Police Cells and Unwanted Bugs
| Author | David Ormerod |
| Published date | 01 February 2003 |
| Date | 01 February 2003 |
| DOI | http://doi.org/10.1177/002201830306700104 |
| Subject Matter | Article |
Police
Cells
and Unwanted
Bugs
David
Ormerod"
Abstract An examination of the difficulties and shortcomings in apply-
ing the Regulation of Investigatory Powers Act 2000 to covert cell
surveillance, and of the admissibility of evidence obtained, as high-
lighted by the case of RvMason.
Unsurprisingly, the traditional English approach to
the
exclusion of
improperly obtained evidence has come
under
renewed
attack from
challenges
mounted
under
the
Human
Rights Act 1998. IThis rekindled
interest in
the
exclusionary rule coincides with agrowing recognition
that
prosecutions
are
relying
more
frequently
and
more heavily on
evidence obtained from covert police activities, including especially
covert recordings of conversations in cells.?
One
immediate
and
prag-
matic response
to
those tactics is
that
if the courts
continue
to sanction
this activity,
and
suspects are naive
enough
to confess to each
other
in
the
cells,
who
can blame the police? They can obtain
damning
confes-
sions
without
having to engage in
the
troublesome practice of inter-
viewing
and
without
having to comply with
the
plethora of regulations
for detention
and
questioning
under
PACE.
Weighing against this prag-
matism is
the
broader
concern
that
if the courts allow such adirect
circumvention of
the
protections for
the
accused in custody
the
police
are
given agreen light
to
employ
more
intrusive techniques
to
avoid
legislative safeguards generally.
The challenges
to
the
use of covert cell recordings have sometimes
resulted in trials collapsing in very dramatic fashion.' However, aside
from these rare
and
extreme
cases,
the
courts routinely apply
the
orthodox
inclusionary approach to evidence obtained in this fashion.
Recorded cell confessions serve
however
as a good example of
the
difficulties
the
courts face in applying
the
exclusionary rule of evidence
after
the
Human
Rights Act 1998. The evidence obtained is likely to be
highly reliable, relate to a serious crime,
and
have
been
obtained with-
out
any
pressure or
inducement
that could
render
that confession or a
*Professor of Criminal Law, Centre for Criminal Justice Studies, University of Leeds. I
am grateful to Ben Fitzpatrick for
comments
on an earlier draft.
1 As anticipated by e.g. B. Fitzpatrick
and
N. Taylor,
'Human
Rights
and
the
Discretionary Exclusion of Evidence' (2001) 65(4) JCL 349; S. Uglow,
'Coven
Surveillance
and
the
ECHR' [1999) Crim LR 287.
2 See A. Ashworth, 'Police Stations, Legal Advice
and
Privacy' [2002) 2Archbold News
5. On
the
use of cell confessions obtained
without
recordings see J. Dien, 'Non-Tape
Recorded
cen
Confession Evidence' (2002) Crim LR 630; L. Toczek (2002) 152 NLJ
805.
3 See RvSutherland,
unreported,
29
January
2002, Nottingham Crown Court,
where
proceedings against five individuals involved in a
murder
were
stayed following
improper
cell bugging.
37
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