Getting away with murder

The Police and Criminal Evidence Act 1984 (PACE) and its associated codes of practice are the source of a comprehensive system

of suspects’ rights. Judges

have wide-ranging powers to exclude evidence obtained unfairly.

Where there have been significant and substantial breaches of PACE, any admissions made thereafter

will not be admissible. This is a stricter regime than applied to other types of evidence – the general principle is that if it is relevant it should be admitted. This sets out that the end does not justify the means.These are principles with which most would concur. However, their potentially undesirable consequences were vividly demonstrated following the trial and conviction of Christopher Halliwell for the murder of Becky Godden.

Halliwell had been charged with the murder in 2011, but the case against him never made it to trial. At a pre-trial hearing in 2012, Mrs Justice Cox held that crucial evidence, namely a confession and his accurate revelation to police as to the location of Godden’s body, was inadmissible, and excluded it under section 78 of PACE.

As a result, the defence successfully applied to dismiss Godden’s murder count on

the indictment, while the

murder of a separate victim,

Sian O’Callaghan, remained. Halliwell would have got away with Godden’s murder but

for the police uncovering different evidence linking

him to the crime.

The PACE breaches committed by the investigating officer, Detective Superintendent Fulcher, almost allowed a murderer to escape justice. Fulcher was running a major inquiry arising from the sudden disappearance of a young woman, Sian O’Callaghan,

in March 2011. Believing that Halliwell had abducted and held her captive, Fulcher decided that the rights of a criminal suspect should not trump O’Callaghan’s right to life.

Fulcher instructed the arresting officers to bring Halliwell to him in a remote place. There, he badgered the suspect about O’Callaghan’s whereabouts and made threats, without cautioning, without a lawyer present (despite Halliwell asking several times to see a solicitor), and without the exchange being tape-recorded: all fundamental and deliberate breaches of PACE.

Remarkably, Halliwell not

only provided directions to the location of O’Callaghan’s body, but volunteered a confession that he had killed before, admitting to having murdered Godden and giving directions

to her body. The contents of

this conversation were ruled inadmissible. Following the trial’s collapse, Fulcher was disciplined for gross misconduct and later resigned.

The eventual conviction of Halliwell for Godden’s murder has led Fulcher to publicly claim that his actions were ‘the right and moral thing to do’ to ensure the bodies of both women were recovered. In his words: ‘As the law stands, the expectation was that I should have prioritised Halliwell’s right to silence and legal protection, over Sian O’Callaghan’s right to life.’

It is easy to overlook that the PACE provisions are the fabric of a system designed to ensure that confessions to criminal conduct are made voluntarily. While

this protects suspects, it is also important for victims and their families. If unreliable confessions are allowed to stand, the true perpetrator can walk free. If interviews are not recorded and overseen by lawyers, suspects can allege mistreatment, or

that their confessions have

been fabricated, even if this is not the case.

Fulcher’s final defiant comment was: ‘I want to ensure that any senior investigating officer, faced with crimes in action, is able to take the right decision without suffering the repercussions I experienced whilst performing my duty.’ Unless one is arguing for the reintroduction of torture then a firm line must be drawn between what methods the police can and cannot employ: that which is already provided by the PACE provisions.

Of course, Fulcher acted

with the best of intentions. However, it was right that the evidence he obtained was excluded from evidence. Carving out exceptions to the rules on the basis of extreme cases makes the chances of unfairness in ordinary cases much higher.

Hard cases can make bad

law. The picture is far bigger

than the facts of this one extraordinary case, and it is

quite right that the ends of

a confession cannot justify

the means of significant and substantial PACE breaches.

Maia Cohen-Lask is an associate at Corker Binning @CorkerBinning www.corkerbinning.com