#4818 - Interviews And Evidence - Criminal Litigation

The purpose of an interview is the gather evidence so the suspect can either be charged with an offence or let off.

Code C 11.1A of PACE:

• The questioning of a person regarding their involvement or suspected involvement in a criminal offence, which under paragraph 10.1, must be carried out under caution.

The following provisions apply:

• COP C 11.1A – the interview must be carried out under caution

• Must be carried out at a police station (unless COP C 11.1(a)-(c) applies, which is very rarely).

• COP C 11.2 - prior to the commencement of the interview, the suspect should be reminded of their right to legal advice

  • Under s.58 PACE the suspects legal representative may be present

• COP C 11.7 – an accurate record must be made of the interview

The suspect’s right to silence

• Any suspect has the right to silence.

• However, if a suspect exercises the right and then raises a defence at trial, s.34 Criminal Justice and Public Order Act 1994 allows for an adverse inference to be drawn by the jury/magistrates regarding the reasons why he didn't offer the explanation at the time of questioning.

  • s.34 - Adverse inference can only be drawn if the suspect was reasonably expected to have mention a defence when so questioned.

  • Ultimately, this may undermine his defence.

• Inferences can ALSO BE DRAWN under:

  • s.36 CJPOA – the suspect fails to account for an object, mark, substance found on him at time of arrest

  • s.37 CJPOA – the suspect fails to account for his presence at a particular place at time of offence

• s.38 CJPOA – a defendant cannot be convicted solely on the basis of adverse inference.

NB: no adverse inference can be drawn where the suspect has not been allowed access to legal advice – Code C para 6.6 and Annex C.

Break down s.34:

1. Caution – if there is no caution then no inference can be drawn (caution in Code C paragraph 10.5)

2. Facts later relied upon;

3. In the circumstances existing at the time, the accused could REASONABLY have been expected to mention them

A number of factors can be considered:

• Disclosure: the information the police give to the defence solicitor before the interview. If nothing/very little is disclosed, a solicitor may advise the right to silence is best as he can hardly advise his client.

• Evidence: the quality of evidence against the suspect is crucial.

• Circumstances of the defendant: consider the factors in R v Argent considering the circumstances as they existed at the time:

  • Age

  • Experience

  • Mental capacity

  • Health

  • Sobriety

  • Tiredness

2) Confessions

Defined in s.82(1) PACE: “any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise” = VERY WIDE!

• So doesn't have to be made to a police officer

• Can be anything even partly adverse (e.g. claiming you were at the scene of the crime but didn't commit it)

• s.76(1) PACE – it is admissible against the MAKER – not any other party

s.76(2) PACE sets out the circumstances in which a confession can be excluded from the evidence:

• s.76(2)(a) – OPPRESSION:

  • s.76(8) defines oppression as “torture, inhuman or degrading treatment, and the use or threat of violence”

  • R v Timothy West – held that a police officer shouting rudely, interrupting the defendant and using obscenities was oppressive.

• s.76(2)(b) – UNRELIABILITY:

  • “Things said or done” – this would include inducements to confess such as offers of bail. This can also be breaches of PACE.

  • The breaches must have been significant and substantial to trigger this exclusion.

NB: there must be a CAUSAL LINK between the s.76 factors and the confession (i.e. the oppression must have caused the confession).

Once the issue has been raised by the defence, it is for the prosecution to prove beyond reasonable doubt that the confession was not obtained oppressively and is not unreliable.

NB: see the exclusion of confessions under s.78

3) Evidence

The basic rule is that the evidence must be RELEVANT to the facts in issue. All irrelevant evidence should be excluded (EXAM: if there is a document, look for irrelevant parts and exclude).

Exclusion of Evidence

s.78(1) PACE provides that the court may refuse to allow evidence if 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.

• The judge has discretion whether or not to exclude the evidence.

• This section can also be used to EXCLUDE CONFESSIONS where there is no suggestion that either limb of s.76 has been breached.

Often an application to exclude evidence under s.78 will be based upon a breach of PACE and the Codes. However, just because a breach has occurred does not automatically mean the evidence will be excluded.

It must be shown that the evidence would have an adverse effect on the fairness of proceedings.

• Significant and substantial breaches – this will include things such as barring right to legal advice or being questioned unlawfully etc.

  • A good example is an interview outside a police station.

• In the Crown Court, the application will take place by way of a voire dire (a “trial within a trial”). The jury will be asked to leave and the judge will consider the arguments put forward. If the judge decides to exclude the evidence, the jury will never know of its existence.

• In the Magistrates Court, there application will take place in front of the magistrates.

This is generally inadmissible. A witness is called to give evidence as to facts as s/he actually perceived them.

Exceptions:

• Expert opinion

• Police have a wider ambit (e.g. when discussing levels of drunkenness)

• Adults can give evidence in their own competence (e.g. “the car was driving fast”)

• Good character evidence:

  • If the D is of a previous ‘good character’ then his defence should highlight this to the jury. Alternatively, they could call a character witness to vouch for him.

  • The Vye direction: when any of these occur, the judge when summing up must give direction explaining the relevance of good character (i.e. he was less likely to have committed the offence).

• Bad Character Evidence:

  • Inadmissible – s.98 Criminal Justice Act 2003.

  • UNLESS under a s.101 gateway

Witnesses

• An ordinary witness is ANYONE other than the D or his spouse

• All ordinary witnesses are competent (allowed) and compellable (can be forced) to give evidence both for prosecution and defence

• DEFENCE: The D is competent (allowed) to testify in his own defence – s.1 Criminal Evidence Act 1898

  • However, he is not compellable

• PROSECUTION: he is neither competent nor compellable

• DEFENCE: unless jointly charge, she is both competent and compellable – s.80(4) PACE

• PROSECUTION: competent but not compellable UNLESS s.80(3) PACE applies:

  • The offence involves an assault, injury or threat of injury to the spouse or someone under 16

  • The offence is a sexual offence on a person under 16

• DEFENCE: they are competent but not compellable UNLESS:

  • He ceases to be a defendant (i.e. pleads guilty or case against him discontinued)

• PROSECUTION: he is neither competent nor compellable

Identification Evidence

This is a question both of quality and admissibility. The two main issues to consider are the weight of the evidence and any problems of admissibility connected with ID such as breaches of the Codes of Practice.

Use the following guidelines:

• The judge should warn the jury of a special need for caution before convicting the accused in reliance on the correctness of the ID, whenever the prosecution case against the accused depends wholly or substantially:

  • On the correctness of one/more of the IDs of the accused; AND

  • the defence refutes the correctness of the ID

The SPECIAL WARNING has three elements:

• The judge should instruct them as to the reason for the warning (i.e. mistaken witnesses can be convincing ones)

• The judge the direct the jury to examine the circumstances of the ID being...