Section 25 of PACE allows the police to arrest for any offence where the suspects name and address cannot be obtained or there are reasonable grounds to believe that the name and address given by the defendant may in any way be false.
Section 25 also provides the police grounds for arrest if the believe it is necessary to prevent the person from, causing physical injury to him/herself or any other person, suffering physical injury, causing loss or damage to property, committing an offence against public decency or causing an unlawful obstruction of the highway
The Criminal Justice and Public Order Act 1994 had added extra power of arrest to PACE. This section now allows police to arrest without a warrant anyone who, having being released on police bail, fails to attend the police station at the set time. The Act also provides the police with grounds for arrest on a variety of new offences including collective and aggravated trespass.
If the police were to arrest someone they have to, make an application to the Magistrates court to arrest the named person. Such a warrant is issued under s.1 of the Magistrates Court Act 1980 which requires written information supported by evidence on oath that the person named has committed an offence. A warrant for the arrest will only be granted if the offence committed is punishable for at least five years imprisonment.
There have been many criticisms into the manner of arrest. Research by the Home Office carried out in 1998 show that far more men were arrested than women with 85% of those being arrested being male. Un-employment was the key reasons connected with arrests as 54% of those arrested were unemployed. Findings also showed that 20% arrested had no action taken against tem, the findings also showed that ethnic minority groups were more likely to have no further action taken against them indicating that the arrest should not have take place in the first place. Where ethnic minorities were charged the cases against them were more likely to have been dropped by the Crown Prosecution Service suggesting that the police are too quick to take action against ethnic minority groups. However the research was base on studies which took place between 1994 and 1995 and has been accused as being era dependent, since then there have been a number of initiatives which may have changed the patterns. These include ethnic monitoring of stop, searches, arrests and cautions.
Recent figures show that 30% more afro-Caribbean people and 40% more Asian people were stopped by police in comparison to an increase of only 8% for white people. The report on Race and the Criminal Justice system also showed that ethnic minorities were over-represented in the criminal justice system but under represented as employees.
Once a person has been arrested they are taken to a police station where they are detained. The rules governing the treatment of suspects are contained in PACE as amended by the Criminal Justice and Public Order Act 1994 together with code of practice C.
The RCCP on criminal procedure, who’s report formed part of the foundation of PACE aimed to draw clear and logical rules to govern detention and questioning. The Commission suggested that police investigations should be to the subject of three principles. Firstly fairness, giving suspects certain rights, such as the right to legal advice and that they should be made aware of their rights. Secondly openness meaning that the decision made by the police on the outcome of the arrest should be recorded so that they can be effectively supervised and inspected at a later date. Finally workability meaning that legal terms should not be excessively inhibited by the police in the investigation of crime and that they should be clear.
The balance that the RCCP imposed was for police officers to have increased powers; particularly powers to arrest suspects detain and question them. To balance this suspects were also given rights such as the rights to legal advice.
Every police station has a duty to appoint a custody officer who is at the rank of at least sergeant (s.36). The custody officer has certain responsibilities imposed on them. On arrival at the police station a person is presented to the Custody Officer and the Reason and grounds for arrest are given in the presence of detainee. A Custody Record is opened. A custody record is a comprehensive document outlining all the important information relating to the initial arrest. Other forms relating to an arrest and detention can accompany this record in a custody file. As part of the arrest process, the Custody Officer is also responsible for ascertaining what property a detainee has with them, what property may have unlawfully or for a harmful purpose and what needs safekeeping.
The custody officer may also authorise a search to the extent considered necessary and a detainee must be searched by officer of the same sex. At this stage, the Custody Officer can inform the detainee of the decision to detain them and the reasons for this and must record them on the Custody Record.
After detention is authorised, the detainee is informed of his or her rights: free legal advice, have someone informed of their arrest, and consult a copy of the Codes of Practice. The detainee is also provided with a copy of those rights and a notice of their entitlements/conditions of detention.
Once detained, there are limits on detention. A person can be held up to 24 hours without charge, this may be extended to 36 hours with Superintendent's authority, the court may also authorise up to 96 hours.
Reviews of detention are carried out periodically, 6 hours after detention and subsequent reviews at 9 hour intervals. Before a charge is bought, the duty inspector acts as the reviewing officer and after a charge the custody officer fulfils this role.
After enquiries are completed, the detainee must be released (unless certain conditions apply) either with or without bail. Otherwise, if there is sufficient evidence, the Custody Officer may authorise a charge.
All studies on the impact of PACE point towards the idea that it was exceptional for the custody officer to refuse to allow the detention of suspects. It is possible to argue the fact that a Custody Officer is unlikely to refuse to allow a suspects detention owing to solidarity with the arresting officers. The “solidarity” aspect of the Custody Officers role is stressed by McConville et al, The suspect’s right- The right to legal advice.
One of the aims of PACE was to provide balance between the police’s rights and the rights of the detainees’. The most important right provided by PACE was the right to legal advice. A detained person has a right to see a solicitor upon arrival at the police station. Section.58 of PACE state that police have the right to delay legal advice for up to 36hours in certain strictly defined circumstances. This includes if the senior police officer believes that the solicitor may interfere with, or harm to, evidence or to other persons; the alerting of others involved in the offence, or hinder the recovery of property obtained through the offence.
Although there are strict restrictions set out in s.58 there is evidence that the police continue to delay access to a duty solicitor in a significant proportion of cases. Dixon et al found that in the force they studied delay was standard practice in all serious offence cases involving either more then one person or evidence which still had to be recovered.
In the case of R v Samuel 1988 the COA stressed that it would only be on a rare occasion that such a delay was justified, and that it would be based on specific aspects of the case, not a general assumption that access to a solicitor might lead to the alerting of accomplices.
Case law suggests that police continue to delay the right to legal advice without any good reason e.g. Dunford 1990. A report by Justice 1994 also suggests that legal advice is still sometimes unlawfully denied. The report also showed that those detained under the Terrorism Act 1989 were more likely to be delayed legal advice.
In the case of Murray 1996 the European Court of Human Rights held that “even a lawfully exercised power of restrictions of access to legal advice is capable of depriving an accused of a fair procedure.
Overall PACE has proved to be successful at increasing the number of detainee’s who require legal advice. Prior to PACE the figures were around 10%, however recent research suggests that 38% of suspects now request legal advice.
Brown et al’s study found that afro-Caribbean and Asian people were more likely to require legal advice then whites. Research by Sanders et al 1989 found that police simply made no attempt to contact a solicitor in 10% of cases. Overall they failed to contact a solicitor in around 25% of cases where requests were actually made.
Lawyers play a crucial role in influencing suspects, they act as a guardian to the suspect and tell them what and what not to stay advising them on their best possible interests. Since a few suspects will be able to afford the fee of a lawyer, detainees are able to request a duty solicitor who represents the suspect at the police station free of charge; however this has proved to be very problematic.
Sanders et al 1989 found that duty solicitor were rather unwilling to actually attend a police station to advise suspects.
Although the Legal Aid board attempted to fix this problematic area by implementing stricter attendance requirements for duty solicitors, the board had to alter its proposals due pressure from solicitors, some of whom failed to put the proposals in to practice.
Sanders and Bridges 1993 found that some solicitors even resort to giving advice over the phone to avoid attending the police station.
Even if the suspect is lucky enough to meet a legal advisor there is no guarantee that the advisor is a legitimate qualified solicitor, with sufficient knowledge of the law and is able to give adequate legal advice.
McConville et al found that 75% of legal advisors attending the police station were not qualified solicitors. Although in some cases article clerks were sent, but in most cases they did not have much knowledge of the law just simply being employed by the firm.
Qualified legal advisor who do actually attend the police station usually have and attitude that there job at the police station is of little importance, the core of their jobs is to advocate in the Magistrates court.
Research on legal advice has drawn attention to the attitudes legal advisors take towards their role at the police station. Research suggests that most advisors take a passive cooperative stance towards the police rather than an adversarial one.
In the case of R v M, the accused was arrested and questioned by the police about a series of alleged sexual offences on his stem-daughter. During the interviews the defence solicitor intervened on a number of occasions implying that his client was being less than truthful. At one point he said “I’d better shut up or I’ll be accused of prosecuting the case”. The COA felt that the solicitor had “evinced a quiet open hostility” towards his client, and concluded that his interventions may have rendered unreliable any resulting confession, which should therefore have been excluded.
In the case of R v Hussain and Hussain, a 17 year old man was arrested along with his uncle, on suspicion of murdering a man following a dispute at a Mosque. The trial judge criticised the defence lawyer for failing to keep any written record of his instructions, failing to spend adequate time with his client prior to the police interviews. He concluded that the assistance and advice was “wholly inadequate”.
Another case which illustrates the incompetence of solicitors is the case of Paris, Abdullahi and Miller. In this case one of the defendants faced verbal abuse from one of the inspectors yet the solicitor remained silent throughout the questioning without uttering a word to inspector. This case just demonstrates how at times solicitors which are sent either lack skill or have no interest whatsoever.
The use of unreliable evidence increases the probability of miscarriages of justice. By regulating a way in which the police gather evidence and courts use it, the legal system hopes that innocent people will not be put behind bars due to unreliable evidence.
Eyewitness testimony has brought a lot of problems to the legal system and a lot of miscarriages of justices’ have occurred due to it. Another problematic area like EWT is confession evidence which has also led to many wrongful convictions.
There have been many cases which demonstrate the unreliability of confession evidence. The Carl Bridgewater case 1978 illustrates just this; in this a 13 year old newspaper boy was murdered when he interrupted a burglary. Consequently Michael Hickey, Vincent Hickey, Pat Molloy and Jimmy Robinson were all charged with his murder. At the trial evidence was heavily based on the evidence given by 3 prisoners who were in prison with the convicts. “Tex” one of the inmates allegedly said that Jimmy Robinson had confessed the goings on in the back garden on the day of the murder. All were convicted of murder however it later emerged that all convicted were innocent and were all released 12 years later. Unfortunately for Molloy this was no comfort as he dies in prison
Another case illustrating the miscarriages of justice is the Russell case 1996.on July 9 1996 when Lin and Megan Russell were out walking a family dog they were subjected to a vicious attack. Megan and Josie Russell both dies and Josie suffered form injuries. Following his arrest Stone was remanded in custody. At Stone’s trial, the prosecution called to fellow inmates, Damien Daley and Harry Thompson. Daley and Thompson both alleged that Stone had admitted to them on separate occasions with separate words that he was the murderer.
The day after the verdict, Thompson began to contact national newspapers, telling journalists that he had given false evidence at the trial. He then changed his story yet again saying he was telling the truth at the trial and the only reason he said otherwise was because he wanted publicity. Due to Thompson’s incompetence the COA quashed Stone’s conviction and ordered a re-trial. Fortunately Stone was convicted and sent for life imprisonment.
There are also many other cases which illustrate the miscarriages of justice another being the Birmingham 6.
If the prosecution proposes to give in evidence confession evidence made by the accused person, there might be a possibility that the evidence was obtained under oppression. If this is the case then to court will render the evidence unreliable, and will not allow the confession given against him.
Section.76 of PACE considers “oppression” to be torture, inhuman or degrading treatment, and the use of threat or violence.
“Oppression” was defined in the case of Fulling 1987 as an “exercise of authority or power in a burdensome harsh or wrongful manner; against or cruel treatment of suspects”.
Unreliable evidence may also be excluded from the courts under s.78 of PACE, which allows the court the choice to prohibit evidence where its use would have an “adverse effect on the fairness of the proceedings”
Despite s.76 and s.78 there is evidence that points towards courts still allowing unreliable evidence to pass through the courts.
An illustrative example was in the case of Paris, Abdullahi and Miller 1992 (Cardiff 3). In this case the main evidence against one of the defendants was confession evidence during police interrogation. Miller was interviewed by the police for 13 hours over a period of 5 days. During this time he denied being involved with the murder of the prostitute over 300 times, until he finally admitted being at the scene of the crime.
The COA quashed the convictions of all three relying on s.76 and s.78 of PACE. Therefore the COA held that the questioning was oppressive and the confession given by Miller could not b used as evidence as it was gained through oppression.