Police Powers in England: Report of the Royal Commission on Criminal Procedure

Author(s): Michael Zander

Source: American Bar Association Journal, Vol. 67, No. 6 (June, 1981), pp. 732-735
Published by: American Bar Association
Stable URL: https://www.jstor.org/stable/20748819
Accessed: 14-08-2019 05:13 UTC

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By Michael Zander
BETWEEN 1971 and 1975 there were no
less than four major official reports in
common-law countries on the problem
of police powers: the 11th report of the
English Criminal Law Revision Com
mittee (1972), the report of the Thom
son Committee on Criminal Procedure
in Scotland (1975), the report on Crim
inal Investigation by the Australian
Law Reform Commission (1975), and
the American Law Institute's Model
Code on Pre-Arraignment Procedure
(1975).
The latest contribution on this con
troversial subject is the report of the
English Royal Commission on Criminal
Procedure published in January (Cmnd.
8092, ?7.50 from H.M. Stationery Of
fice, High Holborn, London WC 2).
The royal commission was set up in
1978 with 15 members under the
chairmanship of Sir Cyril Philips, a
former vice chancellor of London Uni
versity and an oriental historian. Its
members included a High Court judge,
a queen's counsel, an academic lawyer
with prior experience as a defense ad
vocate, two senior police officers, the
retired permanent undersecretary of
state at the Home Office, a sociologist
who has written extensively on the
police, a prominent trade union leader,
a stipendiary magistrate, and several
lay justices.*
One of the important achievements of
the commission was to publish 12 sepa
rate research reports, which are listed
on page 735. None of the previous offi
cial committees troubled to inform
themselves in this way of what actually
happens in police stations and in the
prosecution process generally, and the
royal commission's report is therefore a
more authoritative inquiry than any of
its forerunners.

Police I
Powers in Report of the Royal
Commission on
England: Criminal Procedure

732 American Bar Association Journal

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 The report of the Criminal Law Re illegality or impropriety in the collec the summary by the officer) should in
vision Committee in 1972 came to grief tion of statements, admissions, or other the view of the commission be tape re
because it recommended the abolition evidence would not render the evi corded, as well as being taken down in
of the right of silence in the police sta dence inadmissible, but the judge the officer's notebook. The recording of
tion. This single proposal attracted so would have to give the jury an appro the process of taking written statements
much criticism from virtually all quar priate warning about the dangers of re would help to establish the tone and
ters that the entire report, including lying on it. style of the transaction. The recording
many uncontroversial recommenda The commission rejected the Ameri of the officer's summary in the presence
tions, went down the drain. can exclusionary rule on the double of the suspect could help avoid later
The 1980 royal commission did not ground that there was little evidence disputes as to what he was alleged to
make the same mistake. It recom that it inhibited malpractice by the have said and whether he disputed any
mended that the right of silence should police and at the same time it clearly thing in the officer's account at the
not merely be retained but strength resulted in the loss of relevant evi time.
ened by the addition of a written cau dence. If the police misbehaved them The commission concluded, how
tion to the existing requirement of an selves, the remedy should be internal ever, that tape recording of entire inter
oral one. The commission also recom police disciplinary procedures, ini views would not be feasible. A techni
mended retention of the accused's right tiated possibly by a complaint by the cal study undertaken for the commis
to refuse to give evidence at his trial, victim, civil actions for damages, or, in sion showed that the cost of recording
although it thought the right to make an extreme cases, criminal prosecution. all interviews in police stations would
unsworn statement from the dock The commission considered whether be some ?6.5 million annually com
should be abolished. to adopt the Australian Law Reform pared with an annual cost of some
The proposal to retain the right of si Commission's "reverse onus" exclu ?800,000 if only the final stages were
lence will not please the police, who sionary rule, under which illegally ob recorded. But the difference in the cost
have repeatedly called for its abolition, tained evidence would be inadmissible was perhaps less of a factor than the
but research has demonstrated that in unless the prosecution could satisfy the difference in likely delays that would
fact it is rare indeed for any suspect to court that it should be admitted in the be caused by the problem of transcripts.
remain silent in the face of police ques public interest. It did not favor this rule It was difficult to work from the tape,
tioning. since it leaves the judges with a vague and transcripts would be needed by
The commission, however, proposed discretion that they would administer both prosecution and defense for pre
a major change in the area of police inconsistently. trial preparation and by the court if the
questioning by recommending the The commission recommended that case was ultimately contested. Tran
abandonment of the classic common the entire area of questioning of sus scription, in the view of the commis
law rule that a statement obtained as a pects should be regulated by a new sion, was "boring, time consuming and
result of a threat or a promise made by a code that would deal with such matters not particularly enticing work." If tape
person in authority is inadmissible be as the right of access to legal advice, recording were to be adopted, some
cause it is not voluntary. This recom special treatment of juveniles and other way had to be found to keep transcrip
mendation was based largely on the re special categories, the modes of note tion to a minimum. To tape the entire
sults of research by a social psycholo taking, the taking of statements and the interview with suspects was therefore
gist who observed interrogations by the use of tape recorders, and the giving of in practice undesirable. Possibly this
Criminal Investigation Division over a cautions. The code also would deal will change if and when technology
period of several months. His conclu with comfort and refreshment of sus advances to permit automatic voice
sion was that the concept of "volun pects being questioned and the length,
tary" admissions or confessions is timing, and circumstances of question
largely meaningless, since all state ing.
ments are in some measure involuntary The code of questioning would re
and in one way or another the result of place the Judges' Rules and would be
the pressure of the situation in which drafted by the Home Office after con
the suspect finds himself. But even he, sultation with appropriate interested
an expert in psychological states, and parties. It would be promulgated in the
although he was present at the time, form of delegated legislation if ap
found himself unable to say to what ex proved by affirmative resolution of Par
tent statements made by suspects were . liament.
voluntary. It was idle, he concluded, to One of the rules of the code would
imagine that judges or juries could require that, if at the end of the inter
make such a determination months view the suspect was not willing to
after the event. make a written statement, the officer
The commission's proposal is that conducting the interview would
statements should be automatically in make a note of the main rel
admissible if made after violence, the evant points in the presence
threat of violence, or inhuman or de of the suspect, read this to
grading treatment. Some members of him, and invite him to com
the commission wished to extend the ment.
automatic inadmissibility rule to These final stages of
breaches of the questioning code in re interviews (that is, the tak
lation to juveniles. Any other forms of ing of a formal statement or

Drawings from The Old Bailey,, Corporation of London, j '.

in association with the Central Criminal Court f
Journalists' Association j j f

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transmission, the commission added.to property. In these circumstances the evidence, and to assure the accused's
The commission thought that the police should have the right to detain attendance at court.
technical problems associated with anyone in the immediate vicinity or to On first arrival at a police station the
tape recording were all soluble, and it stop vehicles by a roadblock within a station officer should first consider
was not impressed by the fears of those reasonable distance. The detention whether the arrest was justified by one
who thought that tampering with the should be simply to permit the police to of these criteria. The suspect at that
tapes was a major issue. Cassette re obtain names and addresses, or while a stage would be told his rights both or
corders diminished the possibility of witness was identified, "or the matter ally and in writing. All events relating
undetectable tampering except for ex was otherwise resolved." to his detention would have to be re
perts with access to very sophisticated The exercise of the power would corded on a custody sheet.
equipment. Once taping has become have to be justified on the ground that it After six hours in the police station
routine, the commission thought, chal assisted in identifying or apprehending an officer of the rank at least of inspec
lenges to the authenticity of recordings a suspect, prevented or terminated the tor would review the situation and
would be very rare. offense, or secured the recovery of would decide whether further deten
The commission reviewed the whole property or a person. tion was justified. If so, the reasons
of the law on stop and search, detention The only other proposed power per would have to be recorded.
for questioning, and arrest. The police mitting random stops would be the The police would have up to 24
should, it thought, have the power to right of a police officer not below the hours in which to release the suspect,
rank of assistant chief constable to
stop and search persons in the street on with or without charges. If they wished
suspicion of having stolen goods or authorize roadblocks of vehicles in a to hold him without charges beyond 24
anything possession of which was pro particular area when a person whose hours they would have to ask a magis
hibited in a public place. This would arrest was sought for a grave offense trate for an extension of time, which
cover not merely drugs, explosives, or was reasonably believed to be there or could not exceed a further 24 hours.
firearms but also the very elastic con there were reasonable grounds to be The suspect would have the right to be
cept of offensive weapons. Three mem lieve that a grave offense would be present or to be legally represented at
bers of the commission feared that the committed in a defined area over a that hearing, which would not, how
extension of this power to offensive specified period. There would be no ever, be in open court.
weapons created a serious danger of power to search vehicles stopped, how The police could apply to the magis
"random and discriminatory searches ever, unless there was reasonable trates for further 24-hour renewals of
which could further worsen the rela ground to suspect that there was evi the right to detain without charges, but
tionship between the police and young dential material in the vehicle. after the first extension there would be
people, particularly black youth." a right of appeal to a judge.
The majority, however, considered Arrest should be Suspects should normally be told
that it was possible to establish suffi restricted to that they had a right of access to a solic
cient safeguards to counter this risk. itor, and duty solicitor schemes should
First, the grounds of any search would cases of necessity be established to make this right effec
have to be stated in the police officer's tive. Anyone who wished to waive his
notebook and a copy of this record The commission thought that the right to see a solicitor should be asked
"should be made available within a present definition of arrestable offenses to sign a record to that effect. The only
reasonable period on request by the as those carrying a five-year prison sen exception to the general right to have
person stopped and searched." Second, tence was too narrow. Instead the access to a lawyer in the police station
supervising officers should be given a police should be able to arrest anyone would be someone suspected of a grave
specific duty to collect figures on the who is reasonably suspected of having offense and there was reason to believe
numbers and results of searches. They committed, committing, or being about that access might cause delay resulting
should be instructed to watch in par to commit an offense carrying any in risk to life or property, or give rise to
ticular for signs that searches were prison sentence. In addition, there interference with evidence or wit
being carried on in a random, arbitrary, should be a power to arrest when an nesses, or aid in the disposal of the pro
or discriminatory way. officer saw someone committing a ceeds of crime or the escape of ac
Searches in the street would be re nonarrestable offense if he refused to complices. But even in those cases the
stricted to fairly superficial examina give his name and address. The power suspect would either have to be
tion of a person's clothing and baggage. of arrest in that case would exist only brought before a court within 24 hours
Any: more detailed search should take for the purpose of ascertaining the sus or have a mandatory visit from a solic
place at the police station. pect's name and address. itor within that period to ensure that he
The commission rejected any general Two members of the commission was getting his rights.
power for the police to detain persons feared that this power would be too Additionally, suspects should con
in the street or to arrest them for failing Draconian and that there was insuffi tinue to have a right, as under present
to give their names and addresses. But cient justification for permitting an ar law, to have someone notified of the
there should be a power of temporary rest for offenses that did not carry a fact of their arrest and of their where
detention of those who were not sus prison sentence. abouts. The only exceptions would be
pects when a grave incident had oc The use of arrest, in the view of the those that applied to refusal of access to
curred or was likely to be about to oc commission, should be restricted to legal advice.
cur. A grave incident for this purpose cases of necessity: to ascertain the iden Juveniles and mentally handicapped
would be defined as one in which there tity of the suspect, to prevent an of persons should be interviewed only in
was a danger of death or serious injury, fense, to protect a suspect or other per the presence of another adult who
serious sexual assault, or grave damage son or property, to secure or preserve could be a parent, guardian, or some
734 American Bar Association Journal

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body else known to them. That right
should not be capable of being waived
or withheld, except when delay caused
in waiting for such an adult would en
danger persons or property.
The commission proposed that
search warrants should be specific both
in relation to the object of the search
and the premises to be searched. Items
found incidentally in the course of a
lawful search should be seizable by the
police only if they could themselves
have been the subject of a search war
rant. It defied common sense, the com
mission thought, to expect the police the offense.
not to seize items found in the course of
A search warrant could only issue
a search.
Items not seized during a lawful
search could not be seized or used in
evidence. At present the police have
few powers to search for evidence as
opposed to prohibited goods ? stolen
goods, drugs, firearms, explosives, and
the like. One exception is under the
Bankers Books Evidence Act 1879,
which gives the police the power to ask
a judge to grant access to bank records
after proceedings have started against
someone.
Ordinarily it was right to limit
might be sought not only at the prem
ises of persons suspected of involve
searches under warrant to prohibited
goods, but the commission recom ment in crime but also from the prem
mended that in exceptional circum ises of persons regarded as wholly in
nocent, including professional persons
stances a judge should be able to permit
the police to search for evidence,such aspro
lawyers, bankers, or others who
Research Reports
The research reports published by the
Royal Commission on Criminal Proce
dure, all available from H.M. Stationery
Office, High Holborn, London WC2, are:
No. 1. Police Interrogation: The Psy
chological Approach, by Barrie Irving
and Linden Hilgendorf, trawls the psy
chological literature.
No. 2. Police Interrogation: A Case
Study of Current Practice, by Barrie Irv
ing, reports on research into police ques
tioning in Brighton.
No. 3. Police Interrogation: Review of
Literature, by Pauline Morris.
No. 4. Police Interrogation: An Obser
vational Study in Four Police Stations,
by Paul Softley, reports on a study by the
Home Office Research Unit.
No. 5. Confessions in Crown Court
Trials, by John Baldwin and Michael
McConville, reports on the effects of con
fessions and admissions on a sample of
cases tried in the Crown Court.
No. 6. Contested Trials in Magistrates'
Courts: The Case for the Prosecution, by
Julie Vennard, analyzes a sample of 394
contested cases, in particular for the role
of "admissions and confessions.
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viding the crime in question was
were a the items under a confi
holding
grave one. The police would dential
have relationship.
to
A section
ask a judge for an order in the first place of the report devoted to the
requiring the person affected organization
to pro of the prosecution process
duce the items specified in therecommends
order. that after the police have
decided to charge someone, the deci
That order could be appealed against.
An order could only be madesion if as
theto whether to proceed with the
nature of the items was specifiedcase and
withits handling thereafter should
some precision and there werebereasonby prosecution solicitors. These
able grounds for believing they would be employed by a local prosecut
might
be found at the premises and that ing solicitor's
the agency accountable
evidence would be of substantial valueto the same authority as the
politically
chief the
in identifying those responsible for constable.
crime or determining the particularsThe basic
of philosophy of the report is
to attempt to find a fair balance be
tween the
if need of the police to have
sufficient
the order was disobeyed or if it was rea powers to do the job the pub
sonable to dispense with an order on them to do and, on the other
lic expects
the ground that there was reasonhand,
to to
beprotect the legitimate interests
lieve that the evidence wouldof disap
the suspect. The standards adopted
pear or be disposed of if theby the commission were "fairness,"
person
"openness," and "workability."
concerned was alerted to police interest
in it. Fairness required that if a suspect has
The commission recognized that the a right, he should know about it and be
kind of evidence that might be sought able to exercise it. If the right is with
under the order could include not only held, he should know why. Openness
murder weapons or blackmail notes but required that decisions should be ex
personal diaries, business records, or plained to the suspect and should be
other sorts of stored information. They written down so as to be available for
inspection and challenge. The proce
dures and rules should be workable in
the sense that the police have to be able
to discharge their duty to apprehend
malefactors and bring them to justice.
The rules under which the police oper
ate should be clear and certain.
No. 7. Uncovering Crime: The Police The commission's report received a
Role, by David Steer, reports on the dis mixed reception. It was broadly wel
covery and investigation of crime in the comed by the police, the Bar Council,
Thames Valley force area. the Law Society, the Justice's Clerks
No. 8. Police Interrogation: Tape Re Society, and the press. The civil liberta
cording, by J.A. Barnes and N. Webster, rians, however, found themselves split.
reports on empirical and operational re Some (including the Legal Action
search on tape recording in police sta Group, the National Council for Civil
tions.
Liberties, and the Haldane Society,
No. 9. Arrest, Charge and Summons:
Current Practice and Resource Implica supported in particular by the New
Statesman and the home affairs
tions, by R. Gemmill and R.F. Morgan
Giles, reports research by two manage spokesman of the Labour Party) con
ment consultants into the cost demned the report. They said it gave
effectiveness of a variety of ways of the police considerably greater powers
bringing suspected offenders to court. with inadequate controls and safe
No. 10. Prosecutions by Private Indi guards. Others (including me) feel that
viduals and Non-Police Agencies, by subject to some reservations the com
K.W. Lidstone, R. Hogg, and F. Sutcliffe, mission struck a reasonable balance be
reports on research into prosecutions by
tween the claims of the police and of
others than the police.
No. 11. A Survey of Prosecuting Solic
the suspect. There is no indication yet
itors' Departments, by Mollie Weatheritt as to the government's view.
and Joan MacNaughton, describes the _ _lournal
operation of prosecuting solicitors' de
partments. (Michael Zander is professor of law
No. 12. (published in one volume with at the London School of Economics and
No. 11), Organisational Implications of Political Science and is the author of
Change, by David Kaye and others, exam Cases and Materials on the English
ines various options for prosecutors' sys
tems. Legal System, Published by Weidenfeld
and Nicolson, 3d ed. 1980.J
June, 1981 Volume 67 735
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