Police Powers and Criminal Evidence (PACE) Procedure LAW3208
- Subject Code :
LAW3208
CustodyRecordNumber:AP7631192/4 Client Name: Farrah Smith
Task1:Issues ArisingfromtheCustodyRecord
ThecustodyrecordofFarrahSmithdetailshertimeincustodyandhighlightsspecific procedural aspects under the Police and Criminal Evidence Act 1984 (PACE) and its associated Codes of Practice. Below, I address three key areas for consideration:
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(i)
<!--[endif]-->RightNottoBeHeld Incommunicado
Therightnottobeheldincommunicadoisfundamentalunder PACECodeC,Paragraph 3.1, which ensures detainees can communicate with the outside world, including family members and legal representatives 1.Ms. Smith requested to contact her mother at 11:01, soon after her detention was authorized at 11:00.
The record shows that while the custody officer noted her request, there is no immediate evidencetoconfirmwhethershewasgrantedthiscommunicationbeforehersolicitorwas contacted at 14:00. This delay raises potential concerns:
UnreasonableDelay:
PACE mandates that communication with family members should occur promptly unless specific justifications (such as risk of interference with the investigation) exist. The absence ofdocumentationregardingwhythisrequestwasnotfulfilledsoonermaysuggestprocedural lapses2.
CommunicationwithLegalRepresentationOnly:
WhileMs.Smith eventually communicatedwithasolicitor,herrighttocontacthermotheris distinct from the right to legal advice and must be separately addressed.
PotentialEmotionalDistress:
DenyingcommunicationwithhermothercouldhaveexacerbatedMs.Smithsemotional state, as evidenced by the custody record noting her crying at 13:00 and later during the interview3.
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(ii)
<!--[endif]-->RighttoLegalAdvice
PACE
CodeC2019(Accessible)(GOV.UK,December20,2023)
Engaging
PatientsandFamiliesinCommunicationacrossTransitionsofCare:An
IntegrativeReview(2020)103PatientEducation andCounseling1104
Engaging
PatientsandFamiliesinCommunicationacrossTransitionsofCare:An
IntegrativeReview(2020)103PatientEducation andCounseling1104
The right to legal advice is enshrined underPACE Code C, Paragraph 6.1, guaranteeing thatdetaineescanconsultasolicitorprivatelyatany time. Thecustodyrecordconfirmsthe following:
RequestforLegalAdvice:
Ms. Smith first requested legal representation at 12:00. Arden LLP was contacted at 14:00, andthesolicitor arrivedat15:00.Whiletherequestwasfulfilled, atwo-hourdelaybetween the request and contact raises questions regarding adherence to PACE requirements for prompt action.
PrivateConsultation:
At15:30,Ms.Smithconsultedprivatelywithhersolicitorbeforetheinterview.Thisreflects compliance with PACE Code C, Paragraph 6.3, ensuring confidentiality in legal consultations4.
SolicitorRepresentationDuringtheInterview:
Duringtheinterviewat16:30,Ms.Smithssolicitor waspresent,whichalignswith PACE Code C, Paragraph 11.1, requiring solicitors to safeguard against oppressive questioning and to protect detainees legal rights.
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(iii)
<!--[endif]-->ReviewsofDetention
ThereviewofdetentionisgovernedbyPACESection40andrequires that:
PeriodicReviews:
Detaineesmusthavetheirdetentionreviewedbyaninspectoratregular intervalstoensureit remains lawful, necessary, and proportionate. In Ms. Smiths case, the custody record indicatesthatareviewoccurred at15:40,roughly4 hoursand40minutesafterherdetention was authorized at 11:00. This aligns with the statutory requirement for a review within the first six hours of detention.
ContinuedDetentionJustified:
Thereviewinginspectorauthorizedcontinueddetention,whichisdocumentedinthecustody record. This suggests compliance with procedural safeguards under PACE Section 40(3), ensuring Ms. Smith was not detained unnecessarily or arbitrarily.
GeneralObservationsandRecommendations Record Completeness:
Therecordofcustodygivesvariousentriesthatindicatetheimportantactivitiesthattook
place when Ms. Smith was detained. However there are some issues which have to be explainedforexampletherearenoexplanationsforthedelay that couldbe thereasonwhy she never wrote her mother. Complete documentation is critical to ensure procedural transparency and compliance with PACE Code C, Paragraph 2.15.
PACE
CodeC2019(Accessible)(GOV.UK,December20,2023)
PACE
CodeC2019(Accessible)(GOV.UK,December20,2023)
Emotionaland PhysicalWellbeing:
Therecord notes thatMs. Smith appeared emotionally distressed, crying on many occasions. PACE Code C, Paragraph 9.1 requires officers to take into account the health and wellbeing ofdetainees.InlightofMs.Smithsvisible emotionalstate,officersshouldhaveensuredthat her requests for communication and legal advice were addressed more promptly.
SafeguardingConsiderations:
Given that Ms. Smiths instructions indicate a history of domestic abuse, additional safeguardingmeasuresundertheDomesticAbuseAct2021couldberelevant 6.Ensuring that she felt safe and supported in custody may have mitigated her distress.
BestPracticeSuggestions:
Tostrengthenprocedural compliance:
Ensuretimelydocumentationofreasonsforanydelaysinfacilitatingcommunication. Prioritize emotional wellbeing, particularly for vulnerable detainees.
AdherestrictlytoPACEtimelinesforcontactinglegalrepresentation.
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6
Domestic
Abuse:StatutoryGuidance(AccessibleVersion)(GOV.UK,April13,2023)
Task 2: Advice to Farrah Smith AnalysisoftheOffenceandItsElements
FarrahSmithhasbeenarrestedandchargedwithmurder.UnderEnglishcriminallaw, murder is a common law offence with two primary elements:
UnlawfulKillingofaHumanBeing:Thisrequires proofthatthedefendantcaused thedeath of the victim (David Smith) without lawful justification. The facts provided in the OIC disclosure confirm that Ms. Smith inflicted the fatal injuries on her husband, David, by stabbing him with a kitchen knife. The cause of death is clearly linked to her actions, satisfying this element.
Mens Rea (Intention to Kill or Cause Grievous Bodily Harm): To secure a murder conviction, the prosecution must prove that the defendant acted with an intention to kill or cause grievous bodily harm (GBH). Intention can be direct (aiming to cause death or GBH) orindirect(deathorGBHwasavirtually certainresultofthe act, andthedefendantforesaw this).
The diary entry stating, "Bought the knife today. Im nearly ready now," may indicate premeditation,supportingthemensreafor murder.However,Ms.Smithsaccounthighlights a history of prolonged abuse, culminating in her losing control, which complicates the assessment of intent. The circumstances surrounding her actions suggest she may not have acted with a cold, calculated intent to kill but rather in a state of overwhelming emotional distress.
ApplicableDefences
Ms.Smithmaybeabletorelyonthepartialdefence of lossofcontrolunderSection54of the Coroners and Justice Act 2009. This defence, if successful, reduces murder to manslaughter7. The three criteria for loss of control are:
LossofSelf-Control(Section 54(1)(a)):
Ms. Smith's account of her husbands prolonged abuse, culminating in the violent incidents shortly before the killing, strongly supports the claim that she lost self-control. It is notable that Section 54(2) removes the requirement for the loss of control to be sudden, acknowledging situations like hers where the loss of control may result from cumulative provocation. Thisisconsistentwiththeprecedentset in RvAhluwalia[1992]4AllER889, wherethecourtrecognizedtherelevanceoflong-termabuseinunderstandingthedefendants actions 8.
QualifyingTrigger(Section54(1)(b)): Qualifying triggers include:
Manslaughter:
LossofControlNotes|DigestibleNotes
R v Ahluwalia[1992]4AllER 889-CaseSummary(OxbridgeNotes,January4,2024)
FearofSeriousViolence(Section55(3)):Thehistoryofdomesticabuse,includingincidents such as being struck with a hammer and having her head flushed down the toilet, supports this. Ms. Smith feared for her life and physical safety9. Things Said or Done (Section 55(4)): The abuse and humiliation endured over a decade, coupledwiththephysicalviolenceimmediatelyprecedingtheincident,amounttoextreme provocation. However, Section 55(6)(a) and (b) exclude triggers arising from a considered desire for revenge.Thediaryentrymayundermineherdefencebysuggestingpremeditation.Itwillbe crucial to argue that the entry reflects her psychological state due to prolonged abuse rather than a calculated plan for revenge. The jury must consider whether a person of the defendants age and sex, with normal tolerance and self-restraint, might have reacted similarly in the circumstances. Courts have acceptedthatvictimsofdomesticabusemayactinwaysinfluencedbytheirexperiences,as seen in R v Thornton (No. 2) [1996] 2 All ER 1023. Ifthedefenceissuccessful,Ms.Smithsconviction couldbereducedtovoluntary manslaughter, significantly affecting the sentence imposed. Self-Defence:Ms.Smith couldargueself-defenceundercommon law,ascodifiedinSection 76 of the Criminal Justice and Immigration Act 2008, if she believed it was necessary to use force to protect herself from imminent harm10. However, the force used must be proportionate. Given the repeated stabbing, it may be difficult to establish proportionality. Diminished Responsibility:Another potentialpartialdefenceis diminished responsibility underSection2oftheHomicideAct1957,asamendedbytheCoronersandJusticeAct 2009.IfMs.Smithcandemonstrate thathermentalfunctioningwassubstantiallyimpaired due to a recognized medical condition (e.g., PTSD or Battered Woman Syndrome), this defence may apply. Expert psychiatric evidence would be required. Ms.Smithmustconsiderwhethertoanswerquestionsduringthepoliceinterview.The primary options are: AnswerQuestionsFully:Thisallowshertopresentherversionofevents,providingcontext forheractionsandemphasizingherfearand lossofcontrol.However,inconsistentorpoorly phrased responses could be used against her. 9 Susan Sm Edwards and Jennifer Koshan, Women WhoKillAbusiveMen:TheLimitationsofLossofControl,Provocation andSelf-DefenceinEnglandandWalesandCanada(2023)87TheJournalofCriminalLaw75 10 Anthony Edwards, Criminal Law:Self-Defence,DiminishedResponsibility,etAlia(LawGazette)
Provide a Prepared Statement: A prepared statement, written with legal advice, ensures her account isclear andfocused.Thiscan mitigaterisksofmisinterpretation orself-incrimination. Remain Silent: She has the right to silence under PACE 1984, Section 34. However, adverseinferencesmaybedrawnfromsilenceduringtrial ifshelaterraisesadefencenot disclosed during the interview (per R v Cowan [1996] 1 Cr App R 1)11. Givenheremotionalstateandthecomplexityofthecircumstances,Irecommendprovidinga prepared statement detailing the abuse she endured, the events leading to the killing, and her lossofcontrol.Thisstrikesabalancebetweenprotectingherrightsandpresentingacoherent narrative to the police. Ms. Smiths actions meettheelements of murder, butstrong mitigating factors and potential defences exist. The loss of control defence is her strongest argument, supported by a history ofdomesticabuseandcaselawprecedentslike Rv Ahluwalia.Apreparedstatementshould be submitted during the interview to ensure clarity and mitigate risks of misinterpretation. Casemine https://www.casemine.com(July18,2020)
(a) <!--[endif]-->RoleofaSolicitorin aPoliceInterview
The role of the solicitor in a police interview is actually to safeguard the interests of the suspect, make sure that the interviewing police do not cross the line and get evidence that would be admissible in court. Role is provided under the Police and Criminal Evidence Act of1984(PACE)anditregulations CodeC12.Inthelater,solicitorsserveausefulpurposeof preventing oppressive cross examination and ensuring proper legal process is followed. PreventingOppressiveQuestioning:Solicitoractingforasuspectworkstowardsobserving the type of questions asked so as to avoid violating PACE Code C, paragraph 11.1 on Intimidation or Coercion. Protecting Against Self-Incrimination: Police suspects may easily implicate themselves throughambiguitiesorbytheirfeelings.Solicitorsprovideimmediateadvicetominimizethis risk, as per PACE Code C, Paragraph 6.1. Providing Legal Advice: Solicitors explain legal necessities and likely outcomes of responsesandconfirmto thesuspect thattheyarebeinggiventheirrightsunderPACECode C, paragraph 3.1. Challenging Procedural Irregularities: Solicitors deal with any irregularities of the procedureinvolvedand isresponsiblefortherigidconsolidationof evidencetostickwith legal requirements. DocumentingEvents:Solicitorsrecordkeymomentsandinterventionsforsubsequentlegal challenges if necessary. (b) <!--[endif]-->InterventionsDuringthePoliceInterview
DuringFarrahSmithspoliceinterview,fivespecificinstanceswarrantedintervention.Below is a detailed explanation of each intervention, its rationale, and the legal framework supporting it. Atthestartof theinterview,DC4179stated,"Yougotridoftheoldmansoyoucouldhavea party, didnt you?" This statement is inflammatory, accusatory, and misleading. It implies a motive that is not supported by evidence. ReasonforIntervention:TochallengetheofficersprejudgmentandprotectMs.Smith from being unfairly characterized. Police andCriminalEvidenceAct1984
Legal Basis: This breaches PACE Code C, Paragraph 11.5, which requires officers to avoidoppressiveormisleadingquestioning.Italsocontravenesthesuspectsrighttoafair process under Article 6 of the European Convention on Human Rights (ECHR)13. DC4179shouted,"YOUREAMAN-KILLER,"causingMs.Smithtocry.Thisbehavioris inappropriate and intended to intimidate. ReasonforIntervention:Topreventfurtheremotionalmanipulationand ensureMs.Smith could respond coherently without duress. LegalBasis:PACECodeC,Paragraph11.1 explicitlyprohibitsoppressivequestioningor conduct likely to cause significant distress. The officers behavior risks rendering any evidenceobtainedinadmissibleduetocoercion, asoutlined in RvMason[1988]1WLR 1392. Theofficerstated,"Tell mewhathappened, andIll makesureyougettogohomevery soon." This is aclear misleading of the legalprocess, wherepeople aretold that if they cooperate they will be let off the hook. ReasonforIntervention:Toclarifythatsuchassurancesarelegallyinvalidandtoprotect Ms. Smith from making statements under false pretenses. Legal Basis: This is inconsonant with PACE Code C, Paragraph 11.4 which bars any influencewhichleadsthesuspect tounderstand that theiranswersamounttoa confessionor areincriminating.Italsocontravenestheprinciplesin RvSeelig[1992]1WLR819,where false promises rendered a confession inadmissible. DC 4179 asked Ms. Smith how she thought her husband was feeling during the incident. Theyareimpartialinrelation tothefactualevidenceofthecaseandseemtobedesigned to cause those on the witness stand to make emotional responses. ReasonforIntervention:Todrawthefocusingofquestioningbackonproperlinestoassure that the interview stays limited to facts instead of prodding for feelings. Legal Basis: PACE Code C, Paragraph 11.6 requires that all questions be relevant to the offenceunderinvestigation.Irrelevantorspeculativequestionscanunderminetheintegrityof the evidence obtained. After Ms. Smith described her husbands abuse, the officer responded, "Youre trying your luckwithbeingavictim.Thisdismissiveremarkunderminesher accountandignorescrucial context regarding her mental state and circumstances. European ConventiononHumanRights-Article6(EuropeanUnionAgencyforFundamentalRights,February28,2022)
LegalBasis:Thisviolates PACECodeC,Paragraph12.2,whichrequiresofficersto act impartially.Italsodisregardstheprinciplesestablishedin RvAhluwalia[1992]4AllER 889, which recognized the importance of considering domestic abuse in evaluating a suspects actions14. Each intervention during Ms. Smiths interview was necessary to protect her rights, ensure procedural fairness, and prevent oppressive or misleading questioning. The solicitors role in these situations was crucial to uphold compliance with PACE, safeguard the integrity of evidence, and advocate for Ms. Smiths legal and emotional wellbeing. By challenging these breaches and ensuring that questioning remained relevant and fair, the solicitor fulfilled their duty to protect Ms. Smith and ensure the admissibility of any evidence obtained during the interview. Police andCriminalEvidenceAct1984(PACE)CodesofPractice(GOV.UK,December20,2023)
Reference: BucknallTKandothers, Engaging PatientsandFamiliesinCommunicationacrossTransitionsof Care: An Integrative Review (2020) 103 Patient Education and Counseling 1104 Casemine, Casemine https://www.casemine.com(July18,2020) Domestic Abuse:StatutoryGuidance(AccessibleVersion)(GOV.UK,April13,2023) EdwardsA, Criminal Law:Self-Defence,DiminishedResponsibility,etAlia(LawGazette) Edwards SS and Koshan J, Women Who Kill Abusive Men: The Limitations of Loss of Control, ProvocationandSelf-DefenceinEnglandandWales andCanada(2023)87TheJournalof Criminal Law 75 European Convention on Human Rights - Article 6 ( European Union Agency for Fundamental Rights, February 28, 2022) EvansG, Manslaughter: LossofControlNotes|DigestibleNotes Hussain [2010]).>
PACE CodeC2019(Accessible)(GOV.UK,December20,2023) (GOV.UK,December20,2023) ParticipationE, Police andCriminalEvidenceAct1984 Police andCriminalEvidenceAct1984(PACE)CodesofPractice(GOV.UK,December20,2023) R vAhluwalia[1992]4 AllER889-CaseSummary(OxbridgeNotes, January4, 2024) AReasonablePersonsReaction(Section54(1)(c)):
Additional Considerations
AdviceonPoliceInterview
Conclusion andNext Steps
Task3:RoleoftheSolicitorandInterventionsDuringPoliceInterview
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Intervention1:AccusatoryLanguageandMisleadingStatements
Intervention2:Intimidatingand EmotionalManipulation
Intervention3:FalsePromisesand Coercion
Intervention4:InappropriateFocusonIrrelevantMatters
Intervention5:DismissingAbuseandVictimization Claims
