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Police Powers, Confessions & Silence Notes

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This is an extract of our Police Powers, Confessions & Silence document, which we sell as part of our Criminal Procedure and Evidence Notes collection written by the top tier of Oxford students.

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CPE

POLICE POWERS TO GATHER EVIDENCE, CONFESSIONS

I) STOP

& SILENCE

& 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
II) 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
III)

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
IV)
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
V) 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)
Page 1 of 10 CPE

• 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 a) applicant's vulnerability (age/mental capacity)
b) pre-trial framework & if evidence rules complied with - would exclusionary rule make proceedings unfair c) opportunity challenge authenticity of evidence/oppose its use d) quality of evidence/circs - reliability & taking into account degree/nature of compulsion e) if evidence obtained unlawfully - nature of violation (if violates C article)
f) where statement nature of statement & whether promptly retracted/modified g) whether use of evidence integral or significant part of conviction & strength of other evidence in case h) assessment of guilt by pro judges or lay jurors, if latter content of jury directions i) weight of pub interest - investigation/punishment of partic offence in issue.
j) 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:
a) interference with or harm to evidence connected with the indictable offence k) alerting of other persons suspected of having committed an indictable offence l) 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
Page 2 of 10 CPE

• 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
VI)

RIGHT TO SILENCE

& DRAWING ADVERSE INFERENCES

• General common law position = right to silence: relates to the privilege against selfincrimination

• 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 selfincrimination 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
Page 3 of 10

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