Police Misconduct

Notes on dealing with police misconduct, application unit

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  • Created by: Jem
  • Created on: 06-05-13 10:45

Admission of Evidence

·         S.76, S.77: Contains law on confessions-S.77 applies to confessions made by mentally handicapped people
·         S.82: Definition of confession; law on confessions read with this definition ‘confession’ includes any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not and whether made in words or otherwise
·         S.78: Any evidence, including confessions
·         S.76 PACE: A confession is admissible unless it has been obtained through oppression or circumstances that would render it unreliable.  The burden of proof is on the prosecution to prove that it is admissible
·         Breaches of Code of Practices on Detention, Treatment and Questioning must be serious and substantial for exclusion of evidence under S.76

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Oppression

·         Oppression: S.76(8): Further defined as including ‘torture, inhuman or degrading treatment and the use or threat of violence’.
·         R v Fulling: Case gives guidance on what ‘oppression’ means.  Court referred to the dictionary definition of oppression.  Final ruling was that there must be some impropriety on part of interrogator for confession to be unreliable or inadmessable.
·         R v Davidson: Confession excluded under S.76 because, after consideration of Fulling it was held that the police had exercised their authority in a manner amounting to oppression, and the prosecution had failed to prove otherwise.
·         R v Miller: Court held that the confession should have been excluded under S.76 PACE because of oppression on the part of the police.  However, Miller’s confession was made in presence of lawyer, and courts are reluctant to excluded confession made in the presence of a lawyer except in extreme cases such as this.

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Unreliability

·         Unreliability: Relates to whether there has been an inducement of a confession.  Inducement can be acceptable in direct response to question from a suspect
·         R v Chung: Refusal of request to see a solicitor, questioning without solicitor present, failure to record confession immediately amongst other breaches combined made confession unreliable
·         R v Samuel: Denied access to solicitor
·         R v Trussler: Suspect was not given proper rest
·         R v Doolan: Suspect not cautioned at the start of the interview

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Determining Admissibility

·         Determining Admissibility: Admissibility of confession, where indicated to unreliable/obtained through oppression is decided by the judge in absence of the jury, so the jury are not influenced.  Admissibility is decided by a ‘voire dire’, a trial within a trial where the defence and prosecution make arguments on the admissibility of the confession.  If confession excluded; never mentioned again.  If included; defence can still challenge it before the jury.
·         S.76(4)(a): If something is discovered as a result of a confession by the defendant, this can be referred to.  The confession must not be mentioned though.
·         S.76(4)(b): Even if a confession is inadmissible, if there is something indicating that the defendant wrote/spoke in a particular way, confession may be admitted in evidence as in R v Voisin.

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Other Improperly Obtained Evidence: Physical, Conf

·         S.78: Further powers to exclude evidence.  Court must exclude evidence if it appears (having regard to all circumstances including those it was obtained in); ‘the admission of the evidence would have such an adverse effect on the fairness of the proceedings
·         It is a discretionary power; it is up to the courts if it’s used or not.  Allows for exclusion of physical evidence too.
·         R v Sang: House of Lords ruled that the court has no general discretion to exclude unfairly obtained evidence and shouldn’t concern itself with the means in which evidence was obtained.  The Courts have refused to provide general definition of what will/won’t be fair, So each case is decided on merits.
 

S.78: Test; ‘will it have an adverse effect on the fairness of the proceedings?

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Improperly Obtained Evidence

·         But; if evidence was unfairly/improperly obtained, not automatically an adverse effect on fairness of proceedings. 
·         Breaches of PACE and Codes of Practice can be dealt with in other ways, shouldn’t prevent evidence being admitted.

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Police Complaints-IPCC

·         Police Reform Act 2002: created Independent Police Complaints Commission (IPCC)
·         A non-departmental public body
·         Aim is to create greater confidence in complaints system and greater trust in police.
·         IPCC has power to choose to investigate/supervise police investigation
·         Independently investigates most serious complaints
·         Police misconduct is usually basis for complaints
·         Needn’t be victim of misconduct to complain; can be witness or family member
·         IPCC involved in whether a complaint is discontinued or not.
·         IPCC must have certain matters referred to them automatically, such as serious assault/sexual offences.

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Court Action for Police Malpractice

·         An individual can bring civil action against police
·         Police can be sued under; malicious prosecution, false imprisonment, wrongful arrest, trespass, assault, negligence
·         Cases usually heard in High Court, decided by juries
·         Commissioner of Police for the Metropolis v Thomspon and Hsu: Court of Appeal laid down important guidelines on the award of damages in civil cases against the police; following this case, compensation awards limited due to concerns that large awards of compensation diminished the budget available for policing

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