Police Powers of Criminal Investigation: Principle or Pragmatism
| DOI | 10.1177/0067205X8001100305 |
| Author | Judd Epstein,Terry Carney |
| Published date | 01 September 1980 |
| Date | 01 September 1980 |
| Subject Matter | Article |
POLICE POWERS OF CRIMINAL INVESTIGATION:
PRINCIPLE OR PRAGMATISM
By
TERRY
CARNEY·
and
JUDD
EpSTEIN··
This article will examine the divergence between law and practice
in criminal investigation by police and consider the degree to which
it may contribute to an imbalance between the interests
of
the
individual and the public interest in the efficient detection and
investigation
of
crime.
It
will be argued that the imprecision
of
the
existing law and the failure by the legislature to accord new, tightly-
defined, specific-purpose powers to the police have made amajor
contribution to the pressure
on
police to misuse existing (and often
moreintrusive) powers or to exercise de facto powers
not
authorised
by law.
It
is contended that this pressure often arises from adesire
by police to find amore practical means
of
attaining agreed com-
munity objectives than that provided by the artificial standards
of
the existing law. Astrong case can therefore be advanced in favour
of
refurbishing police powers to accord (more closely) with present
conditions, while at the same time strengthening the safeguards cast
around those powers. This article will argue that case.
A. INTRODUCTION
The law relating to the powers and responsibilities of the police
(and
the public) in the investigation of an alleged criminal offence is of
fundamental importance to the preservation of aproper balance between
individual rights and freedoms and the public interest.1Despite the
importance of the issues, awide divergence between the law and its
administration by the police has long been the hallmark of this branch
of the law.2The present law might also
be
characterised as providing
but
apartial coverage of the area and as setting rather general and
imprecise standards, thereby leaving considerable scope for discretionary
or
extra-legal powers to be exercised
or
assumed by the police.
1.
The present position
At
the moment, the investigation of criminal offences is carried out
by police in the absence of any overall legislative framework. While
legislatures may pass certain enactments dealing with isolated phases of
the process such as arrest
or
bail,S there has been
no
co-ordinated
*LL.B., Dip.Crim. (Melb.), Ph.D. (Monash); Senior Lecturer, Faculty
of
Law,
Monash University.
**
A.B. (Syr.), LL.B. (Stan.); Senior Lecturer, Faculty
of
Law, Monash
University.
1Ashworth, "Some Blueprints for Criminal Investigation" [1976] Criminal Law
Review 594, 594-595.
2Ibid.; Australia Law Reform Commission: Report
No.2.
An Interim Report:
Criminal Investigation (1975) (hereafter cited as
ALRC
2)
para. 7.
3E.g. Crimes (Powers
of
Arrest) Act 1972 (Vic.), Bail Act 1977 (Vic.), Bail
Act 1978 (N.S.W.).
283
284 Federal
Law
Review
[VOLUME
11
approach to criminal procedure. The principal source of standards has
been the Standing Orders of the Commissioners of Police, which
prescribe, inter alia, police conduct in relation to citizens and procedures
to be followed during investigation. These rules, not issued pursuant to
delegation by the legislature, create several difficulties.
The police have insisted that the rules not be circulated publicly, but
be kept secret from all but the police, allegedly because they are intended
only for police, not citizens, and the populace might "misunderstand"
their provisions. As aresult no one can comment upon their drafting,
comprehensiveness, cohesiveness, or, indeed, their general appropriate-
ness to criminal investigation. They are bulky and not easily understood.4
Perhaps most importantly, they are not generally accorded the force of
law. Violation of their provisions normally merely results
in
apolice
disciplinary matter, and only very rarely in any advantage for the
accused in acriminal trial.G
2. The deficiencies
of
the present position
The common law and statutory enactments to date provide the police
with
few
or
no investigative powers, with the consequence that they
seize extra-legal powers
or
rely upon bluff, "voluntary co-operation"
and the like. From the citizen's viewpoint, the legal rules are difficult to
follow and offer
few
"rights"; the courts appear readily to accept
admissions and other damaging evidence obtained in breach of these
rules. Many of the currently available powers of the police in criminal
investigation operate only when asufficient degree of suspicion has arisen
in the mind of the policeman to justify interfering with acitizen. Such
adegree is described in legislative language by "suspicion", "has reason-
able grounds to believe"
or
"that it
is
more probable than not" (that,
say, the person committed the offence). Such legislative qualifications
are clearly meant to balance police needs with individual liberties, but
4Criminal Law and Penal Methods Reform Committee
of
South Australia:
Second Report: Criminal Investigation (1974) 3; Lyons and Tanner, "Legal
Documents: Can anyone understand them?" (1977) 2Legal Service Bulletin 283,
283 where, using The Flesch Reading Test, the Police Standing Orders (Vic.)
were characterised as "extremely difficult
to
understand, often demanding the
reading skills expected
of
auniversity graduate".
Ii
The most recent authoritative statement
of
the principles governing the
exercise
of
the discretion to exclude evidence
is
in the High Court judgments in
Driscoll
v.
R.
(1977)
51
A.L.I.R.
731
and Bunning
v.
Cross (1978) 19 A.L.R.
641.
In
exercising the discretion
to
exclude evidence obtained by unfair
or
improper
means, the Australian courts have rejected atest relying exclusively on "reliability"
and instead balance the public interest in obtaining convictions based
on
truthful
and-reliable evidence against the conflicting public interest in maintaining the
rights of the individual not
to
be subjected to unlawful
or
unfair treatment:
R.
v.
Ireland -(1970) 126 C.L.R. 321, 335;
R.
v.
Eyres (1977)
16
S.A.S.R. 226, 230-232;
Bunning
v.
Cross (1978) 19 A.L.R. 641,
651
per Barwick C.l., 659-661 per
Stephen and Aickin JJ. However, as the Commission pointed out,
"(t)he
discretion
is
in practice anarrow one.
It
is
often mentioned but rarely acted on.
It
is
far
more common for police misconduct
to
be criticised by the court than for evidence
obtained as aresult to be excluded"
(ALRC
2, para. 288).
1980] Police Powers
of
Criminal Investigation 285
they rarely lead to satisfactory results. Acourt which has to reconstruct
the state of mind of amember of the police at the time that he took
the.
action can do no more than guess. These indefinite standards contribute
to adeterioration of police-citizen relationships and have little to do
with either party's legitimate expectations.6
The divergence between law and practice is, at least in part, attribu-
table to the very different perceptions held by the police, the lawmakers,
and the citizen of the aims to be achieved and the stages -in an
investigation.
3. Police and citizen objectives in criminal investigation
From the police viewpoint, the objects of criminal investigation are
relatively straightforward. Police are responsible for the identification
and apprehension of alleged offenders and need ample powers to
accomplish that task. Basically, such powers must enable them to
identify aperson by name and address, and later to obtain evidence
which will both link the suspect to the offence and help to assemble
proof for the court, enabling the prosecution to obtain aconviction.
Two factors that play arelatively minor role from the police point of
view are the severity of the offence, and the degree of certainty that a
policeman may have in his own mind at the initial stages of the process.
Naturally, the police will devote less energy to the identification and
apprehension of aminor offender, and would expect to process such
minor offenders in less time. -
The police would, in general, expect to have similar powers to call
on in each instance, and leave to good Judgment and proper allocatIon
of time the determination of which powers should actually be used. They
would regard each individual investigator as responsible for the decision
to involve acitizen in an investigation, based in part upon the likelihood
that the citizen could aid in the inquiry, and for the decision to determine
the stage at which contact should be made.
Not surprisingly, the citizen's perspective on the investigatory process
raises rather different factors. The law must delineate clearly two diverse
groups of potentially affected persons,: those who co-operate voluntarily
and those who do not. Most police investigation will depend upon the
willingness of the citizenry at large to volunteer their time and assist the
police with their inquiries. This group ought to be identified and no
impediments placed in their way in co-operating with the police in the
interests of the community. Those who do not wish to offer their
voluntary co-operation or who, after an initial period of willingness, no
longer wish to, should be able to ascertain their legal obligations with
exactitude, and ought to know how to manifest their desire to end
further participation.
6Infra pp. 304-305.
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