#3218 - At The Police Station - Criminal Litigation

• Police and Criminal Evidence Act 1984 [PACE]

• Focus on powers of detention and interview!

• Codes of Practice

Code C = rules on detention; treatment & questioning of suspect

If code C is breached:

• Breach of code is not a criminal offence or a civil wrong

• S.67(11) PACE obliges courts in civil & criminal proceedings to take into account any breach of the code which appears to be relevant to the issue in those proceedings

[i.e. defence can use breach to argue for inadmissible evidence]

• S.76 PACE – confession given as a result of oppression (or things said or done that makes confession unreliable) court will not allow confession to be given as evidence unless prosecution can prove beyond reasonable doubt that confession was NOT obtained in those circumstances.

S.76(2): If, in any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, it is represented to the court that the confession was or may have been obtained—

(a) By oppression of the person who made it; or

(b) In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in consequence thereof,

The court SHALL NOT ALLOW the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid

If there is oppression = Court must exclude the evidence that was gained! This is mandatory.

(as opposed to S.78 which is discretionary)

• S.78 PACE – exclusion of unfair evidence if obtained in any unfair way (applies to police powers to search; arrest; offering right to legal advice; detention; interview; identification):

S.78(1) In any proceedings the court MAY refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

Breach S.78 = Judge has DISCRETION to exclude the evidence.

1. Warning [informal warning]

2. Let-off

3. Police bail – pending further enquiries

4. CAUTIONING

• S.34 Criminal Justice and Public Order Act 1994: the suspect has a right to silence when being interviewed by the police; BUT the prosecution may draw adverse inferences from this at trial in particular circumstances.

• Client had NO solicitor = NO adverse inferences can be drawn! [S.34 [2A] CJPOA 1994]

Circumstances in which adverse inferences has be drawn by prosecution:

1. X has a solicitor present / has taken legal advise [S.58 PACE]

2. X is questioned under caution

3. X fails to mention a fact that is later relied on in his defense in those proceedings

4. A fact which, in the relevant circumstances existing at the time, the accused could reasonably have been expected to mention when so questioned

5. The court or jury may draw such adverse inferences from the failure as appear proper.

   • Relevant circumstances [R v Argent] includes:

     • Time of day (was is so late that it was reasonable that X would forget details)

     • Age of X

     • Experience of X

     • Mental capacity

     • Sobriety

     • Tiredness / personality

     • Legal advice

   • Reasonable = What is reasonable is a question for the jury [R v Condron]

• What is the adverse inference?

• The information which emerges is a later invention / fabrication by X in an attempt to prove his innocence.

• The information is therefore not true.

• X did not mention the relevant facts at interview because he did not want his account of events to be subject to scrutiny.

What should the solicitor advise at the police station when client asks whether he should remain silent:

Apply S.34 to client’s situation.

1. Advising silence may undermine his case as it leads to risk of adverse inference being drawn. It could therefore limit his defence is he wished to avoid the adverse inference.

2. Ask: What disclosure by the police has been provided? Is the solicitor in a strong position to give the client adequate advice?

   • YES: avoid silence – there is no reason to withhold information.

   • No: client is not sure of the case against him. It could be more strategic to wait therefore remain silent.

Does the prosecution have so little evidence that having an interview is only useful for their benefit and not the clients?