Police: Duty of Care to Victims and Witnesses
| Author | Graham Smith |
| DOI | 10.1350/jcla.2005.69.4.318 |
| Published date | 01 August 2005 |
| Date | 01 August 2005 |
| Subject Matter | Article |
Two things are interesting here—first, the wider ‘human rights point’
that there is a movement towards a position that a Convention right is
engaged only when there is an incompatibility or alleged breach rather
than the right existing and therefore being ‘engaged’ domestically by
virtue of the existence of the 1998 Act itself; secondly, the reliance by
the House of Lords on the ‘catch-all’ fairness of s. 78 of PACE. The House
of Lords notices, albeit in passing, that the protection of s. 78 is in the
form of a discretion in that ‘the court may’exclude evidence, rather than
imposing a stronger obligation which would be suggested by the word-
ing of Article 6.
Turning to the points on duress, the House of Lords acknowledges
that this is a particularly troublesome defence in that:
. . . the facts on which it is founded are not part and parcel of the incident
during which the offence is committed. They will characteristically have
happened well before, and quite separately from, the actual commission of
the offence that the prosecution must know about and must prove. The
difficulty of the prosecution disproving the unilateral claims of the defen-
dant made it ‘hardly surprising that . . . judges and others should express
lack of enthusiasm about the defence of duress as a whole’ (at [72], per
Baroness Hale of Richmond).
The virtues of the proposed defence of duress contained in the Law
Commission’s Report, Legislating the Criminal Code: Offences against the
Person and General Principles (Law Com. Report No. 218, 1993) are
extolled, but it is accepted that altering the burden of proof is not open
to the House and that the objective standards set in R v Graham [1982]
1 WLR 294 and subsequently refined and approved should be main-
tained. Perhaps the very fact that the application of this defence causes
such difficulty means that it is high time the legislature did take time to
consider the various options and settle on a politically and socially
acceptable definition with which the judiciary can work, rather than
leaving the judges in a position where it is clear they do not really like
what has been created by their predecessors, but feel unable to change
it for fear of accusations of usurping the role of Parliament.
Christopher Gale
Police: Duty of Care to Victims and Witnesses
Brooks v Commissioner of Police of the Metropolis and Others
[2005] UKHL 24
After suffering an attack by a gang of racists and the murder of his friend,
Stephen Lawrence, on 22 April 1993, Duwayne Brooks suffered severe
post-traumatic stress disorder. Following Sir William Macpherson’s find-
ing in his Report (1999, Cm 4262, para. 5.12, available at www.archive.
official-documents.co.uk/document/cm42/4262/4262.htm, accessed 23
May 2005), that police failed to ‘treat him properly and according to his
needs’ as a victim of and a witness to a crime, B sought damages in
The Journal of Criminal Law
318
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