Unit 2 Preliminaries to prosecution Flashcards
What are the PACE Codes? What is the consequence of a breach of these codes?
- The police’s powers of investigation and procedure are governed by them.
- A failure to follow the codes does not render the police officer who breached them criminally or civilly liable.
- However, the Codes may be admitted in evidence.
- E.g. can be relevant when the judge tries to decide whether a confession should not be admitted bc it is unreliable (under s. 76)(2)(a) PACE)
Definition of an Interview under C.11 PACE
An interview is the ‘questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under para. 10.1, must be carried out under caution’.
When is it not necessary to give a caution if you want to ask questions?
(a) Solely to establish identity or ownership of a vehicle
(b) In furtherance of the proper and effective conduct of a search
(c) To seek verification of a written record of comments made by the person outside an interview.
(d) To obtain information in accordance with a statutory requirement
It follows that questioning of a person in circumstances where a caution does not have to be administered does not amount to an interview for the purposes of Code C.
Where do interviews take place?
General rule = should take place following the decision to arrest and shouldn’t be delayed, at a police station or other authorised place of detention
Exception = can be conducted elsewhere if the delay that would be caused by bringing them to a relevant place is likely to:
- lead to interference/harm re: evidence, other persons, serious loss of property
- lead to alert other suspects not yet arrested
- hinder recovery of property obtained by committing offence
Once relevant risk has been averted, or necessary Qs have been put to aver the risk, interviewing must cease
What has to happen before the start of an interview?
(1) The suspect must be given sufficient info to understand (1) the nature of the offence and (2) why they are suspected of committing it. This info must also be given to their legal adviser.
(2) The suspect must be reminded of. their right to free legal advice before the commencement or recommencement of any interview
(3) They must be cautioned
What is the consequence of failing to inform a suspect of their right to free legal advice before an interview?
The evidence may be excluded
I think this is just an application of s 78 PACE
When does a caution have to be given?
(1) Interview commencement (whether or not it is conducted at a police station)
(2) Reminder at recommencement of interview after any break
(3) Arrest
Overarching point: code C, para. 10.1, requires a caution to be given to a person ‘whom there are grounds to suspect’ of an offence’. Whether there are sufficient grounds for a caution to be administered is an objective question, and does not simply depend on how the police officer regarded the matter. This statement really covers the three instances when a caution has to be given. It also clarifies that it’s not about whether the police officer thought (in his own mind) that this was an interview, but rather whether the relevant suspicion objectively existed.
What are the words of a normal caution and how are they different when an interview is (exceptionally) conducted without a legal adviser despite requesting one?
Normal words: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.”
Where no legal adviser despite request: “You do not have to say anything, but anything you do say may be given in evidence”
Reason for difference: no inferences can be drawn from silence where there was no legal adviser despite a request for one.
When will the requirement of cautioning a suspect be breached (and when will it not) and what is the consequence of a breach?
Although PACE sets out standard words, what matters is that the substance is retained. So minor deviations and imperfect translations are irrelevant. The important thing is that the suspect understands. This also means that if they don’t understand, the PO needs to explain it in simple language.
Consequence of breach: violation will not necessarily result in exclusion of interview evidence
Under what circumstances must a Special Warning be given?
In addition to the caution, where a suspect is interviewed at a police station or other authorised place of detention following arrest and:
a. is asked to account for any object, mark or substance, or mark on such objects found on his person, in or on his clothing or footwear, otherwise in his possession, or in the place where he was arrested; or
b. to account for his presence at the place where he was arrested,
a special warning must be given in the terms set out in Code C, para. 10.11.
Inferences cannot be drawn if the warning is not given
What is the consequence of failing to give a special warning?
No inferences can be drawn from silence if the warning is not given
What does the interviewer have to do in relation to significant statements or silences?
Put them to the suspect during the interview.
Obviously this makes sense -> we know from the reading on inferences to draw from silences that if the suspect had no opportunity to explain themselves, then the evidence will not be particularly useful at trial
What is a ‘significant statement’? What is a ‘significant silence’?
Statement: appears to be capable of being used in evidence, and in particular a direct admission of guilt
Silence: failure/refusal to answer a Q or answer satisfactorily when under caution which might give rise to an adverse inference
What rules govern the conduct of the interview?
The PO may not:
(1) Use oppression to obtain answers or elicit a statement
(2) Indicate (except in answer to direct Q from S) what action the P shall take if S answers or refuses to answer Qs or make a statement
(3) Seek a confession by offering a caution
The PO also has a duty not to actively mislead a suspect
When should an interview cease?
When the PO is satisfied that all relevant Qs have been put to the suspect, account has been taken of all available evidence, and there is sufficient evidence to charge (realistic prospect of conviction).
This, of course, is subject to the limits imposed by the PACE 1984 on the maximum periods of detention without charge, and the provisions regarding breaks in interviews and rest periods.
PACE gives the police a large degree of latitude in determining when interviewing should cease.
What rules govern the interviewing of children/YP and mentally disordered individuals?
C/YP, mentally disordered or vulnerable person must not be interviewed or asked to sign w/o an appropriate adult, unless:
- (1) conditions for conducting interview away from PS are satisfied, or
- (2) interview authorised by a PO superintendent or above in rank
The appropriate adult for a U18 S can be: a parent or guardian, or rep from local authority if in care, or some other responsible person but not an estranged parent or illiterate w/ low IQ who cannot understand gravity of situation
The appropriate adult for a mentally disordered individual can be: relative, guardian or other person responsible for care/custody of person w/ experience handling such persons
In all cases, the appropriate adult cannot be a police officer or police employee, solicitor, anyone involved in the case in any way, someone S has made admissions to
What rules govern the interviewing of individuals who require an interpreter?
Must not be interviewed without an interpreter unless
- (1) conditions for conducting interview away from PS are satisfied,
- (2) interview authorised by a PO superintendent or above in rank, or
- (3) interview would not significantly harm S’s physical/mental state
Interpretation can be via live link if it won’t adversely affect S’s ability to communicate effectively
Where suspect cannot read and interview is recorded in writing, record must be read over to the suspect who must be asked to verify it