Judicial Review and Police Powers – Part 2
Introduction
The paper focuses on the legality of police actions and confession admissibility. In the endeavour to accumulate evidence of adequate weight to realize a conviction, police have in some cases adopted inappropriate methods such as acquiring confessions unfairly. The common law accompanied by the Codes of Practice has provided obligations and guidance that relate to police conduct, especially when investigating crime. Police conduct and the manner in which confession was gathered determine whether the evidence is admissible. Additionally, the paper is guided by the Police and Criminal Evidence Act 1984 (PACE) which is concerned with the duties and powers of the police, the admissibility of evidence, and the rights of suspects. The paper provides advice to Dean on the legality of the actions of the police and on the admissibility of the confession and the iPods as evidence in any subsequent trial.
Admissibility of Confessions
According to S82 (1) PACE 1984 confession is defined as “any statement wholly or partly adverse to the person who made it whether made to a person on authority or not and whether made in words or otherwise”. Thus, confessions that do not meet the above requirements are not admissible and they cannot be used in a court of law. According to Section 76(2), the PACE has directed the court to eliminate from the trial process, evidence gathered from confession acquired through oppression or in instances that were likely to make the confession defective. Thus, the admissibility of the confession must be put into consideration by the court before the evidence is used to convict the accused. Confession must be acquired fairly. According to s78 PACE evidence can be excluded from court even when it would be admissible on the basis of being unfair to adduce it.
In regard to the case, the confession was acquired in an unfair manner, and as such it is not admissible in the court of law. This is in accordance with the Lord Lane C.J ruling in the case of R v Quinn Crim L.R. 581 where the concept of fairness was introduced. For example, the confession was acquired in an unfair manner as the arresting officer was denied one phone call accepted by law. Because the police compared to the individual defendant have greater power as well as authority, they abused not abuse their position by not listening to Dean and waiting for five hours before he was interviewed. Thus, the police took unfair advantage of their power and authority to oppress Dean. Thus, Dean could state that the evidence was gathered in an unfair manner and the police used their authority to intimidate him.
The other applicable concept is the unreliability of confessions. Unreliable confessions have been better interpreted by the Court of Appeal in R v Fulling[1] case. Confessions which have been acquired as the result of an inducement are unreliable. In the case, of Dean, the confessions were acquired through the use of inducement. For example, Dean was promised bail and immediate release if he signed a confession he would. Given that Dean was worried about his wife, he signed a confession and was released on bail. In reference to unreliability, the R v Delaney 1988 86 CR App R 18 case is applicable because Dean was questioned by a solicitor. Moreover, the police failed to identify a specific vulnerability with the suspect. For example, Dean asked to telephone his wife, whom he was worried about as she was 8 months pregnant but this was refused. Thus, Dean was worried during the cross examination process because he was not given the chance to communicate with his wife.
In addition, confessions are regarded as unreliable if (a) there was the use of hostile and aggressive questioning; (b) there was a failure to record accurately; (c) failure to caution; and (d) failure by the police to comply with the Code of Practice related to the detention of the accused person. In this case, the confessions could be regarded as unreliable under requirements (a) and (d). For example, there was the use of hostile and aggressive questioning, and this makes the process oppressive. Under s 76 2(a) and in the R v Fulling (1987) case oppression was described as the exercise use of power and authority in a wrongful manner. Nonetheless, it is up to the court to determine the degree of oppression leveled against the decedent. In R v Paris Abdullah and Miller (1993) 97 Cr App R 99 case, the defendant was interviewed for long hours (13) hours, did not have legal representation. In the same case, during the interview, which lasted 12 hours without a break, Dean asked several times for access to legal advice but each time this was refused. In the R v Paris Abdullah and Miller case, the appeal was allowed by the Court of Appeal because the confession was gathered in what constituted an intimidating, hostile, and degrading environment. The police conduct towards Dean could be termed as oppressive within the meaning of s 76 2 (b). Also, there was clear evidence of serious and deliberate misconduct by the police during the confession gathering.
Legality of the Actions of the Police
Decision-makers are required to understand the law used to regulate their actions. Accordingly, when the police fail to follow the law provided properly, their actions and decisions become illegal. Thus, the exercise of power and authority by the Police was not within the legal framework provided by PACE and their actions and decisions may be illegal. According to PACE 1984, s. 26, individuals being interviewed by the police and law enforcement officers in connection with offences committed, have a right to privately consult with a solicitor. This right was denied because Dean was given permission to speak to his lawyer by telephone or in person. In addition, the police offer on duty, WPC Holmes, did not inform the suspect of his right to have his lawyer present. Instead, WPC Holmes denied Dean the opportunity to have a lawyer present before the interview commenced. For example, in R v Roble [1997] Crim LR, it was established that a solicitor must be present to advice the accused on what to say and when to remain silent.
Based on the analysis of the case and the facts from the case scenario and activities of the police, the PACE was breached by the police and this must be considered by the court. Thus, a ruling relating to the admissibility of the evidence could be reached. Thus, “a breach of a PACE Code may be evidence of oppression or may support a contention of unreliability.” Thus, based on the manner in which police exercised their power and authority in the acquisition of evidence through confessions, this may additionally lead to evidence being excluded. For instance, the evidence gathered from Dean through confessions could be inadmissible under s76 and 78 as well as the PACE. The evidence can be excluded under the following situations: excessive use of force, not providing a solicitor, aggressive questioning for long hours, and when the suspect was given permission to make one phone call.
Conclusion
Dean is advice that the evidence gathered through confession is not admissible, which makes it unreliable. The police officer used her power and authority against the accused to gather the evidence. Additionally, the evidence is not reliable because Dean was denied a phone call to his pregnant wife, and the Codes of Practice provided under PACE were breached. The principle of oppression was applicable when Dean was interrogated for twelve hours without any break. Therefore, the evidence was acquired through illegal means, which makes it unreliable and inadmissible in a court of law.
Bibliography
Books
Glover & Murphy, 2013, p. 338; Stone 2014, p. 175
Glover, R., & Murphy, P. Murphy on evidence. Oxford, UK: (Oxford University Press, 2013).
Stone, R. Textbook on civil liberties and human rights, Oxford: (Oxford University Press, 2014)
Cases
R v Delaney 1988 86 CR App R 18
R v Elson [1994] TLR 353.
R v Fulling 1987 2 All E.R. 65
R v Paris Abdullah and Miller (1993) 97 Cr App R 99
R v Quinn Crim L.R. 581
R v Roble [1997] Crim LR
Laws
PACE 1984, s. 26
PACE 1984, s.76 2(b)
PACE 1984 S82 (1)
[1] R v Fulling 1987 2 All E.R. 65
[2] R Glover & Murphy, P. Murphy on evidence. Oxford, UK : (Oxford University Press, 2013). P. 338.
