English criminal procedure under Article 6 of the European Convention on Human Rights: implications for custodial interrogation practices.

I. INTRODUCTION

In the English legal system, the criminally accused has a general right to a fair trial by a jury of peers. The trial is a rigorous exercise in the regulation of the flow of information from and between the parties, information on which the jury ultimately will be required to make its finding of guilt or innocence. The trial is conducted in accordance with detailed rules governing the admissibility and use of evidence. Few would dispute that these rules are essential to ensure the fair trial to which the criminally accused is entitled.

The elaborate provisions regulating the flow of information at trial, however, are virtually absent at custodial interrogation, where the criminal suspect is most vulnerable, and which is arguably the single most critical phase of the criminal process. (1) In England, the methods by which the police acquire, develop, and use evidence at custodial interrogation raise very serious issues of procedural fairness and human rights. These methods can have a profound impact on the efficacy of custodial legal advice (2) and the fairness of the criminal process generally.

Unlike in the United States of America, international human rights norms have direct bearing on English rules of evidence and criminal procedure. This influence is achieved principally through England's participation in the European human rights system. Most important for the English criminal process are the decisions of the European Court of Human Rights ("EctHR"), which interpret and apply the European Convention on Human Rights ("Convention") (3) in individual cases. Indeed, English lawyers over the years have been highly enterprising in their use of the ECtHR and in invoking Convention rights in domestic courts. (4) With the coming-into-force of the Human Rights Act 1998 ("HRA"), (5) which incorporates much of the Convention into the domestic legal order, domestic litigants will have even greater opportunities to shape English criminal procedure using Convention law. (6)

In this article, I critically analyse and discuss two aspects of custodial interrogation in England that may offend the fair trial guarantees provided by Article 6 of the Convention. The first aspect involves the non-disclosure or misrepresentation of evidence by police during custodial interrogation. I will argue that this practice has severe prejudicial effects on the legal position of the suspect and the custodial legal adviser. The nondisclosure or misrepresentation of evidence deprives the suspect and the custodial legal adviser of factual information about the offence in question. This practice creates informational inequality and an imbalance of power between the suspect and the police. This imbalance of power may violate the Convention principle of "equality of arms," which requires that the accused be allowed to present his case "under conditions which do not place him at a substantial disadvantage vis-a-vis his opponent." (7) Closely linked to the principle of equality of arms is the Article 6(3)(b) right to "adequate facilities," (8) which requires that the accused be provided "with the results of investigations carried out throughout the proceedings." (9) At present, there are no statutory provisions governing the disclosure and use of evidence at custodial interrogation, and judicial pronouncements on the subject have been limited and contradictory.

The second aspect to be addressed is the right to effective legal assistance provided by Article 6(3)(c) of the Convention. (10) I advance two main arguments here. First, the right to effective legal assistance may be violated by the use of non-lawyers for advising suspects at custodial interrogation, or where qualified lawyers fail to adopt an adversarial posture at custodial interrogation. While the quality of custodial legal assistance in England has improved in recent years, law firms continue to use clerks, former police officers, and other non-lawyers to advise suspects at custodial interrogation. (11) Even fully qualified lawyers may fail to provide suspects with a robust defence at custodial interrogation. (12)

Second, I advance the more complex argument that the informational inequality caused by the non-disclosure or misrepresentation of evidence at custodial interrogation interacts with provisions of the Criminal Justice and Public Order Act 1994 ("CJPOA"), which allow adverse inferences to be drawn from a suspect's failure to answer police questions, to create a custodial atmosphere in which effective legal assistance is simply not possible. (13) By depriving the custodial legal adviser of complete and accurate factual information about the offence in question, the adviser is unable to properly advise her client on such fundamental matters as whether or not to remain silent. Moreover, in the absence of a requirement that the police disclose the evidence in their possession at custodial interrogation, the legal adviser cannot be certain under any circumstances that the police are not withholding material evidence. I conclude that only by requiring full police disclosure at the earliest moment will the imbalance of power and procedural inequality at custodial interrogation be ameliorated to a degree acceptable under the Convention.

II. THE NATURE AND IMPORTANCE OF CUSTODIAL INTERROGATION IN THE ENGLISH CRIMINAL PROCESS

A. History and Development

Largely by historical accident, in a mere 150 years, the police have come to occupy a decisive place in the English criminal process. (14) The position of the modern police is laden with exceptionally high public, political, and legal expectations. (15) In addition to maintaining public order and preventing crime, the police have also acquired primary responsibility for the investigation of crime and the apprehension of criminal suspects. The Criminal Procedure and Investigations Act of 1996 ("CPIA") (16) imposed additional burdens as to the compilation and disclosure of evidence in individual cases. (17)

One of the most important powers possessed by the police is the authority to interrogate criminal suspects held in police custody. (18) The current rules governing custodial interrogation are rooted in the statutory removal of magistrates' power to interrogate suspects in 1848 and the shifting of investigative functions to the newly formed police forces. (19) Importantly, the transfer of investigative powers from magistrates to the police occurred "singularly free from judicial restraints and controls." (20) As Dixon notes, the police quickly evolved the practice of "taking arrested suspects to stations for questioning and charging before their presentation to the magistrates." (21) The problem, according to Dixon, was that "no provision was made in the law for this enormously significant change in practice (except in regard to police bail) and ... key concepts such as arrest and charge became ambiguous." (22)

From the very inception of the modern police forces, there was legal and practical confusion as to their proper role in the interrogation of suspects. Many courts maintained that, in the absence of evidence to the contrary, what Parliament prohibited of the magistrates, it also prohibited of the police.(23) As Bentley observed, if judges and magistrates "could not question a prisoner, it was unthinkable that inferior officers of justice, such as policemen, should be allowed to do so." (24) There is additional evidence suggesting that this view was widely held in legal circles. In 1873, the Metropolitan Police published orders prohibiting "any attempt by officers or others to extract a statement in the nature of a confession from a person brought to a police station on a charge of felony...." (25) Similarly, the first Police Code on the duties of constables provided that "`when ... a constable ... is about to arrest a person ... or has a person in custody for a crime, it is wrong to question such a person touching the crime of which he is accused.'" (26) This view was affirmed in the case of Regina v. Gavin, in which the court stated that "the police have no right to ask [a suspect in custody] questions." (27) Equally important to note is the evidentiary rationale accompanying the early prohibition of suspect interrogation: the courts considered statements obtained by police interrogation to be involuntary due to the coercive character of custody and police questioning. (28)