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Whether the balance between the rights of an individual and the powers of the police to detain Essay Sample

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Whether the balance between the rights of an individual and the powers of the police to detain Essay Sample

The Police and Criminal Evidence Act (PACE) and the PACE Codes of Practice provide the core framework of police powers and safeguards around stop and search, arrest, detention, investigation, identification and interviewing people being detained. The latest versions of these codes came into practice at the end of 2005.

The codes are vital in making sure the balance between police powers and the rights of an individual is correct.

Another procedure which aims to make sure the rights of individuals are protected is The Royal Commission on Criminal Procedure. It was set up in 1978 as there was concern over police procedures and whether or not they were abusing their power.

This, in my view, was highly necessary. The type of power that police get needs to have boundaries set or people can take advantage.

* Code C

Code C sets out the requirements for the detention, treatment and questioning of suspects not related to terrorism in police custody by police officers.

* Code E

Deals with the tape recording of interviews with suspects in the police station.

* Code F

Deals with the visual recording with sound of interviews with suspects. There is no statutory requirement on police officers to visually record interviews. However, the contents of this code should be considered if an interviewing officer decides to make a visual recording with sound of an interview with a suspect.

Police, when doing an interview, should also tape-record it and make sure that if the defendant is under the age of 17, an adult is present. This, particularly if the defendant is under the age of 17, must be adhered to, or the interview itself might not be admissible as evidence in a court trial because the PACE Codes Of Practice have not been abided by.

I do however, think that it should be if you are under sixteen that you have to have an adult present, because in the UK, the age at which you can be treated as an adult, e.g. Move out of your family home, get your National Insurance number etc. is 16, so why shouldn’t it be that age when you no longer need an adult to be present in a police interview?

* Code H

Code H sets out the requirements for the detention, treatment and questioning of suspects related to terrorism in police custody by police officers.

After being arrested, detainees are told their rights by the custody officer.

* Having someone informed of the arrest

* Being told that independent legal advise is available free and being allowed to consult privately with a solicitor

* Being allowed to consult the code of practice.

A person, unless under the Terrorism act, cannot be held for more than 24 hours without the permission of a senior member of staff. After this point, the superintendent or a person of higher ranking must decide whether or not there is enough evidence to charge the suspect. If, after 36 hours, the police still wish to keep the suspect in custody, they must appeal to the magistrate’s court for permission to hold said detainee for a further amount of time, a maximum of 96 hours. After this point, the suspect must either be released, or charged with an offence. Unless under the terrorism act, these time limits have to be abided by.

I think that this is a very important rule, as it stops potentially innocent people being detained for longer than is necessary. I also agree with the fact that a magistrate’s court has to make the decision on whether or not a suspect can be kept in custody for longer than 36 hours. I think that this discourages any unfair treating of a suspect as a magistrate wont be bias in their decision, whereas an officer might be if they are personally affected by the defendants suspected offence.

The fact that people are entitled to free legal advice is also essential, I would think, in ensuring that everyone -innocent or not- gets a fair shot at proving they aren’t guilty. I think this is also necessary as the majority of people being arrested aren’t going to have a wide knowledge of the legal system, so they could be admitting to things that they don’t even understand if not permitted legal advice.

When being interviewed, the questioning is allowed to start even in the solicitor has not yet arrived. I don’t think that this is fair, as the police could force someone into a confession or get the detainee to admit to things they haven’t done.

If the detainee is mentally handicapped there must be an ‘appropriate adult’ present during interviewing.

A breach of this code was displayed in the 1999 case of R. v. Aspinall.

In this circumstance, the defendant was schizophrenic and didn’t have an appropriate adult present in the interview. Even though he appeared to understand the questions he was asked, the interview was not admissible as evidence in the trial.

The police can also take sample from the suspect. Non- intimate samples include; fingerprints, saliva, etc. The police are allowed to take these samples, regardless of whether or not the suspect consents. Reasonable force can be used to obtain these samples. Intimate samples, such as blood or a swab taken from a persons body orifice other than the mouth must be taken by a qualified person, and only if necessary. I agree with this, as the intimate samples being taken can be quite invasive. They shouldn’t just be done by anybody. I think that these should only be done if strictly necessary, and only if they are going to benefit the case in some way. This protects the suspect themselves from anything unnecessarily invasive.

A defendant, up until the Criminal Justice and Public Order Act 1994 was enacted, defendants could refuse to answer questions without it harming their cases. Now, if a defendant remains silent throughout their interview, especially if they leave out a crucial piece of evidence, it can be used against them in court and affect their case. Also, it naturally looks like the defendant has something to hide if they refuse to speak in their interview. I don’t completely agree with this, as a person may just not want to even entertain the idea that they are guilty of something that they perhaps haven’t done. The fact that a person can be scrutinized for this and it consequently affecting their case seems unjust to me.

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