#16767 - Police Powers, Confessions & Silence - Criminal Procedure and Evidence

stop & search

s.1 PACE: need reasonable grounds for suspicion of carrying stolen goods/prohibited articles

s.23(2) Misuse of Drugs Act 71: need reasonable suspicion carrying drugs

s.60 CJPOA 94: can stop & search in anticipation of violence

arrest

s.24 PACE police have the power to arrest people without warrant on suspicion of any offence

but Code G attempts to lay down a general requirement of ‘necessity’

note existence of common law power to arrest in order to stop a ‘breach of the peace’ - DPP v Orum

Arrest with warrant - MCA 80 s.1

Richardson: if the police wrongly arrest, damages can be awarded for false imprisonment

entry, search & seizure

Either with warrant… s.8 PACE can get search warrant where reasonable grounds to believe indictable offence & likely be material of substantial value on premises

Or without warrant… s.17-18 PACE entry to effect arrest & search of arrested person’s premises

s.19 PACE: power to seize what’s found

coercive powers on arrest

s.61 PACE powers to photograph, take finger-prints & footprints

s.62 PACE consent needed to take intimate samples (blood etc)

s.63 PACE consent not needed for non-intimate samples

procedure at the police station

Custody officer must consider if there is enough evidence to charge detainee

s.37(2) PACE: must release unless can charge unless believe detention w.o charge necessary to secure/preserve evidence/obtain evidence by questioning

s.42/44 PACE can hold only for 24h - can be extended to 36h by Superintendent - but magistrate order can get it up to 96h

note terrorism suspects can be held 14d (PFA 12)

s.46 PACE: once charged, suspect must be at next sitting at magistrates court

Code C controls police questioning

Code C 10: officer has duty to caution suspect before asking questions

if appears suspect doesn’t understand, should explain in officer’s own words

Code C 16.5: not usually allowed question once charged unless necessary (details in code)

Counter-Terrorism Act 08: permits post-charge questioning

• Walker: says ban correct & should avoid move to change - relates to right against self-incrimination (+ adverse inference provisions) + confession rules probs

• s.56 PACE gives the right to have s.o informed when arrested

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

  Seet: right to legal advice central to privilege against self-incrimination & to HR

  note late 19C some opposition e.g Lord Longdale MR took Benhthamite view that legal advice conducive to false defences - said a rule deterring guilty people seeking legal advice would be no bad thing (the innocent won’t be discouraged)

  Following Salduz v Turkey & Cadder v HM Advocate SC it seemed a solicitor had to be provided before or at any point during questioning. Failure to supply legal advice & consequently relying on a statement in trial would be a breach of Art 6

  Ambrose v Harris 11 SC: held Cadder not limited to detention, but applied to any situation where questioned as a suspect rather than a potential witness (e.g at crime scene)

  but didn’t go so far as to say any confession obtained in non-custodial situation would be inadmissible

  Ibrahim & others v UK 16: ECHR then qualified Salduz & said we can make allowances for emergency interviews where there are serious adverse consequences for life/the physical integrity of public (here suicide attacks)

  Said though we may expect exclusion where there is no exceptional reason interview w.o access to advice, the ultimate question is the fairness of individual trial

  Salduz is thus just a prima facie (not a bright line) rule

  Fairness is to be judged by applying checklist of factors at para 274 of Ibrahim

1. applicant’s vulnerability (age/mental capacity)

2. pre-trial framework & if evidence rules complied with - would exclusionary rule make proceedings unfair

3. opportunity challenge authenticity of evidence/oppose its use

4. quality of evidence/circs - reliability & taking into account degree/nature of compulsion

5. if evidence obtained unlawfully - nature of violation (if violates C article)

6. where statement nature of statement & whether promptly retracted/modified

7. whether use of evidence integral or significant part of conviction & strength of other evidence in case

8. assessment of guilt by pro judges or lay jurors, if latter content of jury directions

9. weight of pub interest - investigation/punishment of partic offence in issue.

10. relevant procedural safeguards in domestic law and practice (if can challenge there rather than here)

    Note if D originally requests advice & changes his mind inspector should ask to confirm & get reasons & record them - Code C 6.6(D)

    In Alladice conviction stood as provision of solicitor wouldn’t have changed confession

    At end of interview suspect should sign record confirming its accuracy

    Delay to solicitor may be authorised (at least superintendent) under 58(8) if:

1. interference with or harm to evidence connected with the indictable offence

11. alerting of other persons suspected of having committed an indictable offence

12. hindrance to recovery of proceeds of an indictable offence

    To deny legal advice, you have to have specific concern about the solicitor - Samuel

    Officer cannot dissuade legal advice being taken - Code C p6.4

    Acceptable to tell detainee how long lawyer will take to arrive - Code C ZA

• note s.56(5) & (5A) gives police a limited right hold the suspect incommunicado - where reasonable grounds believe allowing him communicate would lead to (i) interference with witnesses (ii) altering accomplices (iii) hinder recovering proceeds of crime or (iv) enable hide profits of drug-dealing

  Code C 11: before interview, D/solicitor must be given sufficient info to enable them understand nature of any such offence & why they are suspected of committing it

  must be @ police station unless good reasons/necessary

  must not use oppression

  notes must include place, time, breaks, names - if not made during interview ASAP after - must be signed!

  note might also use visual recording under Code F

  Code C 11: duty make contemporaneous notes & give suspect chance verify

  PACE s.60 : requires tape-recording - exception essentially where machinery fault but need continue interview

  Aitken 92: jury will be given summary transcript of interviews but decision to play tapes @ discretion of judge

  note other investigative agencies must have regard to the Codes - s.67(9) e.g Gill & Gill - Inland Revenue!

  note virtually no rules regulating police interviews with witnesses - just written down - should they also be recorded? Surely yes - or video?

  Code C 12: conditions in interview.…

• 12.2 in any 24h period, detainee must be be allowed continuous period of at least 8h for rest (normally at night) - except in certain circs - where necessary etc

• 12.3 suspect must be medically assessed first - don’t interview if would cause harm to physical/mental state

• 12.5 interviews shall take place in interview room which are adequately lit, heated & ventilated

• 12.6 suspect should not be required to stand

• 12.8 breaks from interviewing should be made at recognised meal time & take account of last meal time & short refreshment breaks @ 2h intervals subject to interviewer’s discretion

  right to silence & drawing adverse inferences

  General common law position = right to silence: relates to the privilege against self-incrimination

  Right recognised (but limited) by CJPOA 94

  Bowden: Lord Bingham recognised ss34-38 shouldn’t be construed more widely than stat language requires

  Murray v UK ECtHR stressed right to remain silent crucial to Article 6, but right not absolute

  O’Halloran & Francis v UK 08 said similar- here RTA entitled police require registered owner give name/address - 2 motorists invoked privilege against self-incrimination to contest speeding convictions

  ECtHR held right to silence/right not incriminate = not absolute - clear pub interest

  note Art 6 goes further than English law - technically there if accepted legal advice & told to remain silent & rely on that, it may be violation for jury still draw adverse inferences

  Beckles: trial judge’s failure to direct jury properly infringed Article 6

  Condron: balance – article 6 and drawing adverse inferences - here failure to direct jury properly infringed A6

  Bristow v Jones: judge in direction didn’t say silence could not amount to guilt. CoA quashed conviction!

  s.58 YJCEA 99: prevents any adverse inferences being drawn from silence unless the accused has had the opp to consult a solicitor

  It also makes info obtained under compulsion inadmissible

  Any discussion of adverse inferences takes place shortly before summing up

  note diff for docs/DNA - can be obtained by compulsion - AG Ref no.7 of 2000

  Runciman Commission 93 right to silence not being widely abused & if removed, might increase no. miscarriages

  but gov ignored this & pushed through legislation to appear tough on crime allowing adverse inferences - detained right to silence & v problematic -> CJPOA (see below) creates assumption suspect should co-operate - suspicious if doesn’t!

  s.34 Criminal Justice and Police Order Act 94: where a D fails to mention facts when questioned or charged which he could’ve reasonably have been expected to mention, an adverse inference may be drawn if he later relies on these in his defence

  34(2)(d) allows court/jury draw such inferences as appear proper

  s.34 not triggered if Crown has no proof D was aware of the fact (MB) nor if D has extreme mental...