The Police and Criminal Evidence Act 1984 (known to police and lawyers as PACE) and its associated Codes of Practice is the source of a comprehensive system of suspects’ rights. In addition to provisions ensuring a suspect’s welfare whilst being detained by police, there are a wealth of rules relating to the conduct of interviews. Some of the most fundamental rights include: to have a lawyer present (and to be informed of that entitlement in advance); to be cautioned (i.e. reminded of their right to silence) before being questioned, and for any interview to take place in a formal environment in a police station, which is tape recorded.
Judges have wide-ranging powers (under either s78 or s76 PACE) to exclude evidence obtained unfairly. Where there have been significant and substantial breaches of PACE in the conduct of interviews which prejudice the fairness of the trial, or where something is said or done which is likely to render a confession unreliable, any admissions made thereafter will not be admissible. This is a stricter regime than applied to other types of evidence. For example, the fact that evidence relied upon by the prosecution was obtained unlawfully, either by the police or someone else, prima facie is not a bar to its admissibility. The general principle is that if it is relevant it should be admitted.
To this extent, both the antecedent common law and Parliament (via PACE) have made a moral choice: when it comes to eliciting a suspect’s confession, even a truthful one, the end does not justify the means. To take an extreme but real example of this, in the midst of the “War on Terror”, courts determined that evidence obtained as a result of, or derived from, torture is antithetical to our system of criminal justice and so will never be admitted in a criminal trial.
These are principles with which most would concur. However, their potentially undesirable consequences have been vividly demonstrated this week by the trial and conviction of Christopher Halliwell for the murder of Becky Godden. He had been charged with her murder in 2011, but the case against him never made it to trial. At a pre-trial hearing in 2012 Mrs Justice Cox held that crucial evidence, namely (a) his confession of having killed Ms Godden and (b) his accurate revelation to the police of the location of her body was inadmissible, and excluded it under s78 PACE. As a result, the defence successfully applied to dismiss the count on the indictment relating to the murder of Ms Godden, and it was deleted from the indictment. (A second count, for the murder of Sian O’Callaghan (see below) remained on the indictment. Halliwell later pleaded guilty to this separate count.) Halliwell would have got away with Ms Godden’s murder but for the years of further investigation by police, uncovering different evidence linking him to the murder, allowing his trial to begin this year.
What did the police get so wrong that a murderer was able, despite overwhelming evidence, to escape justice? The answer lies in the PACE breaches committed by the investigating officer, Detective Superintendent Fulcher, laid out in the retrospective IPCC investigation report.
Mr Fulcher was running a major inquiry arising from the sudden disappearance of a young woman, Sian O’Callaghan, who had been missing for five days in March 2011. He believed that Halliwell had abducted her and may be holding her captive. He felt that he had only had one chance to save her, and feared that if Halliwell was read and accorded his rights he would say nothing, and Fulcher would lose his chance. He decided that Halliwell’s rights as a criminal suspect should not trump Ms O’Callaghan’s right to life.
Mr Fulcher instructed the arresting officers to bring Halliwell to him in a remote place rather than to a police station. There, he badgered Halliwell about Ms O’Callaghan’s whereabouts and threatened that he would be vilified in the press, without cautioning, without a lawyer present (despite Halliwell asking several times to see a solicitor) and without the exchange being tape-recorded. These were all fundamental and deliberate breaches of PACE.
Remarkably, during this exchange, Halliwell not only provided directions to the location of Ms O’Callaghan’s body (having murdered her soon after her abduction), he then volunteered a confession that he had killed before. He admitted to having murdered Ms Godden and gave directions to the location of her body. It is the contents of this conversation which was ruled inadmissible. Following the collapse of the trail, Mr Fulcher was disciplined for gross misconduct and later resigned.
The eventual conviction of Halliwell for Ms Godden’s murder this week has led Mr Fulcher to speak out publicly in his own defence. He claims his actions were “the right and moral thing to do” to ensure the bodies of both women were recovered. He maintains that the urgency of potentially saving Ms O’Callaghan’s life justified his denying Halliwell his rights. In his words “as the law stands, the expectation was that I should have prioritised Halliwell’s right to silence and legal protection, over Sian O’Callaghan’s right to life.”
Is Mr Fulcher right to characterise the situation in this way? Does the law wrongly prioritise defendants’ rights over those of their victims? It is easy to overlook that the PACE provisions protect not only Halliwell’s civil rights, but all of ours. They are the fabric of a system designed to ensure that confessions to criminal conduct are made voluntarily. Whilst this of course protects suspects, reflecting the fundamental principle that all people should be presumed innocent until proven guilty, it is also important for victims and their families. In a system where unreliable confessions are allowed to stand, the true perpetrator can walk free. In a system where interviews are not recorded and overseen by lawyers, suspects can allege mistreatment, or that their confessions have been fabricated, even if this is not the case.
Mr Fulcher’s final defiant comment was “I want to ensure that any senior investigating officer, faced with crimes in action, is able to take the right decision without suffering the repercussions I experienced whilst performing my duty.” His cynicism about due process is understandable. But where would his suggestion take us? Would we want zealous police officers making the treatment of every suspect subject to the lottery of their personal assessment on which means are justified in each case? Unless one is arguing for the reintroduction of torture then a firm line must be drawn between what methods the police can and cannot employ to achieve a confession. The drawing of such a line is precisely what the PACE provisions achieve.
Of course Mr Fulcher acted with the best of intentions. However, it was right that the evidence he obtained was excluded from evidence. Carving out exceptions to the rules on the basis of extreme cases makes the chances of unfairness in ordinary cases much higher. Hard cases can make bad law. The picture is far bigger than the facts of this one extraordinary case, and it is quite right that the ends of a confession cannot justify the means of significant and substantial PACE breaches.
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