Engaging with the Enemy
Engaging with the Enemy, or Back to the Bad Old Days:
pre-charge engagement
[an updated version of this article is available on the Justice Gap website]
Do new rules, which
allow both prosecutors and defendants and their lawyers to meet and discuss
what enquiries the police should make, mark the start of a cooperative search
for truth and justice, or are they a means of returning to the old days when
the police made deals with suspects who were kept in order by their own
lawyers?
The new CoP is further supplemented by a new version of the
Attorney General’s Guidelines on Disclosure provided for the benefit of all
concerned - investigators, prosecutors and defence practitioners (AG
Guidelines).[1]
Annex B of the AG Guidelines 2020 version includes a completely new subject: ‘pre-charge
engagement.’
Pre-charge engagement is the meeting of police
investigators, Crown Prosecution Service (CPS) prosecutors, defence lawyers and
defendants (in likely order of importance) during the period between formal
police interviews of suspects and the decision to charge which is made by the
CPS. At this stage of the criminal process, the disclosure provisions of the
CPIA do not apply (they kick in when a suspect is charged with a crime).
But the provisions of the CPIA which govern enquiries do
apply, which means that the police are required to follow ‘all reasonable lines
of enquiry’ which point to, and away from suspects’ involvement in the
crime under investigation. So pre-charge engagement provides an opportunity for
suspects to ask the police to follow lines of inquiry which could help the
defence case.
The most obvious example of such co-operation between the
two sides in our adversarial system (normally sworn enemies) concerns the
searching of digital material, typically in cases of rape and other serious
sexual assaults. Such material might radically affect issues such as, whether
complainants had consented to the act which they now allege to be a criminal
act, or other issues such as the identity of the assailant, or an alibi
defence.
Any smartphone may contain vast amounts of data, and
material relevant to the case may lie embedded anywhere within its memory. The
data may be downloaded on to a DVD and copies made for both sides to peruse,
but reading all of it would require human resources which are simply not
available in any part of the criminal justice system. Fortunately powerful
software exists which can search the data. The co-operation, now becoming
standard between prosecution and defence, consists of agreeing the terms for
which the software program should search.
No one could fail to welcome the outbreak of common sense
which such voluntary cooperation heralds. Surely the provision for pre-charge
engagement could be extended to other areas of enquiry which are beyond the
capabilities of defendants and their lawyers, but which the police could carry
out using their far greater powers, experience and resources? Every participant
in the conduct of a criminal case has a common duty to further the ‘overriding
objective’ stated by the Criminal Procedure Rules, that is, to deal with the
case ‘justly’ by ‘acquitting the innocent and convicting the guilty’ and ‘recognising
the rights of a defendant, particularly those under Article 6 of the European
Convention on Human Rights.’
Phew. But hasn’t informal pre-charge engagement been
happening in some form ever since the police started investigating crime and
prosecuting cases? Somehow pre-charge negotiations involving the exchange of
information, involving off-the-record disclosure of the strong points of the
prosecution case in exchange for intelligence from the suspect, the reduction
or dropping of charges in exchange for suspects agreeing to give evidence for
the prosecution? The case of Pinnock and others springs to mind (it
often does) in which two suspects who torched a car used in a drive by shooting
to murder someone, suspects who were at least guilty of a very serious attempt
to pervert the course of justice, let off with warnings while others involved
were given life sentences.[2]
Some suspects may have benefitted from such pre-charge engagement, but others
did not. Nine people were convicted of joint enterprise murder in Pinnock,
at least five of whom continue to maintain their innocence and are entering
their 19th year in prison.
Do the new rules include this type of engagement? They do. ‘Suspects
who maintain their innocence will be aided by early identification of lines of
inquiry which may lead to evidence or material that points away from the
suspect or points towards another suspect … Pre-charge engagement can help
inform a prosecutor’s charging decision. It might avoid a case being charged …’,
the Attorney General advises.
Consider the difficulties over plea bargaining, in which the
financial and administrative benefits of guilty pleas extend to every
participant in criminal cases (apart from innocent suspects and defendants).
The rules or practices which govern plea bargaining are obscure and
inconsistent,[3]
but the option of pleading guilty to a lesser offence than that for which the
suspect was arrested is an essential part of plea bargaining. What better
opportunity could exist within the structure of the criminal process than a
meeting between those who may benefit from an early guilty plea and the
suspect, who may need to be persuaded of the benefit, especially if they are
innocent? ‘The cost of the matter to
the criminal justice system may be reduced, including potentially avoiding or
mitigating the cost of criminal proceedings,’ the Attorney General points out.
Decades ago,
pre-charge engagements were common and, for defendants, dangerous. Teenagers,
such as Ahmet Salih, 14, Colin Lattimore, 15, and Ronald Leighton, 18, could be
bullied into confessing to murder and arson of which they were innocent.[4]
Or suspects could suffer beatings, threats to kill (the Birmingham 6) and
torture (Derek Treadaway and Keith Twitchell, while held in custody by the West
Midlands Serious Crime Squad, disbanded abruptly in 1989).[5]
While such practices may not be planned by modern advocates of pre-charge
engagement, the problem was not that bullying and brutality were approved –
they were always forbidden, of course – but that a lack of structure and
surveillance made it possible for corrupt officers to do as they wished.
Two developments
brought about change. The first was the 1984 Police and Criminal Evidence Act
(PACE) and its associated CoP (a statutory instrument still in force and
regularly updated). PACE and its CoP required everything that happened to a
suspect in custody to be recorded on a custody record, available to everyone
concerned including defence lawyers. Informal practices, whether brutal
assaults or bargaining over evidence and pleas, were not eradicated, but made
more difficult to carry out. Plea bargaining became the responsibility of
defence lawyers, theoretically a go-between for the court and the defendant,
but in practice required to persuade the latter to accept what was offered by
the former.
The second
development was technical: the introduction of tape recorded interviews and
CCTV surveillance in police custody suites.
This brief history
of pre-charge engagement is not intended to be an argument that malpractice,
bullying and violence has been eradicated or even reduced in police
investigative practice, but that increased surveillance has at least changed
what happens to suspects in police custody, and the changes have been in the
direction of increased recording and formalisation. At first sight, the new
pre-charge engagement rules are an extension of the change.
Meetings are voluntary. Meetings may be called by either
side. They can be prearranged, or just happen informally when police
investigator, suspect and defence lawyer happen to be together, such as
following the termination of a formal interview.
The prosecution can be represented by a CPS staff member or
a police officer. Suspects cannot be penalised for not agreeing to meet, nor
can any refusal by them to answer questions be held against them in a trial, as
can happen with an investigative interview. If they have already given a ‘no
comment’ interview, that does not prevent a pre-charge engagement meeting from
taking place. The record of the meeting cannot be disclosed to other defendants,
in the same case or in any other case. (But if the defence brings its own
material to a meeting, that material could be disclosed to other defendants by
the CPS.)
A full written, signed record of the pre-charge engagement
discussions should be made. But pre-charge engagements are not recorded in any
other ways. The record should be made by defence legal representatives, so the
defence can determine the content of the record. That means that if
negotiations take place in the meeting, they can be excluded from the record.
Plea bargaining can remain hidden. If a suspect passes
information to the police about others who may become suspects, even replace
the current suspect with another, that information may be added to the police’s
secret store of intelligence, or, if later in the process prosecuting lawyers
think such information might help the case of another defendant, it can be
protected by being given public interest immunity (PII) by a helpful judge and
so remain undisclosed.
So is that what a pre-charge engagement is for – secretive plea
bargaining, hidden opportunities to pressurise unhelpful suspects into pleading
guilty, or to offer opportunities for suspects to inform on others to avoid
conviction (and find themselves becoming long term police informants)? – as
much as it is for reaching agreements on lines of inquiry (which the police may
ignore if they want) and terms to be fed into search engines. If so, perhaps pre-charge
engagements are better avoided. There are other ways of telling the police
about lines of inquiry, and consultation over search terms has already been
developed and is in use.
We should ask what this proposal legitimates. After a formal,
fully recorded police interview, instead of returning the suspect to their
cell, the same group of people continue to talk in a meeting which, until now, was
forbidden and which could not be accounted for on a custody record, but which
can now be a pre-charge engagement. Until then, the suspect may have said
nothing but ‘no comment’ on the advice of the lawyer, but now they can say
anything without fear that it could be used against them in court. If the
suspect really is a criminal, they can grass up their competition such as, for
instance, other drug dealers, knowing they will be protected – that would be a
really useful new line of inquiry for themselves and for the police. Or, if the
suspect simply persists in being difficult by insisting on having their day in
court, the legal representative can enjoy the support of the two police
officers in persuading them to plead guilty and save them all time and money.[6]
So enthusiastic is the Ministry of Justice that pre-charge
engagements should be instituted that, despite the scandalous underfunding of
the criminal justice system, it is prepared to pay defence lawyers an extra fee
in additional to the usual fixed fee for police station attendance. No wonder
lawyers appear to have been won over to this bright idea!
Andrew N Green
INNOCENT
1 January 2021
[1]
Attorney General’s Guidelines on Disclosure 2020
[2]
Pinnock and others [2006] EWCA
Crim 3119
[3]
Mike McConville and Luke Marsh Criminal Judges: legitimacy, courts and
state-induced guilty pleas in Britain; Juliet Horne A plea of convenience: an
examination of the guilty plea in England & Wales
[4]
Fisher Report, HC90 HMSO 1977
[5]
T. Kaye (1991) Unsafe and Unsatisfactory,
[6]
McConville and Marsh, op cit; McConville, Hodgson, Bridges, and Pavlovic (1994)
Standing Accused, OUP
Comments
Post a Comment