Questioning – PACE

A statement made by an accused while in police custody is admissible in evidence only if it is made voluntarily. The prosecution has to prove that the statement had not been obtained by fear of prejudice or hope of advantage held by a person in authority or by a person questioning. The purpose of questioning must not be such that, by its nature or circumstances, excites hope, such as hope of release or fears that affect the mind so that the accused’s will crumbles and he speaks when he would otherwise have remained silent.

The Police and Criminal Evidence NI Order has modified this traditional common law principle. The prosecutor needs only to prove that the statement was not obtained by oppression and consequently likely to render it unreliable.

The admissibility of the statement may be tested in a hearing in the jury’s absence. If the alleged confession or evidence is ruled inadmissible, the trial will continue, and the jury will not be aware of it. Oppression under the PACE Order is defined as including torture or inhuman or degrading treatment or the use of threat of violence, whether or not amounting to torture. This significantly narrows down the above-mentioned common law position, although the matter has not been fully determined.

English courts have restricted oppression to the exercise of authority in a burdensome, harsh, or wrongful manner, not just cruel treatment or the imposition of unreasonable or unjust burdens, in circumstances which generally entail some impropriety on the part of the interrogators. Evidence may be excluded if it is made in consequence of conduct likely to render it unreliable.

The so-called judges’ rules, originally made in 1912 and 1918, were updated and modified in Northern Ireland in 1976, and they were accompanied by directions designed to deal with the conditions of detention. The rules were rules of law merely statements of good practice.

The Code of Practice on detention, treatment, and questioning has been issued under the PACE and applies to all suspects other than those detained under the Terrorism Act. A separate code of practice exists under that legislation.

The Code of Practice requires that arrested persons, the persons being questioned regarding involvement or suspected involvement in the offence, must be cautioned as follows: “You do not have to say anything, but I must caution you that if you do mention something you later rely on in court, it may harm your defence. If you do say anything, it may be given in evidence.”

Suspects in custody must be given a written statement of the 1988 evidence rules by which, in certain circumstances, adverse inferences can be drawn from silence.

The code contains rules on how interviews must be conducted. An accurate record must be kept. The consent of the custody officer must be required. The custody officer must not be involved in the investigation but has responsibility for the treatment of the detained person.

Within any 24-hour period, the suspect must be allowed a continuous period of at least eight hours for rest.

Where officers conclude there is sufficient evidence to prosecute a suspect, and the suspect has said or he or she wishes to say something about the events, the officer must bring the suspect before the custody officer and must consider whether the suspect should be charged. On being charged, the suspect should be cautioned again and given a written notice of the particulars of the offence and the terms of the caution. Further questions should not be put unless they are necessary to prevent harm to some person or to clarify an ambiguity in the statement.

The Code of Practice requires that certain interviews must be taped in police stations where recording facilities exist. This applies where a person has been cautioned in relation to being charged with an offence, unless it is a driving offence. Interviews by police officers of a person detained under the Terrorism Act must be audio and video recorded.

A person under 17 or who suffers from a mental incapacity, whether or not suspected, must only be interviewed or asked to provide a statement if an appropriate adult is present. An officer of the rank of superintendent or above may overrule this requirement if the delay would involve an immediate risk of harm to persons or serious loss of property, the destruction of evidence, or would hinder the recovery of property. An appropriate adult means a parent or guardian or social worker.

Where a juvenile is in detention, steps must be taken to ascertain the identity of the person responsible for their health and inform them unless it is not practicable to do so.

Common-law judges have the power to exclude statements if they were obtained unfairly. Under PACE, the court may refuse to admit evidence if it appears that the admission of the evidence would have an adverse effect on the fairness of the proceedings, such that the court ought not to admit it.

Therefore, if evidence is obtained in breach of the code, it may be excluded on the above grounds, as the courts themselves should give effect to the Human Rights Act and protect its provisions in relation to a fair trial as guaranteed by the Convention.

It is a disciplinary offence for a police officer to breach the code. Working with the code does not have the force of law.

The European Convention on Human Rights, which is part of Northern Ireland law, is significant in the context of detainees’ rights. The right of access to legal advice during questioning is recognized under the Convention. A delay in being afforded this right may constitute a breach of the Convention. Generally, the right of access is available from the early stages of police questioning. It may be restricted, but only for good cause. Where circumstances require early access to legal advice in order to protect the rights of the detainee, this must be allowed.

The European Court of Human Rights has held that it may be a denial of a fair trial under the Convention where a statement is admitted in evidence having been obtained as a result of psychologically coercive conditions and conditions conducive to making a statement or to maintain silence, or held that the applicant should have been given access to a legal adviser at the initial stages of the interrogation. The relevant section was appealed following a report on the matter, and the admissibility test applicable to the PACE Order now applies even in terrorist cases.