Police investigatory powers largely derive from the Police and Criminal Evidence Act 1984. However, there is a raft of subsidiary legislation, Codes as to how police, SOCA and HMRC must behave, and governing the use of intrusive surveillance, phone tapping. – See Police Act 1997 and Regulation of Investigatory Powers Act 2000 [1]
Section 60 of the Serious Organised Crime and Police Act 2005 provides for the DPP, the Director of Revenue and Customs Prosecutions, and the Lord Advocate to give “disclosure notices” in connection with the investigation of offences to which Chapter 1 of Part 2 applies. Each may delegate such powers. Section 61 lists the offences to which the powers apply. They are “lifestyle offences” under the Proceeds of Crime Act 2002 [2], offences under the Terrorism Act 2000, ss.15 to 18, any offence which is a qualifying offence (as to which see subs. (2)) under the Customs and Excise Management Act 1979, s.170, the Value Added Tax Act 1994, s.72, the Theft Act 1968, s.17, or any qualifying common law offence of cheating in relation to the public revenue, or an attempt or conspiracy to commit any such offence [3]
Police Station Advice :-
Since Criminal Justice and Public Order Act 1994, s.34, explaining and advising in relation to “the caution” in the conduct of interviews of a suspect has become one of the most important stages of the criminal justice process – many cases are “won or lost” at the police station. – Courts can now draw an adverse inference
(1) 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 proceedings; or
(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact[; or
(c) at any time after being charged with the offence, on being questioned under section 22 of the Counter-Terrorism Act 2008 (post-charge questioning), failed to mention any such fact]
So, anyone suspected of an offence should ALWAYS refuse to answer ANY questions until he has been advised by a solicitor; depending on the situation, the solicitor may advise that the questioned person answers, makes no comment, or delivers a prepared statement.
Police may “bug” cells, and recordings of conversations in cells have been ruled admissible [Read More] (even if a series of interviews are designed to provoke discussion). Police may even “bug” conversations with solicitors, in extreme cases, but it is considered unlikely that Courts would allow recordings of legally privileged consultations to be used in evidence.
It may be necessary to challenge the use of Arrest, Search and seizure powers at investigation stages, but at trial the UK law does not have the “fruit of the poisoned tree” doctrine contained in US law; if there has not been abuse of process, it is necessary to use S.76 and S.78 to exclude evidence the admission of which would be unfair.
Identification procedures need to be strictly monitored, and breach is likely to result in exclusion of the evidence eg Street identification [Read More]
S76 – confessions. Nigel Shepherd appeared in one of the leading cases [4] relating to exclusion – “The question is always fact specific, and in particular, defendant specific: hence the express references in s76 to the “accused person” and things said and done at the time which might make the confession “by him” unreliable. The focus must be concentrated on the reliability of the confession made by the individual defendant, given the circumstances as they existed when the confession was made” [Read More] The prosecution have to prove that the confession was not obtained, by oppression or in consequence of anything said or done which, in the circumstances at the time, was likely to render it unreliable [5]
S76 – Unfairly obtained evidence. Defence applications to exclude evidence on this ground are often a complex mixture of fact and law; it is often necessary to show some sort of prosecutorial misconduct or police malfeasance. It is unusual to persuade Courts that police have misbehaved, but they will so find where a painstaking investigation by defence is able to demonstrate witness coaching, [6] deliberate excess of power, loss of important evidence, or irretrievable failure of the disclosure process. Evidence will then be excluded, particularly if there are other factors such as mental illness or other unreliability of evidence. Exclusion of evidence can result in dropping of charges, or a considerably weaker prosecution case.
