#14998 - Gathering Evidence - Criminal Procedure and Evidence

Supervision 1 – Gathering Evidence

PACE 1984 and codes of practice

• PACE empowers the Home Secretary to issue Codes of Practice covering certain aspects of police powers and procedure.

• S.78 details sanctions if Act or Codes contravened.

• Two ways to commence a prosecution:

  • Arrest suspect without warrant and then have him charged.

  • Prosecutor may lay charge and summons is issued (Magistrates Court Act 1980, s.1).

• Spencer argues that legislation passed recently concerning powers to gather evidence have reduced integrity of PACE.

Arrest without warrant and charge

• S.24 provides that police officer may arrest any person whom he has reasonable grounds to suspect of having committed, committing or being about to commit an offence.

• Arrest must be necessary in accordance with criteria in s.24(5) PACE.

• Arrestee must be told the reason for the arrest.

• If police wrongly arrest, damages can be awarded for false imprisonment (Richardson).

• Citizens can only arrest for indictable offences (s.24A), but do they know the difference?

• Prior to asking questions, officer should caution the suspect – official caution under s.34 Criminal Justice and Public Order Act 1994 (pa. 10.1 Code C).

Procedure at the police station

• At station, custody officer has duty to ascertain the possessions of the detainee.

• Custody officer then considers if there is enough evidence to charge detainee.

  • If not enough evidence to find a charge, officer may sanction detention without charge.

  • Maximum period of detention without charge is 36 hours, but magistrates’ order can increase this to 96 hours (s.42/44).

• Code C controls conduct of police questioning.

• Once detainee charged he may not be asked any further questions (Code C 16.5)

• S.58(1) provides that a person shall be entitled to legal representation free of charge as soon as practicable.

  • Delay may be authorised (at least superintendent) under s.58(8) if:

    • Interference with or harm to evidence connected with the indictable offence; or

    • The alerting of other persons suspected of having committed an indictable offence; or

    • Hindrance to the recovery of the proceeds of an indictable offence.

  • Officer cannot dissuade legal advice being taken (Code C, Pa6.4).

    • Acceptable to tell him how long lawyer will take to arrive (6ZA).

  • Following Salduz and Cadder (Scottish case), solicitor must be provided before or at any point during questioning.

    • Failure to supply legal advice and consequently relying on statement in trial will be breach of Article 6.

  • To deny legal advice, you have to have specific concern about the solicitor (Samuel).

  • In Alladice, conviction stood as provision of solicitor would not have changed confession.

  • Leverick argues that this right is justified by protecting from the moral harm involved in wrongful conviction.

• S.56 gives right to have someone informed of the arrest.

• At end of interview, suspect should sign record confirming its accuracy.

Searches

• S.1-3 provides police with general power to detain member of public without arrest to search him if he has reasonable grounds to suspect that he will find stolen or prohibited articles.

• S.8 provides that a magistrate may issue a warrant authorising police officer to enter and search premises.

  • An officer who arrests a suspect otherwise than at the police station may search him if he has reasonable grounds to suspect that he has anything which might either be used for purposes of an escape or might be evidence of an offence.

• S.17 of PACE provides that a police officer may enter and search premises in order to execute a warrant for arrest or to make an arrest without warrant for an indictable offence.

  • Cannot be used to find evidence.

• Evidence discovered as a result of unlawful searches may be admissible at an accused’s trial, irrespective of whether he or some third party was the victim of the illegality.

Evidence excluded as a matter of public policy

• General rule in English law is that if evidence is relevant, it is admissible in court (Lord Goddard in Kuruma).

• S.1(1) Regulation of Investigatory Powers Act 2000 prohibits unlawful interception of any communication.

  • Warrant can be obtained from Home Secretary (s.1(5)).

  • Technically, the Act forbids disclosure of the source of the evidence, but in practice this renders the evidence inadmissible (s.17).

  • Will not apply to private citizens if outside of s.17(3).

    • But they will still be committing an offence under s.1.

• In E, held that evidence was admissible because recording device was not interfering with a transmission, but was recording voices.

• Lord Bingham, comparing 2000 Act to its predecessor, argues that it is ‘both longer and even more perplexing’.

• Even if disclosure of the evidence is not forbidden, a court might still exclude it under PACE, s.78 if its admission were felt to reflect adversely on the fairness of those proceedings.

  • In A and Others, evidence from torture inadmissible. Recognises that integrity considerations may have a part to play.

    • Choo and Nash argue that this exception should come under a wider consideration of ‘fair trial’ – does permitting the evidence give prosecution an advantage that is inconsistent with moral values of criminal justice system?

  • Cases like Elliott less categorical.

• If s.78 not triggered, s.82(3) preserves common law discretion (Sang).

  • Common law test – weigh up probative value against prejudicial value.

  • Only applies to prosecution evidence.

• Ormerod and Mackay argue that the policy is too broad, infringing fair trial issues. Lack of clarity in RIPA’s regulation of interceptions.

• Spencer argues that the statutory ban hinders the defence as well as prosecution, leading to possible injustices.

  • Argues that use of intercept evidence would not lead to its methods becoming public knowledge.

  • Intercept evidence is admitted everywhere else in the world.

  • Has led to a ‘shadow system’ where criminals locked up without conviction in criminal courts. Threat to civil liberties.

• Mirfield notes several problems with RIPA, notably the fact that defendant cannot use intercept evidence to show innocence.

Improperly obtained evidence

• Home Secretary can warrant illegal phone tapping, but criteria are very narrow (national security, very serious crime).

• At common law, trial judges enjoy a general discretion to order the exclusion of technically admissible evidence if they feel that its prejudicial effect exceeds its probative value.

• Court can exclude distasteful evidence (D, P and U).

• S.78 confers wider discretion than at common law to exclude prosecution evidence if it would have an ‘adverse effect on the fairness of the proceedings’.

• How does s.78 operate?

  • More likely to exclude if authorities deliberately flout the rules rather than accidentally breach them (Mason).

  • The worse the crime, less likely courts...