criminal law Acts

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Police and Criminal Evidence Act 1984 Brief Background and Overview

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.[1] This was largely due to the media response to a “group of sensational cases[2] 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”.[3] The high profile cases in question[4] involved suspects of IRA terrorist attacks whose convictions were largely based upon dubious confessions made under police interrogation and unreliable forensic evidence.[5] All three cases were subsequently declared to be miscarriages of justice with all convictions being quashed.[6]

It is noted; however, that PACE 1984 was enacted and in force prior to any such declaration.[7] Consequently, it must be stated that the media response to such cases,[8] particularly in highlighting the fact that other well-known IRA terrorist cells had taken credit for the attacks,[9] 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[10] 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.[11] At the time public opinion was simply that the English criminal justice system had failed them.[12]

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[13] and at the time “police powers were piecemeal and ill defined”.[14] The main aim of the legislation was to “standardise and professionalise police work[15] 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.[16] 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”.[17] 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.[18]

The first concept has since seen further statutory intervention in the form of exceptions,[19] however, the general rule following the introduction of PACE 1984 was the requirement amended from a general suspicion[20] to a justifiable reasonable suspicion which was not to be based on personal factors or appearances.[21] 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[22] and that this was too easily justified under previous legislation.[23] Consequently, PACE 1984 introduced the requirement that the police must use no more force than could be deemed reasonably necessary;[24] placing a burden upon the police to justify any such use of force.[25]

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.[26] 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;[27] which the suspect must be given the opportunity to review,[28] two copies of tape recorded interviews are required,[29] and one must be sealed immediately after the interview in the presence of the interviewee.[30] Additionally, the subjective rights of suspects are protected with requirements such as; the presence of an appropriate adult in relevant situations;[31] the need to identify specific “risks to detainee’s physical and mental state[32] 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[33] the failure of the courts to prevent such occurrences was deemed to be regarded as being part of the problem.[34] 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”[35] paying particular attention to “the circumstances in which the evidence was obtained”.[36] It is arguable that such a provision did not represent a change in the law as the common law had already established[37] and approved[38] a similar judicial discretion. Such a discretion was, however, restricted to confessions, admissions and evidence gained from the suspect following the offence.[39] 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.[40]

Overall, the legislation has been largely successful, and is hailed as being “one of the most significant developments in modern policing”.[41] Indeed, despite the fact that the English justice system has subsequently been branded as being ‘institutionally racist’,[42] public opinion of the system has largely improved. Indeed, the fact that the police embraced PACE 1984[43] leads to public confidence in the ability of the police to respond to such subsequent criticism.[44] Additionally, again despite criticism that the legislation provides the judiciary with too much power,[45] 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[46] and bad character.[47] Both originally deemed inadmissible but now may be admitted under certain gateways[48] due to the ultimate protection of s.78 PACE 1984.

Bibliography

Books:

Mckee, G., Franey, R., Time Bomb: The Guildford Four, (Bloomsbury, 1988)

Mullin, C., Error of Judgement, (3rd Edition, Poolbeg, 1990)

Packer, H., The limits of the Criminal Sanction, (Stanford University Press, 1968)

Walker, C., Starmer, K., Miscarriages of Justice: A Review of Justice in Error, (Oxford University Press, 2004)

Ward, R., Akhtar, A., Walker & Walker’s English Legal System, (11th Edition, Oxford University Press, 2011)

Journals:

Birch, D., Hirst, M., ‘Interpreting the new concept of hearsay’ [2010] CLJ 72,

Buxton, R., ‘Miscarriages of Justice and the Court of Appeal’ [1993] LQR 66

Coliandris, G., ‘Zander on PACE: the Police and Criminal Evidence Act 1984’ [2014] Pol J 139

Dennis, I., ‘Miscarriages of Justice and the law of confessions: evidentiary issues and solutions’ [1993] PL 291

Ormerod, D., ‘Evidence: judge admitting defendants’ previous convictions – judge ruling at start of case’ [2007] Crim LR 891

Riches, J., ‘Institutional racism – a new look’ [2003] Prison Serv J 149

Souhami, A., ‘After the inquiry: reactions to institutional racism in the police service’ [2007] Prison Serv J 169

Zander, M., ‘PACE (The Police and Criminal Evidence Act 1984): Past, Present and Future’ [2011] 23 NLSI Rev 1

Zuckerman, A.A.S., ‘Miscarriage of Justice a root treatment’ [1992] Crim LR 323

Zuckerman, A.A.S., ‘Miscarriages of Justice and Judicial responsibility’ [1991] Crim LR 492

Reports:

Home Office, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Mcpherson of Cluny, (Cm 4262 I, 1999)

Report, Royal Commission on Criminal Justice (1991 Cm 2263)

Report, Royal Commission on Criminal Procedure, (1981, Cmnd 8092)

Legislation:

Criminal Justice Act 2003

Criminal Law Act 1967

Police and Criminal Evidence Act 1984

Public Order Act 1994

Terrorism Act 2000

Cases:

O’ Laughlin v Chief Constable of Essex [1998] 1 WLR 374

R v Barry (1991) Cr App R 384

R v Christie[1914] AC 545

R v Docherty[1999] 1 Cr App R 274

R v Doolan[1988] Crim LR 747

R v McIlkenny et al[1991] 93 Cr App R 287

R v Richardson et al [1989] The Times, Oct 20th

R v Sang[1980] AC 402

R v Sharp[1988] 1 WLR 7

R v Ward(1993) 98 Cr App R 337

Shaaban Bin Hussein v Chong Fook Kam [1970] AC 942


[1] Walker, C., Starmer, K., Miscarriages of Justice: A Review of Justice in Error, (Oxford University Press, 2004) at p.39, Zander, M., ‘PACE (The Police and Criminal Evidence Act 1984): Past, Present and Future’ [2011] 23 NLSI Rev 1 at p.4

[2] Buxton, R., ‘Miscarriages of Justice and the Court of Appeal’ [1993] LQR 66 at p.66

[3] ibid

[4] Birmingham six, Guildford Four and Judith Ward

[5] Dennis, I., ‘Miscarriages of Justice and the law of confessions: evidentiary issues and solutions’ [1993] PL 291

[6] R v McIlkenny et al [1991] 93 Cr App R 287, R v Richardson et al [1989] The Times, Oct 20th, R v Ward (1993) 98 Cr App R 337

[7] Ibid

[8] Such as the World in Action series last broadcast by Grenada TV in 1985

[9] Mckee, G., Franey, R., Time Bomb: The Guildford Four, (Bloomsbury, 1988) at p.411, Mullin, C., Error of Judgement, (3rd Edition, Poolbeg, 1990) at Chapter 39

[10] Dennis, Supra n.5 at p.296

[11] Report of The Royal Commission on Criminal Justice (1991 Cm 2263) at p.6-7

[12] Zuckerman, A.A.S., ‘Miscarriage of Justice a root treatment’ [1992] Crim LR 323 at p.323

[13] ibid at p.323

[14] Ward, R., Akhtar, A., Walker & Walker’s English Legal System, (11th Edition, Oxford University Press, 2011) at p.438

[15] Zander, M., ‘PACE (The Police and Criminal Evidence Act 1984): Past, Present and Future’ [2011] 23 NLSI Rev 1 at p.6

[16]Packer, H., The limits of the Criminal Sanction, (Stanford University Press, 1968) at p.160

[17] Report, Royal Commission on Criminal Procedure, (1981, Cmnd 8092) at Para 1.12

[18] Ward, Supra n.14 at p.439

[19] s.60 Public Order Act 1994, s.44 Terrorism Act 2000

[20] Shaaban Bin Hussein v Chong Fook Kam [1970] AC 942

[21] Para 2.2 – Code of Practice A, Police and Criminal Evidence Act 1984

[22] McKee, Supra n.9 at p.350

[23] s.3 Criminal Law Act 1967

[24] s.117 Police and Criminal Evidence Act 1984

[25] O’ Laughlin v Chief Constable of Essex [1998] 1 WLR 374

[26] R v Ward (1993) 98 Cr App R 337

[27] s11.7 (a) Code C of the Police and Criminal Evidence Act 1984, R v Barry (1991) Cr App R 384

[28] s.11.11 ibid, R v Doolan [1988] Crim LR 747

[29] Code E of the Police and Criminal Evidence Act 1984 at Para 2.2

[30] ibid

[31] s.11.15 Code C of the Police and Criminal Evidence Act 1984

[32] s.12.3 ibid

[33] Zuckerman, A.A.S., ‘Miscarriages of Justice and Judicial responsibility’ [1991] Crim LR 492 at p493

[34] ibid

[35]s.78 (1) of the Police and Criminal Evidence Act 1984

[36] ibid

[37] R v Christie [1914] AC 545

[38] R v Sang [1980] AC 402

[39] ibid

[40] Report on Criminal Procedure, Supra n.17

[41] Coliandris, G., ‘Zander on PACE: the Police and Criminal Evidence Act 1984’ [2014] Pol J 139 at p.139

[42] Home Office, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Mcpherson of Cluny, (Cm 4262 I, 1999), Riches, J., ‘Institutional racism – a new look’ [2003] Prison Serv J 149

[43] Zander, Supra n.15 at p.3

[44] Souhami, A., ‘After the inquiry: reactions to institutional racism in the police service’ [2007] Prison Serv J 169

[45] Birch, D., Hirst, M., ‘Interpreting the new concept of hearsay’ [2010] CLJ 72, Ormerod, D., ‘Evidence: judge admitting defendants’ previous convictions – judge ruling at start of case’ [2007] Crim LR 891

[46] R v Sharp [1988] 1 WLR 7

[47] R v Docherty [1999] 1 Cr App R 274

[48] Criminal Justice Act 2003