Update: police

Pre-interview admissions

Police station practitioners will be interested to note several recent cases concerning breaches of PACE and, more particularly, how they should be remedied.

One key area has been admissions before police interview under caution. When pre-interview disclosure reveals that the client has already made full admissions to another investigator, the instinctive starting point for the police station adviser is often full admissions to the police.

However, a recently decided appeal case reminds us of the need to consider carefully the circumstances in which any earlier admission was made in order to assess its likely admissibility.

In R v Bhavna Dhorajiwala [2010] EWCA Crim 1237, the Court of Appeal was asked to consider a confession to the offence of theft which was made by a pharmacist to civilian investigators in the course of a caution interview carried out at her place of work. It was the appellant's case that she had been prevented from leaving the room, not allowed access to a solicitor and threatened that she may end up in prison. It was argued on behalf of the appellant that the interview with the private investigative agencies should be excluded.

The first ground was that the procedure adopted at the initial interview was in breach of several provisions of the Police and Criminal Evidence Act 1974 (PACE) Codes of Practice and that these breaches were so significant that they should be excluded under section 78 of PACE. The second ground was that the interview amounted to a confession for the purposes of section 76 of PACE and it was unreliable because of the oppressive methods used, or obtained as a result of things said or done which were likely to render it inadmissible.

The Court of Appeal dealt only with the section 76 point. It was held that the trial judge had erred in failing to conduct a voir dire in relation to these arguments and relying only on the submissions of counsel. In the absence of a voir dire, it was impossible that the judge could properly have been satisfied that the prosecution had proved beyond reasonable doubt that the confession had not been obtained by one of the means set out in section 76. The conviction was therefore quashed.

The lesson: if in doubt, 'no comment' remains the safest option.

Off the record

Meanwhile, the case of R v Amit Heera [2010] EWCA Crim 1779 concerned the more usual situation where a suspect makes 'off the record' comments to officers before the commencement of the formal interview under caution. In this case, it was common ground that the appellant had insisted on providing two civilian investigators with an account before the formal interview and also that he had been reminded at that time that he was still under caution.

It was argued at the appeal that the trial judge had erred in permitting the introduction of the evidence relating to the pre-interview statements of the appellant. First, code C11.4 required that the remarks should have been put to the appellant at the start of the formal interview after he had been cautioned, and the appellant should have been asked whether he wished to confirm or deny these statements. Second, code C11.13 required that the appellant should have been asked to read and sign a written note regarding his comments. It was accepted that neither of these procedures were followed.

However, the court found that the conclusion of the trial judge was not unreasonable. It was held that it would have been wholly unreal for the judge to have excluded entirely the evidence about what was voluntarily said before the formal interview. It was held that the judge's remarks in his summing up adequately alerted the jury to the breaches of the code and that this was sufficient to warn the jury that they should exercise caution in relation to the contents of this statement.

This case is a reminder of the need to advise clients, wherever possible, of the dangers of engaging in 'off the record' conversations with investigating officers.

Identity parades

Identification procedures, and potential breaches of these procedures, also continue to be a fertile source of appeals to the upper courts.

In R v Devron Pope [2010] EWCA Crim 2113, it was the failure to record the initial identification of a suspect by a police officer from CCTV stills which formed the basis of the appeal. It was accepted that this failure constituted a breach of code D which, in conjunction with annex E, requires that a record be kept of the showing of photographs to all witnesses, including police officers, to assess the reliability of the alleged recognition.

Notwithstanding this breach, the court held that the trial judge was entitled to exercise his discretion to admit this evidence. It was held that this failure did not rob the identification of all validity; rather, it was for the jury to decide whether they were satisfied as to the reliability of the identification.

The case of R v Gojra and Dhir [2010] EWCA Crim 1939 raised a number of identification issues. The court was not prepared to accept that the absence of a full audit trail in respect of one identification procedure, and the possibility that the appellant's name had been provided to the witness, was sufficient to render the admission of the evidence of a positive identification unfair.

However, the police had failed to hold a further procedure in respect of a second witness and the trial judge directed the jury to the effect only that it might have been 'desirable' had this been done. The Court of Appeal found that this was a misdirection. The question was not whether it was 'desirable' to hold an identification procedure but rather whether there existed a positive obligation to hold one. As a result, the conviction was unsafe.

Search and destroy

Cook v Serious Organised Crime Agency [2010] EWHC 2119 (Admin) related to an application to judicially review the decision of the Serious Organised Crime Agency (SOCA) to seize documents which had been the subject of the unlawful execution of a search warrant.

It was accepted that the search and seizure had been unlawful. However, SOCA proceeded to obtain a receipt for a number of these items from the claimants and then purported to seize the material under the general power of seizure conveyed by section 19 of PACE as an alternative. It was held that SOCA was not entitled to use section 19 to keep documents which had been unlawfully seized by the device of obtaining a receipt in relation to these documents: if a warrant does not comply with the law, the material must be physically restored into the possession of the person from whom they were taken before they can be lawfully re-seized under an appropriate power.

On a similar point, it was held in Cummins v Manchester Crown Court [2010] EWHC 2111 (Admin) that the claimant was entitled to an unconditional return of what was seized as a result of an unlawful warrant and its execution. It was accepted that the warrants did not comply with section 15(6)(a)(iii) of PACE as they failed to give sufficient indication of the nature of the investigation in respect of which the warrants were issued. The court ordered that the documents be returned.

However, in both these cases, the court declined to order the destruction of all copy documentation, on the basis that section 78 of PACE was capable of controlling the use to which copies of documents could be put. The court observed that criminal litigation was not a game: investigation authorities ought not to be placed in a worse position than if the warrant had never been obtained. In both cases, it was open to the authority to apply for a fresh warrant in respect of the items sought.

Finally, in the case of Sher v Chief Constable of Greater Manchester [2010] EWHC 1859 (Admin), it was held by the Administrative Court that a warrant authorising the police to search the relevant premises 'on one occasion' did not mean that the search had to be completed in one day: searches of between four and 11 days' duration were not in breach of the warrant.

Guilty plea

The Law Society has issued a warning that criminal suspects need to be given proper legal advice if they are to be encouraged to admit to offences at the police station in return for receiving a more lenient sentence (Law Society press release, 26 August 2010). This warning comes following the government's plans for costs-saving schemes unveiled earlier this year, which include proposals to give bigger reductions in sentences in return for admissions of guilt at the police station.

The new Sentencing Council, chaired by Lord Justice Leveson, has begun a review of the guidelines for reducing sentence (see 'Update: police', Solicitors Journal 154/27, 13 July 2010). The council is concerned that defendants are getting full discounts for a guilty plea entered at the last possible minute (in the Crown Court) and has noted the impact this has on public resources.

The Law Society is concerned that some suspects may face increased pressure to make false admissions at the police station and that officers may be less likely to investigate cases thoroughly. It has warned that suspects will need to be given appropriate legal advice so that they understand the legal position before admitting to an offence at this stage.

Police misconduct

Sir Paul Stephenson, the Metropolitan Police commissioner, has recently been criticised by civil liberties campaigners after calling on the government to make it harder for individuals to take legal action against the police.

In a confidential letter to the home secretary earlier this year, Sir Paul suggested making it more difficult for members of the public to bring civil cases against police. His suggestions include making it harder for people to sue the police for damages in civil actions on the basis that money was being wasted on speculative claims instead of being directed towards fighting crime.

It is hoped the government will recognise that, even in these difficult economic times, the principle of justice must be upheld. Given recent high-profile cases of police misconduct, it has never been more important for the public to have confidence that such behaviour can be effectively challenged.