How the timing of police evidence disclosure impacts custodial legal advice
| DOI | 10.1177/1365712716643548 |
| Date | 01 July 2016 |
| Published date | 01 July 2016 |
| Author | Divya Sukumar,Kimberley A. Wade,Jacqueline S. Hodgson |
| Subject Matter | Articles |
Article
How the timing of police
evidence disclosure impacts
custodial legal advice
Divya Sukumar
University of Warwick, UK
Jacqueline S. Hodgson
University of Warwick, UK
Kimberley A. Wade
University of Warwick, UK
Abstract
Presently, the police in England and Wales disclose their evidence at different points during the
arrest and detention of a suspect. While the courts have not objected to this, past field
research suggests that lawyers can only advise their clients accurately when the police disclose
their evidence before the police interview. To examine this from a law/psychology perspective,
we recruited 100 criminal defence lawyers to participate in an online study. Lawyers read
fictional scenarios and provided custodial legal advice to a hypothetical client (Christopher)
when given either pre-interview disclosure or disclosure at various points during the police
interview (early, gradually or late). Lawyers given pre-interview disclosure provided con-
siderably more informed legal advice compared to those who were only provided with dis-
closure during the hypothetical police interview. Using an interdisciplinary approach, this
article provides further evidence that pre-interview disclosure is essential for lawyers to
deliver case-specific legal advice to suspects.
Keywords
criminal procedure, evidence, law and psychology, legal assistance, police disclosure
Introduction
In England and Wales, the police control the timing and amount of evidence that they disclose to a
suspect and their lawyer during the interview process. By law, the police are under no obligation to
disclose most of their evidence when questioning a suspect. For instance, the key legislation governing
Corresponding author:
Kimberley A. Wade, Department of Psychology, University of Warwick, Coventry CV4 7AL, UK.
Email: K.A.Wade@warwick.ac.uk
The International Journalof
Evidence & Proof
2016, Vol. 20(3) 200–216
ªThe Author(s) 2016
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DOI: 10.1177/1365712716643548
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disclosure, the Criminal Procedure and Investigations Act 1996 (CPIA), offers comprehensive guidance
on pre-trial disclosure by the prosecution but lacks any reference to evidence disclosure at the police
station (Clough and Jackson, 2012). Likewise, the Police and Criminal Evidence Act 1984 (PACE) and
Codes of Practice (Code C) that govern police interviewing practices only require the police to disclose
‘sufficient information to enable them [the suspect and legal adviser] to understand the nature of the
offence and why they are suspected of committing it’
1
before the interview. Even in light of adopting the
new EU Directive on the right to information,
2
the police are afforded discretion with regard to the extent
of their pre-interview disclosure.
3
Thus, the police are largely free to decide when and how they present
their evidence while interviewing suspects.
As a result, the police often strategically delay disclosing some evidence, such as a ‘golden nugget’ or
a ‘trump card’, to the suspect and their lawyer until the interview (Shepherd, 2007: 331). Indeed, the
Association of Chief Police Officers (ACPO)
4
recently released a statement stressing the importance of
withholding evidence from the suspect in order to test the suspect’s account.
5
Likewise, psychology
research recommends withholding evidence from suspects as it is easier to catch suspects lying when the
suspect is not aware of the evidence against them (for example, Hartwig et al., 2014: 30–31). In view of
these recommendations, self-reports and in-depth interviews of police investigators reveal a preference
for disclosing the evidence to the suspect gradually during the interview, or late in the interview, as
opposed to early in the interview (King, 2002: 53; Smith and Bull, 2014; Walsh et al., 2015). Indeed,
police investigators in England and Wales are trained to gradually present evidence when interviewing
suspects (Walsh et al., 2015).
Consistent with police practice, the courts permit the police to use their discretion to determine the
extent of pre-interview disclosure on a case-by-case basis. For instance, in RvNottle, the court
acknowledged the need for some pre-interview disclosure to allow the solicitor to advise their client
properly but clarified that ‘the police were not obliged to disclose every piece of evidence they had’.
6
In
this case, the police did not reveal the misspelling on a vandalised car and the suspect once again
misspelled the name ‘Justin’ as ‘Jutin’ in a handwriting test. The appeal on the ground that the police
used a form of deception was dismissed and the police were given the freedom to determine the ‘quantity
and quality of disclosure’
7
for each case. RvFarrell was another appeal against incomplete police
disclosure, in which the court held that withholding evidence, such as false car number plates in this
case, cannot be considered an act of trickery or deceit.
8
The court further postulated that full disclosure
would ‘threaten seriously to handicap legitimate police enquiries’.
9
It is apparent that the English and
Welsh courts believe that limited pre-interview disclosure is sufficient for suspects and their lawyers to
prepare for the interview, to the extent that the courts may even draw adverse inferences from a suspect’s
silence during interview, regardless of whether the police provided the lawyer with full pre-interview
disclosure.
10
Even the European Court of Human Rights (ECtHR) does not support pre-interview access
1. Code C, para. 11.1A. See the revised Codes of Practice at https://www.gov.uk/guidance/police-and-criminal-evidence-act-
1984-pace-codes-of-practice (accessed 4 April 2016).
2. Council Directive 2012/13/EU on the right to information in criminal proceedings [2012] OJ L142/1. The Directive
encompasses the right to information about procedural rights, the right to information about the accusation, and the right of
access to the materials of the case.
3. For a discussion of this EU Directive’s impact on police practice, see Cape (2014).
4. Now replaced by the National Police Chiefs’ Council (NPCC).
5. National Investigative Interviewing Strategic Steering Group (2014: 2).
6. RvNottle [2004] EWCA Crim 599.
7. Ibid. at para. 4.
8. RvFarrell [2004] EWCA Crim 597.
9. Ibid. at para. 22.
10. RvArgent [1997] 2 Cr App R 27.
Sukumar et al. 201
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