Criminal law

Criminal investigations

Five new codes under the Police and Criminal Evidence Act 1984 came into force on 1 April, 2003.

Code A, the stop-and-search code, remains important to identify whether the actions of a police officer are lawful and has been re-written to ensure that the intrusion on liberty of the person stopped or searched is brief.

Code B, the search and seizure code, similarly determines whether the actions of an officer are lawful, and this may not only affect the conduct of others towards that officer but the admissibility of the evidence obtained.

The new edition contains provisions following the introduction of the power for the police under the Criminal Justice and Police Act 2001, to remove paperwork and sift it away from the site.

Copies should always be used when possible and there is a right to attend when the property is itself sifted.

Crown Court judges on application have a wide power to control the sifting process.

Code C

Code C, the detention treatment and questioning code, has widened the definition of mental disorder to include the mentally vulnerable.

This is defined as those who may not understand the significance of what is said, of questions asked of them and of their replies.

Civilian designated officers may now undertake all the duties and are subject to the same rules as police officers.

A formal risk assessment process is introduced on the arrival of a detainee at the police station.

The basis on which defence lawyers work remains wholly unchanged - thus the only role of a defence solicitor is to advance and protect the rights of his client.

A range of health care professionals may now undertake roles previously restricted to doctors.

There is an important reminder that a doctor attending the police station does so to collect evidence (more often than not for the Crown).

While a record must be kept of any advice given, information does not have to go on the custody record if it may have evidential value.

Therefore, additional probing by defence solicitors may be required.

Under two new notes for guidance in paragraph 10, small additional rights are given for the defence to obtain a basic level of disclosure.

There must be some reasonable objective grounds for the suspicion giving rise to the detention based on known facts or information which are relevant to the likelihood of the offence having been committed and the detainee having committed it (10A).

In addition, under note 10B, an arrested person must be given sufficient information to enable him to understand that he has been deprived of his liberty and the reason he has been arrested, so that when a person is arrested on suspicion of committing an offence he must be informed of the suspected offence's nature, when, and where it was committed.

Note 10F is a reminder that the inferences from silence under sections 36 (object, substance or mark) or section 37 (presence at a particular place at a particular time) of the Criminal Justice and Public Order Act 1994 do not arise if no constable is present or the person is a volunteer.

However, under paragraph 11.6 the right of investigators to continue questioning, notwithstanding that they take the view that there is sufficient evidence to charge, is significantly strengthened.

The interviewing may now continue until the officer is satisfied that all the questions he considers relevant to obtaining accurate and reliable information about the offence have been put to the suspect, and this includes allowing the suspect an opportunity to give an innocent explanation and asking questions to test whether the explanation is accurate and reliable, for example, to clear up any ambiguities and clarify what the suspect said; has taken account of any other available evidence; and reasonably believes that there is sufficient evidence to provide a realistic prospect of conviction.

It is submitted that it is a precondition to the exercise of these powers that the police officers are willing to listen to the answers that may be given to their questions (See Elliott [2002] 5 Archbold News, 2).

Vulnerable suspects are given additional protections in paragraph 11.18 so that there are limitations on their being interviewed even in an 'emergency'.

If they are vulnerable (because of age, mental vulnerability or because they are unable to appreciate the significance of questions and their answers or understand what has happened because of the effects of drink/drugs or any illness ailment or condition), such an interview may only take place if a superintendent is satisfied that the interview would not significantly harm that person's physical or mental state.

In this connection, there is an important new annex at annex G where for the first time guidance is given as to the factors identifying whether a person is fit for interview.

Solicitors should become familiar with those provisions so that they can raise relevant questions, not only with the police but with the relevant health care professional.

Under note for guidance 16A, a custody officer must now formally take into account the possibility of alternatives to prosecution.

Three new annexes are introduced into this code.

Annex C gives effect to section 58 of the Youth Justice and Criminal Evidence Act 1999, namely that if a suspect is denied legal advice (as opposed to choosing not to take advantage of it) no inference from silence may be drawn while that position persists.

Solicitors should advise regular clients of the need for no comment interviews to take advantage of this provision until such time as their solicitor attends.

Annex G contains the new guidance on fitness for interview and annex H contains a new observation list for those at risk in the police station.

Code D

The new Code D, the identification code, follows substantially the modified code introduced on 1 April, 2002.

It too contains the reminder that identification procedures are not only to test a witness's ability to identify the person they saw on an earlier occasion, but also to provide safeguards against mistaken identification.

There are substantial changes following statutory intervention in relation to fingerprinting, samples and the taking of photographs.

Fingerprints and samples are no longer destroyed as a matter of course, and a photograph may be taken of anybody lawfully detained in a police station.

So far as visual identification is concerned, street identifications (where there is no known suspect) are dealt with in paragraphs 3.2 to 3.3.

Paragraph 3.2.

will be of particular importance for advocates at trial if an attempt is to be made to exclude a street identification.

It provides a battery of responsibilities on the part of the police assisting in such identifications.

Where a suspect is known and available, in the one change from the modified code, video identifications are now the primary source.

They are followed by parades and then groups.

Investigating officers and defence solicitors have a right to make representations.

Where a suspect is known but not available either by choice or circumstance, the order of priority for identification procedures is a covert video, covert group and then confrontation.

Code E, the tape-recording code, is not substantially amended.

By Anthony Edwards, TV Edwards, London