Questioning – Terrorism
Under the Terrorism Act, as well as its predecessor, a statement might be excluded only if the person was subject to torture or inhuman or degrading treatment, violence, or the threat of violence in order to induce a statement. The evidentiary standard is significantly higher than the common law or the PACE standard.
The codes of practice under the Terrorism Act have the same status as those under the PACE Order. They are not legally binding rules. They do not apply to questioning by the Army. They are guidelines for police officers to comply with. They make them liable to disciplinary procedures. The courts may exercise the discretion to exclude evidence obtained in breach of the code.
The Terrorism Act codes do not permit the detainee to speak on the phone with anyone or have written materials or receive visits. There are varying provisions in relation to access to medical practitioners and officers.
The government has permitted access for persons to monitor compliance both with the PACE Order and the Terrorism Act. A non-statutory independent commissioner of detained terror suspects is entitled to access. He may randomly visit places of detention and sit on interviews.
Interviews by police officers of a person detained under the Terrorism Act must be audio and video recorded.
Under the PACE Order, a person in detention has the right to consult with a solicitor privately at any time if he so requests. But if the person is arrested for a serious arrestable offence, a superintendent may authorize a delay of up to 36 hours.
The permissible reasons for the delay are as follows: potential interference with witnesses or evidence; potential serious loss of property; potential alerting of other suspects; potential hindrance to the recovery of property or proceeds of crime.
The detained person is entitled to have somebody informed of his arrest. They should be informed of the right but are not obliged to be informed of this right. These provisions do not apply to Terrorism Act detention.
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.
Terrorist Act detainees may consult with a solicitor privately or have someone informed that they have been arrested if they make a request. The detainee must be informed of the right to a lawyer. The request may be delayed on much the same basis as above or up to 48 hours.
The grounds for delay are broader than the PACE grounds above, including potential interference with gathering information about the commission or acts of terrorism, alerting any person so that it will be more difficult to prevent an act of terrorism or apprehend a person in connection with an act of terrorism.
The courts do not automatically exclude confessions on the ground of denial of access to a lawyer. There should be some link between the breach of the right and the resulting confessions. The courts have held that the delayed access position is subject to judicial review.
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 Code of Practice under the PACE Order and the Terrorism Act allow rights of access to legal advice during questioning. Under the terrorism code, a senior officer may direct that consultations between the legal adviser and the detainee take place in sight and hearing of a member of the police service not below the rank of inspector. This may be contrary to the European Convention on Human Rights.