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.
The proposition has issues which are in the ambit of confession. The liability arising out of the actions of the police with regards to individuals namely Darius would be discussed individually. (1) What on earth do you think is achieved by this piece of semi-literacy?
In the first instance police do have authority under the Police and Criminal Evidence Act 1984, s 56(5)(a), s 58(6)(a) and (b) and s 58(8)(a) and (c), to stop Darius from seeking access to legal advice. As Bucket does fulfil the conditions to deny access, it would be hard to argue otherwise. The facts are not clear enough to determine the grounds for such a request. (2) The references are not entirely accurate. You have not paid attention to Annex B of Code C. Your last sentence is obscure; surely you don’t mean that a defendant has to justify his request for a solicitor to the satisfaction of the police before being allowed to exercise his right?
When Darius was interviewed it can be argued that under s 76(2)(a) and (b) and under s 76(8) PACE that the conditions of the interview were oppressive. (3) Section 76(2)(b) has nothing to do with oppression. By virtue of s 76(8) oppression includes torture, inhuman or degrading treatment, and the use or threat of violence. Darius is forced to stand during the interview. This can be said to be inhuman and degrading treatment. Darius had the right to have breaks but was not given, that would be sufficient backed with s 76(8) of PACE. (4) The reference to breaks should be accurate; see Code C, para 12.8. Your last sentence is obscure. But the main fault of this paragraph is that it doesn’t consider the effect of all these breaches of the Code.
If we take into account what Bucket said to Darius with regards to his daughter, it can be argued under s 76(2)(b) that confession was as a result of things said or done which in the circumstances at the time, to render the confession inadmissible as confession was as a result of that. (5) I can see the point you are trying to get at, but this sentence is hopelessly garbled.
After Darius’s confession he is allowed to see a solicitor. It can be argued that s 56(5)(A), s 58(6)(a) and (b) and s 58(8)(a) and (c) would not be able to operate as the facts suggest that no property was recovered due to the denial to the access of legal advice. (6) This needs explanation. I don’t understand your references, and I don’t understand the proposition that you think they support. It can be argued that Darius was denied legal counsel and was oppressed during the interview. On these bases Darius has a good chance of having his confession excluded. (7) Which interview are you talking about? After Darius was provided with a solicitor he did not change what he had said earlier. Now the court can exercise s 76(4)(a) to admit the confession. (8) This last sentence is completely incomprehensible. It can also be argued that the court can exercise its discretion under s 78 of PACE to exclude the confession. It can be pleaded that due to the previous encounter of Darius with Bucket he was oppressed on the second occasion. (8) This has the beginning of a good point, but reference to case law would help.
Darius made some serious accusations regarding Euan. As Darius is asserting that he acted under duress because of the threat Euan posed to his daughter, there would be no question of hearsay with regard to Darius but the court would consider s 114(2) CJA 2003 if the court would consider admitting evidence under s 1(d) of the Act. (9) You don’t deal with the question of whether what Darius said was admissible against Euan. You need to refer to Y (2008). Get your references right – you intended to refer to subsection (1)(d) of s 114, not s 1(d) of the Act.
Euan is allowed access to a solicitor but refuses to answer police questions. This can be a negative thing in the course of the trial. As per a case, the facts of which are that during the trial the accused mentioned his alibi which he had not mentioned when he was questioned. He said that he had told his solicitor. The judge waived the privilege and saw the solicitor’s notes, after which it was determined that he lied. (10) You don’t mention the significance of s 34 CJPOA. The case to which you refer gets your argument nowhere. The court has to make sure on giving directions to the jury that silence should be taken into account but should not be the sole reason for their decision. (11) Your summary of the law on jury direction is most inadequate. The jury may take relevant silence into account but it would be wrong to tell them that they should take it into account, and there are other important directions to give them as well.