Detainee Rights Protection.

Introduction

The legislative process of England and Wales is largely enabled by the Police and Criminal Evidence Act (1984) (PACE), whose main aim is to guide the suspect rights and police powers through the process of approaching, searching, searching the premises and detaining suspects for questioning. Besides, PACE was aimed at eliminating lengthy and unnecessary detention of suspects by restricting the time between arrest and prosecution of suspects. The general modus operandi for PACE is that once a suspect is arrested, they are not supposed to be detained for more than 24 hours and the inspectors in charge are supposed to conduct a regular review of the detention. Moreover, the Act obliges the officers conducting the arrest to first evaluate whether they have sufficient evidence to charge the suspect and if not, they required to detain the suspect only for a period of time that is sufficient to acquire the sought evidence. Broadly, PACE goes hand in hand with the requirements of Article 6 of the European Convention on Human Rights (ECHR). The two legal documents require that once arrested and charged the suspect holds right to defend themselves through a legal assistance of their choice or they can be given free legal assistance in case they cannot afford. But in the past few years, there have been a plethora of cases where the requirements of PACE and ECHR have been violated. This essay seeks to validate the statement that whereas the PACE and the ECHR lay out a series of laws which could protect detainee’s human rights if applied well, these protections are not always deliverable in practice either because of the insufficiency of the laws or unavailability of proper regulation of police activities. In doing so, the essay will identify various case laws to support its arguments and evaluate them with reference to relevant academic sources.

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The role of PACE is purportedly to safeguard the detainee’s rights, but practically, this is not the case because the investigators’ goals always take precedence. This is exemplified in the study by Britton who identifies that race has a great effect on the custody process. According to the author, the police only adhere to the PACE regulation as mere formality but fail to adhere to it by giving specific considerations to detainee’s needs. Also, according to Newburn & Reiner, police power may be legitimized by the rules but from a practical perspective, it is highly possible that detainee’s rights in are sacrificed in the process of accomplishing police procedures.

Choongh observes that in most cases, the police station is considered the police’s area of influence, where the detainee’s rights are not considered with any significance. Consequently, there emerges an imbalance of power between detainees and the police and thus it becomes impossible to negotiate the detainees’ rights. This problem emanates from the interpretation of laws because as police interprets the detention rules, they fail to consider the detainee’s rights and ultimately these rights become subordinate to the police operational procedures.

Moreover, Leagh points out that the subordination of the detainee’s rights to police’s operational rules emanates from the highly formulaic detention process. Ideally, the detention office holds high regard to PACE provisions as a justification for their actions. This scenario is substantiated by various death-in-custody cases that have been reported in the UK. For instance, Burton cites a study indicating that out of the 6% of cases that apparently involved police’s use of force, it was recorded in the detainees’ records that the deaths were as a result of the detainees’ violent struggles with the police. This is evidence that police records are used as a justification for police action rather than to regulate.

The case of Roberts v Chief Constable also exemplifies the manner in which detention regulation may be failing to meet the PACE established standards. In this case, the police mistakenly believed that Robert’s detention ran from a later time and upon failing to review his detention as required by section 40(3) of PACE, Robert experienced an unlawful detention due to the limiting nature of PACE’s section 34. This is sufficient evidence that sometimes the police self-regulation is unreliable and is subject to errors and mistakes.

Whereas PACE defines a standard way of treating detainees, police treat detainees and use power differently. For example, Burton highlights a scenario where the police used their discretion to discriminatively strip-search detainees of Caribbean origin. This shows that whereas PACE and ECHR advocates for an equal and non-discriminative detention and treatment, these rights are regularly flouted by the police who treat detainees unequally and unfairly. According to Burton, such cases are partly motivated by the fact that the police have extensive power in the collection of non-intimate samples as (PACE Sections 63 2a, 2b, and 2c) regardless of whether the sample is material to the on-going investigation.

PACE, Section 58 (1) considers access to legal advice as a fundamental right that every detainee must be accorded, as rules in the case of Murray v UK (1996) 22EHRR 29. According to Burton, this right is especially important given the fact that the detainee is likely to suffer from adverse reference and coercion during interrogation. However, Burton questions the role of police in upholding this right because whereas they are in an adversarial relationship with the suspects, they are being asked to obey the rights of those against whom they have opposing interest. Specifically, Burton quotes a study showing that this right is frequently violated through the police fail to record the detainee’s request for legal advice, when detainees are informed of their rights too quickly to understand, or when they are asked to sign away their rights to legal advice. Moreover, the study indicates that the police falsely recorded such incidences.

Fenwick also notes that whereas PACE code of conduct requires police to record the reasons for the decline of legal advice if the suspect does so, there is little adherence to this requirement. Similarly, the author contends that sometimes the police fail to improve access to legal advice through phone calls. This is compounded by the fact that the police reserve the responsibility to inform the detainees of their right to legal advice – and most of the time this responsibility is not discharged (Fenwick 1995). Furthermore, according to Fenwick, the process of asking the detainees whether they need legal advice is flawed when they are asked to sign their rights away regardless of the fact that legal advice would be of great help to them. Hence, there is an observable deficiency in PACE because it places a lot of discretion on the police as the determinants of the detainee’s ability to make informed decisions.

Several other scholars have also acknowledged this deficiency. For instance, Wolchover & Heaton-Amstrong observed that Code C paragraph 3.5 (b) only required the detainee to confirm by signing their decision to decline legal advice yet this could ascertain whether the decline was genuine. Moreover, whereas the officer in charge is required to inquire why the detainee is declining legal advice and advise them as appropriate (Code C paragraph 6.5), this code is still difficult to practice because it does not oblige the detainee to give their reasons (Code C paragraph 6). This gives little protection to the detainee – who may be vulnerable. Besides, it does not sufficiently regulate the police’s role in enabling the detainee’s access to rights. Moreover, according to Papworth, this situation is compounded by the fact that the solicitor cannot gain access to the detainee because the right to legal advice solely belongs to the detainee. The police end up having powers that can deny the detainees access to legal advice without balancing their powers with existing regulations.

Another PACE regulation that is mostly violated during practice is detainees’ privacy while under custody as identified by Skinns, according to whom, privatization creates problems because of the existing contractual relationships and competing for interest. Hence, Skinn is concerned with the idea that any slight compliance with PACE is deemed as satisfactory regulation. According to Burton, the pre-existing deficiencies worsens the inability of PACE to regulate the powers of the police especially at this time when there is an increasing concern over civilization and privatization.

Similar deficiencies are also experienced in how PACE regulates the questioning of the suspect outside the questioning rooms within the police station. Despite Code C’ paragraph 11.13 requiring that police must record in writing any unsolicited comments made outside formal interviews, Field contends that this requirement does not mean that all exchanges must be recorded hence it does not protect the detainee in cases where the police records the exchanges in their own words. Consequently, the detainee could accept as true, a record that is in fact redacted. This is evidenced in the case of Coelho where a deficiency in the regulation of cell area conversation emerges where; despite issuing no comment an interview, the police recorded that the suspect had admitted the offense – this was a breach of PACE.

Ramage observes that there is also a poor regulation of secret cell surveillance. While this issue is controlled by the Regulation of Investigatory Power Act (RIPA) (2000), the poor exercise of this power is demonstrated in the case of McE v Prison Service of the Northern Ireland where it was confirmed by The Times that secretive surveillance is permitted by RIPA in cases of privileged client-lawyer communications, against the requirements of section 58 of PACE that the detainee reserves the right to private consultation with the lawyer, and against the ruling by ECHR in the case of Brenan v UK that a private consultation with the lawyer is an essential attribute of a fair trial.

The court does not allow police to obtain evidence within the police station through any means including the bugging of the cells - as ruled in the case of R v Mason. Broadly, the court’s reasoning in R v Mason displayed the extent to which this regulation is defective. While it was doubted whether the then Home Office guidelines on police surveillance could be applied in cell surveillance, the fact that PACE had no provision for this issue made the court to rule that it was not a breach of the law. More importantly, the court acknowledged that RIPA needed to be clear whether this was considered intrusive surveillance. Omerod contends that this case exemplifies the fact that police are able to bypass RIPA whose controls are largely unregulated.

In conclusion, the statement that “There is an elaborate series of protections set out in the police and criminal evidence act 1984 which if properly applied would protect the human rights of persons who are arrested and detained by the police. The problem is that those protections are not always delivered in practice” is true because pieces of evidence revealed herein demonstrate how lack of regulations and insufficiency of the law prohibits the police adherence to the detainee’s right to privacy, legal advice, or even right to remain silent.

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Bibliography

  • Dixon D (1992) Legal regulation and policing Practice, Social and legal studies, Vol. 1 pp. 515
  • Kemp v & Balmer J (2011) The justice lottery? Police station advice 25 years on from PACE, Criminal Law Review pp.1
  • Britton, N. (2000) ‘Race and Policing: a Study of Police Custody’ British Journal of Criminology 40: 639.
  • Newton, T. (1998) ‘The Place of Ethics in Investigative Interviewing by Police Officers’ The Howard Journal 37(1): 52.
  • Burton T (2010) A critique of the deficiencies in the regulatiin of Contemporary police powers of detention and questioning in England and Wales, The Police Journal, Volume 83 (2010). Pp 64.
  • Leagh, A., Johnson G. and Ingram, A. (1998) ‘Deaths in Police Custody: Learning the Lessons’. Home Office, Police Research Series Paper 26. London: Home Office.Roberts v Chief Constable of Kent [2008] EWCA Civ 1588 Murray v UK (1996) 22EHRR 29 Fenwick, H. (1995) ‘Evading Access to Legal Advice’ The Journal of Criminal Law 59(2): 198. Wolchover, D. and Heaton-Armstrong, A. (1990) ‘A Flawed Code-1’ New Law Journal 140 (9 March): 320.
  • Parpworth, N. (2000) ‘Obtaining Access to a Client in Police Custody: A Solicitor’s Right? Justice of the Peace (News and Reports) 164:476. Skinns, L. (2009) ‘Let’s Get It Over With’: Early Findings on the Factors Affecting Detainees’ Access to Custodial Legal Advice’ Policing and Society 19(1): 58. Field, S. (1993) ‘Defining Interviews under PACE’, Legal Studies 13(2): 254. Coelho 2008] EWCA Crim 627, 2008 WL 678177 Ramage, S. (2008) ‘Covert Surveillance’ Criminal Lawyer 181: 2.
  • McE v Prison Service of the Northern Ireland [2009] UKHL 15, Times 12-Mar-2009, [2009] 2 Cr App R 1, [2009] 1 AC 908, [2009] Crim LR 525, [2009] HRLR 20, [2009] EMLR 19, [2009] 2 WLR 782 Brenan v UK (2002) 34 EHRR 18, [2002] Crim LR 216, [2001] ECHR 596, [2001] Po LR 387, [2011] ECHR 2271 R v Mason [2002] EWCA Crim 385, [2002] 2 Ormerod, D. (2003) ‘Police Cells and Unwanted Bugs’ Journal of Criminal Law 67: 37.

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