Evidence Obtained Improperly During The Police Interviews

A lawful arrest of an individual indicates a legal ‘condition’ of the arrested individual. Likewise, a subsequent detention of an individual at a police station brings about a legal ‘consequence’. For example, confinement, which under other circumstances would amount to a false imprisonment, will lawfully restrict the individuals’ privacy and freedom of movement but it also creates legal obligations on police officers. In relation to the detention, treatment and questioning of suspects, parts 4 and 5 of the Police and Criminal Evidence Act 1984 are applicable, along with Code of Practice C: The Detention, Treatment and Questioning of Persons by Police Officers. The conduct however, of police officers, has at times been put under scrutiny by the courts, particularly under s.76 and s.78 of PACE. Under s.36(7), where a suspect is taken into a non-designated police station, any police officer present may assume the role of the custody officer although, this should not be done by the police officer investigating the case wherever possible. If this does happen and cannot be avoided, then the officer who took the suspect to the police station or any other police officer may assume the role of the custody officer, however, the arresting officer must inform an officer of at least the rank of inspector as soon as possible in accordance with s.36(9) and s.36(10). Under s.37, the custody officer must determine if there is enough evidence to charge the suspect, and if it is decided that there is cause to charge the suspect, the custody officer may detain that person for as long as necessary for that particular purpose. If not, the suspect must either be released on bail or without bail [7] . Code C of PACE covers the rights and acts as a safeguard to detained suspects, particularly sections 2 and 3 regarding the issue of custody records. Firstly, the detainee has the right to have someone informed of the arrest, for example a partner or family member. Secondly, the suspect has the right to be given legal advice [8] , that is; a solicitor, or appropriate adult must be permitted to consult a detainee’s custody record as soon as practicable after their arrival at the station and at any other time whilst the person is detained. Arrangements for this access however must be agreed with the custody officer and may not unreasonably interfere with the custody officer’s duties. Finally, they have the right to consult the Codes of Practice attached to PACE. When interviewing vulnerable persons, the interview itself cannot take place without an appropriate adult being present [9] . Whilst PACE and the Codes of Practice contain a number of provisions designed and put in place to protect the rights of persons within police custody, there are further measures available to ensure that suspects that are deemed to be vulnerable are subject to additional safeguards. These include suspects that are juveniles, persons with mental disorders, blind persons, foreign persons and those who are unable to understand English. Section 38 of PACE provides that once a person has been arrested the custody officer has to decide on one of four options that the suspect may either be released on bail or without bail, released on bail but with conditions or that they may be detained in police custody until brought before a magistrates court. The general conditions under which detained persons can be held in police custody are contained in the provisions of s.8 Code of Practice C. S.8(1) states that “So far as it is practicable, not more than one detainee should be detained in each cell”. Also a juvenile should not be placed in a police cell unless there is no other secure accommodation available. Whenever a juvenile is placed into a police cell it must be recorded and in any event, a juvenile should not be placed in a cell with an adult. The cells must be adequately heated, ventilated and also cleaned and have access to a toilet and washing facilities [10] The provisions in respect of the treatment of detained persons are contained under s.9 of Code C which is primarily concerned with general issues, medical treatment and any documentation. Firstly, there is a general provision in place that where a complaint is made or concern arises regarding a person’s treatment after being arrested, a report must be made as soon as possible to an inspector or any rank above who is not associated with the investigation. Where the particular matter may concern unlawful physical force being used, an appropriate healthcare professional must be called as soon as possible in accordance with Code of Practice C. Under s.9 detained persons should be visited every 30 minutes at least, unless they are drunk to which they should be visited every 30 minutes and also roused and spoken to. Wherever possible, juveniles and those at risk should be visited more frequently, for example those who have suicidal tendencies. This was highlighted in the case of Kirkham v Chief Constable of Greater Manchester Police [1990] [11] where it was held that the police are under a duty of care to prevent a prisoner committing suicide where they are aware that the person has suicidal tendencies. The custody officer has to take charge of the search process, including a full record of all of the suspect’s property. Under the Police Reform Act 2002, similar powers are now given to civilian detention officers, however, the case of Lindley v Rutter [1981] [12] in which a police officer conducting a search and removing items of clothing of an arrested person may not be acting “in the execution of duty” if the circumstances of the particular case do not justify such measures. The defendant was arrested in the street for disorderly behaviour while drunk. She was taken to the station and put in a cell, where a police woman attempted to search her. The search met with resistance whereupon the defendant was forcibly searched and her bra removed. The defendant was charged with assaulting a police officer in the execution of her duty and convicted. On appeal, held, allowing the appeal, that although the WPC believed she was acting in accordance with standing instructions she was still under a duty to consider whether the search and removal of clothing was necessary; she had not considered these matters and her conduct was not justified. The overall conduct of police interviews is governed by s.11 of Code C. Section 11(1) states that an interview is “the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under paragraph 10.1, must be carried out under caution”. Once it has been decided to arrest a suspect, that person must be not be interviewed about the offence in question, except at a police station or authorised place of detention, although this is subject to three exceptions if there is the possibility of a delay which would lead to interference with, or harm to, evidence connected with an offence; interference with, or physical harm to, other people; or serious loss of, or damage to, property. Evidence by the courts can be seen as inadmissible under s.78 if records of interviews are not properly kept. However, in the case of R v Heslop [1996] [13] in which the defendant appealed against conviction for murder on the grounds that the Police and Criminal Evidence Act 1984 Code C was breached by not entering in the custody record a comment he made, admitting stabbing the victim. The police officer recorded the comment in his notebook which the defendant later signed. It was held, dismissing the appeal, that there was no specific requirement that comments such as those made by the defendant should be entered in the custody record, and his conviction was not unsafe. Now routine tape recordings are part of the interview process and are governed under s.60 of PACE and further supported by Code of Practice E. this was evident in the case of DPP v Ara [2001] [14] in which DPP appealed by way of case stated against a decision by magistrates to stay proceedings against Ara as an abuse of process. The police had decided to caution Ara following his alleged admission during a police interview, at which his solicitor had not been present, of an offence of assault occasioning actual bodily harm. Ara’s solicitor had been unable to advise him to accept the caution because he was unable to assess the strength of the prosecution case in the face of a refusal by the police to release a record of the interview. Consequently Ara had been charged with the offence. The DPP submitted that, firstly, if the police were to become subject to a duty of disclosure prior to charge, the caution process would be undermined since the police would simply proceed immediately to charge and secondly the lack of disclosure did not render the proceedings such an abuse as to necessitate a stay. In general the courts are not concerned with how evidence is obtained, whether it involved unfair or improper means. They merely make a judgement on the evidence provided and presented to them and then make a decision based on this.

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