Safeguards Remedies Under Police Criminal


The Police and Criminal Evidence Act 1984 (PACE 1984) was enacted as an important mechanism for ensuring the application of due process of those individuals who are arrested or detained on the suspicion of commission of a crime. PACE 1984 provides the safeguards for the protection of the rights of suspects and also creates a framework within which the powers of the police are to be exercised with respect to the interviews and treatment of the suspects. It may be noted that the right to have a lawyer present at the time of questioning has been defined as an important right of the arrested person.

Therefore it may be noted that the PACE 1984 framework was enacted for the purpose of providing safeguards to the arrested or detained individuals and also provide a mechanism for regulating the powers of the police. The question that arises is whether there is an effective remedy when individuals are denied the right to consult a lawyer, which is one of the important and fundamental rights of individuals who are arrested and held in custody in a police. Related to that question is the question of whether the evidence of any incriminating statements obtained by the police from a detainee who is subjected to police questioning without access to a lawyer is considered to be inadmissible at the time of the trial. This essay will answer these questions with reference to decisions of the courts in the UK and the European Court of Human Rights (ECtHR).


PACE: Rights of access to lawyer

A brief history of why the PACE 1984 was enacted is useful in understanding the contexts of human rights that are involved in the making of this law, and also for understanding the significance of the PACE 1984 for the protection of the due process rights of the arrested and detained individuals. The PACE 1984 was enacted after the publication of the 1981 report of the Royal Commission on Criminal Procedure, also called the ‘Philips Commission’, which found that there were several gaps in the due process norms in the processes of the police with regard to an individual who is arrested or detained on suspicion of commission of an offence. The background of this Commission is based on three infamous cases from the Irish insurgency, the Birmingham Six, Maguire Seven, and the Guildford Four, which ultimately led to the setting up of the Philips Commission. There were severe miscarriages of justice in these three cases, which also exposed the lapses in the criminal justice system. The extent of the miscarriage of justice in some of these three cases can be seen with reference to the case of the Birmingham Six, which concerns the incarceration of six innocent men for 17 years in prison.

The immediate background of the Philips Commission was the public outcry and dissatisfaction with the criminal justice system lapses and the severe violation of human rights under the system. One of the important findings of the Philips Commission was the lack of safeguards for the arrested and detained persons during police investigation. Another case that was instrumental in the setting up of the Philips Commission is the Maxwell Confait case, in which underage suspects were interviewed in absence of parent or guardian.

The background of the enactment of the PACE 1984 shows that there were lapses in police processes with regard to due process rights of the arrested or detained persons, which led to the enactment of the PACE 1984. The enactment of the PACE 1984 was an attempt at providing important due process rights to the arrested and detained persons; therefore, it would be pertinent to expect that the safeguards that the PACE 1984 lays down, will be provided to the arrested and detained persons, and if not provided, there will be some remedies for the violation of the safeguards, which may be given by the courts in the UK or the ECtHR.

The PACE 1984 lays down the safeguards that are aimed at monitoring the integrity of production of evidence by the police. The PACE 1984 incorporates safeguards in the Codes of Practice, which are applicable for the processes of questioning of those who are arrested or detained by it. The Codes of Practice in the PACE 1984 provide the safeguards for the arrested and detained persons as well as the extent of the powers of the police when holding or questioning such individuals. These safeguards include the right to legal counsel for the arrested or detained persons they are in custody of the police.

It may be noted that the validity of the police procedure, including the validity of the evidence collected by the police and its admissibility in the trial, are issues that are inextricably linked to the observance of the safeguards by them; in other words, if the police violate the safeguards in the PACE 1984 and collect evidence from the arrested or detained persons in violation of the safeguards, this has the effect of vitiating the entire process of interviewing the suspect.

In effect, the evidence collected by the police in violation of the safeguards in the PACE 1984 is inadmissible at the time of the trial. PACE 1984 lays down specific instructions for interviewing suspects, and provides a framework that is based on the principles of due process, which must be followed by the lawful authority. Section 11 of Code C of the PACE 1984 and the PACE (NI) Codes of Practice defines an interview as “the questioning of a person regarding his involvement, or suspected involvement, in a criminal offence or offences which, by virtue of paragraph 10.1 of Code C” and provides that such an interview is required to be carried out under caution given to the arrested or detained individual. The PACE 1984 also provides the right to free legal advice to all those arrested persons, who ask for such right.

The nature of the safeguards provided by the PACE 1984 is mandatory, and it has been said that providing a mandatory framework of safeguards for the arrested and detained persons in the PACE 1984 is an example of the law balancing the human rights of the arrested and detained persons with the considerations of state security. The custody officer is under the legal duty to inform the arrested person that he has the right to legal advice. The provision of legal advice cannot be subjected to outright denial, although it may be delayed due to some reasons and that only in exceptional cases.

There are important considerations for why this framework is created under the PACE 1984, including the possibility of coercion in interrogation, the possibility of police obstructing the access to solicitors or legal advice. Similar rights are provided to terror suspects under the PACE 1984, Code H, Para 3.1, which notes that the custody officer has the duty to inform the detainee of their rights, including the right to consult privately with a solicitor. Code C relates to the practice on detention and questioning and it sets out the requirements or standards for interrogation of those who are in police custody. It may be added that the provision of these rights goes to securing the model of due process criminal justice system which is followed in the UK, as opposed to a crime control model, which gives more emphasis to the control of crime as an important value.

It may be relevant to briefly explain the differences between the two models of the criminal justice system, which are ‘rights based due process model’ and ‘crime control model’. The rights based due process model is considered to be a more evolved form of a criminal justice system as compared to a crime control model, with the major difference being in the level of due process rights of the accused that are protected in the two models. The due process model is more focussed on the rights of the accused and the ensuring of the fairness of processes within the criminal justice system, while the crime control model focusses on the control of crime through the criminal justice system without having to conform to standards of due process.

Therefore, the manner in which the criminal justice system would respond to rights of those who come in contact with it, would depend on the kind of model that the criminal justice system is based on. The rights based due process model would provide for greater protection of individual rights as compared to the crime control model. As the motivations of the two models are different with respect to individual rights, the due process model will be more amenable to the protection of the rights of those who come in contact with the criminal justice system.

The criminal justice system in the UK is based on the due process model and not the crime control model, meaning that the processes of the criminal justice system include the adherence to the due process rights of the accused or arrested parties. Indeed, in the UK, the adherence of the due process standards within the criminal justice system is guaranteed to a great extent by the laws and codes, such as the PACE 1984. It may be recalled that one of the reasons for the enactment of the PACE 1984 itself was to ensure the application of due process in cases of arrest and detention and also in the processes that the police would involve in the questioning and the interviewing of the suspects.

Having considered the nature of the criminal justice system in the UK, one may agree that the system emphasises on the observance of due process guarantees by the police with regard to the questioning of the suspects and the adherence to the rights that are provided in the PACE 1984.

The PACE 1984 safeguards, such as, the right to access to a lawyer, is a procedural due process right which may also be linked to human rights. This is so because the UK is bound by the European Convention of Human Rights (ECHR), as it is a member of the convention. This strengthens the human rights aspect of the procedural due process rights that are protected under the PACE 1984. Moreover, the ECHR is directly applicable to the UK since the enactment of the Human Rights Act 1998 (HRA 1998). Under the ECHR read with the HRA 1998, individuals have the right to directly appeal to the European Court of Human Rights (ECtHR) if there is a violation of an ECHR right by the state.

Article 6 of the ECHR provides that every individual has the right to fair trial. The right to fair trial under Article 6 of the ECHR includes the right to a fair and public hearing by a lawful independent and impartial tribunal, the assumption of innocence until proven guilty, the right to be informed of the nature and cause of the arrest, the right to be able to defend themselves in person or with legal assistance, and the right to examine witnesses. In Teixeira de Castro v Portugal, the ECtHR observed that the right to fair trial extends to the right to fair pre-trial procedures, holding that the court’s admission of evidence obtained through entrapment violated the right of the accused person.

Of significance to this discussion is the right to be allowed legal assistance. The next part of this essay will discuss the nature and contours of this rights as per the ECtHR jurisprudence and its applicability to the evidence that is collected from the suspect in absence of his lawyer.

In Salduz v Turkey, the ECtHR observed that as a rule the arrested person or suspect should be provided with a lawyer at the time of the first interrogation itself, unless some exceptional and compelling reasons will not allow the police to ensure this at this time. The exact observation of the court is as follows:

“in order for the right to a fair trial to remain sufficiently ‘practical and effective’ … Art 6(1) requires that, as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reason to restrict this right. … The rights of the defence will in principle be irretrievably prejudiced when incriminating statements made during police interrogation with access to a lawyer are used for a conviction.”

From the observation of the court in Salduz above, three crucial points may be noted. First, the right to access to a lawyer, in order to satisfy the conditions of Article 6(1) can only be effectively protected if this access is allowed from the time of the first interrogation itself. Second, there may be ‘particular circumstances’ or ‘compelling reasons’ due to which this right may be restricted in some cases. In other words, the rule that there should be access to lawyer from the first interrogation onwards is not a strict rule, and there may be exceptional cases where access may be restricted. Third, in cases where access to lawyer is not provided and some incriminating statements are made by the accused at this time in the absence of the lawyer, the defence may be irretrievably prejudiced if these statements are used for the purpose of conviction; however, this is in principle.

The right to access to lawyer is a procedural safeguard that has link to privilege against self-incrimination, and the ECtHR pays special attention to the procedure followed by the police authorities in order to assess whether the procedure in effect extinguished the very essence of the privilege. When an individual is in police custody, he enjoys the right not to incriminate himself and the right to remain silent, as well as the right to be assisted by a lawyer whenever they are questioned. To an extent, the rights while distinct and able to stand on their own, are also complementary, because persons in police custody who have not been informed by the authorities of their right to remain silent, will gain by the assistance of a lawyer who will inform them of their rights and prevent them from incriminating themselves. In other words, not providing access to a lawyer when a person is in police custody may have the impact of the person incriminating himself in police custody. However, the question of the admissibility of the evidence procured through such process is an important question.

In Ambrose V Harris, Procurator, the appellant had been convicted on the basis of evidence gathered at different stages before arrest, where in each case he was not informed of the right to see a solicitor. The question before the Supreme Court was as to when the access to legal advice must be provided before the person was taken into custody and whether in the present case the evidence should not be admitted because it was taken in the absence of a lawyer. The ECtHR by a majority decided that access to lawyer needs to be provided when the suspect is taken into custody and not before. Moreover, the ECtHR held there was no evidence or indications of coercion in the process of the police while questioning the appellant, a it would be fair to admit the whole or any part of the evidence that was collected by the police during the questioning.

One part of the reasoning in the decision was that as the ECtHR had not conclusively ruled on the question of evidence admissibility in such cases, it would not be correct for the court to rule on the question of admissibility under ECHR, Article 6 considerations. However, Lord Kerr, dissented from the majority and observed that the use of the evidence obtained by questioning in the absence of legal assistance was incompatible with the rights of the suspect as it would not be proper for the Supreme Court to restrict a right that was apparently given by the Convention only because ECtHR had not yet spoken on the issue. On this question, it may also be noted that the ECtHR itself has considered that a person acquires the status of a suspect, who should be provided Article 6 safeguards when the domestic authorities have plausible reasons for suspecting his involvement in a criminal offence and not when there is a formal assignment of the status of suspect. On this point, it may be submitted that the majority in Ambrose, may have erred when they considered that the right to access to a lawyer started at the point of custody.

In yet another case decided by the Supreme Court, the suspect was questioned by the police without being offered access to a solicitor. In the case before the Supreme Court, the individual claimed that as the interview and information obtained in the interview was in the absence of a solicitor, it could not be used by the prosecutor. However, the Supreme Court held that there is no absolute rule that the evidence obtained from the suspect through questioning without access to a lawyer must always be in violation of his rights under the ECHR Article 6(1) and (3)(c) because the question of whether such evidence should be admitted or not is to be tested on the consideration of the right of the accused to a fair trial, and whether the leading of such evidence would be a violation of that right. In Brusco v France, the applicant was made to give evidence against himself on oath without being informed that he had the right to remain silent. The ECtHR held that as the applicant was on a criminal charge, he enjoyed the right not to assist in his own incrimination and to remain silent, the denial of which violated his rights to fair trial under Article 6 of the ECHR. However, the court did not consider the question of evidence collected and used by prosecution to suffer merely because it was taken in the absence of lawyer.

The European Union has also passed the EU Directive on Right of Access to a Lawyer, which recognises that the caselaw of the ECtHR has generally noted that the fairness of proceedings before the courts requires that suspects are able to obtain a range of services associated with legal assistance so that the lawyers are able to secure the fundamental aspects of the defence. Article 3 of the Directive provides the explanation on the right of access to a lawyer, which included the right to have the lawyer present at the time of questioning by the police. Article 12 of the Directive specifically provides that “assessment of statements made by suspects or accused persons or of evidence obtained in breach of their right to a lawyer or in cases where a derogation to this right was authorised in accordance with Article 3(6), the rights of the defence and the fairness of the proceedings are respected.”

As mentioned above, the ECtHR also observed that even if there are compelling reasons to justify restriction of access to a lawyer, restrictions should not unduly prejudice the rights of the accused under Article 6 of the ECHR. Moreover the court held that if incriminating statements are made during police interrogation without access to a lawyer, and such statements are used for a conviction, this may prejudice the rights of the defence. However, the actual jurisprudence of the court indicates that the absence of a lawyer at the time of questioning may not ipso facto vitiate the proceedings or the validity of the evidence. This may be concluded by reference to the cases discussed above, particularly, Salduz and Ibrahim, in which the ECtHR did not consider that absence of a lawyer would by the very fact violate Article 6 rights and vitiate the evidence collected.

Therefore, at least on the basis of the jurisprudence developed by the courts in the UK as well as the ECtHR, it may be noted that while there is a legal and human right of access to lawyer or legal assistance at the time of questioning, the absence of lawyer does not automatically vitiate the evidence collected by the police in such questioning. The issue has to be decided on the basis of the question of whether the leading of evidence will prejudice the right of the individual to a fair trial. This is to be decided on a case by case basis and there is no general rule as of this time which bars the use of evidence simply because it is collected in the absence of a lawyer.

Reference may also be made to the foundational five principles, which are related to the humane treatment of the accused. The foundational five principles include the principles on humane treatment of the accused, protection of the innocent through adversarial justice, minimal intervention by the state, accurate fact finding, and observance of standards of moral propriety. These principles may also be applied to the PACE 1984 and the rights of the arrested or accused persons that are included in the PACE 1984. The principle of humane treatment relates to the duty to respect the well-being and autonomy of the arrested or the accused and restricts the criminal justice system in meeting harsh treatment to the accused or the arrested person.

Foundational Five principles are also related to the ensuring of the fair trial to the accused person as one of the important aspects of these principles is to ensure that innocent persons are not subjected to wrongful conviction. This would apply to the collection of evidence against the accused, including the evidence that is collected from the accused where the evidence is collected in such a way that it creates unfair prejudice against the accused. This is also related to the maintenance of the state of propriety by the police and investigative agencies in the manner in which they deal with the accused or arrested person and collect evidence from him. Based on the foundational five principles, it may be argued that there is a right to access to lawyer, but it does not automatically lead to the conclusion that absence of a lawyer would vitiate the evidence collected in questioning the suspect.

Considering the context in which the provision of legal advice is included in the PACE 1984, it may be said that not allowing access to lawyer and using the information collected at the time of interview or interrogation in absence of lawyer, would be contrary to the objectives for which the provisions were included in the PACE 1984 in the first place. The PACE 1984, Code of Practice C, Guidance 6D provides the purpose for including the provision in the first place. What Guidance 6D says is that the role of the solicitor in the police station is to protect and advance the legal rights of the client and that on occasion, what this may mean is that the solicitor may give an advice which has the effect of the client avoiding to evidence which would incriminate him and strengthen the case of the prosecution. The solicitor may also challenge questions that he may think inappropriate or advice their client to not give information if they do not wish to.

There are instances where the fact that the client remained silent due to advice by client may be perceived to be an inference of their guilt; however, the ECtHR has clearly noted that jury should be directed against this making such an inference. It may be asked as to what would be the approach of the courts if there is evidence taken by the police from the arrested person in absence of a lawyer contrary to the provisions of the PACE 1984. While the court has noted that evidence that has been taken by the police through means other than those allowed in the PACE 1984 shall not be admissible; it does not signify that this would apply to evidence collected in absence of a lawyer, where there is no coercion on the suspect or impropriety on the part of the police, and where there is no prejudice to the right of fair trial.

The PACE 1984, Section 78 allows the defence to apply to the court to exclude prosecution evidence where such evidence was obtained illegally, improperly or unfairly, and its admission would have such an adverse effect on the fairness of the proceedings that it is only right that it is excluded. Such an application to exclude evidence can be based on the submission it had been obtained in a way that signifies a significant and substantial breach of the PACE 1984 Codes of Practice. However, the question is whether taking evidence from the arrested person in absence of lawyer would be considered to be a significant and substantial breach of the PACE 1984 Codes of Practice.

In Ibrahim, the court of first instance had held that the absence of lawyer did not signify a serious enough breach of the rights of the arrested person making the evidence itself inadmissible. The ECtHR Grand Chamber, upheld the conduct of the police and held that there was no significant breach of the rights of the accused as the police believed that in the situation (aftermath of a terror event), it was necessary to avoid alerting the other possible involved parties that may have happened if lawyer access was permitted. This is an approach that has been consistently seen in the cases involving admissibility of evidence in absence of a lawyer. For instance, in Alladice, the court held that the appellant’s solicitor would not have added anything to the appellant’s knowledge of his rights, therefore his absence did not vitiate the evidence.

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Although the PACE 1984 was enacted to ensure certain due process rights of the arrested and accused persons, including the right to legal access, the absence of lawyer at the time of the interview and the collection of evidence in the circumstances does not automatically vitiate the evidence and make it inadmissible. The case law of both the courts in England as well as the ECtHR demonstrates that unless there the admissibility of the evidence will lead to unfair consequences to the accused, there is no violation of the rights of the accused under the ECHR. Therefore, the issue of admissibility of evidence taken in the absence of a lawyer is to be decided on a case to case basis and with reference to the potential of such process being prejudicial to the right of fair trial of the accused.

List of cases

  • Alladice v R (1988) 87 Cr App R 380.
  • Ambrose v Harris, Procurator Fiscal, Oban [2011] UKSC 43.
  • Brusco v France [2010] ECHR 1 621
  • Condron & Condron v UK [2000] Crim LR 677.
  • Her Majesty’s Advocate v P 2012 SC (UKSC) 108.
  • Ibrahim and Others v. the United Kingdom [GC], nos. 50541/08, 50571/08, 50573/08 and 40351/09, ECHR 2016, Judgment of 13 September 2016.
  • R v Allan [2004] EWCA Crim 2236.
  • R v Condron [1997] 1 Cr App R 185.
  • R v Ibrahim [2012] EWCA Crim 837.
  • R v Samuel [1988] 2 All ER 135.
  • Salduz v Turkey [2008] ECHR 1542.
  • Teixeira de Castro v Portugal (1998) 28 EHRR 101.
  • Truten v Ukraine [2016] ECHR 561.
  • Books

  • Ashworth A and Redmayne M, The Criminal Process (Oxford University Press 2010).
  • Edwards A, ‘The Role of Defence Lawyers in a Re-balanced System’ in E Cape and R Young (eds.), Regulating Policing: the Police and Criminal Evidence Act 1984 (Hart 2008).
  • Fenwick H, Civil Liberties and Human Rights (Routledge Cavendish 2014).
  • Maguire M, ‘Criminal Investigation and Crime Control’ in Tim Newburn, Handbook of policing (Routledge 2012).
  • Masferrer A and Walker C, Counter-Terrorism, Human Rights and the Rule of Law: Crossing Legal Boundaries in Defence of the State (Edward Elgar Publishing 2013).
  • Saunders A and Young R,’ From Suspect to Trial’ in Mike MaGuire, Rod Morgan and Robert Reiner (eds.), The Oxford Handbook of Criminology (Oxford University Press 2002).
  • Slapper G and Kelly D, The English Legal System (Oxon: Routledge 2009).
  • Starmer K and Woolf M, 'The Right to Silence', in Clive Walker and Keir Starmer (eds.), Miscarriages of Justice: A Review of Justice in Error (Blackstone Press 1999).
  • Turpin C and Tomkins A, British Government and Constitution (Cambridge: Cambridge University Press 2011).
  • Journals

  • Edmond G, ‘Constructing Miscarriages of Justice: Misunderstanding Scientific Evidence in High Profile Criminal Appeals’ (2002) 22(1) Oxf J Leg Stud 53.
  • Reports

  • Royal Commission on Criminal Procedure Report (HMSO 1981).

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