Life in crime

Older readers may remember that there was once a time before the Police and Criminal Evidence Act (PACE) 1984, when all the police officers looked like Life on Mars' Gene Hunt. Men were men and verbals were verbals. In those dark days trials were taken up with cross-examination of the police about the speed of their hand writing, their ability to make notes in moving cars, whether they offered bail or at least a sandwich to the 'prisoner' and all manner of such things.

The players in court all knew that they were engaged in a charade, with both sides probably telling less than the whole truth about the 'confession'. The game was played according to the 'Judges' Rules', a non-statutory guide to the conduct and admissibility of police interviews first codified in 1906 (nowadays it would no doubt be called a protocol).

Eventually everyone got fed up and Mrs Thatcher's government enacted PACE, with its tape-recorded interviews and the other procedures with which we are all familiar. Almost overnight verbals went out of fashion, although it took the electro-static detection apparatus (ESDA) testing of over-written faked manuscript interview notes to kill them off '“ even then, some police forces handed out plastic sheets to place under the page of the notebook being written on, to prevent a mark being left on the page beneath.

Now most people would agree that PACE has served the police and the justice system well. The opportunities for misbehaviour and for unfounded claims of abuse have greatly diminished.

Consultation document

In March the Home Office issued a consultation document for a fundamental review of PACE, called 'Modernising Police Powers'. It says they are not looking to dilute safeguards, but all the proposals give more power to police officers, while having little of substance to say about the rights of those in their custody.

A striking proposal is to abolish the existing rules about questioning suspects after they have been charged: the police cannot do so now, 'unless the interview is necessary to prevent or minimise harm or loss to some other person, or the public; to clear up an ambiguity in a previous answer or statement; in the interests of justice for the detainee to have put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted' (Code of Practice C16.5).

If the suspect chooses not to answer questions at this stage, no adverse inference may be drawn against him. Instead, the government want an open-ended process of interview, with the police free to come back to the suspect with more questions, and with the inference available if he makes no comment.

The rule against post-charge questions has a long and honourable history: even before the 1906 Judges' Rules, the courts tried to prevent situations in which defendants would be at risk of making false confessions, which was thought more likely the longer they were held in detention or the longer police questioning lasted.

Once charged, the suspect would be vulnerable to trying to plea-bargain with the police by making false confessions to lesser crimes to try and get the charge reduced or dropped.

That reasoning was put on a statutory basis, with teeth, in PACE. The idea that the police may misbehave, or that people in detention may say anything to get out, is probably not a 'modern' one, but human psychology hasn't changed much (since 1986 anyway), especially when reclining in a 6x8 prison cell.

So the PACE review went on its way, responses were received, and the outcome is awaited. At least until June 2007, when the same Home Office issued a consultation document on changes in the terrorism laws: besides wanting longer pre-charge detention, they propose bringing in post-charge, inference-bearing interviews for terror suspects. They acknowledge that the PACE review is still pending but they want to press on regardless.

Adversarial principle

What seems to have got lost in all this is the fundamental principle that criminal justice remains adversarial '“ not for the hell of it, but because the Crown should present its case whole, for the defence to respond to if necessary. That presupposes a reasonable time-limit on the stage of the investigation during which the suspect is at risk of incriminating himself in police interviews, not a moving target.

Even with the (unmodernised) PACE protections, being a criminal suspect is a disorienting, even terrifying experience. There is a risk of great unfairness if interviewing about the same offences is allowed to go on and on, with unreliable confessions and unsafe convictions resulting. That is a 1970s revival that no one wants.