You may have recently enjoyed the BBC’s programme ‘The Gold’, a retelling of the story of the Brink’s-Mat heist in 1983.  But what does it have to do with keeping up the PACE?

During the programme you may have noticed some delicate references to police behaviour at the time.  For example, that cautions were not given, that there were attempts to coerce and cajole the accused into giving confessions, and the open acceptance of Billy Jennings as a retired ‘bent cop’.

Whilst bearing in mind artistic license, I am confident that policing standards have come a long way due to the implementation of PACE.

What is PACE?

For those not in the know, PACE stands for Police and Criminal Evidence Act 1984.  It is an Act which made further provision in relation to the powers and duties of the police, criminal evidence, police discipline and complaints against the police, among other things.[1] As part of it, Part VI s66-67 permitted the Secretary of State to issue codes regarding police officers’ powers; these are referred to as the PACE Codes.

I am reliably told by my more experienced colleagues that breaches of PACE codes are much rarer than they used to be. Yet, they do still occur. This article looks at a recent case Westgate Chambers were involved with, where such a breach concerning a caution happened.

The Issue:

Police attended the defendant’s home to speak to him about an allegation of assault. A caution was not given at the time of this first incident. In a subsequent case, where rape was alleged, the Prosecution wanted to rely on some of the things the defendant had said, which was captured on a Body-worn video (BWV) during the first incident.

The Prosecution were not concerned with the allegation of assault but rather some of the things he said which affected his credibility in relation to the rape allegations.

The defence wished to exclude the footage because the interview took place after a breach of Code C and consequently, argued it would have such an adverse effect on the fairness of the proceedings that it ought to be excluded. The issue was whether the footage should be admitted as evidence to the hearing.

The Relevant Facts:

Two officers were called out to the domestic incident. The call was by a female complainant against a male (who we shall now call the defendant). The defendant was a relative. The call was graded as an ‘immediate response’. The complainant alleged on the call that the defendant had assaulted her and damaged her property. The call operator reported that shouting could be heard in the background and the complainant was upset.

When the officers arrived at the property, the complainant and defendant had already separated themselves so one officer took the complainant (who was outside) into the police car to speak to her whilst the other officer approached the house where the defendant was.

The officer that approached the defendant activated his body worn camera before he approached the house so the entire conversation with the defendant was recorded. The officer opened the conversation with the defendant by asking why he had been called there. No caution was given to the defendant at any point before or after this general question.

The Law:

The starting point for this situation is that a person for whom there are grounds to suspect of an offence must be cautioned before any questions about an offence are put to them. 

The relevant code is PACE Code C, specifically 10.1 and Note 10A. Whilst there are necessary purposes under that provision that may mean a person need not be cautioned, they did not apply in this case.

The caution is:

“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.”

10.1 applies even if the person is not arrested.  In these circumstances 10.2 also applies in that as well as cautioned, the person should, at the same time, be told they are not under arrest and informed that they are free to leave at will (under 3.21).[2]

This also means when at another location, such as the suspect’s home, that the suspect or occupier may withdraw their consent and require the interviewer to leave (under 3.22).  Specifically, attention should be drawn to 3.21(b) which states:

“The rights, entitlements and safeguards that apply to the conduct and recording of interviews with suspects are not diminished simply because the interview is arranged on a voluntary basis.”

The impact of such a breach may mean the court can consider exercising its statutory discretion to exclude the evidence under s78 PACE 1984.

s78 states: 

• In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.
• Nothing in this section shall prejudice any rule of law requiring a court to exclude evidence.

Not all breaches will lead to evidence being excluded but the Court has previously determined that breaches of Code C are considered ‘substantial’, (for example (Sparks [1991] Crim LR 128; Okafor [1994] 3 All ER 741; Watson v DPP [2003] EWHC 1466).

In the case of Pall (1992) 156 JP 424, it was held that the absence of a caution was bound to be significant in most circumstances. Whether a breach is ‘significant and substantial’ for these purposes is a question of fact and degree and is considered alongside all the circumstances of the case.

Application:

Looking at the starting point, the first question that must be answered is whether there were grounds to suspect the defendant of an offence.

This was not a chance meeting between the officer and the defendant. The officer was not entitled to make minimal enquiries to establish whether an offence had been established.

This was an incident in which officers were responding to a report where the call handler could corroborate that shouting was occurring. There was no evidence presented to show that the complainant was not believed. There were clearly grounds to suspect an offence had been committed.  None of the exceptions from 10.1 applied. This meant that a caution should have been given. This was a breach of PACE Code C.

From that point, it must be considered if there were such an adverse effect on the fairness of the proceedings that it ought not be admitted. The consequence of no caution being given is that the defendant spoke freely, without regard to how this information may be used later in court. The body worn footage captured him making many accusations regarding the complainant which would have prejudiced a jury against her but additionally he made remarks about himself that would have also prejudiced a jury against him.

This effect must be considered against all the circumstances of the case, so the points raised by the Prosecution were considered.

The Prosecution submitted that the evidence was collected for one type of offence, but the trial was for another. They submitted that there should be use of the footage to show that the defendant had contradictory statements; in that he had pleaded guilty to incest (whilst pleading not guilty to rape) but had in effect insisted on the BWV that incest was not something he would do. 

Consequently, it was ruled there was a breach, the breach was substantial and significant and the evidence would have had an impact upon the fairness of proceedings that was such it ought not be admitted.

What has this case shown us about keeping PACE?

The original allegation was not a particularly serious allegation and the approach the officers took may have been influenced by this.

No one was charged in relation to the allegation of assault. Those officers may have left the property feeling they had spoken to everyone and resolved an issue in a speedy and satisfactory way. They would likely not have appreciated that the BWV would subsequently become a source of interest in relation to far more serious allegations of rape.

Whether this is right or wrong, the caution is not something that can be disregarded, whatever the allegation is, serious or not. It is essential that whenever officers attend to speak to suspects, whatever the allegation may be, that they administer it.

All practitioners should be alive to this requirement when looking at Police discussion with suspects, whether that be brief chats recorded on BWV or more formally at a Police station, and be ready to argue admissibility when it arises.

This blog was written by Nicola Sully, Pupil at Westgate Chambers, with the assistance of Gareth Burrows, one of our experienced criminal barristers.  If this raises any questions, please contact us today.

[1] See the Introductory Text of the Act itself.

[2] Reflecting s.29 PACE 1984