Recent changes to the Police and Criminal Evidence Act 1984 will be welcomed by solicitors giving advice to clients before interview.

On 2 June significant changes were made to codes C and H, issued under the Police and Criminal Evidence Act 1984 (PACE), to comply in England and Wales with provisions of EU Directive 2012/13/EU. The directive relates to rights to information in criminal proceedings before interview. As disclosure remains a major area of concern for solicitors, and critical to their advice, the provisions are to be welcomed.

If the police do not carefully consider their position it may be difficult for a court to allow inferences from silence, and evidence may be excluded under section 78 of PACE as unfair in the proceedings.

The relevant provisions are articles 3, 4 and 6 of the directive. Article 3 provides a right to information about rights. Many of these are already provided for by the earlier PACE codes, but the rights include the right to be informed of the accusation in accordance with article 6. Article 6 is in the following terms:

Right to information about the accusation

6.1 Member states shall ensure that suspects or accused persons are provided with information about the criminal act they are suspected or accused of having committed. That information shall be provided promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence.

6.2 Member states shall ensure that suspects or accused persons who are arrested or detained are informed of the reasons for their arrest or detention including the criminal act they are suspected or accused of having committed.

Article 4 provides for a letter of rights on arrest. In addition to the information set out in article 3, this letter shall contain information about the right to access the materials of the case. It must also contain basic information about any possibility under national law of challenging the lawfulness of the arrest, obtaining a review of the detention or making a request for provisional release.

The transition of these rights into the code of practice is reflected primarily in two of the provisions.  

Paragraph 3.4(b) of code C states that documents and materials which were essential to effectively challenging the lawfulness of the detainee’s arrest and detention must be made available to the detainee or their solicitors. Documents and materials will be essential for this purpose if they are capable of undermining the reasons and grounds which make the detainee’s arrest and detention necessary. 

The decision about whether particular documents or materials must be made available rests with the custody officer in consultation with the investigating officer. The sub-paragraph also applies to the purposes of the extension of detention and the charging of detained persons.

Solicitors will therefore wish to request information about anything available to the investigator that may undermine the allegation against the suspect. This may apply particularly to the need, with the client’s consent, to see any CCTV material before the start of the interview.

Paragraph 11.1A provides for the interviewing or questioning of a person regarding their involvement or suspected involvement in a criminal offence(s) which, under paragraph 10.1 must be carried out under caution. Before a person is interviewed, they and, if they are represented, their solicitor must be given sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it, in order to allow for the effective exercise of the rights of the defence.

However, while the information must also be sufficient for the person to understand the nature of any offence (see note 11ZA) this does not require the disclosure of details at a time which might prejudice the criminal investigation, although no such limitation appears in the directive itself.

The decision about disclosure for this purpose rests with the investigating officer. There is likely to be significant debate about the information which might prejudice a criminal investigation. While this could clearly enable the police to withhold information while a further suspect was still to be arrested or when a search was still to be carried out, it may be doubted whether it can assist officers in the use of phased disclosure seeking to catch out a suspect in a lie.

Other amendments to the codes require that under C2.4 solicitors are given access to the whole of the custody record. This will intensify the debate about the amount of medical evidence that should form part of the record. Under C9.15 an entry is required in the custody record of the injury, ailment, condition or other reason which made it necessary to make arrangements for the attendance of a healthcare professional, as well any clinical directions and advice, including any further clarifications, given to police by a healthcare professional concerning the care and treatment of the detainee.

Note for guidance 9E requires confidentiality and respect for a person’s right to privacy about their health. However, it states that it should be disclosed with their consent, or in accordance with clinical advice. A simple authority, essential to the giving of suitable advice addressed to the solicitor, by the client, may have to be obtained for this purpose.

Anthony Edwards, TV Edwards