Under advice – resulting in a confession from the

Under what circumstances can a person be interviewed without legal representation?The legislation which refers to the delay of legal advice is found under s.58 Police and Criminal Evidence Act 1984 (PACE). However to be able to discuss the circumstances that a suspect may be interviewed with delay of access to their legal advice, there are certain criteria parts which have to be looked into. S.58 of the PACE act states, in part 6, “delay in compliance with a request is only permitted: a) in the case of a person who is in police detention of a serious arrestable offence; and b) if an officer of at least the rank of superintendent authorises it”. 1 The legislation briefly explains when it is allowed for a suspect to have legal access delayed. There are certain codes of practice which must be followed so that legal advice can be stopped from being with the suspect when being interviewed. These codes are that the officer (with equal or higher rank to those of superintendent) has to carry out some criterias so that the legal advice can be successfully delayed. If the codes were to be not followed correctly, then the officer(s) involved will be asked to then follow disciplinary procedures. Failure similar to this actually occurred in the case of R v McGovern in 1991, where the defendant was unable to understand the the case due to limited intelligence. The defendant was not allowed legal advice, and the confession which the defendant gave was seen as inadmissible in court. This was a breach of s.58 of PACE, and in the second interview the defendant was given legal advice – resulting in a confession from the defendant. Although since the conduct in the first interview affected the result in the second interview, the confession was denied. 2 A delay may only be granted for upto 36 hours, after this time legal advice must be granted – despite any circumstances. 3 Under part 8 s.58 of PACE, there are 3 different criterias in which an officer must have a good enough reason to file the request to delay legal advice for a suspect, a failure to do this would lead to; “interference with, or harm to, evidence connected with an indictable offence or interference with or physical injury to other persons; or will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or will hinder the recovery of any property obtained as a result of such offence”. These specific circumstances must be there in order to delay the access granted to legal advice and there has to be evidence that with the legal advice being present that it will result in one of the above criteria happening. In the case of R v James & Ors in 2008, a confession was given whilst there was no legal advice present. The court heard that there was no present evidence relating to unlawful conduct (as mentioned above) of the individual solicitor and when making the decision in giving the delay “the number of times that a police officer could genuinely be in that state of belief will be rare”. 4 In relation to this, the suspect cannot be charged with the offence before the delay is granted. This occurred in the case of R v Samuel, where the initial conviction was rejected when the defendant was being interviewed – at this time the presence of legal advice was not granted, and a charge of offence had already occurred. To add to this, relating to the criteria mentioned previously, access to legal advice was not granted because there was a belief that legal advice being granted may result in other suspects relating to the offence may be notified – it was essential that the probability was high. 5A breach of s.58 PACE does not always result in a rejected conviction. In the case of R v Alladice in 1988, 6 the main reason for the refusal of legal advice included the concern that the solicitor may inform other people linked with the offence. The appeal against the conviction for the defendant was declined, this was because of the decision of delaying legal advice as it was at discretion of the judge to reverse the conviction. The judge decided against excluding the evidence present, unde s.78 of PACE because the defendant was fully aware of the rights they had, as well as carrying these rights out (this includes the right to silence), because of this the presence of legal advice would not change the outcome of the case or the interview. 6 The offence in which the suspect is being interviewed for must be a serious arrestable offence. It is possible to view a list of offences which fall under the category of “serious arrestable offences” and also factors which affect normal arrestable offences, making them serious ones, under s.116 of PACE. Rape is a serious arrestable offence, and because of this, delay in legal advice to be allowed can be granted. If the criteria has been met and the relevant evidence is there, a suspect interview is allowed under code C of PACE, which is also part of the code which could potentially prevent such interviews from being conducted.Is the solicitor correct – questions which have already been posed cannot be repeated and behaviour cannot be challenged?In PACE codes of conduct, it does not mention any limits of questions being repeated in an interview, although, there are guidelines on the matter of investigative interview goals and methods dating back from 1992. As well as these guidelines there are 7 principles regarding investigative interviewing. When following these guidelines, which were made using the existing Human Rights legislation, the officers who are interviewing must have some sort of boundaries which they must work around without leaving these boundaries with regards to how suspects are treated. There is actually one guideline which relates to and may influence how repeated questions are seen in eyes of the law. Principle 6 states that; “Investigators are not bound to accept the first answer given. Questioning is not unfair merely because it is persistent”. 7 In addition to this, this means that persistent questioning in consideration to the guideline mentioned above, is allowed. However, there could be a point in which persistent questioning becomes oppressive and oppressive behaviour can actually lead to evidence being inadmissible in the court. In the case of R v Fulling in 1987, Lord Lane CJ stated that oppression occurred resulting in the behaviour of “exercise of authority or power in a burdensome, harsh or wrongful manner, unjust or cruel treatment of subjects, unfairness etc, or the imposition of unreasonable or unjust burdens”. 8 This can relate to the case of R v Heron in 1993, where officers made persistent questioning, to get a confession for the murder of a 7 year old girl. This resulted in the case being removed from the court, although the questioning may not of being unjust, cruel or aggressive it was mainly the style and purpose of the questioning which became a problem to the judge. 9 As a result of this, it was said “where the line is to be drawn between proper and robust persistence and oppressive interrogation can only be identified in general terms” meaning that it is hard to draw the line between robust and oppressive questioning 10. Although, there has been cases where repeated questioning has gone too far. In Code C of PACE, there are a few guides for the police officer which mention that oppressive behaviour whilst interviewing must not be conducted. For the PEACE model of investigative interviewing, it mentions that repeated questions are basically what makes up the account clarification and challenge section of the model. The model is what all policing interviews in the United Kingdom must follow. If police officers did not have the freedom to repeatedly ask questions, it would become a lot harder to find out the full truth behind things – which is the whole point of the investigation interviews.  Another principle states that; “This principle extends the right of an investigator to put questions to those they believe can help them to establish the truth of a matter under investigation”. 11What are the dangers of submitting pre-prepared statements?The point of giving in a pre-prepared statement is to generally give a written copy of the information of the case, from the victim(s) opinion. This is usually done at the beginning of the interview with the suspect. If the statement has high levels of details and does not fail to mention the facts which are mentioned in court, then the statement will have the power to invalidate any adverse inferences. An occasion in which inferences may be drawn can be looked upon under s.34 of the Criminal Justice and Public Order Act of 1994 (CJPOA) which states that; “Where, in any proceedings against a person for an offence, evidence is given that the accused – at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings”.