Interviews Flashcards
Exam approach
(1) Is this an interview?
(2) Was it conducted lawfully?
(3) Advice
What is an interview?
Yellow
Interview defined in Code C 11.1 A PACE
’ the questioning of a person regarging their involvement or suspected involvement in a criminal offence..’
- Must be carried out under caution
(COP C 11.1A, as per COP C 10.1) - Following an arrest, must not be interviewed about the relevant offence except at police station (narrow exceptions apply) (COP C 11.1) - have sentence just saying those exceptions don’t apply
- Prior to commencment/re-commencment of interview, must be reminded of right to legal advice (COP C 11.2)
- An accurate record must be made of each interview (COP C 11.7)
The right to silence and inferences which can be drawn
Yellow
BASIC PRINCIPLE: SUSPECT HAS A RIGHT TO SILENCE - no oblgiation to answer questions.
But, under Criminal Justice and Public Order Act 1994 (‘CJPOA’)
s. 34 CJPOA
- allows adverse inference if suspect silent and later raises a defence at trial
s. 36 CJPOA
- allows inference if suspect fails to account for an object, substance or mark found on him at time of arrest
s. 37 CJPOA
- allows inference if suspect fails to account for his presence at a particular place at the time of the offence
However two important safeguards:
s. 38 CJPOA
- a defendant cannot be convicted solely based on an adverse inference
COP C Annex C
- no adverse inference can be drawn if suspect has not been allowed access to legal advice
COP C 10.11
- if ss. 36 or 37 may apply, must give ‘special warning’ - this is a caution worded slightly differently.
s.34 CJPOA inference
s.34 CJPOA:
“where the accused, before he was charged, or being questiond under caution
FAILED TO MENTION ANY FACT RELIED ON IN HIS DEFENCE … A FACT WHICH HE COULD REASONABLY HAVE BEEN EXPECTED TO MENTION…
court can draw such inferences from the failure as appear proper”
Requirements:
(1) Caution must be given in terms in COP C 10.5 - (same caustion as arrest)
(2) Has to actually rely upon the facts later!
(3) In the circumstances existing at the time, could the accuased REASONABLY have been expected to mention them?
- Apply the D.E.A.D. approach!
The D.E.A.D approach
As to whether the accused could reasonably have been expected to mention the facts he later seeks to rely on?
D DISCLOSURE
- What info was given my police to defence solicitor before the interview?
- No automatic right to disclosure, apart from custody record
- But police will normally provide basic background to the offence and why they think suspect was involved
- R v ROBLE: non-disclousore or lack of disclosure can be a reasonble ground to advise silence - held; not proper to draw s.34 inference where there had been such little disclosure that the solicitor could not usefully advise the suspect;
E EVIDENCE
- form a view as to how strong the evidence is against the suspect
- the less evidence = the less reasonable to answer questions (as why incriminate yourself in a fishing expedition?)
A ARGENT FACTORS (R v Argent)
Condition and circumstances of the suspect include the suspect’s:
- age
- experience
- mental capacity
- state of health
- sobrirety
- tiredness
- disclosure
- the legal advice given (fact that solicitor advises silence does not prevent inferences being drawn; the legal advice must itself be reasonable!)
D: DEFENCE
- does the suspect have a defence?
- if suspect has facts he would wish to rely on at trial and there is sufficient evidence disclosed conneted him to the offence, he should raise those facts now!
Confessions
s.82 (1) PACE:
‘Confessions include 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”
ADMISSIBILITY?
- s.76 (1) PACE = starting point:
may be given in evidence against the accused, but only admissible against the person who made the confession!
BUT:
s.76 (2) - grounds on which confession can be excluded - if defence raises, burden on
prosecution to prove beyond reasonable doubt.
s. 76 (2)(a) - OPPRESSION
- defined by s.76 (8) - torture, threat etc.
- must be causal link between oppression and the confession - i.e. but for
s. 76 (2)(b) - UNRELIABILITY
- ‘anything said or done…to render unreliable’
- inducements (need not be police impropriety
- must be causal link again
- ‘slap on the wrist’ situations
- breaches of PACE can amount to things ‘said or done’
Procedure:
- Defence applies for exclusion
- Prosecution must prove beyond reasonable doubt that the confession was not obtained on either of the s.76 (2) grounds.
Exclusion of evidence under s.78 PACE
s.78 (1) PACE:
‘Court may refuse to allow evidence if appears to court, having regard to all the circusmtances, including circumstances in which it 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’.
Operates as a backstop essentially - can include confessions even though s.76 (2) does not apply.
- breaches of PACE - but not every single breach, need to be ‘substantial and significant breaches’ of PACE - R. v WALSH
- most likely used when there has been deliberate impropriety ot bad faith on the part of the police
Procedure:
- Defence will apply by way of ‘voire dire’ - a trial within a trial
- Jury asked to leave whilst advocates make their arguments
- If judge decided to excluded evidence, jury will never know of it!
- Not available in Mags Court - Mags must try put it from their minds.
