1. PACE, s 37(2). For empirical evidence which suggests that custody officers routinely authorise pre-charge detention in police custody, see Dixon, et al ‘Safeguarding the Rights of Suspects in Police Custody’ (1990) 1 Policing and Society 115 Google Scholar; McConville, et al The Case for the Prosecution (London: Routledge, 1991) pp 40–7.Google Scholar

2. The duty to exclude a confession for oppression or unreliability under s 76(2) of PACE is supplemented by s 78, which gives trial judges a discretion to exclude evidence that has been obtained unfairly.

3. Code C, 11.5(b) and (c). The Code provides that interviews must normally take place at the police station (para 11.1); that they must be accurately recorded irrespective of whether they take place in a police station (para 11.5(a)); that, where not contemporaneously recorded, they must be made as soon as practicable afterwards (para 11.7); and that the record must be shown to the suspect for him or her either to sign it as correct or indicate in what respect he or she considers it inaccurate (paras 11.10 and 11.13).

4. Code E, issued in pursuance of PACE, s 60(1).

5. Royal Commission on Criminal Procedure (RCCP) Report Cmnd 8092 (London: HMSO, 1981) para 4.2. See also Keenan [1989] 3 All ER 58 at 64; Canale [1990] 2 All ER 187 at 190.

6. PACE, s 67(11) makes the codes admissible in evidence. For examples of the judicial preparedness to exclude evidence obtained in breach of the provisions in Code C, see Feldman ‘Regulating Treatment of Suspects in Police Stations: Judicial Interpretation of Detention Provisions in the Police and Criminal Evidence Act 1984’ [1990] Crim LR 452. See also Chung [1991] 92 Cr App R314; Joseph [1993] Crim LR 206; Conway [1994] Crim LR 838.

7. Initially formulated in 1912, increased from four to nine in 1918, clarified in 1930 and reformulated in 1964, the Judges' Rules, and their accompanying Administrative Directions (see Home Officer Circular No 89/1978) sought to provide the police with authoritative guidance as to acceptable practice when questioning and taking statements from suspects. However, as they had the authority neither of statute nor of common law, they possessed no legal force. They none the less remained as guides to the police until they were superseded by the provisions of PACE, Code C.

8. Home Office Circular No 31/1964, Appendix A, principle (e). The common law principle placed a duty on the court to exclude confession evidence that was obtained ‘by fear of prejudice or hope of advantage, exercised or held out by a person in authority, or by oppression’ (see Prager [1972] 1 All ER 1114). The Royal Commission on Criminal Procedure 1981 op cit, n 5, criticised the concept of voluntariness as being inappropriate and unrealistic (para 4.73). The criticism is supported by observational research conducted for the Commission. See Irving, Police Interrogation: A Case Study of Current Practice, RCCP, Research Study No 2 (London: HMSO, 1980)Google Scholar; Softley, Police Interrogation: An Observational Study in Four Police Stations, RCCP, Research Study No 4 (London: HMSO, 1980).Google Scholar

9. Although the Rules state that custodial interviews ‘must be contemporaneously recorded in full’ (Rule 11l (b)), it is clear that the Rules were rarely ‘observed by the police [or] enforced by the judges’ (Williams ‘The Authentication of Statements to the Police’ [1979] Crim LR 6 at 22). Furthermore, in its Report the Royal Commission on Criminal Procedure 1981, op cit, n 5, noted that it was ‘comparatively rare’ for police officers to make full verbatim notes of interviews (para 4.5). ‘And yet’, the Commission observed, ‘it has been put to us that police officers tend to assert when giving evidence of interviews that the record they have is verbatim … and a precisely accurate record of all that was said’ (para 4.10).

10. See Williams ‘Questioning by the Police: Some Practical Considerations’ [1960] Crim LR 325 at 342; Royal Commission on the Police Final Report, Cmnd 1728, (London: HMSO, 1962) para 369 Google ScholarPubMed; Morton ‘To Combat Verbals’ (1975) 125 NLJ 830–1; RCCP Report, 1981 op cit, n 5, para 4.10; Vennard ‘Disputes Within Trials Over the Admissibility and Accuracy of Incriminating Statements’ [1984] Crim LR 15 at 21–2. Issues associated with police ‘verbals’, that is, damaging statements alleged to have been made orally by suspects in the course of conversations with police officers, are considered in McConville, and Baldwin, Prosecution, Courts and Conviction (Oxford: Clarendon, 1981) pp 163–72.Google Scholar

11. Op cit, n 5, paras 4.12–30.

12. For the contention that police hostility to the monitoring of interviews has, in recent years, been replaced by an increasing willingness ‘to open up to outsiders their internal methods and procedures’, see Baldwin ‘Police interviews on tape’ (1990) 140 NLJ 662–3.

13. See Keenan [1989] 3 All ER 598 at 606 per Hodgson J. However, there is evidence to suggest that the appearance in the record of a properly conducted interview may conceal instances of police impropriety which occurred off-the-record: see McConville and Morrell ‘Recording the Interrogation: Have the Police got it Taped?’ [1983] Crim LR 158 at 160–2; McConville ‘Videotaping Interrogations: Police Behaviour On and Off Camera’ [1992] Crim LR 532.

14. The pre-PACE cases were heard in 1975 and 1976.

15. The sample of PACE cases were heard between 1989 and 1993. Both the pre-PACE and PACE case papers contain records of at least one formal interview of the defendant, as suspect, by the police.

16. On the problems associated with police summaries of audio-taped interviews, see Baldwin and Bedward ‘Summarising Tape Recordings of Police Interviews’ [1991] Crim LR 671; Baldwin, Preparing the Record of Taped Interviews, RCCJ, Research Study No 2 (London: HMSO, 1992).Google Scholar

17. RCCP, Report, 1981, op cit, n 5, para 4.2.

18. A clear example of this is referred to by Softley op cit, n 8. He points out that in 1979 a team of researchers (engaged to conduct an observational study of police interrogations for the Royal Commission on Criminal Procedure) were unable to observe the interrogation of persons suspected of having committed serious crimes because: ‘It had been made clear to the Home Office Research Unit by some senior officers … that they would not wish independent observers to be present at such interrogations not out of concern over possible police improprieties, but out of regard for the particularly sensitive nature of the offences’ (p 58).

19. Rule IV.

20. A Police Officer ‘The Judges Rules and the Police’ [1964] Crim LR 173 at 175.

21. Softley op cit, n 8, p 81, in his observational study, found that of 187 suspects interviewed at the police station, 52 (28%) made a written statement to the police. In her study, Vennard op cit, n 10, p 21, found that none of her sample of suspects interviewed by the police wrote out their own statement. See also Smith, and Gray, Police and People in London, The PSI Report (Aldershot: Gower, 1985) p 477.Google Scholar

22. See Williams op cit, n 9, p 7.

23. See McConville and Baldwin op cit, n 10, p 162, who, on the basis of their own pre-PACE empirical study, concluded that the police ‘rarely take a verbatim record during an interview, and the final record is at best an attenuated version of what was said, coloured, and distorted by the frailties of human memory’. It had been suggested that police officers made their notes ‘at the time’ of the interview or ‘generally within at most an hour of [its] occurrence’ ( Devlin, The Criminal Prosecution in England (London: Oxford University Press, 1960) p 41 Google Scholar). However, as Williams op cit, n 9, p 12, points out, ‘judges habitually allow [ed] the police to use notes made appreciably after an interview’.

24. Bass (1953) 37 Cr App R 51.

25. Ibid at 59.

26. See Kaye, ‘Unsafe and Unsatisfactory’? (London: Civil Liberties Trust, 1991)Google Scholar; Rozenberg, ‘Miscarriages of Justice’ in Stockdale and Casale (eds) Criminal Justice Under Stress (London: Blackstone Press, 1992 Google Scholar); Dennis ‘Miscarriages of Justice and the Law of Confessions’ [1993] Public Law 291.

27. See Baldwin and Bedward op cit, n 16; Baldwin op cit, n 16. See also Roberts ‘Tape Recording the Questioning of Suspects — The Field Trials Guidelines’ [1984] 1 Crim LR 537 at 541–3; Willis, , Macleod, and Naish, The Tape-Recording of Interviews with Suspects, Home Office Research Study No 97 (London: HMSO, 1988).Google Scholar

28. Of the contemporaneously recorded interviews 243 (86%) were recorded by hand written notes and 31 (11%) by audio tape.

29. See Dixon et al op cit, n 1, pp 133–4; Mc Conville et al op cit, n 1, pp 57–60, McConville op cit, n 13.

30. The problem is compounded by what Lord Devlin described as ‘the general habit of the police never to admit to the slightest departure from correctness’ (Devlin op cit, n 23, p 40). See also Williams op cit, n 9, p 13; Mc Conville et al op cit, n 1, p 60.

31. This view represents an advance on the ‘bad apple’ thesis which ascribes police malpractice to a small minority of rogue or deviant officers. Such officers are conventionally characterised as being basically honest. As such, they are tempted to bend or break the rules to convict those they believe to be guilty only where those rules are considered to inhibit them in their mission of bringing offenders to justice. See Mark ‘A Matter of Conviction’ [1966] Crim LR 311; McNee, McNee's Law (London: Collins, 1983) pp 180–1Google Scholar. See also Reiner, The Politics of the Police (Hemel Hempstead: Harvester Wheatsheaf, 2nd edn, 1992) p 218.Google Scholar

32. See Shepherd, ‘Ethical Interviewing’ (1992) 7(1) Policing, 42; Royal Commission on Criminal Justice, Report, Cm 2263 (London: HMSO, 1993) pp 12–14 Google Scholar, paras 20–4; Williamson, ‘Police investigation: the changing criminal justice context’ in Leishman, et al (eds) Core Issues in Policing (London: Longman, 1995).Google Scholar

33. Williamson, ‘Investigative Interviewing’ (1992) 8(4) Policing 286 at 290, 294.Google Scholar

34. See McKenzie, and Irving, Police interrogation: the effects of PACE (1987) 3(1) Policing 4Google Scholar; Irving, and McKenzie, Police interrogation: The Effects of the Police and Criminal Evidence Act 1984 (London: Police Foundation, 1989)Google Scholar; Mackay ‘Changes in Custody Practice Since the Introduction of the Police and Criminal Evidence Act 1984’ (1990) 14(2) The Criminologist 63; Irving, and McKenzie, ‘Interrogating in a legal framework’ in Morgan, and Smith, (eds) Coming to terms with policing (London: Routledge, 1992).Google Scholar

35. McConville et al op cit n 1, pp 182–3 (original emphasis).

36. Ibid at 189 (original emphasis).

37. Ibid at 185.

38. Ibid at 37. See also at 177–8.

39. Ibid at 98, 185.

40. Ibid at 193, 200.

41. For a critical assessment, see Dixon, ‘Legal Regulation and Policing Practice’ (1992) 1(4) Social & Legal Studies 515.CrossRefGoogle Scholar

42. Report, Cm 2263 (London: HMSO, 1993) p 26.

43. Williamson op cit n 33, p 296. See also Baldwin ‘Police Interview Techniques: Establishing Truth or Proof?’ (1993) 33(3) British Journal of Criminology 325 at 325–6.

44. Baldwin ibid; Stephenson, and Moston, ‘Police Interrogation’ (1994) 1 Psychology, Crime & Law 151.CrossRefGoogle Scholar

45. For evidence that such a record may not provide a complete picture of what took place, see McConville and Morrell op cit n 13. and McConville op cit n 13.

46. See Morton op cit n 10; MacKenna ‘Criminal Law Revision Committee's Eleventh Report: Some Comments’ [1972] Crim LR 605 at 617; Smith and Gray op cit n 21, p 478.

47. See McConville, and Baldwin, ‘The Role of Interrogation in Crime Discovery and Conviction’ (1982) 22(1) British Journal of Criminology 165 at 170–4CrossRefGoogle Scholar; Pepinsky ‘A Theory of Police Reaction to Miranda v. Arizona’ (1970)16 Crime and Delinquency 379.

48. Pepinsky, ibid at 388.

49. Research evidence suggests that, contrary to police claims, officers continue to see the procurement of incriminating admissions as their principle aim when conducting interrogations. See eg Stephenson and Moston op cit n 44.

50. See n 8 above.

51. For a brief discussion of some of the more commonly used interrogation techniques, see Gudjonsson, The Psychology of Interrogations, Confessions and Testimony (Chichester: Wiley, 1992) pp 31–8Google Scholar. The extensive use of such techniques in the period before PACE is documented in observational studies conducted by Irving op cit n 8, pp 138–151, and Softley op cit n 8, p 78. Irving and McKenzie op cit n 34. pp 172–8 found that in 1986, following the introduction of PACE, the number of manipulative and persuasive tactics used by police officers had initially declined. However, they also discovered signs of a significant increase in 1987.

52. See Cahill, and Mingay, ‘Leading questions and the police interview’ (1986) 2(3) Policing 212 Google Scholar; Gudjonsson ibid at 12–14.

53. See Mc Conville et al op cit n 1, p 70.

54. See n 13 above. See also Sanders and Bridges ‘Access to legal advice and police malpractice’ [1990] Crim LR 494; Mc Conville et al op cit n 1, pp 58–65; Evans, The Conduct of Police Interviews with Juveniles, RCCJ Research Study No 8 (London: HSMO, 1993) pp. 38–9Google Scholar.

55. See eg Irving and McKenzie op cit n 34, p 234; Moston et al ‘The Effects of Case Characteristics on Suspect Behaviour During Police Questioning’ (1992) 32(1) British Journal of Criminology 23; Gudjonsson op cit n 51, pp 51–4.

56. Evans op cit n 54, pp 22–4, 29.

57. Ibid at 31–8. Although Evans's study concerns police interviews with juveniles suspected of relatively minor offences, Irving and McKenzie op cit n 34, pp 172 make the point that officers are likely to have even greater recourse to persuasive and manipulative tactics in more serious cases.

58. Gudjonsson op cit n 51, pp 24, 222, 230–232.

59. See eg Woodall [1989] Crim LR 288; Sanders [1989] Crim LR 521; Foster [1987] Crim LR 820.

60. Williams (1992) Times, 6 February. In this case the Court of Appeal upheld the conviction of the appellant who, after having received a post-charge ‘social visit’ in police cells from investigating officers, made a confession during a subsequent formal interview. The appellant's claim that he had been persuaded to confess during the hour-long visit was rejected by the Court of Appeal, as was his contention that the trial judge should have excluded the confession.

61. The section allows a trial court to draw such inferences as appear proper from a failure of the accused, on being questioned under caution or on being charged with an offence, to mention any fact later relied upon in his or her defence.