Unit 5 Introduction to PACE Flashcards
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’.
The three grounds a caution is not necessary
(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.
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.
Under what circumstances must a Special Warning be given under C10.11
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 a significant statement?
One which appears to be capable of being used in evidence, and in particular a direct admission of guilt. It does not include what a suspect is alleged to have said as part of the conduct constituting the offence.
What constitutes “reasonable suspicion?
reasonable suspicion requires both that the constable carrying out the arrest actually suspects (a subjective test) and that a reasonable person in possession of the same facts as the constable would also suspect (an objective test). In addition the arrest must be Wednesbury reasonable.
What does it mean for a decision to be Wednesbury unreasonable?
A reasoning or decision is Wednesbury unreasonable (or irrational) if it is so unreasonable that no reasonable person acting reasonably could have made it. The test is a different (and stricter) test than merely showing that the decision was unreasonable.
Legal characteristics of “arrest”
Arrest’ is not defined by the PACE 1984, or other legislation, and there is some inconsistency in the case law. One approach is that a person is arrested if, as a result of what is said or done, he is under compulsion and is not free to go as he pleases.
Arrest is an ordinary English word, and whether or not a person has been arrested depends not on the legality of the arrest but on whether he has been deprived of his liberty to go where he pleases .
A second approach is that context and purpose are relevant. The House of Lords distinguished between a deprivation of liberty and a restriction of movement.
Who do the police have the power to arrest without a warrant? (4)
A constable may arrest without a warrant—
a. anyone who is about to commit an offence;
b. anyone who is in the act of committing an offence;
c. anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
d. anyone whom he has reasonable grounds for suspecting to be committing an offence.
What constitutes a breach of the peace?
A breach of the peace occurs whenever harm is actually done or is likely to be done to a person or, in his presence, to his property, or where a person is in fear of being harmed through an assault, affray, riot, unlawful assembly or other disturbance.
Arrest for breach of the peace can occur when?
Any person, whether constable or civilian, has a common-law power of arrest where
a. a breach of the peace is committed in his presence,
b. the person effecting the arrest reasonably believes that such a breach will be committed in the immediate future by the person arrested, or
c. a breach of the peace has been committed or the person effecting the arrest reasonably believes that a breach of the peace has occurred and that a further breach is threatened.
In order to comply with the ECHR, Article 5(1)(c), an arrest must be for the purpose of bringing the person before a competent legal authority, but an arrest is lawful notwithstanding that the person is released before he could practically be brought before a court.
What is the minimum rank of a custody officer?
Sergeant
To what does Section 78 apply?
Section 78 applies to evidence on which the prosecution propose to rely and therefore applications to exclude evidence under the section should be made before the evidence is adduced
When should an application under Section 78 be made?
Section 78 applies to evidence on which the prosecution propose to rely and therefore applications to exclude evidence under the section should be made before the evidence is adduced
Define Confessions using Section 82 PACE
1) In this Part of this Act—
(a) ‘confession’, includes 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.
What is the general rule with regard to the admissibility of confessions (s76 PACE)
The general rule as stated in the PACE 1984, s. 76, is that a confession made by an accused person is admissible insofar as it is relevant to any issue in the proceedings and is not excluded on the grounds of oppression or in consequence of anything said or done conducive to unreliability.
Can a co-accused rely on evidence of an accused’s retracted guilty plea?
Yes. A retracted plea of guilty may also, where relevant, be relied upon as a confession by a co-accused, to which the court’s power of discretionary exclusion under s. 78 does not apply. Can be relied upon provided it complies with 76(2).
Section 76(1) PACE
In any proceedings a confession made by an accused person may be given in evidence against him insofar as it is relevant to any matter in issue in the proceedings and is not excluded by the court in pursuance of this section.
Section 76(2) PACE
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,
c. the court shall not allow the confession to be given in evidence against him except insofar as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained as aforesaid.
Section 76(3) PACE
In any proceedings where the prosecution proposes to give in evidence a confession made by an accused person, the court may of its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in subsection (2) above.
The prosecution position as to Section 76 PACE
The prosecution do not have to prove the admissibility of a confession upon which they rely unless either
a. the defence ‘represents’ that it is inadmissible under s. 76(2), or
b. the court of its own motion requires proof of admissibility under s. 76(3).
If in either case the prosecution are unable to prove admissibility beyond reasonable doubt, the confession must be excluded, notwithstanding that it may be true: the court has no discretion in the matter.
Define Oppression
Section 76(8) PACE In this section 'oppression' includes torture, inhuman or degrading treatment, and the use or threat of violence (whether or not amounting to torture).
Section 76(2)(b) – Exclusion for Unreliability. What must the court consider?
A confession should not be excluded simply on the basis that it was obtained in consequence of a threat or inducement, unless the circumstances were such that any resulting confession would be likely to be unreliable.
The PACE 1984 requires the trial judge to consider a hypothetical question: not whether this confession is unreliable, but whether any confession which the accused might make in consequence of what was said or done was likely to be rendered unreliable. It obliges the judge to consider everything said or done.
What cannot render a confession inadmissible under Section 76(2)(b)?
It has been held that a confession cannot be rendered inadmissible under the PACE 1984, s. 76(2)(b), by reason only of something said or done by the accused himself
Section 78 PACE
- 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.
- Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.