Interview after charge – the thin end of the wedge?

: Updated 24th August :

The following paragraph is taken from the excellent Criminal Law Update (August 2012) produced by Garden Court North Chambers in sunny Manchester !

Four years after the provisions were enacted the government has brought into force from 10th July 2012 post-charge interviews under ss. 22 and 23 of the Counter-Terrorism Act 2008. See Counter-Terrorism Act 2008 (Commencement Order No.6) Order 2012 (S.I. 2012 No. 1724). The editor of Criminal Law Week does not mince his words in his commentary – CLW 12/26/15 describing this as “one of the most sinister pieces of legislation enacted by the Westminster Parliament for many years”. He points out that this provision undermines the burden of proof as well as the right against self-incrimination and reminds us that most of the worst mis-carriages of justice happen in the most serious and heinous cases partly because of the temptation to cut corners to get a conviction at any cost. He also makes the point that no one should shrug their shoulders and say “this only applies to terrorism cases”. That may be true today but how long will it be before a government minister decides that the same provisions should be extended to other offences as well. It is earnestly to be hoped that the editor is correct in his assessment that the provision seems to be so obviously in breach of the rights of an accused person enshrined in Article 6 of the European Convention that it is unlikely to survive a challenge to its compatibility with the Convention in the UK courts let alone if it has to be litigated in Strasbourg. When future historians look back at the criminal legislation produced in the United Kingdom in the last fifteen years they are likely to find it easy to trace when the land that gave birth to the common law turned its back on long established legal principles designed to protect the vulnerable against the power of the state and decided that the rule of law was less important than continually trying to bump up the conviction rate.

Garden Court North Chambers are to be highly commended for regularly publishing these Updates.  They do not have to do it but it is a most welcome thing to do and assists all readers to keep abreast of the outpourings of statute law and case law.

The Counter Terrorism Act 2008 is part of the U.K.'s very extensive terrorism legislation.  Section 22 applies to England and Wales,  Section 23 to Scotland.   Under section 22, the questioning must be authorised by a "Judge of the Crown Court."  In Scotland, authorisation from a Sheriff is required.

The explanatory notes to the 2008 Act:

Section 22 – Post-charge questioning: England and Wales

Subsection (2) allows a judge of the Crown Court to authorise questioning of a person in England and Wales about an offence, for which they have been charged or after they have been officially informed that they may be prosecuted, where the offence was a terrorism offence (as defined in section 27) or where the judge considers the offence to have a terrorist connection (as defined in section 93).

Subsection (3) provides that the judge authorising post-charge questioning must specify the period during which questioning is authorised and may impose such conditions as appear to be necessary in the interests of justice, which may include conditions as to the place where the questioning is to be carried out.

Subsection (4) specifies that the time period for which questioning is authorised begins when questioning commences and runs continuously from that time irrespective of whether or not questioning stops. Subsection (4)(b) limits the period for which a judge can authorise questioning to a maximum of 48 hours before further authorisation must be sought.

Subsection (5) allows the judge to authorise the removal of a suspect to another place for the purposes of questioning. For example, this would allow a judge to authorise a suspect’s removal from a prison to a police station for questioning.

Subsection (6) provides that a judge can authorise post-charge questioning under this section only if satisfied that further questioning of the person is necessary in the interests of justice, that the police investigation related to the suspect is being conducted diligently and expeditiously, and that it would not interfere unduly with the preparation of the person’s defence to the charge in question or any other criminal charge. Undue interference might arise for example if authorisation for questioning is sought too near to the time of the trial.

Subsections (7) and (8) provide that codes of practice under section 66 of [the Police and Criminal Evidence Act 1984] PACE must make provision about post-charge questioning.

Subsection (9) extends the application of section 34(1) of the Criminal Justice and Public Order Act 1994, which allows adverse inferences to be drawn from an accused person’s failure to mention facts when questioned, to cover post-charge questioning under this section.

PACE Codes:

See Home office listing of PACE Codes and, for post charge questioning, see the revised Code H (applicable from 10th July 2012).

Addendum - Why did the law lean against post-charge questioning?

A number of reasons have been put forward for this.  One is that, in our legal system, after charge and appearance before a court, the accused is in the charge of the court and not the Police.  In the adversarial system it is not for the court to investigate offences.  Other arguments are well put by Lord Carlile of Berriew QC who was formerly the Independent Reviewer of Terrorism Legislation.  In his Report on Proposed Measures for Inclusion in a Counter-Terrorism Bill Cm7262 December 2007, he said:

"Historically, the prohibition on post-charge questioning has existed to protect the rights of accused persons, by forcing the police to charge only where there is sufficient evidence to justify doing so, and in a timely fashion. If they are unable to do this then the suspect must be released. An unfettered ability to question after charge might give rise to at least two possible situations, each of which is wholly foreseeable and, equally, each of which is wholly unacceptable. First, a suspect could be charged with a minor offence (such as criminal damage). He or she could then be held pending trial, with virtually no judicial scrutiny or protection, whilst the police investigated the offences in which they were really interested, with the intention of adding more serious charges at a later stage. Alternatively, a suspect could be charged with a serious offence for which the police had strong suspicion but scant evidence, hoping that the pre-trial period would permit them to discover the evidence to justify the charge. As ever, I am concerned that the effort to protect the right to safety of the law-abiding public should not remove provisions designed to protect a wrongly-accused individual."

The Joint Committee on Human Rights 8th Report on the Counter-Terrorism Bill is also well worth reading.

Post charge questioning was viewed as one way in which the detention period pre-charge could be kept shorter – see Joint Committee on Human Rights 19th Report at  para. 5

The maximum period for pre-charge detention is now 14 days (Protection of Freedoms Act 2012 s.57) though this may be extended under section 58.

And see also the Joint Committee Report on 42 days detention.

Even before the coming into force of the 2008 Act it was possible for the Police to question post-charge but only if the accused consented and, in that event, it was not permissible for inferences to be drawn from refusal/failure to answer a question.

The Counter-Terrorism Act 2008 enables post charge questioning but also builds in a number of safeguards – primarily that the process is under judicial control.

It remains to be seen whether the provisions in the 2008 Act become the subject of a challenge based on the European Convention on Human Rights. It should, I think, be a matter for some concern that Parliament has been very ready to whittle down the historical safeguards offered by the law to suspects.  This process has been going on for many years.  Developments such as protection for suspects under PACE 1984 (and the associated Codes) have to be weighed in the balance against statutory changes deliberately aimed at rebalancing the system in favour of the prosecution such as the right to silence provisions in the Criminal Justice and Public Order Act 1994, the fact that hearsay evidence is more readily admissible under the Criminal Justice Act 2003 and that, under the same Act, the bad character of the accused has become admissible in a wider set of situations than previously.  Furthermore, defence work in criminal cases is now becoming financially unsustainable - see here.

Would similar rules be introduced for non-terrorist offences?  This cannot be ruled out.  The right to silence provisions were first introduced in Northern Ireland to deal with terrorism but were later extended throughout the UK and now apply to all offences.  "Mission creep" in this area is far from uncommon and the powers in existing legislation somehow never seem to be quite enough for the authorities.