Darius and Euan are arrested on suspicion of burglary. At the police station Darius asks to see a solicitor, but Superintendant Bucket refuses, saying that he believes recovery of the stolen property would be hindered if Darius is not interviewed at once. Darius’s watch and other personal possessions are taken away. He is then interviewed for three hours by Bucket without a break, during which time Darius is forced to remain standing. He persistently denies his involvement. At the end of three hours Bucket concludes the interview and Darius is returned to his cell. Shortly afterwards, however, Bucket visits the cell and says to Darius, ‘You have a daughter, don’t you? It would be such a pity to bring her in as well, but I think she might be willing to help us over this little problem. Some of our female officers are so persuasive.’ Darius breaks down in tears and says, ‘Euan and I did the burglary together, but I only got involved because he threatened to cut my daughter’s face if I refused.’ He is then allowed to see a solicitor. At a second formal interview Darius, in the presence of the solicitor, repeats what he said in the cell to Bucket.
Euan is allowed access to a solicitor, but on the solicitor’s advice he refuses to answer any police questions.
Discuss the evidential matters arising.
Darius has made a statement that is partly adverse to him, and so it amounts to a confession under s 82(1) of PACE 1984. The question then is can this confession be excluded either under s 76(2)(b) or s 78 of PACE. (1)
The candidate has plunged straight into his answer, with no waffling and no time wasted in copying out the relevant statutory provisions. Good.
The refusal to grant access to a solicitor is legitimate if Darius is detained for an indictable offence and an officer of the rank of superintendant or above has reasonable grounds to believe that the exercise of that right would lead to one of the consequences listed in s 58(8) of PACE. Hindering the recovery of stolen property is one of those consequences. However, according to Code C Annex B of the Codes of Practice issued pursuant to PACE, a decision to delay access to a specific solicitor is likely to be a rare occurrence, and there is no evidence that Darius has asked for a specific solicitor. His request could have been granted by allowing him access to the duty solicitor (Note B3 of Code C, Annex B). (2) The candidate has the point exactly.
The removal of Darius’s watch and other personal possessions gives rise to the possibility of a breach of Code C, para 4. The question here is whether the custody officer considered that Darius might use them to cause harm, interfere with evidence, damage property or effect an escape. (3) The candidate has noted the effect of para 4.2, but might also have referred to para 4.3, which could have provided an excuse to remove the watch.
There has also been a breach of Code C, para 12 in respect of the interview. First, Darius should not have been interviewed for more than two hours without a break (para 12.8). Secondly, he should not have been required to stand (para 12.6). (4)
Good points.
Bucket’s subsequent visit to Darius in his cell amounts to ‘something said or done’, which caused the confession to be made, and so is within s 76(2)(b) of PACE. For this reason, and by reason of the substantial breaches of Code C discussed above, it appears that Darius’s confession would be excluded under s 76(2)(b). Section 78 also applies to confessions (Mason). Section 76(2)(b) is the preferable defence option, however, because under s 78 the court has only a discretion to exclude evidence. (5)
The candidate now shows the significance of the Code breaches and rightly distinguishes between s 76 and s 78.
Darius’s second interview may also be excluded, for the rule seems to be that if the first interview is tainted, a subsequent interview may be as well. This was the position in McGovern. However, in the later case of Neil the Court of Appeal said that whether a second confession would be excluded would depend on whether the matters that led to the exclusion of the first interview were of a fundamental and continuing nature. In the present case, some weight would obviously be given to the fact that the defendant had legal advice before the second interview. The case for exclusion might be helped if the second interview was conducted by the same officer as the one who delivered the threat. (6) The candidate not only refers to McGovern, but also to Neil. While he cannot predict whether the second confession would be excluded, he refers to some relevant factors that a court would be likely to take into account in reaching a decision.
If Euan subsequently relies in his defence on matters that he could reasonably have been expected to mention when questioned by the police, the jury may be invited to draw inferences under s 34 of the Criminal Justice and Public Order Act 1994. In that case the judge would have to remind the jury of the fact or facts not mentioned in interview on which the prosecution relies. The jury must be told that if inferences are drawn, they cannot convict on them alone, or if they are the main evidence against Euan. Inferences can be drawn only where it is fair to do so, and where the prosecution case is so strong that the only sensible explanation for the defendant’s silence is that he had no answer or none that could stand up to scrutiny. The fact that Euan is silent on legal advice also calls for a special direction. The question is not whether it was reasonable to rely on the legal advice, but whether it was reasonable for the defendant not to mention under questioning the matters that he later relied on in his defence (Essa). (7) An excellent summary of the position under s 34. The candidate refers in some detail to the directions that have to be given where that section applies.