Unit 5 Introduction to PACE

Question 1

Definition of an Interview under C.11 PACE

Answer 1

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’.

Question 2

The three grounds a caution is not necessary

Answer 2

(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.

Question 3

Under what circumstances must a Special Warning be given under C10.11

Answer 3

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

Question 4

What is a significant statement?

Answer 4

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.

Question 5

What constitutes “reasonable suspicion?

Answer 5

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.

Question 6

What does it mean for a decision to be Wednesbury unreasonable?

Answer 6

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.

Question 7

Legal characteristics of “arrest”

Answer 7

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.

Question 8

Who do the police have the power to arrest without a warrant? (4)

Answer 8

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.

Question 9

What constitutes a breach of the peace?

Answer 9

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.

Question 10

Arrest for breach of the peace can occur when?

Answer 10

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.

Question 11

What is the minimum rank of a custody officer?

Answer 11

Sergeant

Question 12

To what does Section 78 apply?

Answer 12

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

Question 13

When should an application under Section 78 be made?

Answer 13

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

Question 14

Define Confessions using Section 82 PACE

Answer 14

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.

Question 15

What is the general rule with regard to the admissibility of confessions (s76 PACE)

Answer 15

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.

Question 16

Can a co-accused rely on evidence of an accused’s retracted guilty plea?

Answer 16

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).

Question 17

Section 76(1) PACE

Answer 17

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.

Question 18

Section 76(2) PACE

Answer 18

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.

Question 19

Section 76(3) PACE

Answer 19

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.

Question 20

The prosecution position as to Section 76 PACE

Answer 20

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.

Question 21

Define Oppression

Answer 21

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).

Question 22

Section 76(2)(b) – Exclusion for Unreliability. What must the court consider?

Answer 22

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.

Question 23

What cannot render a confession inadmissible under Section 76(2)(b)?

Answer 23

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

Question 24

Section 78 PACE

Answer 24

1. 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.
2. Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.

Question 25

The burden for the exclusion of evidence (s78)

Answer 25

It is for an accused to persuade the court that the evidence of a prosecution witness ought to be excluded under s. 78 and that the burden is ‘no higher than the balance of probabilities’.

Question 26

What is the question the court should consider in deciding the admissibility of evidence?

Answer 26

The question is whether 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. Even a plain and admitted breach, though it is to be deplored, may fail to trigger exclusion if it does not operate in a way prejudicial to the accused. It is submitted that the issue is not whether the breach against the other accused caused the confession by D (as plainly it did not) but whether the breach affected the fairness of using D’s confession (which it may have done).

Question 27

The 2 key questions for assessing a breach to Right of legal advice

Answer 27

i. whether there existed compelling reasons for the restriction of access, and
ii. whether, viewing the proceedings as a whole, the trial was fair.

Question 28

What should a waiver of legal advice be?

Answer 28

Waiver of legal advice should be voluntary, informed and unequivocal

Question 29

Procedure for challenging the admissibility under s76

Answer 29

a. The defence advocate would notify the prosecutor that an objection to admissibility was to be raised.
b. The prosecutor would then refrain from mentioning the statement in opening to the jury.
c. At the appropriate time the judge would conduct a trial on the voir dire to decide on the admissibility of the statement
The PACE 1984, s. 76(2), follows the common law by providing that where the defence represent that a confession on which the prosecution propose to rely was, or may have been, obtained in such a way as to render it inadmissible in evidence, the court shall not allow the confession to be given in evidence except insofar as the prosecution prove to the court beyond reasonable doubt that the confession was not so obtained. 

Question 30

Section 76(4)-(6) PACE

Answer 30

4. The fact that a confession is wholly or partly excluded in pursuance of this section shall not affect the admissibility in evidence—
   a. of any facts discovered as a result of the confession; or
   b. where the confession is relevant as showing that the accused speaks, writes or expresses himself in a particular way, of so much of the confession as is necessary to show that he does so.
5. Evidence that a fact to which this subsection applies was discovered as a result of a statement made by an accused person shall not be admissible unless evidence of how it was discovered is given by him or on his behalf.
6. Subsection (5) above applies—
   a. to any fact discovered as a result of a confession which is wholly excluded in pursuance of this section; and
   b. to any fact discovered as a result of a confession which is partly so excluded, if the fact is discovered as a result of the excluded part of the confession.

Question 31

What is the impact of Section 76(4)-(6) PACE?

Answer 31

It was held that the principle requiring the rejection of certain confessions in evidence ‘has no application whatever as to the admission or rejection of facts, whether the knowledge of them be obtained in consequence of an extorted confession, or whether it arises from any other source; for a fact, if it exists at all, must exist invariably in the same manner, whether the confession from which it is derived be in other respects true or false’.
If the confession results in the discovery of fact (e.g. stolen property) then this evidence is unaffected by the exclusion of the confession under s76.

Question 32

Can the court exclude evidence under Section 78 because they disapprove of the methods used to obtain it?

Answer 32

No. The critical test under s. 78 is whether any impropriety affects the fairness of the proceedings: the court cannot exclude evidence under the section simply as a mark of its disapproval of the way in which it was obtained.

Question 33

Can Magistrates hold a voir dire?

Answer 33

No. There can be no question of a trial within a trial in proceedings before magistrates, because the function of the voir dire is to allow the tribunal of law to decide a point of law in the absence of the tribunal of fact, and magistrates are judges of both fact and law.

Question 34

What is a Magistrates duty under a s78 application?

Answer 34

The duty of a magistrate, on an application under s. 78, is either to deal with the issue when it arises or to leave the decision until the end of the hearing, the objective being to secure a trial that is fair and just to both parties.
Thus in some cases the accused will be given the opportunity to exclude the evidence before giving evidence on the main issues, because if denied that opportunity his right to remain silent on the main issues will be impaired, but in most cases it is better for the whole of the prosecution case, including the disputed evidence, to be heard first, because under s. 78 regard should be had to ‘all the circumstances’ and fairness to the prosecution requires that the whole of its case, in this regard, be before the court. In deciding, the court may take account of the extent of the issues to be raised by the evidence of the accused in the trial within a trial. A trial within a trial may be appropriate if the issues are limited, but not if it is likely to be protracted and to raise issues which will need to be re-examined in the trial itself.
Where there is a s. 78 challenge to evidence of statements made by an accused, it is normally desirable in the interests of justice for the court to hear the evidence in question and to have canvassed in questioning any circumstances which it is said would render its admission unfair. Where the justices resolve to exclude it, they should then consider, after seeking the views of the parties, whether the substantive hearing should be conducted by a differently constituted bench.

Question 35

The role of the Custody officer

Answer 35

• Authorises the suspect’s detention
• Notes the time of the suspect arrival
• Ensures that the suspect is treated in accordance with the PACE 1984 and the Codes of Practice
• Opens the custody record and maintains recording all matters that are required under the Act and Codes
• Informs the detainee of their rights
• Assesses whether a suspect is a juvenile / vulnerable person
• Organises an appropriate adult if necessary
• Organises for an interpreter if necessary
• Ensure the suspect has access to free and independent legal advice
• Liaises with the solicitors on their arrival
• Ensures the suspect is fit to be interviewed