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Criminal Law Review, 2005, p. 672.
160 Pre-trial criminal proceedings


a police station could communicate with and consult privately with a solicitor
at any stage provided that it did not cause unreasonable delay or hindrance to
the processes of investigation or the administration of justice; (4) that when the
o¬cer had enough evidence to charge the suspect he had to cause that to be
done without delay; and (5) that a precondition for the admissibility of any con-
fession was that ˜it shall have been voluntary in the sense that it has not been
obtained from him by fear of prejudice or hope of advantage, exercised or held
out by a person in authority, or by oppression™.
There then followed the actual rules dealing with the stages of questioning.
Rule I stated that the police could question anyone. Rule II required the police
to caution the person being questioned as soon as the police o¬cer had enough
evidence to a¬ord reasonable grounds for suspecting that he had committed
an o¬ence. The caution warned him that he was not obliged to say anything.
Rule III required a second caution when he came to be charged and stated that
thereafter questions should only be put in exceptional cases. (˜Such questions
may be put where they are necessary for the purpose of preventing or min-
imising harm or loss to some other person or to the public or for clearing up
an ambiguity in a previous answer or statement™.) However, a third caution had
to be given before such further questions were asked. Rule IV regulated the
taking of a statement and required the o¬cer to allow the suspect to put it in
his own words.
In addition to the Judges™ Rules there were Administrative Directions accom-
panying the rules, drafted not by the judges but by the Home O¬ce. These dealt
with a variety of matters concerning the handling of suspects in the police
station.31
The Judges™ Rules and the Administrative Directions were criticised on
various counts. One was that there were many aspects of the process of deten-
tion and questioning which they did not cover at all. Another was that they were
badly drafted and that in many important respects they were vague. A third
ground of objection was that they did not have the status of law. It seemed to be
widely accepted that they were frequently ¬‚outed by the police and that
breaches were usually ignored by the courts.
The Philips Royal Commission on Criminal Procedure concluded that it was
desirable ˜to replace the vagueness of the Judges™ Rules with a set of instructions
which provide strengthened safeguards to the suspect and clear and workable
guidelines for the police™.32 The Code of Practice on Detention, Treatment and
Questioning of Persons by Police O¬cers (Code C of PACE) laid down a mass
of detailed rules regulating most aspects of the process of questioning. (In the
2006 HMSO version of the Codes, Code C runs to no fewer than eighty-¬ve
pages. The Judges™ Rules by contrast were two pages long with another two pages
for the attached Administrative Directions.33)

31
For the full text of the Judges™ Rules and the Administrative Directions, see [1964] 1 WLR 152.
32 33
Paragraph 4.109. Note 31 above.
161 Questioning of suspects by the police


Whom can the police question?
The police can ask questions of anyone both before and after arrest. There is no
such thing as immunity from questioning by virtue of one™s rank or occupation.
This right continues after arrest, though, as will be seen, according to the prin-
ciples of the English system, questioning is normally supposed to cease after the
suspect has been charged. From that moment he is notionally under the control
of the court and the police are basically supposed to regard themselves as having
completed their function.


The citizen is not normally obliged to answer police questions
The fact that the police are entitled to ask questions does not mean that the
citizen must answer them. The rule of English law on this critical point is that
there is normally no such duty. This is the citizen™s so-called ˜right of silence™.
Thus a person who is silent in the face of questioning cannot be charged with
obstructing the police in the exercise of their duties.
This fundamental rule was stated authoritatively by the Divisional Court in
1966:

Rice v. Connolly [1966] 2 QB 414, Divisional Court
[The appellant was seen by o¬cers in the early hours of the morning behaving
suspiciously in an area where on the same night breaking o¬ences had taken
place. On being questioned he refused to say where he was going or where he
had come from. He refused to give his full name and address, though he did give
a name and the name of a road, which were not untrue. He refused to accom-
pany the police to a police box for identi¬cation purposes, saying, ˜if you want
me, you will have to arrest me™. He was arrested and charged with wilfully
obstructing the policy contrary to the Police Act 1964, s. 51(3).]
The court™s decision was given by the Lord Chief Justice:
Lord Parker CJ:. . . the sole question here is whether the defendant had a lawful
excuse for refusing to answer the questions put to him. In my judgment he had.
It seems to me quite clear that though every citizen has a moral duty or, if you
like, a social duty to assist the police, there is no legal duty to that e¬ect, and
indeed the whole basis of the common law is the right of the individual to refuse
to answer questions put to him by persons in authority, and to refuse to accom-
pany those in authority to any particular place; short, of course, of arrest.
Mr Skinner has pointed out that it is undoubtedly an obstruction, and has
been so held, for a person questioned by the police to tell a ˜cock-and-bull™ story
to put the police o¬ by giving them false information, and I think he would say:
well, what is the real distinction? It is a very little way from giving false infor-
mation to giving no information at all. If that does in fact make it more di¬cult
for the police to carry out their duties, then there is a wilful obstruction.
In my judgment there is all the di¬erence in the world between deliberately
telling a false story “ something which in no view a citizen has a right to do “
162 Pre-trial criminal proceedings

and preserving silence or refusing to answer “ something which he has every
right to do. Accordingly, in my judgment, looked upon in that perfectly general
way, it was not shown that the refusal of the defendant to answer the questions
or to accompany the police o¬cer in the ¬rst instance to the police box was an
obstruction without lawful excuse.
Marshall and James JJ concurred, though James J said he would not go so far as
to say that silence combined with conduct could not amount to obstruction.
Whether it did amount to obstruction would depend on the facts of the actual
case.
However, see Ricketts v. Cox [1982] Crim LR 184, Divisional Court. See also
K. Lidstone, ˜Minding the Law™s Own Business™, New Law Journal, 14 October
1982, p. 953. Silence, together with awkward, abusive behaviour, may constitute
the o¬ence of obstruction.

When the citizen is under a duty to answer
The general principle of the common law is therefore that it is not a criminal
o¬ence not to answer questions “ and especially questions the answer to which
would be incriminating, but there are some statutory exceptions to this funda-
mental common law rule.
Motorists In certain situations the police have a right to arrest someone who
refuses to give his name and address. The most common example is where the
police o¬cer has reasonable grounds for thinking that a vehicle has been
involved in an accident or tra¬c o¬ence. It is an o¬ence not to give up one™s
driving licence and to state one™s name and date of birth if one is driving a car
and one is asked to do so by a police o¬cer. The duty to provide information
about the driver of a car applies not only to the driver himself but also to ˜any
other person™. The Judicial Committee of the Privy Council held that it is not a
breach of the Human Rights Act 1998 to require the motorist to give these
details.34
O¬cial Secrets There is a provision in the O¬cial Secrets Act 1911, s. 6
(as amended in 1939) that if a chief constable is satis¬ed that there is reason-
able ground for suspecting that an o¬ence under the O¬cial Secrets Act
has been committed and for believing that someone is able to furnish infor-
mation about the o¬ence, he can ask the Home Secretary for consent to use
powers of coercive questioning. If such permission is granted, an o¬cer not
below the rank of inspector can require the person concerned to attend at a
stated time and place and to answer questions. Failure to comply is a criminal
o¬ence.
Terrorism A power to require answers on pain and penalties for refusal has
also existed under the special legislation concerning terrorism. The earliest
form of it was in s. 11 of the Prevention of Terrorism (Temporary Provisions)

34
Brown v. Stott (Procurator Fiscal Dunfermline) [2001] 2 All ER 97, PC “ a simple question or
two was not a disproportionate response to the problem of road accidents. See also DPP v.
Wilson [2001] EWHC Admin 198, [2002] RTR 37.
163 Questioning of suspects by the police


Acts 1974 and 1976 which made it an o¬ence for a person who had information
that he knew or believed might be of material assistance in preventing an act of
terrorism or to secure the arrest, prosecution or conviction of anyone involved
in terrorism o¬ences, to ˜fail without reasonable excuse to disclose that infor-
mation as soon as reasonably practicable™.
In his 1978 report on the operation of the Act, Lord Shackleton recom-
mended that this provision be allowed to lapse on the ground that ˜it has an
unpleasant ring about it in terms of civil liberties™.35 However, the 1983 inquiry
into the operation of the Act reached the opposite conclusion.36 A total of only
fourteen people had been charged under s. 11, of whom nine were convicted.
Despite the small numbers of persons charged under s.11, Lord Jellicoe thought
retention of the section was warranted and it was retained as s. 18 of the
Prevention of Terrorism (Temporary Provisions) Act 1989. The o¬ence carried
a maximum penalty of ¬ve years™ imprisonment.
However, in 1996 Lord Lloyd of Berwick™s Inquiry into legislation against ter-
rorism37 also recommended that it be dropped and the Government followed
the recommendation in the Terrorism Act 2000.
The Criminal Justice Act 1993 made it a criminal o¬ence to fail to disclose
to the police as soon as practicable knowledge or suspicion acquired in the
course of one™s trade, profession, business or employment that someone is
providing ¬nancial assistance for terrorism. This is now s. 19 of the Terrorism
Act 2000.
Companies Act, bankruptcy, insolvency, liquidations, banking etc. There are
many statutes and statutory instruments that require persons to answer ques-
tions or to produce documents or information where such answers, documents
or information may incriminate them. Refusal can lead to penalties.38 How do
such powers stand in relation to the privilege against self-incrimination?
In the case of Ernest Saunders, the European Court of Human Rights
(ECHR) ruled that statements taken compulsorily (in that case by the Serious
Fraud O¬ce) cannot be used in evidence in subsequent criminal proceedings
as they infringe the right not to incriminate oneself guaranteed by Article
6 of the Convention.39 This decision a¬ected many statutory provisions. In
February 1997, the Attorney General advised prosecutors that statements taken

35
Review of the Operation of the Prevention of Terrorism Acts, 1978, Cmnd. 7324, para. 133.
36
Review of the Operation of the Prevention of Terrorism (Temporary Provisions) Act 1976, Cmnd.
37
8803, 1983, Ch. 9. Cm. 3420, 1996.
38
The Companies Act 1985 requires o¬cers and agents of companies to assist inspectors
appointed to investigate the a¬airs of the company under ss. 431, 432 and 447. Refusal to
answer questions can be dealt with under ss. 431 and 432 as contempt of court and under
s. 447 as a criminal o¬ence. Similar powers exist in a variety of other regulatory contexts “ e.g.
under the Financial Services Act 1986, for administrators, receivers and liquidators of
insolvent companies under the Insolvency Act 1986, ss. 236 and 237, under the Insurance Act
1982, s. 43A and under the Banking Act 1987, ss. 41 and 42. The Serious Fraud O¬ce has the
same power under the Criminal Justice Act 1987, s. 2 “ though in that case the statements
taken can only be used in evidence in criminal proceedings to challenge an inconsistent
39
statement (s. 2(8)). Saunders v. United Kingdom (1996) 23 EHRR 313.
164 Pre-trial criminal proceedings


compulsorily under statutory powers should not be used in future in evidence
either as part of the prosecution case or in cross-examination.40
To bring the law into compliance with the Strasbourg ruling in Saunders , the
Youth Justice and Criminal Evidence Act 1999, s. 9 and Sch. 3 prohibited the use
of evidence obtained by the prosecution under a number of statutory powers,
mostly concerning ¬nancial investigations, e.g. the Insurance Companies Act
1982, Companies Act 1985, Insolvency Act 1986 and Financial Services Act
1986.
The Serious Organised Crime and Police Act 2005 (SOCPA), Part 2 gave the
CPS and the Revenue and Customs Prosecution Service the power to authorise
a police o¬cer, a member of the sta¬ of the Serious Organised Crime Agency
(SOCA) or an o¬cer of Revenue and Customs the power to issue a ˜disclosure
notice™ to anyone they believe has information relating to a matter under inves-
tigation in relation to speci¬ed o¬ences. The disclosure notice is a notice to (1)
answer questions with respect to any matter relevant to the investigation; (2)
provide information and (3) produce such documents as are speci¬ed in the
notice. Failure to do so is an o¬ence. A statement made by someone in response
to a disclosure notice cannot be used in evidence against him in any criminal
proceedings (other than for perjury or for failure to comply with the notice).41

Arrest for failure to give name and address
PACE did not alter the law regarding the duty to answer questions. However, as
will be seen, it did give the police a power to arrest someone for a non-arrestable
o¬ence where the o¬cer cannot ¬nd out the name of the suspect or his address
for the purpose of serving a summons on him.42 This comes close to creating
for suspects a duty to reveal one™s name and address.
A similar but even stronger power exists in Scotland, originally under the
Criminal Justice (Scotland) Act 1980 and now under the Criminal Procedure
(Scotland) Act 1995, s. 13:
Where a constable has reasonable grounds for suspecting that a person has com-
mitted or is committing an o¬ence at any place, he may require (a) that person
. . . to give his name and address and may ask him for an explanation of the cir-
cumstances which have given rise to the constable™s suspicion; (b) any other
person whom the constable ¬nds at that place . . . who the constable believes has
information relating to the o¬ence, to give his name and address.

40
148 New Law Journal, 13 February 1998, p. 208. See P. Davies, ˜Self-Incrimination, Fair Trials,
and the Pursuit of Corporate and Financial Wrongdoing™ in B. Markesinis (ed.), The Impact of
the Human Rights Bill (OUP, 1998) pp. 31“61. See also N. Hood, ˜Compulsory Questions™,
153 New Law Journal, 25 July 2003, p. 1140.
41
SOCPA, ss. 62“5. For critical comment see D. Corker, ˜Time to Get Serious™, 156 New Law
Journal, 26 May 2006, p. 874.
42
This was PACE, s. 25(3)(a), (b) and (c). As will be seen (p. 201 below), the distinction
between arrestable and non-arrestable o¬ences was abolished by SOCPA which made all
o¬ences arrestable. The power is now in the revised s. 24(5)(a) of PACE introduced by
SOCPA, s. 110.
165 Questioning of suspects by the police


Under the 1995 Act the o¬cer can require such a person to remain with him for
such time as may be necessary to note the name, address and explanation given
and to verify the name and address, but he may only require the person to
remain with him for this purpose brie¬‚y. The requirement ceases if there is
unreasonable delay in obtaining veri¬cation of the name and address.
Reasonable force may be used to ensure that the person does remain with the
o¬cer, and failing to give a name and address or failing to remain with the
o¬cer are both o¬ences, but failing to pro¬er an explanation is not made an
o¬ence and to that extent the right of silence is preserved in Scotland.

Obstructing the police
As already noted, the right of silence must be distinguished from the question
of actively misleading or hindering the police. This can constitute an o¬ence. In
Ingleton v. Dibble,43 for instance, it was held to be obstruction of the police in
the execution of their duty for a motorist to take a swig of whisky to defeat a
breathalyser test. In Moore v. Green44 it was held to be obstruction for a proba-
tioner police o¬cer to warn the landlord of a public house that his premises
were under police surveillance and that a raid to enforce the licensing laws was
to be made that evening. By contrast, in Willmott v. Atack45 it was held not to be
obstruction for a person to intervene between a police o¬cer and a motorist
who was resisting arrest when the purpose of the intervention was to help the
police o¬cer by persuading the motorist to desist. The motorist did in fact
obstruct the o¬cer, but the Divisional Court held that it had to be shown that
he intended to impede the o¬cer.
The Criminal Law Act 1967, s. 4 made it an o¬ence to do anything intended
to impede the apprehension or prosecution of someone known or believed to
have committed an arrestable o¬ence.46 Section 5 of the same Act also made it
an o¬ence to accept money or other consideration for not disclosing informa-
tion that would lead to the prosecution of an arrestable o¬ence. In Albert v.
Lavin47 the House of Lords held that it was not merely the right but also the duty
of a citizen in whose presence a breach of the peace is being, or appears about
to be, committed, to attempt to stop it, if necessary by detaining the person
responsible.


The legal consequences of silence in the face of police questioning
The citizen™s right of silence in the face of police questioning was supported
by three main rules. One was that already shown in Rice v. Connolly (p. 161
above) “ that silence cannot be made the subject of a charge of obstructing the
police in the execution of their duties or, with a few exceptional instances, any


43 44 45
[1972] 1 All ER 275. [1983] 1 All ER 663. [1977] QB 498.
46
See G. Williams, ˜Evading Justice™, Criminal Law Review, 1975, pp. 430, 477 and 608.
47
[1981] 3 All ER 878.
166 Pre-trial criminal proceedings


other criminal o¬ence. The second was the rule that the prosecution could not
comment on the fact of silence and that the judge could not suggest to the jury
that silence was evidence of guilt. (As will be seen below, this rule was abolished
by the Criminal Justice and Public Order Act 1994.) The third was that a person
being questioned by the police had to be cautioned that he was not under an
obligation to say anything.

The Criminal Law Revision Committee
The start of the campaign to get the law changed was the 1972 Eleventh Report
of the Criminal Law Revision Committee (CLRC) (Evidence (General)),48 in
which the CLRC recommended that the failure during police questioning to
mention a fact on which the defendant sought subsequently to rely at his trial
could be made the subject of adverse comment by the prosecution and the
court, and that adverse inferences could be drawn against the accused from such
silence or failure. The accused would still have the right to silence, but he would
exercise it at the risk that adverse inferences might be drawn against him if the
jury or magistrates thought that it would have been reasonable to expect him to
have mentioned the facts in question while being questioned. This would apply
not only to facts raised in his own evidence but equally to facts referred to in the
evidence of any of his witnesses:
To forbid it seems to us to be contrary to common sense and, without helping
the innocent, to give an unnecessary advantage to the guilty. Hardened crimi-
nals often take advantage of the present rule to refuse to answer any questions at
all, and this may greatly hamper the police and even bring their investigations to
a halt. Therefore the abolition of the restriction would help justice . . . [para. 30].
The Committee said that if this proposal regarding silence under interrogation
were accepted, it would mean a change in the caution required by the Judges™
Rules. The Committee said that the caution was of no help to an innocent
person, ˜indeed it might deter him from saying something which might serve to
exculpate him™. On the other hand the caution ˜often assists the guilty by pro-
viding an excuse for keeping back a false story until it becomes di¬cult to
expose its falsity™. The caution, it said, stemmed from the ancient fallacy that
fairness in criminal trials required that a guilty person should not be allowed to
convict himself too easily. It was illogical for the police to have to start an inter-
rogation by saying that the suspect need not say anything (para. 43).
The Committee™s proposals on the right of silence and the caution provoked
furious controversy. Most of the comment was hostile49 and it was this above all
that led at the time to the rejection of the CLRC™s entire report. It was argued
by the critics that to allow adverse comment on silence would amount almost
to a reversal of the burden of proof. It would put a premium on a suspect™s artic-
ulateness when most suspects were notoriously inarticulate as well as confused

48 49
Cmnd. 4991. See n. 152 above.
167 Questioning of suspects by the police


and frightened. The critics also denied that silence necessarily indicated guilt.
There were many possible innocent reasons for silence, including a desire to
protect someone else, fear, contempt for the accusation or failure to understand
the accusation.
The matter was next considered by the Philips Royal Commission on
Criminal Procedure.

The Philips Royal Commission
The Philips Royal Commission felt that basically the law should not be changed.
In relation to the situation before an arrest, it regarded the decision in Rice v.
Connolly (p. 161 above) as correct. (˜We adhere to the decision in Rice v.
Connolly that the duty to assist the police is a social one and not legally enforce-
able™ (para. 4.47).) Once a suspect was arrested the situation was di¬erent since
he then had to submit to being questioned, but if adverse inferences could be
drawn from the fact of silence it might ˜put strong (and additional) psycholog-
ical pressure upon some suspects to answer questions without knowing pre-
cisely what was the substance of and evidence for the accusations against them™
(para. 4.50). This, in the Commission™s view, ˜might well increase the risk of
innocent people, particularly those under suspicion for the ¬rst time, making
damaging statements™. On the other hand, a guilty person who at present
remained silent would still tend to remain silent since it would be more prudent
to hope that the case against him would not be proved in spite of any adverse
inferences.
Moreover, the Commission said: ˜to use a suspect™s silence as evidence against
him seems to run counter to a central element in the accusatorial system at trial™
(para. 4.51). There was an inconsistency of principle ˜in requiring the onus of
proof at trial to be upon the prosecution and to be discharged without any assis-
tance from the accused, and yet in enabling the prosecution to use the accused™s
silence in the face of police questioning under caution as any part of the case
against him at trial™.
A minority of the Commission agreed with the police view that the right of
silence should be abolished, but the majority concluded ˜that the right of silence
in the face of police questioning after caution should not be altered™ (para. 4.53).
The Conservative Government accepted this recommendation.
The caution The Philips Commission proposed that the ¬rst caution should
be administered not when the police had enough admissible evidence to justify
suspicion but when they had enough evidence to justify an arrest (para. 4.56).
This was accepted by the Government. Code of Practice C (para. 10.1) states
that ˜a person whom there are grounds to suspect™ must be cautioned ˜before
any questions about it . . . are put to him™.
Under the Code of Practice the suspect had to be cautioned again before he
was interviewed at a police station. The text of the caution was formerly: ˜You
do not have to say anything unless you wish to do so, but what you say may be
given in evidence™.
168 Pre-trial criminal proceedings


The text of the caution has now changed to take account of the ˜abolition of
the right to silence™ (pp. 170“72 below) but the suspect still has to be cautioned
and the rules as to when cautions are required have not changed. Whether the
suspect is given the ˜old™ caution™ or the ˜new™ caution now depends on whether
he has or has not been given an opportunity to get legal advice.
If questioning is interrupted, the suspect must be made aware that he is still
under caution when it is resumed (Code C, para. 10.8). After he is charged he
must again be cautioned (Code C, para. 16.2).
From that point he should be questioned only where questions are necessary
˜to prevent or minimise harm or loss to some other person or the public, to clear
up an ambiguity in a previous answer or statement™ or ˜in the interests of justice
for the detainee to have put to them, information concerning the o¬ence which
has come to light since they were charged. Before such questions are put he
should be cautioned again™ (Code C, para. 16.5).

The ˜right of silence™ debate reopened
The issue seemed to be settled but in July 1987, the then Home Secretary, Mr
Douglas Hurd, unexpectedly re-opened the debate by a speech in which he
asked whether it was really in the public interest for experienced criminals to be
able to refuse to answer questions ˜secure in the knowledge that a jury will never
hear of it™. In 1988 he announced the setting up of a Working Party to consider
not whether the CLRC™s 1972 proposal should be adopted, but ˜the precise form
of the change in law which would best achieve our purposes™.
In October 1988 the Secretary of State for Northern Ireland laid before
Parliament the draft Police and Criminal Evidence (Northern Ireland) Order
1988 which was ¬rst approved and then made on 14 November and came into
force one month later.50
The Northern Ireland Order permitted the court to draw adverse inferences
from the accused™s failure before being charged or on being charged to
mention any fact relied on in his defence at trial. As recommended by the
CLRC in 1972, the Order stated that such silence could also be corroboration
of other evidence.
The Northern Ireland Order also provided that adverse inferences could be
drawn where someone who had been arrested and cautioned about the matter
failed to explain ˜any object, substance or mark™ that the o¬cer reasonably
believed suspicious (Article 5). Similarly, adverse inferences could be drawn
from failure to explain one™s presence at the scene of the crime. In Northern
Ireland it can also be corroboration of other evidence (Article 6).

Report of the Home Office Working Group
The Report of the Home O¬ce Working Group on the Right of Silence was pub-
lished in July 1989. It recommended changes that were similar but not identical

50
SI 1989/1341.
169 Questioning of suspects by the police


to those already introduced for Northern Ireland. The Government, however,
did not implement the recommendations of the Working Group, possibly out
of a sense that it would be inappropriate in a climate dominated at the time by
concern about miscarriages of justice generated in particular by the trio of IRA
cases: the Guildford Four, the Maguires and the Birmingham Six.

The Runciman Royal Commission
The Runciman Royal Commission (1991“3), like the Philips Royal Commission,
recommended by a majority that the traditional protection for the right to
silence be retained. Nine of the eleven members considered that to allow the
prosecution and the judge to suggest that silence was evidence of guilt could
produce false confessions and therefore more miscarriages of justice:
The majority of us, however, believe that the possibility of an increase in the
convictions of the guilty is outweighed by the risk that the extra pressure on sus-
pects to talk in the police station and the adverse inferences invited if they do
not may result in more convictions of the innocent. They recommend retaining
the present caution and trial direction unamended. In taking this view, the
majority acknowledge the frustration which many police o¬cers feel when con-
fronted with suspects who refuse to o¬er any explanation whatever of strong
prima facie evidence that they have committed an o¬ence, but they doubt
whether the possibility of adverse comment at trial would make the di¬erence
which the police suppose. The experienced professional criminals who wish to
remain silent are likely to continue to do so and will justify their silence by
stating at trial that their solicitors have advised them to say nothing at least until
the allegations against them have been fully disclosed. It may be that some more
defendants would be convicted whose refusal to answer police questions had
been the subject of adverse comment, but the majority believe that their number
would not be as great as is popularly imagined.
It is the less experienced and more vulnerable suspects against whom the
threat of adverse comment would be likely to be more damaging. There are too
many cases of improper pressures being brought to bear on suspects in police
custody, even when the safeguards of PACE and the codes of practice have been
supposedly in force, for the majority to regard this with equanimity.51
The Report then cited with approval the view of the Philips majority (cited
above) to the e¬ect that if adverse inferences could be drawn from silence it
might put strong additional pressure on some suspects and might result in more
false confessions:
The minority of two of the Runciman Commission however favoured the view
that both the prosecution and the judge should be permitted to invite the jury
to draw adverse inferences from silence. In the view of many police o¬cers ˜a
signi¬cant number of suspects, by refusing to answer questions, seriously
impede the e¬orts of investigators to ful¬l their function of establishing the facts
of the case™.

51
Runciman, pp. 54“5, paras. 22 and 23.
170 Pre-trial criminal proceedings


The minority recommended that silence in response to questions ˜asked in a
room with audio or visual recording, preferably with a legal representative
present, but at least after the suspect has been o¬ered the opportunity of taking
legal advice, would qualify for later comment at trial™.52

The Criminal Justice and Public Order Act 1994
The Home Secretary, Mr Michael Howard, made his position clear shortly
after the Royal Commission reported. Speaking at the Conservative Party
Conference that October he said:
As I talk to people up and down the country, there is one part of our law in par-
ticular that makes their blood boil . . . It™s the so-called right of silence. This is of
course a complete misnomer, what is at stake is not the right to refuse to answer
questions, but if a suspect does remain silent should the prosecution and the
judge or magistrates be allowed to comment on it? Should they have the right to
take it into account in deciding guilt or innocence? The so-called right to silence
is ruthlessly exploited by terrorists. What fools they must think we are. It™s time
to call a halt to this charade. The so-called right to silence will be abolished.
Mr Howard made good his promise in the provisions of the Criminal Justice
and Public Order Act 1994 (CJPOA). There are ¬ve sections that are especially
relevant.
CJPOA 1994, s. 34 gave the court the power to invite the jury (or in the case
of the magistrates, themselves) to draw an adverse inference from silence. The
right arises only if the suspect has been cautioned and if he is being questioned
by a constable ˜trying to discover whether or by whom the o¬ence had been
committed™.53 The inference can be drawn if he ˜failed to mention any fact relied
on in his defence™ or failed to mention any such fact on being charged, being a
fact ˜which in the circumstances existing at the time the accused could reason-
ably have been expected to mention when so questioned™ or charged (s. 34(1)).
The inferences to be drawn can be ˜such inferences from the failure as appear
proper™ (s. 34(2)).
The new caution to take account of the change in the law in CJPOA 1994,
s. 34 is more complex than the old caution: ˜You do not have to say anything, but
it may harm your defence if you do not mention when questioned something
which you later rely on in court. Anything you do say may be given in evidence™
(Code C, para. 10.5). (The old much simpler caution was misunderstood by
many suspects. The new more complex caution poses even more di¬culties.54 A
team of psychologists read the new caution to 109 ordinary people. On average
about half thought it made sense but only one in four actually understood the

52
Ibid, p. 51, para. 10.
53
So if the police know that they are going to charge before the interview starts no inference can
be drawn “ Pointer [1997] Crim LR 676, CA, but if they still have an open mind pending the
results of the interview, inferences can be drawn “ McGuiness [1999] Crim LR 318, CA.
54
See I. Clare and G. Gudjunsson, Devising and Piloting an Experimental Version of the ˜Notice to
Detained Persons™ (Royal Commission on Criminal Justice, Research Study No. 7, 1992).
171 Questioning of suspects by the police


¬rst part which tells the individual of his right to remain silent, one in eight
understood the second element which warns that exercise of the right may harm
one™s defence later and one in three understood the third part which says that
anything said may be used in evidence. They concluded that the length and com-
plexity of the new formula ˜ensures that it is beyond the ability of most people
in the street to absorb, let alone comprehend™.55)
A further complication has now been added by legislation preventing a court
from drawing adverse inferences until the suspect being interviewed at the
police station has had the opportunity to get legal advice.56 This applies even to
terrorism suspects. So someone who is interviewed before he has ˜been allowed
an opportunity to consult a solicitor™ must be cautioned in terms of the old
formula. If he is then interviewed after he has had an opportunity to get legal
advice he must be cautioned again in terms of the new formula! (PACE Code C,
paras. 10.4“10.10).
CJPOA 1994, s. 35 provides that adverse inferences may be drawn from the
accused™s failure to give evidence at his trial: see pp. 463“66 below.
CJPOA 1994, s. 36, like the Northern Ireland rule, permits the court to invite
adverse inferences from the accused™s failure or refusal to account for suspicious
objects, substances or marks. Section 37, again like the Northern Ireland rule,
permits adverse inferences from the accused™s failure or refusal to account for
his presence at the scene of the crime at the time it was committed. In both cases
the suspect must ¬rst have been cautioned by the constable. Under ss. 36 and 37
adverse inferences can be drawn from the mere failure to respond to the ques-
tion. It is not necessary, as under s. 34, to show that the defendant relied on a
fact in his defence that he failed to disclose when being questioned, but he must
have been cautioned by the appropriate ˜special warning™. Under s. 36 he must
have been advised that the objects, marks or substances found on his person, or
his clothing or footwear seem suspicious and must be asked for an explanation.
Where the suspect is arrested at the scene of the crime at the time it is commit-
ted, the s. 37 caution must inform him what o¬ence is being investigated, what
fact he is being asked to account for, that the o¬cer believes that fact may be
due to his having taken part in the o¬ence and that failure to account for the
fact could lead to adverse inferences being drawn at the trial. (Home O¬ce
research has shown that when such special warnings are given they rarely result
in any satisfactory account being given.57)
CJPOA 1994, s. 38(3) states that silence on its own can never be enough. There
must always be a prima facie case before any adverse inference can be drawn.

55
Counsel, September“October 1995, p. 4.
56
Youth Justice and Criminal Evidence Act 1999, s. 58; Criminal Evidence (Northern Ireland)
Order 1999, SI 1999/2789, r. 36. These statutory provisions resulted from decisions of the
European Court of Human Rights in Strasbourg “ Murray (John) v. United Kingdom (1996) 22
EHRR 29, para. 66; Averill v. United Kingdom (2001) 31 EHRR 839.
57
T. Bucke and D. Brown, In Police Custody: Police Powers and Suspects™ Rights under the Revised
PACE Codes of Practice, 1997, Home O¬ce Research Series No. 174, p. 38.
172 Pre-trial criminal proceedings


The provisions can result in the defence solicitor being called as a witness
with regard to the advice he gave his client in the police station.58
For an evaluation of the practical e¬ect of the reform see T. Bucke, R. Street
and D. Brown, The right of silence: the impact of the Criminal Justice and Public
Order Act 1994 (Home O¬ce Research Study, 2000). For an assessment of the
Northern Ireland experience see J. Jackson, M. Wolfe and K. Quinn, Legislating
Against Silence: The Northern Ireland Experience (Northern Ireland O¬ce, 2000).
For caustic, overall assessments of the new law by two leading scholars see D.
Birch, ˜Su¬ering in Silence: A Cost“Bene¬t Analysis of Section 34 of the
Criminal Justice and Public Order Act 1994™, Criminal Law Review, 1999,
pp. 769“88 and I. Dennis, ˜Silence in the Police Station: the Marginalisation of
Section 34™, Criminal Law Review, 2002, pp. 25“38.
See also R. Pattenden, ˜Silence: Lord Taylor™s Legacy™, 5 International Journal
of Evidence and Proof, 1998, p. 141 and D. Wolchover, Silence and Guilt (2001).
There is a bibliography on the right to silence in M. Zander, The Police and
Criminal Evidence Act 1984 (5th edn, 2005), pp. 501“2.

Judicial interpretation of the right to silence provisions
The House of Lords deciding Murray (Kevin Sean)59 on the Northern Ireland
provisions held that adverse inferences may be drawn if they are suggested by
the application of common sense.60 The case law has become voluminous but
the theme of common sense has continued to be dominant.61
Among the propositions that have been established by the cases, the more
important include the following:
Strict interpretation Because the provisions restrict important rights they
must be construed strictly.62
Reliance on facts need not be in defendant™s evidence It can occur through evi-
dence of others, or cross-examination,63 but mere hypothesising is not
reliance.64 Nor is a bare admission of facts in the prosecution™s case.65
The failure to mention a fact can be at any stage up to the time of being charged.66
It could consist of lying in the interview and asserting ˜the truth™ at trial.67
Adverse inferences can only be drawn from silence in the face of questioning If
the suspect refuses to come out of his cell to be questioned, the statutory pro-
visions do not apply and no adverse inferences can be drawn.68 (To deal with
this situation, Code C provides that if the suspect declines to leave his cell to be

58
See on this D. Wright, ˜The Solicitor in the Witness Box™, Criminal Law Review, 1998, pp. 44“7.
59
[1994] 1 WLR 1.
60
Referred to in Report of the Working Group on the Right of Silence, Home O¬ce, 1989, App. C.
61
On the case law see, for instance, M. Zander, The Police and Criminal Evidence Act 1984 (5th
62
edn, 2005) pp. 480“98. Bowden [1999] 2 Cr App Rep 176 at 181.
63 64
Bowers [1998] Crim LR 817, CA. Nickolson [1999] Crim LR 61, CA.
65
Betts and Hall [2001] EWCA Crim 224, [2001] 2 Cr App Rep 257.
66
Dervish and Anori [2001] EWCA Crim 2789, [2002] 2 Cr App Rep 105.
67
Ashton [2002] EWCA Crim 2782.
68
Johnson [2005] EWCA Crim 971, [2006] Crim LR 253.
173 Questioning of suspects by the police


questioned he can be cautioned and told that his failure to agree to be ques-
tioned can be given in evidence.69)
˜The accused™ means the actual accused ˜When reference is made to the
“accused” attention is drawn not to some hypothetical, reasonable accused of
ordinary phlegm and fortitude but to the actual accused with such qualities,
apprehensions, knowledge and advice as he is shown to have had™.70
The fact that the defendant was advised to be silent by his lawyer must be given
appropriate weight71 (˜If it is a plausible explanation that the reason for not men-
tioning facts is that the particular appellant acted on the advice of his solicitor
and not because he had no or no satisfactory answer to give then no inferences
can be drawn™.72) Howell73 decided that whether legal advice to be silent will
prevent adverse inferences being drawn depends on whether the jury considers
it to be plausible that that was the reason he was silent, rather than that he had
no or no satisfactory answer to give. (˜There is a public interest in reasonable
disclosure by an accused when confronted with incriminating facts. This would
be thwarted if silence based on legal advice allowed the systematic evasion of the
drawing of adverse inferences™.74) In Hoare and Pierce75 the Court of Appeal
re¬ned this further by stating that the jury must also believe that it was reason-
able for the defendant to have relied on the legal advice to be silent.76
Valid reasons for advising silence include: little or no disclosure by the police
so the solicitor cannot advise the suspect (Roble),77 the suspect™s condition “ ill-
health, confusion, intoxication or shock, or genuine inability to recollect events
without reference to documents or other persons (Howell).
Explaining the reasons for legal advice to be silent will probably amount to a
waiver of privilege: Bowden78 and Loizou.79
The jury may draw whatever inferences they think proper: Cowan80 and Beckles
and Montagu.81 The test is common sense “ Murray (Kevin)82 and Argent.83

Empirical evidence on the right to silence changes
Pre-CJPOA 1994 empirical evidence showed that relatively few suspects actually
relied on their right of silence. David Brown of the Home O¬ce conducted an

69 70
At para. 12.5. Argent [1997] 2 Cr App Rep 27 at 33.
71
Condron v. United Kingdom (No 2) (2001) 31 EHRR 1, [2000] Crim LR 679.
72
Betts and Hall [2001] EWCA Crim 224, [2001] 2 Cr App Rep 257.
73
[2003] EWCA Crim 1, [2003] Crim LR 405.
74
For comment see C. Jowett, ˜Inferences from Silence™, 153 New Law Journal, 7 March 2003,
p. 344 and A.L.-T. Choo and A.F. Jennings, ˜Silence on Legal Advice Revisited: R v. Howell™, 7
International Journal of Evidence and Proof, 2003, pp. 185“190. See also E. Cape, ˜Rebalancing
the Criminal Justice Process: Ethical Challenges for Criminal Defence Lawyers™, Legal Ethics,
75
vol. 9, Pt 1, 2006, p. 56. [2004] EWCA Crim 784.
76
See also the decision of the ECHR in Beckles v. United Kingdom (2003) 36 EHRR 13. For
commentary on Hoare and Pierce and Beckles see Criminal Law Review, 2005, pp. 562 and 568
and B. Malik, ˜Silence on Legal Advice: Clarity but not Justice? R v. Beckles™, 9 International
77
Journal of Evidence and Proof, 2005, pp. 211“16. [1997] Crim LR 449.
78 79 80
[1999] 2 Cr App Rep 176. [2006] EWCA Crim 1719. [1996] QB 373 at 381“2, CA.
81 82 83
[1999] Crim LR 148, CA. [1994] 1 WLR 1 at 12, HL. [1997] 2 Cr App Rep 27 at 33.
174 Pre-trial criminal proceedings


analysis of studies on the right of silence for the Runciman Royal Commission
on Criminal Justice. His conclusion was that ˜outside the Metropolitan Police
district, between 6 per cent and 10 per cent of suspects exercise their right to
silence to some extent, while within the Metropolitan Police district the equiva-
lent percentage is between 14 per cent and 16 per cent. The number of those who
refuse to answer any questions at all is estimated at 5 per cent at most in provin-
cial police force areas and 9 per cent at most in the Metropolitan Police district™.84
A di¬erent Home O¬ce study pre-CJPOA based on a sample of 4,250 suspects
detained between September 1993 and March 1994 found 10 per cent refused to
answer all questions and another 13 per cent refused to answer some questions.85
The ¬rst Home O¬ce research on the impact of the changes made by the
CJPOA showed a reduction in suspects using the right of silence.86 Where in the
pre-CJPOA 1994 study 10 per cent gave ˜no comment™ interviews by refusing all
questions from o¬cers, in the post-CJPOA 1994 study this had fallen to 6 per
cent. Where 13 per cent had answered some questions in the ˜pre™ study, in the
˜post™ study this had fallen to 10 per cent. The downward trend was observed
across all police stations. Even more signi¬cant was that reductions in the use
of silence were greatest among those receiving legal advice, presumably because
lawyers advised of the dangers of remaining silent under the new provisions.
The same data was used again in another Home O¬ce study published
in 2000.87 Also in 2000 the Northern Ireland O¬ce published a similar study.88
The results of the two studies and of the position generally were assessed by
Professor John Jackson.89 The Home O¬ce study established that the silence pro-
visions had had a marked e¬ect on both pre-trial and trial practices but that it
was much less clear that they had increased the likelihood of defendants being
charged and convicted. It was more common for investigating o¬cers to disclose
the main features of the evidence against the accused, thus enabling legal advis-
ers to give suspects better advice as to whether and, if so, how to respond to police
questions. This in turn meant that stories could be checked out earlier, weak cases
could be stopped and in cases that went to court, the prosecution™s hand could be
strengthened. More defendants were testifying but, on the other hand, the silence
provisions made trials more complex. Judges had to exercise extreme care in
directing juries on the right to silence issue. Jackson suggested that the overall

84
Runciman, p. 53, para. 15.
85
C. Phillips and D. Brown, Entry into the Criminal Justice System: a Survey of Police Arrests and
86
their Outcomes (Home O¬ce Research Study No. 185, 1998) p. 75. Ibid.
87
T. Ucke, R. Street and D. Brown, The Right of Silence: the Impact of the Criminal Justice and
Public Order Act 1994 (Home O¬ce Research Study No. 199, 2000).
88
J. Jackson, M. Wolfe and K. Quinn, Legislating against Silence: the Northern Ireland Experience,
2000. For a summary see M. Zander, ˜Silence in Northern Ireland™, 151 New Law Journal, 2
February 2001, p. 138. The study was based on an examination of all trials in Belfast Crown
Court for 1990“5, more detailed examination of thirty terrorism trials in 1995, comparison
with all trials in the same court in 1987 and 1991, statistics on legal advice in 1997 and
interviews with judges, lawyers and police o¬cers.
89
˜Silence and Proof: Extending the Boundaries of Criminal Proceedings in the United
Kingdom™, 5 International Journal of Evidence and Proof, 2001, pp. 145“73.
175 Safeguards for the suspect


e¬ect had been to make the police interview a formal part of the proceedings
against the accused without certain basic procedural safeguards. The suspect had
no right to disclosure of the police case at that stage and legal advice as to whether
or not to say anything was problematic since the courts had left to the jury the
question whether it was reasonable for the suspect to accept this advice.90


3. Safeguards for the suspect
The suspect in the police station is in a very vulnerable position. The question
arises as to how he can be protected from police abuse of power. A variety of
approaches have been developed in recent years, of which the most important
are treated below: access to a lawyer, informing the outside world of the fact of
arrest, tape recording of the interview and rules to regulate the regime in the
police station and to prevent oppressive questioning.


Access to a lawyer
The presence of a lawyer during questioning provides the accused with much-
needed advice and at the same time helps to minimise the risk of oppressive
interrogation.91
Until 1986 when PACE came into operation, access to a solicitor in the police
station was governed by the Judges™ Rules and some judicial dicta. The Preamble
to the Judges™ Rules stated that the Rules did not a¬ect the principle ˜that every
person at any stage of an investigation should be able to communicate and to
consult privately with a solicitor. This is so even if he is in custody, provided that
in such a case no unreasonable delay or hindrance is caused to the processes of
investigation or the administration of justice by his doing so™. This appeared to
give a quali¬ed right of access to a solicitor in the police station. The
Administrative Directions supplementing the Rules stated that provided no
hindrance was reasonably likely to be caused to the processes of investigation or
the administration of justice, ˜he should be allowed to speak on the telephone
to his solicitor or to his friends™. They added that not only should persons in
custody be informed of their right orally, but notices describing this right
should be displayed at convenient and conspicuous places and the attention of
persons in custody should be drawn to them.92
In practice, however, the police were reluctant to allow a suspect to summon
a solicitor. The studies that were done before PACE all agreed that the propor-
tion of suspects who actually saw a solicitor was tiny.93

90
At p. 173.
91
However, in two of the most celebrated cases in which oppressive questioning led to
confessions in murder cases being held to be inadmissible the suspect had had a legal adviser
92
present throughout: see p. 476 below. Paragraph 7(a) and (b).
93
P. Softley, Police Interrogation: An Observational Study in Four Police Stations, 1980, p. 68;
J. Baldwin and M. McConville, ˜Police Interrogation and the Right to see a Solicitor™,
176 Pre-trial criminal proceedings


The Philips Royal Commission
The Philips Royal Commission thought the availability of legal advice for sus-
pects was a matter of considerable importance. In the Commission™s view a
suspect should be informed of his right to have a lawyer. It rejected the view that
there should be an absolute right to have a solicitor. There were situations in
which the police should be entitled to refuse access to a lawyer:
4.91. Accordingly our general view is that the power to refuse access should be
exercised only in exceptional cases. In the ¬rst place it should be limited to cases
where the person in custody is suspected of a grave o¬ence. Further, even in the
case of such o¬ences, the right should be withheld only where there are reason-
able grounds to believe that the time taken to arrange for legal advice to be avail-
able will involve a risk of harm to persons or serious damage to property; or that
giving access to a legal adviser may lead to one or more of the following: (a) evi-
dence of the o¬ence or o¬ences under investigation will be interfered with; (b)
witnesses to those o¬ences will be harmed or threatened; (c) other persons sus-
pected of committing those o¬ences will be alerted; or (d) the recovery of the
proceeds of those o¬ences will be impeded.
The Commission estimated that if all the 720,000 suspects interviewed at police
stations in connection with indictable o¬ences were to take up their right to see
a solicitor the cost would be some £30 million but the likely take-up, it thought,
would be of the order of one-¬fth which would mean an annual cost of some
£6 million. (In 2005“6 the cost of legal advice in police stations was £172
million!)

PACE
PACE s. 58(1) provides that ˜a person arrested and held in custody in a police
station or other premises shall be entitled, if he so requests, to consult a solici-
tor privately at any time™. The right is both to have legal advice before being
interviewed and to have the lawyer present during the interview. Even a suspect
arrested under the Terrorism Act has those rights “ though in some circum-
stances a senior o¬cer can instruct that an interview with a terrorism suspect
can be conducted in the sight and hearing of an inspector.
The provision of the lawyer is free regardless of the suspect™s means. A suspect
who comes to the police station under arrest or is arrested there must be
informed of the right to have free legal advice both orally and in writing (Code
C, paras. 3.1, 3.2 and 6.1).
If a person makes such a request it must be recorded in the custody record
and, subject to the exceptions that are mentioned, he must be allowed to have
access to a solicitor ˜as soon as is practicable™ (PACE s. 58(2) and (4)). Delay in

Footnote 93 (cont.)
Criminal Law Review, 1979, pp. 145“52; M. Zander, ˜Access to a Solicitor in the Police Station™,
Criminal Law Review, 1972, p. 342 and ˜The Investigation of Crime™, Criminal Law Review,
1979, p. 215; B. Mitchell, ˜Confessions and Police Interrogation™, Criminal Law Review, 1983,
pp. 597 and 599“600.
177 Safeguards for the suspect


compliance with such a request is only permitted where (1) the detainee is being
held in connection with an indictable o¬ence (formerly it was a serious
arrestable o¬ence)94 and (2) an o¬cer of the rank of, at least, superintendent
authorises delay.
Delay The circumstances in which such authorisation may be given are
de¬ned in s. 58(8):
. . . an o¬cer may only authorise delay where he has reasonable grounds for
believing that the exercise of the right [of asking for a solicitor]
(a) will lead to interference with or harm to evidence connected with an
indictable o¬ence or interference with or physical injury to other persons; or
(b) will lead to the alerting of other persons suspected of having committed
such an o¬ence but not yet arrested for it; or
(c) will hinder the recovery of any property obtained as a result of such an
o¬ence.
If such a delay is authorised, the detainee must be told the reasons for it, the
reasons must be recorded on the custody record (see below) and, once the
reasons cease to exist, he must be allowed to see a solicitor.95
The maximum period of delay in allowing access to a solicitor is thirty-six
hours, or, in the case of terrorism suspects held under the Terrorism Act 2000,
forty-eight hours.96
There has been a considerable amount of case law on the interpretation of
PACE s. 58(8). Most of the cases have involved defence assertions that the police
wrongly delayed access to a solicitor and that subsequent confessions or admis-
sions should not be (or should not have been) admitted. The leading case is
Samuel.97 The suspect™s request for a solicitor was refused on the ground that
the o¬ences were serious and that there was a risk of accomplices being inad-
vertently alerted. Subsequently he confessed. The trial judge admitted the inter-
view in which he confessed. The Court of Appeal quashed the conviction. The
right of access to a solicitor, it held, was a ˜fundamental right of a citizen™ and if
a police o¬cer sought to justify refusal of the right, he had to do so by reference
to the speci¬c circumstances of the case. It was not enough to believe that giving
access to a solicitor might lead to the alerting of accomplices. He had to believe
that it probably would.98
A Note for Guidance in Code C says that an o¬cer™s decision to delay access
to a speci¬c solicitor ˜is likely to be a rare occurrence™ and is permissible only if

94
Substituted for serious arrestable o¬ences by the Serious Organised Crime and Police Act
2005 (SOCPA), Sch. 7, Part 3, para. 43(10). Serious arrestable o¬ences were abolished by
SOCPA.
95
The House of Lords has held by a majority that breach of the statutory duty to give reasons
for authorising delay of an arrested person™s right of access to a solicitor did not give the
arrested person a private law remedy in damages, though it could be the subject of judicial
review “ Cullen v. Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39, [2003] 1
96
WLR 1763. Code C, Annex B, para. 6; Code H, Annex B, para. 6.
97 98
[1988] QB 615. See to like e¬ect Parris [1989] Crim LR 214.
178 Pre-trial criminal proceedings


he has reasonable grounds to believe that the suspect is ˜capable of misleading
that particular solicitor and there is more than a substantial risk that the suspect
will succeed in causing information to be conveyed which will lead to one or
more of the speci¬ed consequences™ “ alerting accomplices etc. (Code C, Annex
B, Note B3).
Research shows that the police now hardly ever claim to be entitled to delay
access to a solicitor. In a massive study carried out by David Brown of the Home
O¬ce Research Unit involving two samples of 5,000 each taken in 1991, there
was only one case of legal advice delayed.99 In the post-CJPOA Home O¬ce
study of 12,500 cases by Bucke and Brown there was not a single one in which
the power to delay legal advice had been used.100
Unsurprisingly, in terrorism cases, delay is more frequent. A study of this
problem by Brown showed that delay of access to a solicitor was authorised in
26 per cent of cases.101
The fact that there has been a breach of s. 58(8) does not mean that the court
will automatically exclude the resulting statement. It will depend on the court™s
evaluation of all the circumstances. In Dunford102 the Court of Appeal took into
account the fact that the suspect had a record and was therefore familiar with
the police station. He answered several questions with ˜no comment™ and before
reaching the police station he declined to answer any questions. The court held
that the judge had been entitled to allow the confession. In Walsh103 the Court
of Appeal said that to admit evidence obtained following a ˜signi¬cant and sub-
stantial™ breach of s. 58 would inevitably have an adverse e¬ect on the fairness
of the proceedings within the meaning of s. 78 (see pp. 479“81 below), but that
did not mean it had necessarily to be excluded. The task of the court was not
only to consider whether there would have been an adverse e¬ect on the fair-
ness of the proceedings but such an adverse e¬ect that justice required the evi-
dence to be excluded. Where the suspect knows his way around in the police
station situation it is less likely that a breach of s. 58 will result in exclusion of
the evidence.104

Getting a lawyer
PACE originally required the Law Society to establish Duty Solicitor schemes
for police stations. They are now the responsibility of the Legal Services
Commission (LSC) established by the Access to Justice Act 1999 and are run by
its Criminal Defence Service (CDS). Every police station in the country is
covered by the system, using solicitors in private practice. The duty solicitor is
contacted through a telephone service run by FirstAssist, part of the Royal and

99
Brown et al, Changing the Code: Police Detention under the Revised PACE Codes of Practice
100
(Home O¬ce Research Study, 1992) p. 68. Note 20, p. 156 above, at p. 23.
101
D. Brown, Detention Under the Prevention of Terrorism Provisions Act 1989: Legal Advice and
Outside Contact (Home O¬ce Research and Planning Unit, Paper No. 75, 1993) p. 16).
102 103
[1991] Crim LR 370. (1989) 91 Cr App Rep 161.
104
Alladice (1988) 87 Cr App Rep 380.
179 Safeguards for the suspect


Sun Alliance Group of companies. The police call the service on the suspect™s
behalf; the service calls the solicitor. The solicitors are private practitioners
operating either on a rota or on a panel. In rota schemes a named solicitor is on
duty; in panel schemes the service calls the solicitors on the panel in the order
in which they appear on the list.
In October 2005 the LSC began a pilot of a new system under which requests
for a duty solicitor go instead to CDS Direct. The essence of the approach being
tested was that initial advice would be given over the telephone by solicitors
employed by CDS. Unless the case concerns an indictable-only o¬ence (i.e. one
triable only at the Crown Court) or the police already know the time at which
the suspect is to be interviewed, the CDS lawyer, having given initial advice,
would decide whether attendance in the police station by a solicitor is required.
Where the service is restricted to telephone-only advice105 all duty solicitor ser-
vices throughout the country are handled by CDS Direct.106
If the detainee does not know of a solicitor, he must be told of the availabil-
ity of a Duty Solicitor and be shown a list of solicitors who have indicated they
are available for this purpose. In about two-thirds of all cases the suspect asks
to speak to his own solicitor, rather than the Duty Solicitor, but the state pays
the cost regardless of means in any event.
For the recommendations of the Carter Review (2006) regarding police
station legal advice see p. 621 below.

Statistical data
In Brown™s ¬rst 1991 sample of 5,000 taken before April 1991, 24 per cent asked
for legal advice. The 1991 revision of the Code required that the suspect be
speci¬cally told legal advice was free and that posters advertising the fact be put
up in police stations. The 1997 study by Bucke and Brown showed that the take-
up had risen to 40 per cent.107
Afro-Caribbean and Asians were much more likely to request legal advice (46
per cent and 44 per cent) than white suspects (36 per cent).108 Afro-Caribbeans
were more likely to have been arrested for violence against the person, robbery,
fraud and forgery than whites, all of which are o¬ences for which there is a rel-
atively high request rate.
A factor in take-up could be the way the police communicate the right to
consult a solicitor. Sanders and Bridges identi¬ed a long list of ˜ploys™ used by the
police to discourage suspects from asking for solicitors. These included speaking
too quickly or saying that the charge was not very serious, that getting a solicitor

105
From Spring 2004 the LSC introduced cost-saving rules to reduce attendance at police
stations. Thus, attendance, for instance, has to be for the purpose of giving advice that could
not have been given over the phone, but if the suspect is a juvenile or for any other reason is
eligible for assistance from an ˜appropriate adult™ (see p. 190 below) or he requires an
interpreter or he complains of serious maltreatment by the police, attendance is permitted.
106
Legal Action, April 2005, p. 16, October 2005, p. 12; Independent Lawyer, May 2004, p. 4.
107 108
Note 20, p. 156 above, at p. 19. Ibid, p. 20.
180 Pre-trial criminal proceedings


would involve considerable delays, that the solicitor probably would not come
anyway, or that one was unnecessary.109 The Code (Code C, para. 6.5) requires
the custody o¬cer to ask the suspect who declines legal advice for his reasons, but
Bucke and Brown found that this rule is often honoured in the breach. Less than
half of those refusing legal advice were asked for their reasons.110
Since 1991, the Code has speci¬cally stated that no attempt may be made to
dissuade a suspect from obtaining legal advice (Code C, para. 6.4). Brown™s
research conducted both before and after the 1991 change did not ¬nd much
evidence of ˜ploys™ if that word is taken to connote conscious attempts to dis-
suade or discourage the suspect from seeking legal advice. (In the great major-
ity of cases ˜details of rights were given in exemplary fashion, both slowly and
clearly™ “ though in some cases it was given too quickly or incompletely or the
language used was not readily comprehensible.)
The fact that one asks for legal advice and that the police allow one to have it
does not always mean that such advice is actually obtained. Earlier research
showed a non-contact rate as high as a quarter, but this seems to have gone
down. Bucke and Brown found no contact was made with an adviser in only 11
per cent of cases.111
Sometimes the reason for ˜non-contact™ is that the suspect changes his mind,
or he is released from custody before the adviser arrives or he decides to see the
lawyer at court instead. Overall, a third of suspects (34 per cent) actually had
legal advice.112
However, even if the solicitor advises in person it does not mean that he will
necessarily stay while the suspect is interviewed. In Bucke and Brown 1997, of
2,181 suspects interviewed in custody, just over half (52 per cent) had no legal
advice, just over a third (37 per cent) had their legal adviser present at all inter-
views, just under a tenth (9 per cent) received advice only pre-interview and the
remaining 2 per cent had the adviser present at some but not all interviews
(p. 32). This showed a considerable rise from previous studies in the propor-
tion of cases of the adviser being present during interviews.

The adviser in the police station
The police are not allowed to refuse someone access to a solicitor because he
might advise the suspect to be silent or because he has been asked to act by
someone else “ providing the suspect does actually want to see the solicitor
(Code C, Annex B, A, 4).
Note 6J to Code C states that a person consulting a solicitor in the police
station ˜must be allowed to do so in private™ and that ˜this right to consult or
communicate in private is fundamental™. It speci¬es that the right will be com-
promised if the advice is listened to, overheard or read.

109
A. Sanders and L. Bridges, Advice and Assistance at Police Stations and the 24 Hour Duty
110 111
Solicitor Scheme (LCD, 1989). Note 20, p. 156 above, at p. 21. Ibid, p. 23.
112
Ibid, p. 24.
181 Safeguards for the suspect


If a person has asked for legal advice he may not be interviewed or continue
to be interviewed until he has received such advice unless an o¬cer of the rank
of superintendent reasonably thinks that one of the speci¬ed grounds for allow-
ing legal advice to be delayed applies (Code C, para. 6.6).
If a person who wanted legal advice changes his mind, an interview may take
place if that person agrees in writing or on tape and an o¬cer of the rank of
inspector or above, having asked the suspect for his reasons, agrees (Code C,
para. 6.6(d)).
The right to get legal advice under s. 58 contemplates that the adviser will be
a solicitor but in practice this often is not the case. Bridges and Hodgson (1995)
said: ˜it appears from the available research evidence that a signi¬cant propor-
tion, probably between two-¬fths and one-half, of all attendances at police sta-
tions by legal advisers are carried out by persons other than fully quali¬ed
solicitors™.113 Often the adviser is a former police o¬cer! The use of non-
solicitors as police station advisers is particularly common when the ¬rm used
is the client™s own solicitor (as opposed to the Duty Solicitor).114
The quality of legal advice in police stations was the subject of criticism in
several research studies.115 Thus McConville and Hodgson in a study done for
the Runciman Royal Commission found that in 86 per cent of cases, the adviser
made no inquiries about the case of the custody o¬cer. In half the cases the
adviser spent under ten minutes in private conversation with the client and
many such consultations appeared cursory in nature.116 Dixon et al reported
that ˜legal advisers are largely passive and non-interventionist in police interro-
gations™. The role of many was ˜to act purely as witness to the proceedings™.117
Baldwin, in a study of 182 audio or video tapes of police interrogations where
a legal adviser was present, found that in two-thirds of these cases the adviser
said nothing at all in the interview.118
Concern about the quality of the work done in police stations led the Law
Society to produce an elaborate new training scheme for police station advis-
ers. It led also to the Legal Aid Board insisting that it would only pay for advice
done by persons who had quali¬ed themselves under the new ˜accreditation
scheme™. As from February 1995, legal aid only paid for police station work
done by ˜own solicitor™ representatives if they were on the accreditation list and

113
L. Bridges and J. Hodgson, ˜Improving Custodial Legal Advice™, Criminal Law Review, 1995,
p. 104.
114
In Bucke and Brown 1997, n. 20, p. 156 above, when the advice at the police station was given
through the duty solicitor scheme, the adviser was a quali¬ed solicitor in 92 per cent of
instances. When the advice was given by the suspect™s chosen ¬rm, the adviser was a solicitor
in 75 per cent of cases (p. 27).
115
For a review of this evidence see Bridges and Hodgson, n. 113 above.
116
M. McConville and J. Hodgson, Custodial Legal Advice and the Right to Silence (Royal
Commission on Criminal Justice, Research Study No. 16, 1993).
117
D. Dixon et al, ˜Safeguarding the Rights of Suspects in Police Custody™, 1 Policing and Society,
1990, p. 124.
118
J. Baldwin, The Role of the Legal Representatives at Police Stations (Royal Commission on
Criminal Justice, Research Study No. 3, 1992) p. 49.
182 Pre-trial criminal proceedings


non-solicitor representatives and trainee solicitors were also brought into the
accreditation scheme.119 This policy was continued by the Legal Services
Commission.120
Bucke and Brown noted the length of consultations. Nearly half took less
than ¬fteen minutes. Only 2 per cent lasted over an hour.121
For a discussion of the e¬ect of poor legal advice on cases especially with
regard to exclusion of evidence see E. Cape and J. Hickman, ˜Bad Lawyer, Good
Defence™, 152 New Law Journal, 2 August 2002, p. 1194.

Note “ ˜serious arrestable offences™ abolished
˜Serious arrestable o¬ences™ (SAOs) were de¬ned in Sch. 5 of the Act to mean
any of certain speci¬ed o¬ences such as murder, manslaughter, rape, using
explosives to endanger life or property, and possession of ¬rearms with intent
to injure or with criminal intent. Apart from the identi¬ed o¬ences, under
s. 116 an o¬ence was an SAO if it either had led or was likely to lead to serious
harm to the security of the state, serious interference with the administration of
justice or the investigation of o¬ences, or death, serious injury or substantial
¬nancial gain or loss to anyone.
Research showed that, according to the police, only about 2 per cent of sus-
pects were identi¬ed as being involved in serious arrestable o¬ences.122
Where an o¬ence was an SAO the police had special powers under PACE “ in
respect of road checks (s. 4), search warrants (s. 8), special procedure applica-
tions (s. 9 and Sch. 1), length of detention (ss. 42, 43 and 44), delay in notify-
ing police of the fact of detention (s. 56) and delay in permitting access to legal
advice (s. 58).
SAOs were abolished by the Serious Organised Crime and Police Act 2005
(SOCPA) which substituted indictable o¬ence for serious arrestable o¬ence.123
An indictable o¬ence is one triable either in the Crown Court or the magis-
trates™ court. That greatly increased the number of instances in which the
additional powers could be utilised.


Informing someone that one has been arrested
Almost a decade before PACE, in the Criminal Law Act 1977, s. 62, a suspect was
given the right to have the fact of his arrest and his whereabouts communicated
to someone reasonably named by him “ without delay or, where some delay is
necessary in the interests of the investigation or prevention of crime or the
apprehension of o¬enders, with no more delay than is so necessary.

119
For a detailed assessment see L. Bridges and J. Hodgson, ˜Improving Custodial Legal Advice™,
Criminal Law Review, 1995, pp. 106“13.
120
For details of the accreditation schemes see www.legalservices.gov.uk and www.lawsociety.
121
org.uk. Note 20, p. 156 above, p. 27.
122
D. Brown, Detention at the Police Station under the PACE Act 1984 (Home O¬ce, 1989)
123
pp. 48“9. SOCPA, Sch. 7, Part 3.
183 Safeguards for the suspect


Section 62 was recreated with minor modi¬cation in s. 56 of PACE. The
person to be informed is now ˜one friend or relative or other person who is
known to him or who is likely to take an interest in his welfare™ (s. 56(1)).
Delay is only permitted where the o¬ence in question is an indictable o¬ence
(formerly a serious arrestable one) and is authorised by an o¬cer of at least the
rank of inspector.124 The only permitted ground is that informing someone of
the fact of the suspect™s arrest ˜will lead to interference with or harm to evidence
connected with an indictable o¬ence or interference with or physical injury to
other persons, or will lead to alerting of other persons suspected of having com-
mitted such an o¬ence but not yet arrested for it, or will hinder the recovery of
any property obtained as a result of such an o¬ence™ (s. 56(5)). If delay is autho-
rised, the person must be told the grounds and they must be recorded on his
custody sheet (s. 56(6)). The right to have someone informed of his where-
abouts applies anew every time that the suspect is brought to a new police
station (s. 56(8)).
The Code of Practice (Code C, s. 5) adds further details. Thus the suspect has
the right to have someone informed of his whereabouts at public expense. If one
person cannot be reached he has the right to nominate someone else. The police
right to delay informing someone does not apply in the case of a juvenile or
someone who is mentally disordered or vulnerable.125 E¬orts must be made to
notify his parent or guardian, or, where he is subject to a supervision order, his
supervisor and the appropriate adult (see pp. 190“91 below).
The Code of Practice also provides for a foreign national or Commonwealth
citizen to be allowed to communicate with his embassy, high commission or
consulate at any time, and this right may not be suspended or delayed (para. 7.1
and note 7A).
It seems that under one-¬fth of suspects seek to avail themselves of this
right.126 Delays are hardly ever imposed by the police.127


Tape recording of interviews
It would be a very unusual suspect who could take a note (let alone a coherent
note) of the questioning he undergoes in the police station. The police on the
other hand are well placed to make a record of the process. For many years there
was a serious issue as to the accuracy of this record. It happened not infre-
quently that the suspect claimed that he had (in the jargon) been ˜verballed™,
meaning that an alleged admission or confession had been invented by the
police.

124
It was altered from superintendent by the Criminal Justice and Police Act 2001, s. 74.
125
Code C, Annex B, note B3.
126
D. Brown, Detention at the Police Station under PACE (Home O¬ce Research Study No. 104,
1989) p. 34.
127
Brown et al (1992, note 99, p. 178 above) p. 68 found that delays were imposed in 0.1 per cent
of cases.
184 Pre-trial criminal proceedings


The best way to safeguard the accused from police malpractice of this kind is
obviously to have the entire transaction on tape. The tape also protects the
police from false accusations of improper questioning or fabrication of evi-
dence. Since 1992 tape recording has been compulsory for all interviews in con-
nection with all o¬ences other than summary-only o¬ences.
However, it took a considerable period to reach that position. In 1972, a
majority of the CLRC thought the time was not yet ripe to make tape record-
ings compulsory. It suggested merely that the Home O¬ce mount an experi-
ment. The Philips Royal Commission in its report in 1981 considered various
options. It recommended the most modest “ that only the ¬nal stage of police
questioning be tape recorded, namely the formal ˜statement stage™ when the
police assist the suspect to put his previous, usually rambling, account of the
matter into a coherent statement. Taping of the whole interview, the Royal
Commission thought, would prove too costly.
To its credit, the Conservative Government ignored the advice and went
ahead with an experiment into taping the whole interview. The police were ini-
tially extremely hostile but the results soon convinced them and they became as
enthusiastic about tape recording as any civil libertarians. The reason was that
the presence of tape recording seems to increase the proportion of guilty pleas
and to reduce challenges to prosecution evidence. Understandable police fears
that tape recording would diminish the ¬‚ow of confessions or information about
o¬ences committed by suspects were not realised. Rather surprisingly, suspects
seemed just as ready to ˜help the police with their inquiries™ on tape as before.128
Tape recording is done under the procedure laid down in PACE Code E which
deals with all the details. It provides that tape recording must be done openly.
The master tape is sealed in the presence of the suspect. The second tape is the
working copy. There should be a time coding to ensure that the tape is not
changed by the police. (There have been no allegations of such abuse.) The fact
of breaks, with timings, is supposed to be recorded.
If the suspect objects to the interview being tape recorded, the o¬cer can, but
need not, turn the recorder o¬.
The police also have to make a record of the interview. A 1991 Home O¬ce
Circular to the police on tape recorded interviews129 said that the summary was
supposed to be a ˜balanced, accurate and reliable summary of what has been said
which contains su¬cient information to enable the Crown Prosecution Service to
decide whether or not a criminal prosecution is appropriate and whether the
charges are appropriate™. The summary was supposed to include a verbatim written
record of all questions and answers containing admissions by the suspect.130
Research funded by the Home O¬ce showed that summaries prepared by

128
For an account of the sea-change in the attitude of the police see J. Baldwin, ˜The Police and
129
Tape Recorders™, Criminal Law Review, 1985, p. 659. 39/1991.
130
See, however, J. Baldwin and J. Bedward, ˜Summarising Tape Recordings of Police Interviews™,
Criminal Law Review, 1991, p. 671 and J. Baldwin, ˜Getting the Record Straight™, Law Society™s
Gazette, 3 February 1993, p. 28 to the e¬ect that summaries are often inaccurate.
185 Safeguards for the suspect


civilian employees were generally of higher quality than those prepared by
police o¬cers. They were more consistently free from bias either toward pros-
ecution or defence and they were better in terms of coverage, accuracy, rele-
vance and literacy. Also they were cheaper.131 Based on this research, all forces
were advised by an e¬ciency scrutiny in July 1995 to implement a programme
to employ civilians to prepare records of taped interviews.132
The defence has full access to the tape recording unless there is a valid claim
of public interest immunity.133
However, in fact it is relatively rare for either the prosecution or the defence
lawyers to listen to the actual tapes. They tend instead to work from the
summary of the tape. The Law Society has laid down guidelines as to when
solicitors should listen to the tape.134
Tape recording originally did not apply to interviews with terrorism suspects.
There was a fear that giving the defence access to the tapes might result in the
identi¬cation of the o¬cers involved in questioning such suspects, with possible
risk to their lives, but in March 1990 the Home Secretary announced a two-year
experiment in London and Merseyside in which the police would tape record
summaries of interviews with terrorism suspects. The experiment lasted until
1995 and taping continued after that on a voluntary basis. No report was ever
published on the experiment. In 2001 a new system came into force for the
mandatory audio recording of terrorism interviews under the Terrorism Act 2000
in England, Wales, Scotland and Northern Ireland. In Northern Ireland in addi-
tion there has been video taping of terrorism interviews as from February 2001.
On guidance to the courts on the handling of tape recordings see Rampling
[1987] Crim LR 823 and Practice Direction (Crime: Tape Recording of Police
Interviews) [1989] 1 WLR 631.
For a comparison of pre-PACE with post-PACE cases with regard, inter alia,
to the e¬ect of tape recording see I. Bryan, ˜Shifting Images: Police“Suspect
Encounters during Custodial Interrogations™, 17 Legal Studies, 1997, p. 215.

131
A. Hooke and J. Knox, ˜Preparing Records of Taped Interviews™, Home O¬ce Research and
Statistics Department, Research Findings No. 22, November 1995.
132
The e¬ciency scrutiny led in 1995 to further major changes, the main purpose of which was
to cut down signi¬cantly on police paperwork. In straightforward cases where the defendant
is likely to plead guilty in the magistrates™ court, the police are now supposed to send to the
CPS an abbreviated ¬le with short descriptive notes (SDNs) of taped interviews instead of a
record of the taped interview. The SDN should be brief, should refer to relevant tape counter
times and should use reported speech. The abbreviated ¬le would have a statement of the
victim and key witnesses. The full ¬le has typed copies of all witnesses. For an account of this
story and an assessment of the then latest changes see A. Mackie, J. Burrows and R. Tarling,
˜Preparing the Prosecution Case™, Criminal Law Review, 1999, pp. 460“9. For subsequent
developments see a report in May 2003 by the Cabinet O¬ce Regulatory Impact Unit entitled
˜Making a Di¬erence: Reducing Bureaucracy and Red Tape in the Criminal Justice System™ “
www.cabinet-o¬ce.gov.uk/regulation/PublicSector/reports.htm section 2.2.
133
In R v. X Justices, ex p J [2000] 1 All ER 183, Div Ct, the prosecution successfully argued that
the tapes should not be released to the defence as to do so would put an undercover agent
with a distinctive voice at risk, but copies of the transcripts were released.
134
Law Society™s Gazette, 20 April 1994, p. 29.
186 Pre-trial criminal proceedings


A possible future development would be the tape recording of interviews
with signi¬cant witnesses. For a two-part article by two barristers urging this
see D. Wolchover and A. Heaton-Armstrong, ˜Tape Recording Witness
Statements™, 147 New Law Journal, 6 June 1997, p. 855 and 13 June, p. 894.
Video taping of interviews A Home O¬ce sponsored pilot experiment with
the video taping of interviews with ordinary suspects began in April 2002.135
It took place in six police force areas under the provisions of new PACE Code
F. Code F was extended to all forces on a discretionary basis as from August
2004.
The rules for the handling of video recording are very similar to those for
audio recording. Like audio tapes, the master tape has to be sealed in the
presence of the suspect. In terrorism cases and other cases where an o¬cer
believes that recording or disclosing his identity would put him in danger he
is permitted to use his identi¬cation number instead of his name and he can
have his back to the camera. Receipt of the video tape by the defence is
subject to an undertaking by the lawyer that it will not be given to the defen-
dant for fear that it will be used improperly to identify the police o¬cers
involved.

Exchanges that are not recorded
It is clear that exchanges take place between suspects and police o¬cers that are
not recorded “ in the street, in private homes or other premises, in the police
car and at the police station. Research done for the Runciman Commission
showed that the arresting o¬cers reported having interviewed suspects before
arrival at the police station in 8 per cent of cases.136 The Royal Commission
called for more research on the pros and cons of attempting to tape record such
exchanges outside the police station,137 but nothing further seems to have
occurred in that regard.
It is to be noted in this context that Code C, para. 11.1 states that, save for
exceptional circumstances, ˜following a decision to arrest a suspect he must not
be interviewed about the relevant o¬ence except at a police station™. No doubt
this is because it is only when he gets to the police station that the suspect is
advised of his full rights and, in particular, it is only then that he is told about
and enabled to get legal advice. Now that silence after caution can ˜count™ for
the prosecution it is at least possible that the courts will be faced with more
situations where the police question (and therefore ˜interview™ “ see below)
suspects outside the police station.138

135
The Criminal Justice and Police Act 2001, s. 76 inserted a new s. 60A into PACE authorising
video recording of interviews.
136
S. Moston and G. Stephenson, The Questioning and Interviewing of Suspects outside the Police
Station (Royal Commission on Criminal Justice, Research Study No. 22, 1993).
137
Runciman, pp. 27“8.
138
In Williams (1992) Times, 6 February W claimed that he had been persuaded to confess
during an hour-long post-charge ˜social visit™ in his cell by investigating o¬cers. The Court of
187 Safeguards for the suspect


The Runciman Royal Commission recommended that the public parts of

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