Preparing the criminal case for trial

AuthorMichael Zander
PositionQueen's Counsel, Emeritus Professor, London School of Economics and Political Science
It is a risky business offering thoughts about another
country’s legal system. And not necessarily of much
use–since legal systems, and criminal justice systems in
particular–have their own particular characteristics which
usually make foreign experience, however “interesting”,
largely irrelevant. Certainly successful transplants from other
systems are rare. Readers of this paper should be aware that it
is written from the perspective of the English system and with
little or no knowledge of the way the system operates in the
The paper is focussed especially on pre-trial matters.
As a preliminary I would mention three important
aspects of our system that I believe have no exact equivalent
in the Republic.
A. The Police and Criminal Evidence Act, 1984 (PACE) and
the PACE Codes1
The 1984 Act is not simply a convenient modern
statement of police powers. (The Act was the result of the
Report of the Philips Royal Commission on Criminal
Procedure, 1981.) When the Bill was going through
Parliament it was hotly contested but only a few years later it
had settled down to become an integral part of the system.
The Runciman Royal Commission on Criminal Justice
(1991-93), for instance, received no submissions urging
anything other than tinkering changes. In other words the Act
appears to have struck about the right balance between the
different interests and values. Not that it has not needed
39 Judicial Studies Institute Journal [3:1
1 The Northern Ireland equivalent is the Police and Criminal Evidence
(Northern Ireland) Order, 1989 (N.I.12).
* Queen’s Counsel, Emeritus Professor, London School of Economics
and Political Science.
amendment but the amendments have mainly been additions
rather than changes.2
Perhaps just as important as the legislation, is the
impact of the Codes which are part of the PACE system.
There are now six Codes: Code A on Stop and Search, Code
B on Entry of Premises, Code C on Detention and
Questioning of Suspects, Code D on Identification
Procedures, Code E on Tape Recording and most recently
Code F on Video Recording. The Codes are drafted by the
Home Office and are then published as consultation drafts.
When the consultation process is complete they have to be
approved by Parliament. The latest revised version was
approved by Parliament for implementation as from 1 April,
The Codes consist of detailed rules. (The current
booklet runs to some 140 pages. The Northern Ireland
equivalent runs to nearly 150 pages.) They have had a
profound effect on police operations–despite the fact that the
sanctions backing the Codes are seemingly weak. A breach of
the Codes does not give rise to any criminal or civil liability
and there are virtually no disciplinary proceedings brought
for breaches of PACE. The only real threat of “penalty” is
that a court may exercise its discretion under s.78 of the Act
to exclude evidence obtained in the context of4 a breach of
the rules. The main reason is that, unlike their attitude to the
Judges’ Rules, the police take them seriously. Compliance is
obviously not 100%–it is, for instance, much better in regard
to Code C which applies in the police station than in regard to
Code A which operates on the street. But the Codes are
regarded by the police, at low and middle, as well as senior,
management level as “the norm”. In other words, they are not
seen as “best practice”–something to be aspired to but not
2003] Preparing the Criminal Case for Trial 40
4 The courts have not required a causal relation between the breach and
the evidence.
3 For the text see
2 Though there have been some major changes. They include the reforms
in regard to the “right to silence” in the Criminal Justice and Public Order
Act, 1994 (allowing adverse inferences to be drawn from silence); and the
recent change no longer requiring the police to destroy DNA samples if
someone is acquitted.
observed. Rather they are seen as the rules that basically have
to be complied with.
B. Recording of Police Interviews with Suspects
I understand that in Ireland there are facilities for
recording of interviews in some but not all police stations
where interviews with suspects are likely to take place–and
that even when available the facility is not always utilised.
Also that voir dire hearings about the propriety of police
behaviour are common. I gather that the Gardaí fear that tape
recording would require retraining of interrogators and that it
might also have the effect of causing suspects who currently
talk not to do so–either about their own involvement or about
the involvement of others–and that recording would cause the
flow of information generally to diminish.
As to the first of these concerns, research into
recording of interviews in England did show that too many
police interviews were poorly prepared and ineptly handled5
so improved training and perhaps more effective interviewing
could be a useful side effect of recording of interviews.
As to the second cause for concern, the English police
(I personally thought very understandably) had precisely the
same fears when tape-recording was first mooted here.6 But
these fears proved to be groundless. The flow of talk did not
dry up. Surprisingly, it seemed to be unaffected. In fact the
police found that although tape recording was basically
introduced for the benefit of the suspect, it actually worked as
much, or even more, to the advantage of the prosecution.7
The reason was that if the suspect made an admission or
41 Judicial Studies Institute Journal [3:1
7 For an account of the sea-change in the attitude of the police see
Baldwin, “The Police and Tape Recorders” [1985] Crim. L. R. 695.
6 The Philips Royal Commission (1981) proposed a very limited
experiment. The Conservative Government undertook a much larger
experiment in 1984 which to the surprise of many proved a great success.
From 1992 tape-recording became compulsory for all interviews with
persons charged with offences that can be tried on indictment. It is not
required for interviews with suspects in summary only cases but in
practice such interviews are usually also tape-recorded.
5 Baldwin, Video Taping Police Interviews with Suspects–an Evaluation
(Home Office Police Research Series, Paper No. 1, 1992).

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