This serious arrestable offence; and (b) if an
Posted On June 10, 2019
will comment and critically evaluate the circumstances of which a suspect can
be interviewed when legal representation has been withheld. As well, this assignment
will analyse whether questions can be repeated during investigative interviews
or whether such interview techniques should be challenged. Finally, this
assignment will highlight the dangers of the defence submitting a pre-prepared
statement. Relevant legislations, case law and the PACE Codes of Practise will
be referred to support all arguments and comments made.
Section 58 allows
a suspect to be interviewed whilst legal representation is being withheld.
Section 58 (6) states:
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Delay in compliance with a request is only permitted –
(a) in the case
of a person who is in police detention for a serious arrestable offence; and
(b) if an
officer of at least the rank of superintendent authorises it.’
The purpose of
this section is to have legal access delayed for the suspect. An officer of
rank equal to or higher than superintendent must be present, with a number of
criteria, which must be fulfilled before the delay is to be granted.
advice can only be withheld up to 36 hours. Once this time period has been
completed, the defendant must be granted legal access, regardless of what the
Annex B of PACE Code C, if there
is to be delay in legal advice, the authorising officer ranking at least
superintendent has to ensure he or she has reasonable grounds for believing the
consequent delay is necessary under s.58 of the PACE Act 1984.
The first reason
is if the officer believes the consequent delay might:
to interference with, or harm to, evidence connected with an offence;
lead to interference with, or physical harm
to, other people;
lead to serious loss of, or damage to,
lead to alerting other people suspected of
having committed an offence but not yet arrested for it; Codes of practice –
Code C Detention, treatment and questioning of persons by police officers 23
the recovery of property obtained in consequence of the commission of an
In the case of R
v Samuel, the defendant was arrested on suspicion of robbery. He was
interviewed on four different occasions. The offences were robbery and two
burglaries but had denied all offences. During the second interview, the
defendant requested a solicitor but was denied legal advice and access to one
under section 58 of the PACE Act. The Police Superintendent, to whom the
defendant had requested a solicitor to, refused him because the offences were
serious arrestable offences and granting access to a solicitor will lead to
other suspects involved would be warned. During the third interview, the
the defendant argued that the confession should not be admissible as he was
denied a solicitor upon request and that the Superintendent did not have reasonable
grounds to believe that access would lead to other suspects being alerted. However,
the trial judge held that there was no breach of code and the superintendent’s
beliefs were justified. The defendant was convicted.
appealed, stating legal advice can only be delayed if the defendant had yet not
been charged. However, the defendant was charged after his confession, he
should have then been given access to a solicitor. The appeal was held.
the solicitor the detainee has nominated or selected from a list:
has previously indicated they do not wish to
be contacted; or
having been contacted, has declined to attend;
the detainee has been advised of the Duty Solicitor Scheme but has declined to
ask for the duty solicitor; •
in these circumstances the interview may be
started or continued without further delay provided an officer of inspector
rank or above has agreed to the interview proceeding.
The final reason
a consequent delay for legal advice is
changes their mind about wanting legal advice or (as the case may be) about
wanting a solicitor present at the interview and states that they no longer
wish to speak to a solicitor. In these circumstances, the interview may be
started or continued without delay.
This reason is
on for the defendant to decide. Many suspects may not be satisfied with the
legal presence they have been provided with and therefore decide to carry on
with interviews with their own
In the case of R
v McGovern, the defendant was a woman of limited intelligence and unable to
understand the caution. She confessed to a murder, whilst being denied legal
advice. Because of the circumstances of the situation, the court found the defendant’s
confession inadmissible as s. 58 PACE was violated. A second interview was
granted, this time the defendant was provided with legal advice. The defendant
once again, confessed to the murder. However, her legal representation argued
in court, that the first interview had an impact on the second interview and
therefore, the court once again denied and not admissible in court.
Investigation is a core duty of policing. Investigative
interviewing is used to gather accounts of crime from victims and witnesses.
The Home Office 1992 published a set of guidelines on the
subject of investigative interviewing. These guidelines are created to exist alongside
the Human Rights legislations. This ensures the techniques used by the police
service do not violate an individual’s fundamental rights.
According to the PACE Act, there is no limitation on the
questions asked by the police investigator. However, there are seven principles
used to conduct interviews. Each one has a crucial role and therefore important
to the process of investigation.
The second principle is “Investigators must act fairly when questioning victims, witnesses or
suspects. They must ensure that they comply with all the provisions and duties
under the Equality Act
2010 and the Human Rights
Investigators must use common sense, judgements and actual
facts to assess the accuracy of what an individual is saying. An investigator is
not allowed to be prejudice and
The fourth principle is “Investigators are free to ask a wide range of questions in an interview
in order to obtain material which may assist an investigation and provide
sufficient evidence or information.”
Police investigators are able to ask a wide range of
questions to ensure they obtain any material needed to investigate a crime. Investigators
need to provide sufficient evidence and information to then carry out arrests
and make charges. Investigators are not bound by the same rules that lawyers
such as solicitors must abide by.
However, although investigators have the freedom to ask
such questions, the interviewing style used must not be unfair or oppressive. The
PACE codes of practise, as well the PACE act 1984 needed to be acted in
The sixth principle is “The police interviewer is not bound to accept the first answer given.
Questioning is not unfair merely because it is persistent” (college.policing.uk).
An investigative officer needs to ensure he obtains
accurate and reliable information. Many victims and witnesses are not always
forthcoming with accounts. It is important that the police have the truth
before arrests or charges can occur. Victims, witnesses and suspects may not
always provide the complete truth. The police service are entitled to being
sceptic, in the interest of fairness. When there is reason for doubts on what
an individual is saying, the police are able to be persistent on those grounds.
Furthermore, the investigating officer may believe an individual has not
provided them with all the information. Careful and continued question will
ensure all the information is provided.
In 1976, Stefan Kizko was given a life sentence for the
murder of Lesley Meed. Lesley was an 11-year-old girl who murdered and sexually
assaulted. Kizko was falsely accused and found guilty. Kizko was a man with the
mentality of a child, who was unable to understand the situation he was in. The
investigating officers of this case questioned Kizko for the 2 days with no
solicitor present. He then confessed to the crime, believing that if he did so,
he would be able to go home. Kizko was imprisoned for 32 years, this caused his
mental health to further deteriorate.
There is a risk of persistent questioning. Persistent
questioning is likely to turn into oppressive questioning. Oppressive
questioning can lead to evidence being disregarded in court and considered an inadmissible,
such as confessions obtained. In the R v Paris 1992, also known as the case of
the Cardiff three, the defendant (Tony Paris) took part in a 13-hour interview.
Paris confessed to the crime after first denying his guilt at least 300 times. No
violence was used but the interview style was deemed as oppressive.
During a break in the interview, the solicitor reads out a
A pre-prepared statement is a written copy of the details
of the case from the point of view of the defence. This is usually done at the
beginning of a suspect’s interview. It may be used during or after an
investigative interview. There is no statutory basis for pre-prepared
statements, it is mainly an accepted defence tactic. This defence tactic is
used to lower the risk of a defendant being cross examined. It provides a
safety net as many suspects have a lack of knowledge of procedures and police
interviewing techniques. However, there are many circumstances as to why
pre-prepared statements may not always benefit suspects and in some cases
actually cause them harm.
Pre-prepared statements can be dangerous to a defendant as
adverse inference can be drawn.
Section 34(1)(a) of the Criminal Justice and Public Order Act
‘Where, in any proceedings against a person for an offence, evidence is
given that the accused-
(a) 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
Inconsistencies between the prepared statement and the
defence at trial may be regarded as a lie from the defendant when previously creating
the statement. In the case of R v Knight 2003, it was proven that adverse
inference is drawn from failing to answer questions from information already
stated in the pre-prepared statement and not drawn from just failing to answer
questions. The conclusion from this case was that “We wish to make it
crystal clear that of itself the making of a pre-prepared statement gives no
automatic immunity against adverse inferences under section 34′” (R v Knight 2003 EWCA 1977, Laws LJ)
In many cases, defendants will completely rely on the
information they provided in their pre-prepared statements, refusing to answer
any further questions from the police investigators. However, in some
circumstances, this does not benefit the individuals, as vital but basic
information could be missed out or forgotten that could help oneself at trial.
R v Bourgass is an example of when all relevant information was not provided. The
police were looking for an individual relating to terrorism. They were provided
with a passport picture, as well as a search warrant. The defendant picked up a
knife and wounded 3 officers and killed another. The defendant was then
convicted for murder. In his pre-prepared statement, he stated he tried to escape
the building and that he armed himself with the knife with the intention of
scaring the officers. In the statement, he stated he did not cause the officer
serious or who he caught with the knife. However, he missed out vital
information such as why he needed to escape and how the police showed no
aggression towards him. Due to the defendant refusing to answer questions, the
statement was the only defence he had and therefore convicted.