This can arise when interviewing a suspect, outlined in

This essay will describe and explain the issues that can
arise when interviewing a suspect, outlined in the scenario given.

It is well known the when in police custody you have the
right to legal advice, ‘A detainee has a right to free legal advice and to be
represented by a solicitor.’ (REVISED CODE OF PRACTICE FOR THE DETENTION, TREATMENT,
AND QUESTIONING OF PERSONS BY POLICE OFFICERS, 2014). It is stated in article 6
of the human rights act 1998 that everyone has the right to a fair trial. When
arrested the detainee must be informed of the nature and cause of the
accusations against him, and the detainee also has the right ‘to defend himself
in person or through legal assistance of his own choosing or, if he has not
sufficient means to pay for legal assistance, to be given it free when the
interests of justice so require.’ (Human Rights Act 1998). It is the job of the
custody office to inform the suspect of their rights on arriving at the police
station.

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The Police and Criminal Evidence Act 1984 was put in place
following recommendations issued by the Royal Commission on Criminal Procedure.
Its purpose was to unify police powers under once code of practice. Pace code C
states ‘all detainees must be informed that they may at any time consult and
communicate privately with a solicitor, whether in person, in writing or by
telephone, and that free independent legal advice is available.’ (CODE C
Revised Code of Practice for the detention, treatment and questioning of
persons by Police Officers, 2017). Unless an officer of the rank superintendent
or above have reasonable grounds to believe that the consequent delay might;
lead to interfere with evidence connected with an offence, lead to the physical
harm of another person, lead to the loss or damage of property, lead to
alerting other people suspected of having committed an offence: ‘when a solicitor,
including a duty solicitor, has been contacted and has agreed to attend,
awaiting their arrival would cause unreasonable delay to the process of
investigation.’ (CODE C Revised Code of Practice for the detention, treatment
and questioning of persons by Police Officers, 2017). A suspect can also be
interviewed without seeking legal advice or having a solicitor present if they
state they do not want to speak to a solicitor.

In the case R v Samuel 1988, the suspect was arrested on
suspicion of robbery and burglary. He was interviewed four times over the
course of 24 hours about the robbery and 2 burglary’s but denied the offences,
during the second interview the suspect requested for access to a solicitor. As
a result of code C in The Police and Criminal Evidence Act 1984, the request
was denied by an officer of the rank of superintendent or above. A delay in the
suspects access to a solicitor was allowed as he was detained in connection to
a serious arrestable offence, and the suspect had not yet been charged for the
offence. ‘The police superintendent to whom the appellant’s request was
referred decided to refuse him access to a solicitor on the ground that two of
the offences being investigated, namely the robbery and one of the burglaries,
were serious arrestable offences and there was a likelihood of other suspects
involved in the robbery being inadvertently warned’ (R v Samuel 1988). During
the fourth interview the suspect confessed to the two burglaries’ and was
charged. The suspects solicitor was informed of the charges but was denied
access to the suspect. During a fifth interview the suspect confessed to the
robbery and was charged, the solicitor was informed and then allowed to see the
suspect. At trial the defendant was convicted but later appealed against the
conviction of robbery. The defendant argued the was wrongly denied access to
his solicitor as he had earlier been charged with burglary and then denied
again from seeking legal advice. Therefore, the evidence in the final interview
was unfairly obtained. The conviction was held. The defendant was wrongly
denied one of his most important rights, the appeal should have been allowed
and the conviction should have been suppressed.

 

In a police interview, the police must remain professional
and impartial as, due to article 6 of the human rights act 1998 anyone charged
must be thought of as innocent until proven guilty. When repeatedly asking the
same questions to a suspect the police could be seen as trying to pressure the
suspect into confessing, or if the suspects answer changes the police can try
to use it as evidence against them. Section 78 of The Police and Criminal
Evidence Act 1984 states ‘Exclusion of unfair evidence. 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.’ (Police and Criminal
Evidence Act 1984) If the same question was asked over and over again it can be
seen as the police trying to trick a suspect, therefore, the solicitor is well
within his rights to argue his client had already given an answer. If the
solicitor had not argued in the interview room, it could have potentially be
used in court as a defence that any evidence was unfairly obtained.

In the case R v Mason, the appellant was arrested on suspicion
of arson. There was no direct evidence linking the suspect to the crime which
had taken place. The police falsely told the suspect and his solicitor that
there was a piece of evidence found near with the scene with the suspects
fingerprints. The suspect then confessed he had asked a friend to commit the
offence and supplied him with bottles containing inflammable liquid, therefore that’s
how the suspects prints ended up on the bottle. At trial the defence challenged
the admissibility of the confession under section 78 of The Police and Criminal
Evidence Act 1984, the judge decided it would not be unfair to admit the
confession and the applient was convicted. Mason appealed the judge’s ruling, but
the decision was held. The judge had wrongly used his discretion as he did not consider
the deceit used by the police in order to get a confession. The police do not
have to disclose evidence to a suspect and their solicitor when interviewing
but they are not allowed to lie. Therefore, due to the deceit shown by the
police the conviction should have been quashed.

In the case R v Paris, Abdullahi and Miller 1992, the three
appellants were arrested and charged with murder, although the police had no
forensic evidence linking them with the crime. The evidence given in court came
from a confession from Miller and discredited witnesses. It was revealed in
court that Miller had a mental handicap and when being interviewed by police was
screamed at by police over 300 times to confess, and eventually Miller admitted
to murder. Due to this Millers defence argued he was brainwashed into
confessing. Because of the circumstances around the confession the judge advised
the jury to consider the Miller case last. It is believed that the jury
disregarded the judge’s advice. ‘All three appellants were convicted and
appealed against conviction on the basis of the prejudicial effect of the
admission of M’s confession, claiming that it had been obtained under oppression
contrary to s 76 of the Police and Criminal Evidence Act 1984.’ (R v Paris, Abdullahi ans Miller 1992). The police are
well with in their rights to pursue the interrogation of a suspect, however the
oppression shown towards Miller would not be allowed under section 76 of the
Police and Criminal Evidence Act 1984 when the suspect was shouted at and asked
over 300 times for his involvement. Due to the lack of reliable evidence, and
Miller being mentally handicapped the jury may have shown prejudice when deciding
on the appellants guilt. An appeal was allowed and the convictions were
suppressed.

Pre-prepared statements can sometimes favour the defence, as
it allows the suspect to memorise a false account of what happened and when
questioned can later refer to the statement. The solicitor may advise the
suspect to put forward a pre-written statement as an open statement in order to
prevent the officer in charge from dominating the interview and the solicitor
from being a silent spectator. A written statement cannot stop the OIC from
interviewing the suspect. If the suspect choses to put forward a pre-written
statement, prior to the interview the OIC must sign date and time the statement.
If the interview goes ahead the suspect should be asked to read out the entire
statement and then the police are able to ask relevant questions which may not
have been addressed in the statement.

In the case R v Knight 2003 section 34 of the Criminal
Justice and Public Order Act 1994 referenced to. The defendant was accused of
putting his hands down a child’s trousers. When being questioned the defendant
put forward a pre written statement which his solicitor read out in the
interview room, and refused to answer any of the questions asked by the police.
In his statement the defendant denied the allegations and on trial gave
consistent evidence matching with the statement that he had not touched the
child, the defendant also added information he did not mention when being
questioned. The defendant added ‘he had refused to answer police questions on
his solicitor’s advice and that he had chosen to accept that advice because of
concern that he might get confused and give wrong answers.’ (R v Knight,
2003) the judge directed the jury an inference can be taken from the
defendant’s decision to not comment in the interview and to consider section
34(1)(a) of the Criminal Justice and Public Order Act 1994. Section 34(1)(a)
states ‘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.’ (Criminal Justice and Public Order Act 1994
Section 34). The defendant was found guilty. The defendant appealed on the
grounds no adverse inference should arise as the defendant followed the
solicitors advice in submitting a written statement and remaining silent
throughout the interview. The appeal was allowed. It was found the judge was
incorrect in his direction of the jury to infer the defendant’s guilt by him
remaining silent. ‘Per curium: The mere receipt of advice to silence from a
solicitor does not itself immunise the defendant from adverse inferences
subsequently drawn at trial.’ (R v Knight, 2003).

Pre-written statements can also harm the defence as shown in
the case R v Turner 2003. In the case three people were accused of assault and
arrested. The defendant was found with blood stains on his clothing. In the
interview the defendant submitted a pre-prepared statement saying he did not
assault the victim but instead was splitting up the fight, and answered all
questions with ‘no comment’ on the advice of his solicitor. At trial the judge
directed the jury that a pre-prepared statement is not a substitute for
answering police interview questions and referred to sections 34 and 36 of the
Criminal Justice and Public Order Act 1994. Section 36 states ‘Effect of
accused’s failure or refusal to account for objects, substances or marks. Where
a person is arrested by a constable, and there is on his person; or in or on
his clothing or footwear.’ (Criminal Justice and Public Order Act 1994, Section
36) As the pre-prepared statement is not a substitute for answering questions
unless addressed in his statement the blood on his clothes were not accounted
for. The defendant was found guilty of grievous bodily harm. However, the
defendant appealed on the grounds, ‘that the judge had failed to identify the
facts which had not been mentioned in the pre-prepared statement and had failed
to make it clear to the jury that it was the failure to mention those facts
rather than merely answering no comment that might give rise to the drawing of
an adverse inference.'(R v Turner 2003) the appeal was allowed. It was found
that the judge put too much emphasis on the fact the defendant answered ‘no
comment’ and incorrectly suggested that adverse inference should apply to this
part of the case, when as a matter of fact he should have emphasized the
defendant relying on information he had not included in his original
pre-written statement. As a result there was a risk the jury had drawn adverse
inference from wrong information given from the judge. ‘(1) The growing
practice of submitting a pre-prepared statement and declining to answer any
questions in interview may prove a dangerous course for an innocent person who
subsequently discovers at the trial that something significant has been
omitted. No such problems would arise following an interview where the suspect
gives appropriate answers to the questions.’ Even though the defendant was an
innocent party, following his solicitor’s advice by answering questions with no
comment worked against him in court, where as no such problem would have arisen
if the defendant had answered the questions appropriately.