Up until 2 June 2014 if you found yourself in a police station, having been arrested for an offence, you were only entitled to know the reason for your arrest and detention in advance of being interviewed and nothing more. However, that position changed earlier this week when the EU Directive 2010/13/EU on the Right to Information in Criminal Proceedings was implemented into UK law in the form of changes to the Police and Criminal Evidence Act 1984 (PACE) code C. This Directive is one in a series of steps taken by the EU to strengthen the rights of defendants in Criminal proceedings.
The rights addressed in the directive include the right to information about rights at the police station and the right to have access to case materials, both of which are unlikely to have a significant practical effect on the way in which suspects are treated in the UK. However, the directive also refers to the right to information about arrest and accusation, which could, in due course, have a real impact.
Under article 7(2) of the directive a suspect must be provided with “Information about the criminal act that they are suspected or accused of having committed,promptly and in such detail as is necessary to safeguard the fairness of the proceedings and to allow for the effective exercise of the rights of the defence”. This all sounds very promising for suspects and defence solicitors who have previously battled against the fact that there was no obligation on the police to provide any disclosure at all; however, as yet it is not clear what is meant by “in such detail as to safeguard the fairness of the proceedings” and in any event this potentially crucial aspect of the directive has not made its way into PACE. Furthermore under PACE the police are only required to make this information available on request, as there is not a positive duty to provide it as per the directive. PACE also provides that the extent of the information that needs to be disclosed rests with the investigating officer. It is clear therefore that the directive has been significantly watered down.
Although a failure to provide disclosure at the police station can be judicially reviewed there is currently little recourse to challenge a failure to properly implement the directive in the European Courts. Given current negotiations on the opting out (and opting back in) by the UK on matters of Justice and Home Affairs, it is possible that we may start to see some movement in this area later this year. However, any challenge to police behaviour in relation to those arrested and held in detention are difficult. While this directive may support representations made about inadequate disclosure, the refusal by an officer is likely to be supported by both the Custody Sergeant and PACE Inspector. It is only in rare cases that it will be financially possible and in the interests of the client to bring a challenge in court to the exercise of discretion by police in this area; however, any case law that is established may have an impact on how clients are advised at the police station in the future.