POLICE AND CRIMINAL EVIDENCE ACT 1984

The Police and Criminal Evidence Act 1984 (PACE) (1984 c. 60) is an Act of Parliament which instituted a legislative framework for the powers of police officers in England and Wales to combat crime, and provided codes of practice for the exercise of those powers. Part VI  of PACE required the Home Secretary to issue Codes of Practice governing police powers. The aim of PACE is to establish a balance between the powers of the police in England and Wales and the rights and freedoms of the public. Equivalent provision is made for Northern Ireland by the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341). The equivalent in Scots Law is the Criminal Procedure (Scotland) Act 1995. Although PACE is a fairly wide ranging piece of legislation, it mainly deals with police powers to search an individual or premises, including their powers to gain entry to those premises, the handling of exhibits seized from those searches, and the treatment of suspects once they are in custody, including being interviewed. Specific legislation as to more wide ranging conduct of a criminal investigation is contained within the Criminal Procedures and Investigation Act 1996.

Criminal liability may arise if the specific terms of the Act itself are not conformed to, whereas failure to conform to the codes of practice while searching, arresting, detaining or interviewing a suspect may lead to evidence obtained during the process becoming inadmissible in court.

PACE also introduces various Codes of Practice, one of the most notable being an arrest without warrant can only be lawful if the necessity testcontained within Code G of PACE is met.

PACE was significantly modified by the Serious Organised Crime and Police Act 2005. This replaced nearly all existing powers of arrest, including the category of arrestable offences, with a new general power of arrest for all offences.

PACE is applicable not only to police officers but to anyone with conduct of a criminal investigation including Her Majesty’s Revenue and Customs and to military investigations, the Ministry of Defence Police. Any person with a duty of investigating criminal offences or charging offenders is also required to follow the provisions of the PACE codes of practice as far as practical and relevant.

Despite its safeguards, PACE was extremely controversial on its introduction, and reviews have also been controversial, as the Act was thought to give considerable extra powers to the police.

With the conjunction of the Inland Revenue and HM Customs and Excise into Her Majesty’s Revenue and Customs (HMRC), HMRC essentially gained extra powers since Customs and Excise had a statutory right of entry into a private dwelling, that is to say they were allowed to break and enter without reason, but the Inland Revenue did not. PACE and its subsequent enactments limits that. Various other government agencies including TV Licensing, the Royal Mail, BT Group (from its days of being spun off from General Post Office Telephones) and about seventeen others also have a statutory right of entry. One intent of PACE and its successors is to prevent the abuse of this right, or remove it entirely, to balance the privacy of the individual against the needs of the State.

Background

PACE Codes of Practice The 1981 Brixton riots and the subsequent Scarman report were key factors in the passage of the Act. The Police and Criminal Evidence Act 1984 was brought in following recommendations set out by the Royal Commission on Criminal Procedure. The purpose of the Police and Criminal Evidence Act 1984 was to unify police powers under one code of practice and to balance carefully the rights of the individual against the powers of the police.

The Home Office and the Cabinet Office announced a joint review of PACE and its codes of practice in May 2002, and on 31 July 2004, new PACE Codes of Practice came into effect. Following a further review in 2010, PACE Codes A, B and D were re-issued to take effect on 7 March 2011.

  • PACE Code A: deals with the exercise by police officers of statutory powers to search a person or a vehicle without first making an arrest. It also deals with the need for a police officer to make a record of such a stop or encounter. On 1 January 2009, Code A was amended to remove lengthy stop and account recording procedures, requiring police to only record a subject’s ethnicity and to issue them with a receipt.
  • PACE Code B: deals with police powers to search premises and to seize and retain property found on premises and persons.
  • PACE Code C: sets out the requirements for the detention, treatment and questioning of people in police custody by police officers. It replaced the Judges’ Rules in England and Wales.
  • PACE Code D: concerns the main methods used by the police to identify people in connection with the investigation of offences and the keeping of accurate and reliable criminal records.
  • PACE Code E: deals with the tape recording of interviews with suspects in the police station.
  • PACE Code F: deals with the visual recording with sound of interviews with suspects.

On 1 January 2006 an additional code came into force:

  • PACE Code G: deals with statutory powers of arrest.

On 24 July 2006 a further code came into force:

  • PACE Code H: deals with the detention of terrorism suspects.

Case law

In the case of Osman v Southwark Crown Court (1999), the search of Osman was held to be unlawful because the officers searching him did not give their names and station, contrary to PACE’s requirements.[

In O’Loughlin v Chief Constable of Essex (1997), the courts held that the entry of a premises under section 17 PACE to arrest O’Loughlin’s wife for criminal damage was unlawful because under PACE, anyone present on the premises must be given the reason for entry.

However, not all cases have gone against the police; in R v Longman (1988), it was held that the police entry of a premises to execute a search warrant for drugs was lawful, although deception had been utilised to gain entry, and upon entering, the police had not identified themselves or shown the warrant.

The Police and Criminal Evidence Act 1984 (PACE) was introduced as a response to a growing perception that the public had lost all confidence in the English criminal justice system. This was largely due to the media response to a “group of sensational cases” which not only highlighted unacceptable police behaviour but additionally “revealed the existence of serious miscarriages of justice in criminal, principally terrorist, trials that took place during the 1970s”.The high profile cases in question involved suspects of IRA terrorist attacks whose convictions were largely based upon dubious confessions made under police interrogation and unreliable forensic evidence.All three cases were subsequently declared to be miscarriages of justice with all convictions being quashed.

It is noted; however, that PACE 1984 was enacted and in force prior to any such declaration.Consequently, it must be stated that the media response to such cases, particularly in highlighting the fact that other well-known IRA terrorist cells had taken credit for the attacks, had the biggest influence upon the need for the introduction of such legislation. It was clear that the public strongly believed that the suspects in such cases had been tortured and framed by the police leading to the conclusion that the guilty parties were still free and at large and as a result the public remained in fear of subsequent terrorist attacks.At the time public opinion was simply that the English criminal justice system had failed them.

PACE 1984 was largely aimed at the police no doubt due to the fact that most “roots of a miscarriage of justice usually lie in the police investigation” and at the time “police powers were piecemeal and ill defined”. The main aim of the legislation was to “standardise and professionalise police work”correcting the public perception of a corrupt and incompetent police force. Indeed, it had been argued that public confidence in the police would inspire public confidence in the entire criminal justice system. As a result, in the formulation of the legislation it was clearly identified that PACE 1984 should aim to educate the public; “the issues being formulated should be the concern not only of lawyers or police officers but of every citizen”. PACE 1984 contained three main concepts in pursuit of such an aim: the notion of reasonable suspicion, the regulation of any use of force by the police and the regulation of police behaviour with regards to the collection of evidence.

The first concept has since seen further statutory intervention in the form of exceptions, however, the general rule following the introduction of PACE 1984 was the requirement amended from a general suspicion to a justifiable reasonable suspicion which was not to be based on personal factors or appearances.The regulation of the use of force was clearly linked to the public perception that the police regularly used excessive force in the apprehension of suspects and that this was too easily justified under previous legislation. Consequently, PACE 1984 introduced the requirement that the police must use no more force than could be deemed reasonably necessary; placing a burden upon the police to justify any such use of force.

In regards to regulating police behaviour, the most important element of the legislation was a comprehensive guideline, in the form of the Codes of Practice, detailing the minimum standards required to determine that evidence has been fairly obtained.Two examples of the accompanying regulations that were arguably designed to change the public perception of police officers were: Code C; regulating the treatment of detained persons during police interviews, and Code E, introducing the requirement for such interviews to be recorded. As a result of such requirements the whole process appears to be more transparent and fair as there must be an accurate record of the interview; which the suspect must be given the opportunity to review, two copies of tape recorded interviews are required, and one must be sealed immediately after the interview in the presence of the interviewee. Additionally, the subjective rights of suspects are protected with requirements such as; the presence of an appropriate adult in relevant situations; the need to identify specific “risks to detainee’s physical and mental state” and the right of a suspect to have access to legal representation.

Despite the fact that many of the problems that led to a poor public perception of the English criminal justice system were “attributed to the police” the failure of the courts to prevent such occurrences was deemed to be regarded as being part of the problem.Consequently, PACE 1984 introduced a responsibility on the part of the courts to ensure that the police followed procedure. This was achieved by granting the judiciary the power to declare any prosecution evidence inadmissible if “the admission of the evidence would have such an adverse effect on the fairness of the proceedings”paying particular attention to “the circumstances in which the evidence was obtained”. It is arguable that such a provision did not represent a change in the law as the common law had already established and approved a similar judicial discretion. Such a discretion was, however, restricted to confessions, admissions and evidence gained from the suspect following the offence.The provision included in PACE 1984 was much more general and applied to any prosecution evidence. It is arguable that the existence of a general discretion to exclude unfair evidence essentially acts as an ultimate safeguard to prevent miscarriages of justice.

Overall, the legislation has been largely successful, and is hailed as being “one of the most significant developments in modern policing”. Indeed, despite the fact that the English justice system has subsequently been branded as being ‘institutionally racist’, public opinion of the system has largely improved. Indeed, the fact that the police embraced PACE 1984 leads to public confidence in the ability of the police to respond to such subsequent criticism. Additionally, again despite criticism that the legislation provides the judiciary with too much power, the judicial safeguard contained in PACE 1984 has been arguably so successful that it has inspired the subsequent expansion of the admissibility requirements of forms of evidence such as hearsay and bad character. Both originally deemed inadmissible but now may be admitted under certain gateways due to the ultimate protection of s.78 PACE 1984.

Bibliography

Books:

  1. Mckee, G., Franey, R., Time Bomb: The Guildford Four, (Bloomsbury, 1988)
  2. Mullin, C., Error of Judgement, (3rd Edition, Poolbeg, 1990)
  3. Packer, H., The limits of the Criminal Sanction, (Stanford University Press, 1968)
  4. Walker, C., Starmer, K., Miscarriages of Justice: A Review of Justice in Error, (Oxford University Press, 2004)
  5. Ward, R., Akhtar, A., Walker & Walker’s English Legal System, (11th Edition, Oxford University Press, 2011)

Journals:

  1. Birch, D., Hirst, M., ‘Interpreting the new concept of hearsay’ [2010] CLJ 72,
  2. Buxton, R., ‘Miscarriages of Justice and the Court of Appeal’ [1993] LQR 66
  3. Coliandris, G., ‘Zander on PACE: the Police and Criminal Evidence Act 1984’ [2014] Pol J 139
  4. Dennis, I., ‘Miscarriages of Justice and the law of confessions: evidentiary issues and solutions’ [1993] PL 291
  5. Ormerod, D., ‘Evidence: judge admitting defendants’ previous convictions – judge ruling at start of case’ [2007] Crim LR 891
  6. Riches, J., ‘Institutional racism – a new look’ [2003] Prison Serv J 149
  7. Souhami, A., ‘After the inquiry: reactions to institutional racism in the police service’ [2007] Prison Serv J 169
  8. Zander, M., ‘PACE (The Police and Criminal Evidence Act 1984): Past, Present and Future’ [2011] 23 NLSI Rev 1
  9. Zuckerman, A.A.S., ‘Miscarriage of Justice a root treatment’ [1992] Crim LR 323
  10. Zuckerman, A.A.S., ‘Miscarriages of Justice and Judicial responsibility’ [1991] Crim LR 492

Reports:

  1. Home Office, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Mcpherson of Cluny, (Cm 4262 I, 1999)
  2. Report, Royal Commission on Criminal Justice (1991 Cm 2263)
  3. Report, Royal Commission on Criminal Procedure, (1981, Cmnd 8092)

Legislation:

  1. Criminal Justice Act 2003
  2. Criminal Law Act 1967
  3. Police and Criminal Evidence Act 1984
  4. Public Order Act 1994
  5. Terrorism Act 2000

Cases:

  1. O’ Laughlin v Chief Constable of Essex [1998] 1 WLR 374
  2. R v Barry (1991) Cr App R 384
  3. R v Christie [1914] AC 545
  4. R v Docherty [1999] 1 Cr App R 274
  5. R v Doolan [1988] Crim LR 747
  6. R v McIlkenny et al [1991] 93 Cr App R 287
  7. R v Richardson et al [1989] The Times, Oct 20th
  8. R v Sang [1980] AC 402
  9. R v Sharp [1988] 1 WLR 7
  10. R v Ward (1993) 98 Cr App R 337
  11. Shaaban Bin Hussein v Chong Fook Kam [1970] AC 942

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