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EuropeanConventionHandbookForPolice

Investigating crime; and

Investigating crime; and ensuring the integrity of the criminal process Page 85 made available to his lawyer. 250 In addition, electronic recording of interviews is commended by the committee: this would provide protection for suspects against the actual or threatened use of ill-treatment, as well as protecting police interrogators against unfounded allegations of improper physical or psychological pressure. 251 Further, as regards the assessment of evidence at trial, ‘such a device can also reduce the opportunity for defendants to later falsely deny that they have made certain admissions’. 252 Appropriate accommodation for the interviewing of suspects and the regulation of the conduct of interrogations are also crucial. First, police premises should not appear intimidating. Rooms used for interrogation should conform to certain basic standards. Accommodation should be adequately lit, heated and ventilated. All participants in the interview process should be seated on chairs of a similar style and standard of comfort, and specifically, the officer conducting the interview should not be placed in a remote or dominating or elevated position as regards the suspect. Neutral colour schemes should be adopted: the situation occasionally uncovered of interrogation rooms painted in black and equipped with spotlights directed at the seat used by the person undergoing interrogation is condemned outright. 253 Secondly, police premises must be free of what the committee terms ‘suspicious objects’ such as wooden sticks, broom handles, baseball bats, metal rods, pieces of thick electric cable, imitation firearms or knives, the presence of which can lend credence to allegations that detainees in these premises have either been threatened or struck with such objects (the usual justification for such ‘suspicious objects’ is that these have been confiscated from suspects; but if such items are indeed real evidence, they should be properly labelled and retained in a dedicated store room). 254 Access to legal representation: Article 6(3)(c), European Convention on Human Rights The CPT’s emphasis on access to a lawyer is essentially concerned with helping secure the transmission of any allegations of ill-treatment or of information from the detainee to his lawyer, rather than on helping ensure the fairness of 250 2nd General Report, CPT/Inf (92) 3, paragraph 40. 251 Ibid. paragraph 39; and 12th General Report, CPT/Inf (2002) 15, paragraph 36. 252 2nd General Report, CPT/Inf (92) 3, paragraph 36. See further Evans, M. and Morgan, R., Preventing Torture, Clarendon Press, Oxford, 1998, pp. 267-274 and 288-291. 253 12th General Report, CPT/Inf (2002) 15, paragraph 37. 254 Ibid. paragraph 39.

The European Convention on Human Rights and Policing Page 86 evidence obtained under questioning. The focus of Article 6 is in ensuring fairness. Article 6(3)(c) provides an accused person with three inter-related rights: ‘to defend himself in person’; to defend himself ‘through legal assistance of his own choosing’; and ‘if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’. The issue for police officers is access to legal representation during police questioning. Access to a legal adviser during detention by the police is now generally required at the time of interrogation to prevent the possibility of ‘irretrievable prejudice’ to an accused person. 255 If a person decides not to avail himself of this right, the decision must be based on the detainee’s free will and cannot be the subject of improper influence by police. The possibility of such prejudice is obvious where inferences may be drawn from an individual’s silence or refusal to answer questions. However, it is now clear that access to legal representation should be available at the outset of any interviewing of a suspect. ■ In Averill v the United Kingdom, the Court held that the denial of access to a solicitor during the first 24 hours of detention failed to comply with the requirements of the sub-paragraph when taken in conjunction with paragraph (1). The applicant had been held and interrogated under caution on suspicion of involvement in terrorist-related murders in Northern Ireland. Failure to allow access to legal assistance during this period had compromised his rights on account of the ‘fundamental dilemma’ facing a detainee in such circumstances: a decision to remain silent could allow inferences to be drawn against him at a trial, but answering questions could also have prejudiced his defence without the risk of such inferences being removed in all instances. As a matter of fairness, the possibility of irretrievable prejudice to the rights of an accused through the existence of this dilemma meant that the applicant should have been guaranteed access to his solicitor before his interrogation began. 256 ■ In Salduz v Turkey, the conviction of a minor for aiding and abetting an illegal organisation had been largely based upon a statement given during police questioning without having had access to a lawyer. The Strasbourg Court considered that in order to ensure fair hearing rights were ‘practical and effective’, Article 6(1) requires that ‘as a rule, access to a lawyer should be provided as from the first interrogation of a suspect by the police, unless it is demonstrated in the light of the particular circumstances of each case that there are compelling reasons to restrict this right’. Further, ‘even where 255 Salduz v Turkey, judgment of 27 November 2008. 256 Averill v the United Kingdom, judgment of 6 June 2000 at paragraph 59.