Citation: 83 Police J.

61 2010
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EMMANOUELA MYLONAKI
Senior Lecturer in Law, Course Director LLM in Crime and
Litigation, London South Bank University
TIM BURTON
Camden
A CRITIQUE OF THE
DEFICIENCIES IN THE
REGULATION OF
CONTEMPORARY POLICE
POWERS OF DETENTION AND
QUESTIONING IN ENGLAND AND
WALES
The article explores the problems associated with the regula-
tion of police powers of detention and questioning as pre-
scribed by the Police and Criminal Evidence Act 1984
(PACE). The police powers of detention and questioning are
analysed holistically with reference to the role of the custody
officer as gatekeeper, the detention reviews, the treatment and
rights of detainees, and the investigative interviewing process.
Whilst the fundamental purpose of police powers of detention
and questioning is to investigate crime, it is argued that the
deficiency in their regulation is a conceptual failure to realise
that the process of police investigation militates against object-
ive regulation. The authors argue that PACE is too reliant on
self-regulation of police observation and supervision of the
rules and a redefinition of the regulation of investigative
powers is missing.
Keywords: custody officer; deficiencies in the regulation of
police powers; detention reviews; investigative interviewing
process; PACE (Police and Criminal Evidence Act 1984);
police powers; reforms; rights of the detainees
The objective of the present critique is to explore the problems in
the regulation of police powers of detention and questioning by
focusing on the application of the Police and Criminal Evidence
Act 1984 (PACE) as applied to the detention and questioning
process. The police powers of detention and questioning are
analysed holistically in reference to the role of the custody
The Police Journal, Volume 83 (2010) 61
DOI: 10.1358/pojo.2010.83.1.482
officer as gatekeeper, the detention reviews, the treatment and
rights of detainees, and the investigative interviewing process.
Whilst the fundamental purpose of police powers of detention
and questioning is to investigate crime, it is argued that the
deficiency in their regulation is a conceptual failure to realise
that the process of police investigation militates against objective
regulation. The authors argue that PACE is too reliant on self-
regulation of police observation and supervision of the rules and
that a redefinition of the regulation of investigative powers is
missing. Therefore the suggested reforms propose a radical
change of the boundaries of detention and investigation and the
oversight mechanisms.
Regulation under PACE is both internal (self-regulation by
the police) and external (judicial sanction by PACE, ss 76 and
78), for which the regulation processes take different trajectories
according to the power being exercised. The current govern-
mental view of PACE identifies no deficiencies, concentrating
instead on reducing bureaucracy (Home Office, 2007: 9, paras
3.12, 3.13). Likewise, the current proposals seek to preserve
existing PACE powers with emphasis on rationalisation (Home
Office, 2008: 7) and, despite an intention not to dilute safeguards
(6-7 n.1, para 2.8), it is proposed to downgrade the authority for
granting extensions from superintendent to inspector (20 n.2,
para. 10.8). This is to enable superintendents to make review
decisions for continued detention remotely by telephone or
video-conferencing (20 n.2, para. 10.12), and to facilitate 'Short-
Term Holding Facilities' for the bulk of low-level crime (21 n.2,
para. 10.19).However, the review is blind to deficiencies in
regulation in its quest for streamlined processing.
Under the PACE test, according to which the custody officer
believes detention without charge is necessary to secure, pre-
serve or obtain evidence by questioning (PACE, s. 37(2)), the
reasonableness of belief is a question of degree in the circum-
stances of what information the arresting officer gives (Al Fayed
v Metropolitan Police Commissioner [2004] EWCA Civ
1579).However, under PACE, s. 37(4) the custody officer does
not have to do more than recite these grounds (Zander, 2005:
140, para. 4-16). Choongh describes an incident in which a
custody officer authorised detention despite the test not being
met (Choongh, 1998: 623 at 230). Such occurring incidents
indicate that the detention decision itself is unregulated. Another
of Choongh's observations questions how effective the rights of
the detainees are. At the police station detainees are 'locked into'
a process controlled by the police, where their rights have to be
The Police Journal, Volume 83 (2010) 62
negotiated (631 n.10). Using arrest statistics compared to dis-
posal outcomes supports the proposition that, whilst the letter of
PACE is observed, custody officers routinely authorise detention
without sufficient grounds. Hillyard and Gordon chart a rise in
arrests since PACE implementation (1999: 502 at 508), calcu-
lating that by 1993 some 43% of arrests resulted in no further
action (514 n.12). In this analysis the custody officer is not
discriminating in authorising detention. In their Brighton Study,
Irving and McKenzie noted the arresting officers' account to the
custody officer was 'often formalised and rarely challenged'
(Irving & McKenzie, 1989: 214-15). As a cross-check, Brown's
finding that out of 4,042 records for March 1987 in 32 police
stations 12%of adults were released without charge (1989: 57,
70) arguably substantiates this. Recently, Sanders cited an
example of a rate of refusal to authorise detention of less than
I %, concluding that either custody officers are not discharging
their duty or arresting officers conceal the reasons for arrest
(Sanders, 2008).
Moreover, the national trend Hillyard and Gordon noted was
that, whilst arrests increased in volume, the number of cases
prosecuted declined and, though partly interpreted as an expan-
sion in arrest powers (1999: 518 n. 12), they suggest the increas-
ing number of further action cases depends on the police use of
their powers to discipline, according to models put forward by
Choongh (cited in Hillyard & Gordon, 1999: 519 n.12). This
shows that PACE legitimises action but rule observance does not
necessarily regulate police powers. The authors' argument is that
the deficiency relates not just to the regulation of treatment in
police detention but also to the use of the power to detain.
Deaths in custody cases provide insight into this process. As a
former Home Office study demonstrated, the reasons for arrest
were 45% drink-related and 11% theft-related (Leagh et al.,
1998: 9). Accepting the limitation of drawing conclusions from a
case-specific sample, the fact that the majority of cases were
detentions for low-level crime and other reasons such as intox-
ication does suggest that police detention powers are ques-
tionable. Indeed, it was further questioned whether the police
station was the appropriate place to detain people for them to
sleep off the effects of alcohol (81-2 n.19). In the Home Office
study there is some evidence supporting the argument that there
is a lack of regulation for vulnerable suspects, and this amounts
to a substantial deficiency of the system (Sanders, 2008: 67-8
n. 16).Generally, police followed the PACE Codes but with
regard to the specific duty under PACE to check and rouse drunk
The Police Journal, Volume 83 (2010) 63
detainees there were documented cases of failures to do so
(Leagh et al., 1998: 26-7 n.20). Overall PACE is followed, but
regulation relies on the observation of the rules by the police.
Adherence to PACE purportedly regulates detainees' rights
but in practice it does not because police goals take precedence
(Choongh, 1997: 179). This is demonstrated by Britton's ana-
lysis of the effect of race in the custody process. The author
observed that the PACE provisions were presented by custody
officers as an ideal which they uphold but this exposed the fact
that the officers were blind to the specific needs of detainees
(Britton, 2000: 639 at 644). Rules may legitimate police power
but as a regulatory device the flipside is that detainees' rights are
neutered by the procedure. This is the fundamental deficiency
Newburn and Riener identify as 'ritualized observance of rules'
that gives no effect to the function of PACE to safeguard rights
and regulate the police detainee encounter (Newburn & Reiner,
2004: 601 at 608).
As Choongh argues, 'the police station is "police territory"
where detainees are depersonalised' (1997: 81-4 n.23) and
Britton notes an 'imbalance of power between custody officers
and detainees', with the effect there is no meaningful rights
dialogue (2000: 646-8 n.24). The deficiency is from rule observ-
ance as the regulatory mechanism because interpretation of the
rules by the police makes the detainees' rights subordinate to
police operational need (651-3 n.27).
This comes from the idea that the detention process is
formulaic, with the custody officer following the PACE provi-
sions to justify actions. The deaths in custody substantiate this.
Of 6% of cases where use of force was a factor in death, detainee
records described this as "'violent" struggle' with the police
(Leagh et al., 1998: 44 n.22). This indeed suggests record
keeping is used to justify police action and not to regulate.
Moreover, the recommendations of the Home Office that records
were completed in full substantiate this (77 n.22). Given the
above-mentioned deficiencies, the present authors suggest initial
screening of detainees is made a critical-based process, with
custody officers required to test the arrest evidence with the
arresting officer.
The detention review process shows deficiency in regulation
as illustrated by the case of Roberts v Chief Constable of
Cheshire ([1999] 2 All ER 326). Through a mistaken belief that
Roberts' detention period ran from the later time of the station to
which he was transferred and a failure to review his detention
within the statutory time-limit (PACE, s. 40(3)), his detention
The Police Journal, Volume 83 (2010) 64
was unlawful because of the limiting provision in PACE, s. 34.
This was a case where the custody record was endorsed with
times and authorisations (Roberts, 326 at 327-8) and indicated
that police self-regulation can be unreliable, with scope for error.
O'Doherty notes a flaw in the Codes where it is not specified that
the person authorising continued detention need be the person
who endorses the custody record (O'Doherty, 2001). This makes
it possible to overlook the protection of a detainee, as in Roberts,
by administrative oversight, and it highlights the dangers of
delegated power or extending power to conduct reviews at a
distance.
The formulaic approach to PACE recurs with detention
reviews. As Dixon points out (1997: 149), here too compliance is
'largely presentational' within the 24-hour period the police have
without application to a superintendent for extension, and it is
noted that early extensions are routinely granted because there is
little requirement to justify the need for continued detention to
higher authority (149). There is therefore a lack of effective
engagement of detainees and their lawyers with police to chal-
lenge police decisions. Ineffectiveness extends to the observation
that the courts rarely refuse police applications for PACE, s. 43
warrants of further detention (Zander, 2005: 171 n.9 at 4-67.
Detention periods appear to increase as 1987 records show a
mean of less than 6 hours (Brown, 1989: 61 n.15), 1993/4 over 6
hours (Phillips & Brown, 1998: 109), and in a 2002 report an
average of 9.2 hours (Deehan & Saville, 2002: 19). The defi-
ciency is that PACE compliance purports to regulate police
action and detainee rights, but in practice pays lip-service to
rights, to the extent there is detention review but not critical
review. Where errors occur, as in Roberts, this demonstrates
police self-regulated review of the power to detain is inherently
deficient as a process.
A further issue is the conflict between powers of detention
without charge and detention pending charge. Cape identifies the
PACE, s. 34(2) requirement that the custody officer must order a
detainee's immediate release if aware that the grounds to detain
cease. However, it does not make it mandatory that the officer
keeps under review the question of the lawfulness of detention
(Cape, 1999: 874 at 877.In raising the question of what sufficient
evidence to charge means, which triggers the mandatory provi-
sions of PACE, s. 37, Cape points out PACE sets 'contradictory
obligations' (885 n.40). It is clear that this issue is still unre-
solved. We refer to R (G) v Chief Constable of West Yorkshire
Police ([2008] EWCA Civ 28, [2008] 1 WLR 550) which,
The Police Journal, Volume 83 (2010) 65
though now historical (Fitzpatrick, 2008: 558 at 561), still leaves
open the issue of what amounts to sufficient evidence to charge
(Zander, 2005: 149 n.9 at 4-33) for the purpose of when the s. 37
obligation is triggered. Therefore it is questionable whether the
police should be bound by s. 37 once the threshold test to charge
has been reached or whether further detention is permissible
without review. In discussing the Divisional Court ruling in R(G)
v Chief Constable of West Yorkshire ([2006] EWHC 3485
(Admin), [2008] Crim LR 141), Ashworth comments on what
amounts to a regulatory issue: 'It is to be hoped that the power to
detain pending charging advice does not translate into routine
detention pending such advice' (2008: 141 at 143). On the
evidence to date of routine use of powers there is no reason to
believe this power will be adequately regulated. The deficiency
in regulating the detention power beyond the point of sufficient
evidence to charge, as the implication of s. 37(7) as amended is
the lawfulness of detention, still falls to be determined
(Ormerod, 2008: 1243-5, at D2.2).
Suggested reform would be a mandatory review by the
custody officer of the reasons for detention with regard to
investigative progress made. Once the detention pending charge
threshold is reached, then the detention period should be re-
reviewed and monitored. We suggest daily judicial scrutiny of
custody detention review by a duty magistrate in video-link case
conference with the duty inspector.
Treatment at the police station varies to the extent that,
whilst PACE serves to control the powers available, there is no
regulation of the differential treatment of detainees from differ-
ential use of power. For example, Newburn and others show
how, as a function of police discretion, African-Caribbeans were
disproportionately strip-searched in custody (Newburn et al.,
2004: 677 at 689). This illustrates that inside the police station
there is no regulation of equal and fair treatment. This is
aggravated by the extensive power police have in taking non-
intimate samples (PACE s. 63 (2A)(2B)(2C), irrespective of
whether this is for investigating the offence for which a person is
detained (Zander, 2005: 249 n.9, at 5-116).
Access to legal advice is a fundamental right (PACE,
s. 58(1)) and essential, as held in Murray v United Kingdom
((App no 18731/91)(1996) 22 EHRR 29 para. 66) given the risk
of adverse inference from silence or coercive interrogation.
Bridges and Sanders raise relevant questions because the police
are in an 'adversarial relationship' and paradoxically, therefore,
are being asked to safeguard the rights of those against whom
The Police Journal, Volume 83 (2010)
66
they have a competing interest (Bridges & Sanders, 1990: 494 at
508). Their study showed breaches manifested themselves cov-
ertly by ploys such as detainees informed of rights too quickly or
encouraged to sign away rights and rule breaking or failing to
record requests (497-506 n.53). Again it was noted custody
records could falsely record what had taken place (507 n.53).
There is little change in the enhanced provisions of requiring the
reasons for declining legal advice to be recorded or of improved
access through telephone advice. As Fenwick later argued, there
remains scope for the police to manipulate access to legal advice
because advising of the right remains with the police (Fenwick,
1995: 198 at 205).Further, Fenwick argues that a process which
asks detainees whether they wish to exercise a right to legal
advice is flawed since those with little understanding can will-
ingly sign their rights away, and yet have the most need for
advice (205 n.56).The deficiency in regulation in the PACE
safeguard is too reliant on the police as the gateway to uphold
detainee rights when the process is not conducive to detainees
making informed decisions. The observation Wolchover made in
1990, that the then Codes were deficient in terms of dealing with
the waiver of legal advice and whether the waiver is genuine
(Wolchover & Heaton-Armstrong, 1990), remains a defect since
the current Codes simply require a detainee to sign to confirm
their decision (Code C, para. 3.5(b)). Although a custody officer
should ask a detainee why they are waiving advice and then
record their reasons (Code C, para. 6.5), this still admits the
same problem in equivocal circumstances, particularly as a
detainee is not to be 'pressed' to give reasons (Code C, para. 6
n.6K). This hardly protects a vulnerable detainee and does not go
far enough to regulate police oversight of access to rights. What
Bridges and Sanders identified as 'rule bending' (Bridges &
Sanders, 1990: 498-500 n.53) shows that the deficiency relates
to the absence of effective safeguards. Worse still, there is,
according to Parpworth, no corresponding right vested in a
solicitor to gain access to a detainee since the right to legal
advice vests solely in the detainee (Parpworth, 2000: 476). The
clear effect is that the police powers can curb rights of access
without counterbalancing regulation.
This is no exaggeration because cases where access to a
solicitor can be lawfully delayed (PACE, s. 58(6) and (8)) show
that the police cannot always be relied upon to apply the test
correctly. In R v James ([2004] EWCA Crim 1433, 2004 WL
1808902) the police were found to have failed to apply the test.
This emphasises that police self-regulated control of rights is
The Police Journal, Volume 83 (2010) 67
manifestly flawed. Skinns' 2009 study of access to legal advice
by detainees for a South-East England custody suite showed that
police failed to meet 23% of requests for advice (Skinns, 2009:
58 at 63). There were inconsistencies in communicating rights,
ranging from quality of information to how the information was
communicated, including PACE breaches. Even where PACE
was not breached it was believed that the police influenced
detainees to waive their right to legal advice by playing on the
value of cooperation and the detainee's fears of delay (Skinns,
2009: 65-8 n.66).Skinns also found examples of police failing
vulnerable persons (67-8 n.66). From her study it is clear that
detainees' rights are subsumed by the police managerial priority
of efficient processing. Since the police can, without breaching
PACE, continue to dissuade detainees from legal advice, regula-
tion via PACE is insufficient and those most at risk are the
vulnerable. This surely means the observance of PACE does not
adequately regulate police detention powers. If in 1992 the
Home Office concluded there was variation and failure in
communication of rights (Brown et al., 1992: 23-7) and juven-
iles were disadvantaged (75-7 n.69), then 15 years on little has
changed.
Reform could be a presumption of legal advice with opt-out,
and automatic provision in all cases of vulnerability. Thinking
radically, an independent advocate and not the police should
advise detainees of their initial rights.
Another regulation issue in Skinns' study is privatisation of
the custody suite following the Police Reform Act 2002. Her
observation, according to which privatisation exacerbates prob-
lems because of competing interests and contractual relation-
ships (Skinns, 2009: 73 n.66), underlines the complacency that
PACE compliance equals satisfactory regulation. With increas-
ing privatisation and civilianisation, the efficacy of PACE to
regulate police powers is weakened because of the pre-existing
deficiencies.
Regulating questioning at the police station outside interview
rooms is another deficiency. Despite the safeguard of an officer
being required to make written record of unsolicited comments
outside formal interview (Code C, para. 11.13), Field made the
point that this does not prescribe for all the exchange to be
recorded, and considered the protection 'illusory' where the
police put the record in their own terms (Field, 1993: 254 at
262-3).Therefore the record a detainee agrees to be a true
account could in fact be a redacted version. The recent case of
Coelho ([2008] EWCA Crim 627, 2008 WL 678177 (CA (Crim
The Police Journal, Volume 83 (2010) 68
Div)demonstrates Field's observations about deficient regulation
of cell conversation as the officer's record of a conversation in
the cell area in which Coelho was said to have admitted the
offence following his no comment interview was made after he
had left the station, in breach of PACE. This occurred despite the
regulatory provisions.
Covert cell surveillance is inadequately regulated (Ramage,
2008: 2-7).Although purportedly controlled by the Regulation of
Investigatory Powers Act 2000 (RIPA), the extent of the power
is confirmed in the recent case of McE v Prison Service of
Northern Ireland and Anothe, C and A v Chief Constable of the
Police Service of Northern Ireland ((2009) HL, The Times 12
March) to be that RIPA permits covert surveillance of privileged
lawyer-client communications, despite the PACE, s. 58 right at a
police station to consult a solicitor privately, and, in spite of
ECHR ruling, lawyer confidentiality is essential to fair trial
(Brennan v United Kingdom (App no 39846/98) (2002) 34
EHRR 507 para. 58; [2002] Crim LR 216).By reinforcing the
view that RIPA is not incompatible with Article 8 rights, the
deficiency is that the detainee's residual rights of privacy are
unregulated since Article 8 is subordinated to weakened Article
6 rights (R v Button [2005] EWCA Crim 516, 2005 WL
513408).
The courts do countenance police strategies of obtaining
evidence inside the police station including bugging police cells,
as for example in R v Mason ([2002] EWCA Crim 385, [2002] 2
Cr App R 38). In Mason the reasoning of the court shows the
regulation of this is defective. The then Home Office guidelines
on police surveillance were doubted to apply to cell surveillance,
but as the court could find no conflict with PACE on the grounds
of absent a provision in PACE, the court rules that this was not
unlawful. Yet the court noted it was unclear from RIPA whether
this was categorised intrusive surveillance (Mason at 645-7).
The ambiguity is highlighted by Omerod, who views the police
as able to work around the RIPA controls largely unregulated
(Ormerod, 2003).
Despite the regulation of oppressive questioning, there is still
scope to use coercion. Sanders maps the opportunity 36 hours'
detention time gives police to try different tactics (Sanders,
2008: 58 n.16), with increased regulation encouraging more
informal questioning ploys (55 n.16).
Given that police questioning has assumed greater sig-
nificance post PACE, with nearly 60% of suspects making
admissions (Gudjonsson, 2003: 156) and the trend has been to
The Police Journal, Volume 83 (2010) 69
make questioning a central part of criminal proceedings (Jack-
son, 2008: 260), PACE casts a veil of legitimacy reinforcing
powers of questioning without corresponding regulation of what
someone is questioned about. What Irving and McKenzie raised
post PACE was concern that the conduct of interviews was an
area of 'uncertainty' (Irving & McKenzie, 1989: 205 n.14)
because though PACE governs the conditions of interview it
does not prescribe rules of questioning, leaving it open to the
police to devise interview tactics (206-7 n.14), with the only
restraint mechanism being PACE, s. 78 and no practical guide to
fair practice (177-8 n.14). Despite the PACE model of inter-
viewing (Savage, 2007: 81), this is still true today as it is
recognised police officers, despite training, are little better than
laypersons in identifying falsity yet continue to use tactics
designed to induce confessions (Kassin, 2008: 1309 at
1310-14).
This inherent weakness in the regulation is reflected in
Dixon's observations about the cases of Paris, Abdullahi and
Miller ((1993) 97 Cr App R 99) and Heron (Unreported Leeds
Crown Court 1 Nov 1993 cited in Dixon, 1997: 172 n.39) that,
though the court found the interviews oppressive, the police at
the time considered their questioning to be PACE-compliant
(Dixon, 1997: 172-3 n.35). Our point is that the deficiency
constitutes little real-time regulation of interviews stemming
from dual police aims of establishing truth and constructing
evidence.
The legal definition of interview determines when PACE
should be applied, but the failure is regulating a police-controlled
process from which the account is not the suspect's own but is
police-derived (McConville et al., 1991: 76-7 n.19) for the
purpose of converting the interview into courtroom evidence
(Dixon, 1997: 270-1 n.35). This is self-evident when comparing
the different approaches in police interviewing witnesses ('what
happened?') and suspects ('you did it didn't you?') (McConville
et al., 1991: 68-73 n.19). The confession in Heron that Dixon
cites resulted from leading questions and coercion which occur-
red even though the confession was recorded as following PACE
(Dixon, 2006a: 323 at 343).
It is deficient to rely on court sanction to regulate police
powers as shown in serious cases. Pearse and Gudjonsson show
that the frequency of police manipulation and coercion increased
with offence seriousness despite risk of the interview evidence
being inadmissible (Pearse & Gudjonsson, 1999: 221 at 225-34).
If the police are willing to push boundaries, then prospective
The Police Journal, Volume 83 (2010) 70
court ruling on evidential admissibility is not satisfactory regula-
tion of police practice. This is shown in R v Allan ([2004]
EWCA Crim 2236, 2004 WL 1808797) where police obtained
evidence from placing Allan in a cell with an informer, who it
was held should have been excluded.
Formal interview does not regulate the influence of pre-
interview exchanges giving rise to the type of distortion docu-
mented by Dixon whereby the suspect is influenced from
pre-exchanges either to agree with or adopt a police account
(Dixon, 2006a: 337-41 n.97). A formal interview record can be
an incomplete record because the influence of the pre-exchanges
goes unrecorded (Dixon, 2006a: 335 n.103). McConville demon-
strates the invisibility of pre-exchanges, to the extent these
enable the police to prepare detainees for questioning, and thus
defeating the PACE provisions (McConville, 1992: 532 at
536-40).
This shows that the current regulatory structure of police
self-regulation reliant upon PACE observance and external over-
sight by the courts is a mismatch to the extent there is a gap in
between. The court may exert prospective control by excluding
evidence but the specifics of police questioning are unregulated
beyond codes of practice and training, which emphasises police
rights (Choongh, 1998: 129 n.26). Dixon argues that this hiatus
is because common law regulation is arbitrary based on appeal
and because case law does not guide police action (Dixon,
2006b: 326). Our contention is that this is the substantive
deficiency in regulation.
Reform needs to move away from prospective regulation to
embedded real-time regulation. A pragmatic solution is inter-
viewers unconnected with arrest and independent of the invest-
igators, in the same way that a custody officer's role is defined to
be neutral.
Curtailing the right to silence by adverse inference dilutes
detainees' PACE rights because of the leverage this gives police
(Bucke et al., 2000: 34-5, 69). According to Jackson, 'The
silence legislation has thus enabled the investigative custody
regime that was legitimised by PACE to be transformed into an
accusatory venue for testing and examining accusations as part
of the criminal proceedings against an accused'; in other words,
because of the risk to an accused in making no comment in the
police interview (the risk of adverse inference from the Criminal
and Justice Order Act provisions) the police interview has now
become a forum for putting a case to the suspect and testing his
or her response rather than being the traditional investigatory
The Police Journal, Volume 83 (2010) 71
tool it should be. (Jackson, 2008: 262-3 n.85). This is a
significant transformation of police power without corresponding
regulatory safeguard, particularly as the police do not have to
disclose their case in full prior to questioning (Zander, 2005: 483
n.9, at 13-33), as in R v Nottle ([2004] EWCA Crim 599, 2004
WL 413070). Essentially a detainee is cited his 'rights' and told
that silence can be used against him (Zander, 2005: 472-3 n.9, at
13-1 1).This provides legitimate means to break down resistance
without breaching PACE. Combined with freedom about what
questions are put and the police control of the interview process,
there is diminished regulatory force in the PACE provisions,
despite court ruling that there should be no gap in procedural
safeguards (R v Hasan (Aytach) also known as R v Z [2005]
UKHL 22, [2005] 2 Cr App R 22 para. 53).
With vulnerable persons, flaws with regulation are high-
lighted. Given the recognised difficulty in identifying vulnerabil-
ity, especially mental disorders (Pearse & Gudjonsson, 1999:
263 n.98), police failure to identify persons as vulnerable
removes PACE protection because the requirement for an appro-
priate adult principally depends on the custody officer doubting
the mental state or capacity of a detainee (Code C, Note for
Guidance IG). Without independent expertise, the systemic
weakness is the dependency on the police to make the right
decisions (Irving & McKenzie, 1989: 234 n. 14). Given evidence
is prima facie admissible where police are ignorant of a
detainees' mental condition (R v Bassi (Sukhdev) [2004] EWCA
Crim 3245, 2004 WL 3089232; R v J [2003] EWCA Crim 3309,
2003 WL 22769342), this dependency on the police is fool-
hardy.
It is time to remove some decision making from the police
and provide independent expertise and police station advocates.
Appropriate adults are the principal safeguard provided to
juveniles and mentally disordered/vulnerable detainees (Code C
3.15). In the 1997 Home Office Study the number of appropriate
adults attending in cases of the mentally disordered was lower
than for juveniles and in some cases, because of a doctor's
recommendation that an appropriate adult was not needed, it is
clear the police had relied upon the doctor to make the decision
about appropriate adults (8 n. 116). In juvenile cases the 59%
majority of appropriate adults being parents/guardians (6
n.1 16)potentially compromises juveniles because of the finding
that family members were less supportive (12 n. 116), in some
cases not discharging their role (13 n. 116) or not understanding
their role whilst offered little guidance by the police (14 n. 116).
The Police Journal, Volume 83 (2010) 72
Latterly, these deficiencies have been echoed by Williams, who
points to the undesirability of untrained appropriate adults rely-
ing on guidance at the police station (Williams, 2000: 43 at 45),
with the serious deficiency of custody officers routinely abrogat-
ing their responsibility under Code C 3.5(c) and 3.6 to police
doctors for determining whether an appropriate adult is required,
with the consequence that a vulnerable detainee comes to be
assessed by the fitness-to-interview test and is therefore unpro-
tected for all or part of their detention (Williams, 2000: 49
n.122). A further fault is that not until interview is there the
obligation to inform the appropriate adult of their role (Code C
11.17) whereas the detainee is 'advised' of 'the duties of the
appropriate adult' (Code C 3.18) at the first opportunity (Wil-
liams, 2000: 44 n.122). The anomalies are not cured by the
Home Office 'Guidance for Appropriate Adults', which does not
advise how to discharge the role and merely tells the person that
further guidance is available from the custody officer (Home
Office, 2009), and since it has been observed the Codes are not
readily understood either (Littlechild, 1995: 540 at 541), it thus
cannot be expected that the police will provide full guidance.
Again, assessment of need for an appropriate adult needs
revising and another form of police station advocate needs to be
considered.
Clearly the people most in need of protection are the least
protected despite the PACE provisions and in interview are at
greater risk given their own impaired decision making (Clare &
Gudjonsson, 1995: 110 at 123), increasing risk of confession.
Those needing protection can go undetected and therefore are
without the minimum protection while borderline cases would
not be considered 'mentally handicapped' for s. 77 to apply (R v
Foster [2003] EWCA Crim 178, 2003 WL 270792). Those that
do have appropriate adults can find they are in no better position
because of the disadvantaged position that an appropriate adult
has at the police station (Hodgson, 1997: 785 at 795). If, as
noted, legal advisers have difficulty challenging the police at the
police station (Hodgson, 1992: 854 at 861) and professionals are
inadequate in protecting mentally disordered detainees (Laing,
1995: 371 at 379-80), then the provisions do not adequately
regulate police powers in the case of vulnerable detainees. This
is demonstrable where it is shown that appropriate adults are
least effective at interacting to safeguard rights and police
demonstrate a lower standard of competency in interviewing
juveniles on the PACE model (Medford et al., 2003: 253 at
258-63).
The Police Journal, Volume 83 (2010) 73
Neither can judicial oversight be relied upon to regulate
police powers of detention and questioning. The very idea of
judicial scrutiny as a mechanism to control police powers is
flawed in three respects. First, with the majority of cases untested
in the courts because of the entry of guilty pleas there is no
opportunity for judicial scrutiny. If there is no trial then any issue
of a breach of the rules is not aired so that there is no judicial
discretion to exercise (Sharpe, 1998: 105-6). This also applies to
those detained and questioned who are then released without
charge. Secondly, where there is a trial it does not automatically
follow that a breach will lead to exclusion under ss. 76 and 78 of
PACE. Instead, there is considerable latitude for the use of
judicial discretion, which is observed to uphold crime control
values over due process in all but flagrant breaches of the PACE
codes (Sharpe, 1998: 135-40 n.135). With reference to R v Howe
([2003] EWCA Crim 934, 2003 WL 1610396), there is impli-
citly a threshold, which means judicial oversight is an inadequate
backstop. Indeed, Sharpe identifies continued judicial endorse-
ment of police wrongdoing post PACE which serves to create a
gap between the letter of the law and the spirit of the law
(Sharpe, 1998: 129 n.135).This leads to the conclusion that
where the courts approve police wrongdoing, this favours police
powers over detainee rights, with a reduction in regulation.
Thirdly, whilst a court can of its own motion under s. 76 require
the prosecution, as a precondition of admissibility, to prove that
a confession was not obtained by oppression or alternatively is
unreliable (PACE, s. 76(3)), accused persons are largely reliant
on their lawyers to challenge the evidence in the first place (as in
Rv Allen [2001] EWCA Crim 1607, 2001 WL 753441) and there
is no 'own motion' provision in PACE, s. 78 (Sharpe, 2009:
106-7 n.135). Further, with s. 76 it is not an automatic condition
precedent that the prosecution prove reliability in every case.
Analysis of judicial regulation of police powers of detention
and questioning shows the extent of the deficiencies. For
example, Sharpe illustrates that because the 'anything said or
done' provision in s. 76(2)(b) does not admit personal character-
istics, the courts are prepared to strain the interpretation when
seeking to protect those with mental handicaps but not for those
considered unworthy of protection, such as drug addicts (Sharpe,
2009: 113 n.135). The inverse effect is that protection become
person-specific, as in R v Wahab ([2002] EWCA Crim 1570,
[2003] 1 Cr App R 15 para. 40). This favours some defendants
but denies a right of protection or fair trial to others. The
discretion available to the judiciary enables the court, at its own
The Police Journal, Volume 83 (2010) 74
choosing, to apply the provisions strictly to make a disputed
confession admissible.
Controversially, it is time to make it a condition precedent of
all confessions that the prosecution satisfy the court of reliability
as opposed to amending the exclusionary provisions to fetter
judicial discretion.
On composite reform, Sanders' model of 'anchored plural-
ism' by embedding agencies (Sanders, 2008: 70-3 n.16) contains
the flaw that the police are unlikely to sacrifice autonomy.
Change within the police is critical to achieving reform (Savage,
2007: 127-63) so internal change to working practices is what is
required. This was the rationale behind the PACE reform to
change the police investigative philosophy and is where the
problems lie (Savage, 2007: 25 n.89). Increased legislation is not
a solution because this increases subversive practice.
Given police monopoly of power from self-regulation, a
possible reform measure would adopt the ethics-based approach
advocated by Newton. On her grounds, adherence to rules alone
is ineffective without corresponding culture change towards
fairness (Newton, 1998: 53-66). A possible reform towards this
direction would be to move from best practice interview models
to a reform of the entire investigative process grounded in three
ways: (1) investigative ethics code of practice incorporating
Human Rights and modelled on the Criminal Procedure and
Investigation Act 1996 code of practice for disclosure officers:
namely the duty to investigate 'all reasonable lines of enquiry'
whether this leads to or from the suspect (Ormerod, 2008: 3.5);
(2) equality of arms principle, with full disclosure of the police
case to defence lawyers as per Newton (1998: 60 n.147) unless
there are security reasons to withhold information; and (3) use in
indictable-only cases and for vulnerable persons ethics-trained
specialist interviewers modelled on the 'Achieving Best Evid-
ence' provisions for witness interviewing (Home Office, 2001).
As stated, equality of arms has been suggested before. Our
suggested model is to combine the existing approaches to
disclosure and interviewing witnesses to produce an ethics-based
investigative process which tempers results-driven use of
powers. In this way, regulation would achieve the culture change
necessary to progress from rule observance and would address
the main deficiencies noted. Additionally, as an oversight mech-
anism we suggest an investigative log is kept in conjunction with
the custody record documenting pre-interview disclosure and
lines of enquiry.
The Police Journal, Volume 83 (2010) 75
In conclusion, the process of detention and questioning is
over-reliant on the police to self-regulate their powers with
reference to PACE but where PACE fails to regulate is the full
extent of detention and questioning in an investigative adversar-
ial environment of police control. This raises due process issues
which are not satisfactorily resolved. In the specific instances of
vulnerable persons where the need for protection is greater,
police observation of PACE alone is insufficient. This underlines
the point that the rules circumscribe police behaviour, but in
ritualistic observance of the rules the denial of protection under-
mines the purpose of the rules to the extent that police power is
implicitly unregulated. We have sought to demonstrate that the
real problem is the gap between PACE regulation by police
observance and external prospective regulation by court sanction
to the extent that a detainee is disempowered. The ethos of our
suggested reform model is to redefine how investigative powers
are regulated at the police station, with adjustment of boundaries
and new oversight mechanisms to support the existing PACE
provisions. This recognises that no purpose is served by dis-
mantling PACE but emphasises there is room for improvement.
Otherwise police powers at the police station remain in sig-
nificant imbalance to detainees' rights.
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