Police Powers II Flashcards
PACE S58 - The right of access to legal advice
S58 guarantees a person who has been arrested and held in custody the right to consult a solicitor privately at any time.
Access to a solicitor must be provided as soon as is practicable after the request is made.
-must be permitted to consult a solicitor within 36 hours from relevant time.
Detention
PACE 30-40
PACE 41-44
PACE 30-40 = rules on detention of arrested individuals.
PACE 41-44 = maximum time limits for detention are set out.
Maximum period of detention before the police are required to seek authorisation for the magistrates for further extensions = 96 hours
S58(8)8 - Grounds for the postponement of legal advice
Must be an indictable offence.
- officer has reasonable grounds for beliebeimg that
a) person detained for an indictable offence has benefitted from his criminal conduct.
b) the recovery of the value of the property constituting the benefit will be hindered by the exercise of the right conferred by subsection (1).
Murray v United Kingdom (1966)
Averil. V UK (2011)
Murray - 48 delay in granting access to legal advice was held to be a breach of article (6)(1) and (6)(3)(c), right to a fair hearing.
Averil. - denial of access for 24 hours constituted a breach of right to fair trial.
PACE s56: Right to inform someone of your arrest
The right to inform someone of your arrest is s56
Where the police wish to delay arrested person from telling another individual they must be able to point to a specific reason.
Authorisation for delay needs to come from an inspector or more senior officer.
R(on application of GC) v The Commissioner of Police of the Metropolis (2011)
PACE s.64
- Supreme Court heard an appeal by two suspects whose DNA and fingerprints were taken by the police.b
- first appellant was released without being charged.
- second appellant charged but was subsequently acquitted.
SUPREME COURT HELD THAT PRESENT LAW REGARDING INDEFINITE RETENTION OF SAMPLES, SAVE IN EXCEPTIONAL CIRCUMSTANCES, AMOUNTED TO A VIOLATION OF ARTICLE 8 OF ECHR.
PACE S76 and S78 - confessions and excluding unfair evidence
Common law, the general rule, is that evidence which has been Improperly obtained will not automatically be excluded from the trial.
If the evidence is relevant it is admissible.
However confessions do not fall under this rule
PACE -s76 Confessions
S76 provides that a confession may be given in evidence if it is relevant and not excluded.
-Court must exclude confession if the individual who confessed tells the court that the confession was obtained, or might have been obtained by;
a) Oppression
b) In consequence of anything said or done which might make it unreliable.
However, the confession can be re included as evidence if the prosecution proves beyond reasonable doubt that the confession was not obtained in this way.
It is for the Crown to prove, i.e. The legal burden, that there was no breach
Oppression:
R v Fulling (1987)
Oppression is harder to establish than circumstances leading to Unreliability.
Oppression given dictionary meaning and that oppression will virtually always involve some impropriety on the part of the police.
R v Fulling - action of the police in telling they her boyfriend had been having a long standing affair, leading to her subsequent confession, was not held to be sufficiently harsh or wrong to qualify.
R v Paris, Abdullahi, Miller (1993)
- 3 men convicted of the murder of a prostitute with whom Miller was living before her murder.
- Chief evidence was a confession by Miller- which he gave after he had denied the charge over 300 times in the face of serious police intimidation.
-Held that they should not have been admitted as evidence due to the ‘length and the tenor’ of the interviews and the aggression of the police.
R v Howard Chung (1991) - leading case on Unreliability
Breaches of PACE- refusal of his request to see a solicitor, the questioning without a solicitor present, failure to record the confession immediately, the failure to allow defendant to sign the record and fact that he was not told of its existence, - all combined to make the confession unreliable.
PACE s78 - applies to all evidence, gives the court a general discretion to exclude evidence
S78 - court having regard to all the circumstances can refuse to allow evidence if the admission of the evidence would have such an adverse effect of the fairness of the trial that the court ought not to admit it.
Criminal Justice and Public Order Act (CJPOA) 1994 & Right to Silence & Adverse inferences
S34 CJPOA
R v Argent (1997)
- Argent was charged with stabbing a man outside a nightclub and on his lawyer’s advice he refused to answer police questions in interview.
- Convicted of manslaughter and appealed due to judge misdirection.
R v Argent - 6 conditions necessary to draw an adverse inference
-only able to draw upon adverse inference if the suspects have had the chance to consult a solicitor.
1) There must be proceedings against a person for an offence.
2) The alleged failure must occur before a defendant is charged.
3) The alleged failure must occur during questioning under caution by a constable.
4) The constable’s questioning must be directed to trying to discover whether of by whom the alleged offence had been committed.
5) Alleged failure by the defendant must be to mention any fact relied on in his defence in those proceedings.
I) is there some fact which the D has relied on in his defence
Ii) did the D fail to mention it to the constable when he was being questioned.
6) When questioned the D failed to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention.
R v Beckles (2004)
Lord Chief Justice summarised the correct question for adverse inference as being ‘whether the defendant genuinely and reasonably relied on legal advice to remain silent’
