The Government's proposals to permit post-charge questioning and to lift the restriction on drawing inferences from "silence"

The current position

  Persons arrested and detained under the Terrorism Act (TA) 2000 s41 (on suspicion of terrorism) are detained under that section, and the TA 2000 Sch 8. The relevant Code of Practice governing their detention until the time that they are charged with a criminal offence is PACE Code of Practice H. If and when they are charged, their continued detention is governed by PACE Code of Practice C.

  The decision to charge, and questioning of the suspect, are not dealt with by the Police and Criminal Evidence Act (PACE) 1984 nor the TA 2000, but by the Codes of Practice.

  With regard to the point at which questioning must cease, Code H para 11.7 provides:

"11.7 The interview or further interview of a person about an offence with which that person has not been charged or for which they have not been informed they may be prosecuted, must cease when:

(a)  the officer in charge of the investigation is satisfied all the questions they consider relevant to obtaining accurate and reliable information about the offence have been put to the suspect, this includes allowing the suspect an opportunity to give an innocent explanation and asking questions to test if the explanation is accurate and reliable, eg to clear up ambiguities or clarify what the suspect said;

(b)  the officer in charge of the investigation has taken account of any other available evidence; and

(c)  the officer in charge of the investigation, or in the case of a detained suspect, the custody officer, see PACE Code C paragraph 16.1, reasonably believes there is sufficient evidence to provide a realistic prospect of conviction for that offence. See Note 11B"

  Questioning is, of course, limited by the restrictions on the maximum length of pre-charge detention, a matter which, of course, is currently the subject of further government proposals.

  Any charge decision must be made in accordance with PACE 1984 s37(7) which provides that if the custody office determines that they have before them sufficient evidence to charge the person arrested with the offence for which they were arrested (2), the person must be, inter alia, detained or released on bail for the purpose of the DPP making a charge decision (in practice, a Crown Prosecutor), released on bail, or charged. If a suspect is released on bail without charge, bail conditions may be imposed.

  The restriction on questioning after charge is governed by Code C para 16.5, which provides that:

"16.5 A detainee may not be interviewed about an offence after they have been charged with, or informed they may be prosecuted for it, unless the interview is 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; and

—  in the interests of justice for the detainee to have put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted.

Before any such interview, the interviewer shall:

(a)  caution the detainee, `You do not have to say anything, but anything you do say may be given in evidence.';

(b)  remind the detainee about their right to legal advice."

  Inferences from silence under the Criminal Justice and Public Order Act 1994 s. 34 are limited to "silence" during questioning prior to charge or "on being charged" (3).

  Three things are worthy of note regarding the current position.

(a)  As currently phrased Code H para 11.7 gives power to the police to continue questioning beyond the point where the officer in charge of the investigation concludes that there is sufficient evidence to provide a realistic prospect of conviction. In fact, in this respect, it would appear to conflict with the custody officer's duties under PACE 1984 s37(7) since they should make a decision under that sub-section as soon as they have before them sufficient evidence to charge. That conflict has not been authoritatively determined by the courts, but it would appear that if the officer in charge of the investigation can authorise continued interviewing even if they are satisfied that there is sufficient evidence to provide a realistic prospect of conviction if, for example, they wish to have put to the suspect further questions regarding the suspected offence.

(b)  In taking a charge decision, the custody officer must have regard to the DPPs Guidance on Charging, issued under PACE 1984 s37A. This currently provides that where a case has been referred to a Crown Prosecutor for a charge decision, the normal test to be applied is whether there is a realistic prospect of conviction and whether the public interest test is satisfied. However, in circumstances where there is insufficient evidence to satisfy this test and it would not be appropriate to bail the person, the charge decision may be made on what is known as the Threshold Test, which is essentially whether there are reasonable grounds for suspecting that the person has committed an offence (4). Taking the provisions together, the police and the CPS are given maximum discretion regarding when to charge—subject to maximum time limits governing detention without charge, they may continue to detain, and to question, until all of the conditions in Code H para 11.7 are met or they may charge on the basis of the Threshold Test.

(c)  Code C para 16.5 permits questioning after charge in certain circumstances, including in relation to information concerning the offence which has come to light since the person was charged. I know of no statistical or other research evidence on post-charge questioning, but the government has stated that the CPS reports that suspects normally decline to be interviewed. It would seem that this cannot be correct since, at least if they continue to be in custody, the police have the power under para 16.5 to interview although, of course, the suspect may decline to answer questions put to them.

The rationale for limiting questioning after charge

  PACE 1984 and the Codes of Practice were, to a large extent, based on the recommendations of the Royal Commission on Criminal Procedure which reported in 1981. The Commission does not appear to have considered questioning after charge. This is almost certainly because it was accepted as a basic feature of our criminal justice process that questioning after charge should not normally be permitted. The Commission was acutely aware that arrest and detention represent a significant limitation on a person's freedom. When the police question a person arrested and detained at a police station they are, of course, interviewing under coercive conditions. It has traditionally been regarded as proper that such questioning should be limited both in time and extent. The point at which a person is charged has been regarded as the point at which, having determined that there is sufficient evidence to charge, questioning should cease (although, of course, other forms of investigation can continue).

  In an adversarial system, in which (unlike some inquisitorial jurisdictions) investigation is neither conducted nor supervised by the judiciary, the coercive powers of the police to interview under detention, should be subject to significant limitations. Otherwise, the principle of equality of arms, which provides a foundation for adversarialism, is severely compromised. To enable the police to interview a suspected person after the decision has been made that there is sufficient evidence to instigate criminal proceedings puts that person at a severe disadvantage, particularly if inferences may be drawn if they do not co-operate with the process. A defendant who is cross-examined at trial not only has the benefit of legal representation, but will also have received prior disclosure of both the evidence on which the prosecution intends to rely and "unused material". This is in recognition of the fact, incorporated into the European Convention on Human Rights article 6, that they are entitled to know the case against them. Permitting questioning after charge, especially if it goes beyond putting to the accused information that has come to light since they were charged, would seem to be a way of circumventing that right.

The Government's proposals

  It should be noted that whilst the proposals are currently limited to terrorist suspects, the Home Office is considering extending them to all suspects. (5)

  I am not aware of any evidence that the current limitations on questioning after charge are causing difficulty to the police and prosecution. As noted above, the police may already question after charge in certain circumstances. If the police are to have to power to continue to question without such limitations, it would seem that the only purpose must be to enable them to strengthen the case for the prosecution. This is particularly so if the restrictions on inferences are removed. As argued above, this would amount to a severe infringement of the principle of equality of arms and, in turn, would undermine the right to a fair trial.

  If the government is to persist with its proposals, I suggest that a number of matters should be considered:

1.  The creation of the position of an "investigating judge" who would determine whether post-charge questioning is necessary, and who would conduct the questioning. This would ensure that the procedure is a judicial process conducted by a person who is independent of the investigation. Whilst it is the case that in some inquisitorial jurisdiction such questioning is conducted by a prosecutor, prosecutors in such jurisdictions are generally considered to be an arm of the judiciary and in some jurisdictions are subject to a common training.

2.  Prior disclosure to the accused of relevant material in the hands of the police/prosecution. This would go some way to dealing with the objections to post-charge questioning outlined above.

3.  An absolute right to legal representation, with sufficient time given to the accused and their lawyer to prepare for such questioning.

4.  The mechanism by which the accused is to be available for further questioning, and the location where questioning is to be conducted. In terrorism cases it is likely that the accused will be remanded in custody, although if the proposal is extended to all accused, this will not necessarily be the case. If the person is on bail, are the police to be given powers of arrest for the purposes of questioning? Given the adverse effects of lengthy detention and interview in a police station, consideration should be given to requiring that post-charge questioning be conducted away from a police station, for example, in a court room.

5.  Given the coercive nature of post-charge questioning of a person who is detained, and the risk that continued questioning would either amount to oppression or circumstances likely to render any confession unreliable, (6) and particularly in the absence of any of the protective measures outlined above, it would be inappropriate for the law on inferences from "silence" to be changed.

REFERENCES

(1)  Author of Defending Suspects at Police Stations (5th ed., LAG, 2006), and the Police Powers section of Blackstone's Criminal Practice 2008 (Oxford University Press, 2007).

(2)  It should be noted that s37(7) is deficient in a number of ways, including the fact that where a person was arrested under TA 200 s41 they are not arrested for an offence.

(3)  Strictly it is not "silence" that may lead to inferences, but failure to tell the police facts which are relied upon in the person's defence, and only provided the court is satisfied that, in the circumstances existing at the time, the person could reasonably be expected to have mentioned those facts.

(4)  The Threshold Test has been disapproved of by the Divisional Court in G v Chief Constable of West Yorkshire Police [2006] EWHC 3485 (Admin). A decision on an appeal to the Court of Appeal from this decision is currently awaited. For further analysis of this point see E. Cape, (2007) "Police Bail and the Decision to Charge: Recent Developments and the Human Rights Deficit", August Archbold News, 6-9.

(5)  See the Home Office Consultation Paper Modernising Police Powers, March 2007.

(6)  Which result in exclusion of a confession under PACE 1984 s76.