawful where the officer knows at the time of arrest that there is no possibility of a charge being made.

• The person must also be informed why arrest was believed to be necessary, although failure to do so will not render the arrest unlawful. The officer must use simple, non-technical language so that the person could understand the essential legal and factual grounds for the arrest.

An officer may use reasonable force, if necessary, in the exercise of power. Officers are empowered to use such force as is reasonable in the circumstances in the prevention of crime, or in assisting in the lawful arrest of an offender or suspected offender:

• This does not include use of force in connection with the conduct of a visual identification procedure governed by PACE or taking of an intimate sample since these require consent.

• In determining whether force was reasonable the court will take into account all the circumstances, including:

  • Nature and degree of force;

  • Gravity of the offence;

  • The harm that would flow from the use of force; and

  • The possibility of preventing harm by other means.

• Serious injury does not necessarily make force unreasonable.

• Handcuffs should be used only where they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace by a prisoner.

After an arrest, the suspect must be taken to the police station as soon as is practicable thereafter. They may delay in order to carry out such investigations as it is reasonable to carry out immediately.

• They may release them on bail without taking them to the police station.

Any person, whether constable or civilian, has a common-law power of arrest where:

• A breach of the peace is committed in the person's presence;

• The person effecting the arrest reasonably believes that such a breach will be committed in the immediate future by the person arrested; or

• A breach of the peace has been committed or the person effecting the arrest reasonably believes that a breach of the peace has occurred and that a further breach is threatened.

Issuing a warrant:

• Mags will limit this to where the offence concerned must be indictable, or punishable with imprisonment, or the person's address must be not sufficiently established for a summons to be served; and

• Includes issuing a warrant for the arrest of a person who has failed to appear to answer a summons.

The person may be taken to any police station, unless it is anticipated that detention of more than six hours will be necessary, in which case the person should be taken to a designated police station.

The normal maximum period of detention is 24 hours from the relevant time (when the person arrives at the police station or 24 hours after arrest, whichever is earlier). If at the expiry of that time the person has not been charged, he or she must be released, either on bail or without bail.

• For indictable offences, the period can extend to 36 hours or 96 hours by the mags.

Custody officers must be at least the rank of sergeant; if they are not...