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Police Powers of Criminal Investigation: Principle or Pragmatism

Published online by Cambridge University Press:  24 January 2025

Terry Carney  and
Judd Epstein
Terry Carney
Affiliation:
Faculty of Law, Monash University
Judd Epstein
Affiliation:
Faculty of Law, Monash University
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Abstract

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, tightlydefined, specific-purpose powers to the police have made a major contribution to the pressure on police to misuse existing (and often more intrusive) powers or to exercise de facto powers not authorised by law. It is contended that this pressure often arises from a desire by police to find a more practical means of attaining agreed community objectives than that provided by the artificial standards of the existing law. A strong 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.

Type
Research Article
Information
Federal Law Review , Volume 11 , Issue 3 , September 1980 , pp. 283 - 320
Copyright
Copyright © 1980 The Australian National University

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References

page 283 note 1 Ashworth, , “Some Blueprints for Criminal Investigation” [1976] Criminal Law Review 594, 594-595.Google Scholar

2 Ibid.; Australia Law Reform Commission: Report No. 2. An Interim Report: Criminal Investigation (1975) (hereafter cited as ALRC 2) para. 7.

3 E.g. Crimes (Powers of Arrest) Act 1972 (Vic.), Bail Act 1977 (Vic.), Bail Act 1978 (N.S.W.). 283

4 Criminal 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) 2 Legal Service Bulletin 283, 283Google Scholar 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 a university graduate”.

5 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.J.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 a test 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.J., 659-661 per Stephen and Aickin JJ. However, as the Commission pointed out, “(t)he discretion is in practice a narrow 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 a result to be excluded” (ALRC 2, para. 288).

6 Infra pp. 304-305.

7 The most pertinent reports are: Criminal Law and Penal Methods Reform Committee of South Australia: Second Report: Criminal Investigation (1974), hereafter cited as the Mitchell Report; American Law Institute, Model Code of Pre-arraignment Procedure (Official Draft, April 1975), hereafter cited as A.L.I. Model Code; ALRC 2 (supra n. 2); Report of the Committee appointed by The Secretary of State for Scotland and the Lord Advocate, Criminal Procedure in Scotland (Second Report) Cmnd. 6218 (1975), hereafter cited as the Thomson Report; Addenda to the Report of the Board of Inquiry into Allegations Against Members of the Victoria Police Force (1976), hereafter cited as the Beach Report; Report of the Committee of Inquiry into the Enforcement of the Criminal Law in Queensland (1977), hereafter cited as the Lucas Report.

The British Government has announced the appointment of a Royal Commission to review “the whole criminal process, from investigation to trial”: [1977] Criminal Law Review 441. Several other reports on more specialised areas have been handed down during the same period which have resulted in limited reforms in Britain (the Police Act 1976, which set up an independent tribunal to deal with citizen complaints against the police) and Victoria (the Bail Act 1977).

8 The Criminal Investigation Bill 1977 arose from a reference from the then Attorney-General to the Australian Law Reform Commission. The report of the Commission was published in 1975 and included a Draft Bill. The Government of the day substantially accepted the Commission's recommendations and used them as the basis for the Criminal Investigation Bill 1977, introduced into Parliament on 24 March 1977. It differed in a number of respects from the Commission Report and Draft Bill, most importantly in endorsing the minority view of Commissioner Brennan that there should be no pre-arrest period of investigation for those individuals unwilling to co-operate voluntarily.

9 The Criminal Investigation Bill 1977 had received its second reading at the time that Parliament was dissolved in late 1977. At the time of writing it had not yet been re-introduced into Parliament but the Government proposes to re-introduce a modified Bill once the new Federal police force is in a position to review the Bill. The Government position is stated in S. Deb. 1979, Vol. 80, 1358. See also Australia Law Reform Commission Annual Report 1979 para. 63.

10 H.R. Deb. 1977, Vol. 104, 565. Criminal Investigation Bill 1977, s. 20 (access to a lawyer), s. 9 (arrest without warrant), s. 13 (the use of force in making an arrest), ss. 39-40 (identification procedures), ss. 31-34 (recording of interviews), ss. 25-28 (questioning of special groups such as aborigines), s. 50 (police bail), s. 62 (abolition of general search warrants), s.16 (requirement to give name and address).

11 This is particularly the case with respect to police powers following restraint, where the common law position of the judges' rules have been given statutory force: H.R. Deb. 1977, Vol. 104, 564. Criminal Investigation Bill 1977, ss. 18-19.

12 Criminal Investigation Bill 1977, ss. 31-34.

13 Id. s. 73.

14 Williams, Glanville, ”The Authentication of Statements to the Police” [1979] Criminal Law Review 6, 9-15Google Scholar.

15 Criminal Investigation Bill 1977, s. 17(1).

16 Id. s. 17(2).

17 A.L.I. Model Code, s.110.1(1).

18 Id. s. 110.1(2).

19 Id. s. 110.1(3).

20 Statutes dealing with road traffic matters may grant police this power in limited circumstances: Australia Law Reform Commission: Report No. 4: Alcohol, Drugs and Driving (1976) paras 26, 84.

21 E.g. Ghani v. Jones [19701 1 Q.B. 693, 706-709 per Lord Denning M.R.

22 Criminal Investigation Bill 1977, s. 16(1).

23 ALRC 2, para. 80.

24 It must be conceded that probably no clearer formula can be devised to guide the decision, which must therefore be left to an individual policeman in the course of his duty. Perhaps guidelines, either in the form of legislative regulations or, more desirably, police-designed rules, could supply criteria upon which to base the “reasonable belier'. These might be expressed in probability terms (e.g. more than 60% likely), by reference to the number of possible suspects, or by incorporation of the basis for belief (information from reliable sources) but in the end this must remain a subjective decision. While that may give an aggrieved citizen little recourse for complaint to, say, a police disciplinary board, other formulae would not improve the situation. In view of the lesser degree of intrusion this connotes, and the safeguards mentioned infra, the clause may be acceptable.

25 A.L.I. Model Code, Commentary 269.

26 Criminal Investigation Bill 1977, ss. 9(1), 16(2).

27 Id. ss. 61, 62.

28 A.L.I. Model Code, ss. 110.2(1 )(a)(i) (class of offence and degree of suspicion), 110.2(1)(a)(ii) (reasonable alternatives), Commentary 9-10, 277.

29 Id. ss.110.2(1) (a) (i), 110.2(1) (b) (i), Commentary 10, 262-263.

30 Id. Commentary 10, 263, 270.

31 Id. Commentary 282-283.

32 Id. Commentary 262.

33 This is the problem which the inclusion of a statutory presumption in favour of the use of summons procedures, reserving arrest for cases of last resort, was designed to overcome: Crimes Act 1958 as amended (Vic.), s. 458; Criminal Investigation Bill 1977, s. 9(2)(c). See also ALRC 2, paras 39-44.

34 Police are willing to admit privately that they will use artifice, cajolery, pressure or persuasion to induce an individual to accompany them: ALRC 2, para. 7. This was expressly conceded in one submission to the Commission received from a police source where it was stated that the existing law “ ... forces police officers to adopt methods which are of doubtful or obscure legality. Among these methods are: (i) stretching and bending the concept of 'voluntary co-operation'; (ii) engaging in subterfuge or deceit to ensure a person's detention ... “ (ibid.). See also Glanville Williams, op. cit. 6, -9-11; Driscoll v. R. (1977) 51 A.L.J.R. 731, 741 per Gibbs J.

35 ALRC 2, para. 28. As Dr Eggleston points out (Fear, Favour or Affection (1976) 28), this consideration is more pressing in the absence of proper provisions to ensure speedy bail subsequent to arrest.

36 ALRC 2, para. 34; Criminal Investigation Bill, ss. 9(2) (b) (the purpose of arrest), 9(1) (the non-arrestable offences).

37 ALRC 2, para. 8.

38 A.L.l. Model Code, ss. 120.2(3), 130.2(1) (c), 130.3(2).

39 Id. s. 120.2(1).

40 Id. s. 120.2(2).

41 Id. s.120.2(1).

42 Carney and Epstein, “Custodial Investigation” (1975) unpublished consultants' paper to ALRC, para. 104 [held at Monash University Law Library]. Cf. A.L.I. Model Code, ss. 120.2(1), 120.2(2), 130.2(1 ), Commentary 338-341.

43 ALRC 2, para. 62.

44 The Commission confined these remarks to “minor” offences, and did not elaborate on this reform in the body of the report, other than to make a reference to permitting service of a summons by post in the summary of recommendations, and in a brief appendix (where traffic offences and offences carrying a fine of up to $200 were identified as the “minor” offences). Neither the draft Bill nor the Government Bill went any distance towards achieving this reform, which therefore remained nothing more than a statement of intent: id. para. 309 and Appendix C.

45 Id. para. 63.

46 Carney and Epstein, op. cit. para. 109.

47 Ibid.

48 A scheme of this kind has already been introduced in Contra Costa County, California: The President's Commission on Law Enforcement and Administration of Justice, Task Force Report: The Courts (1967) 41.

49 A.L.l. Model Code, s.120.2(3) includes this inbuilt safeguard.

50 Morris, , The Future of Imprisonment (1974) 10.Google Scholar

51 E.g. A.L.l. Model Code, ss. 110.2(1 )(a)(i) (class of offence and degree of suspicion), 110.2(1)(a)(ii) (reasonable alternatives), Commentary 9-10, 277.

52 This criticism was put in strong terms by a Government back-bencher, Mr Neil, during the second reading debate on the Bill: H.R. Deb. 1977, Vol. 105, 1493.

53 Cf. ALRC 2, para. 10.

54 Id. paras 89-98, (especially 94), 173-187. A requirement that a person be taken to a police station without delay was written into the A.L.I. Model Code (s. 120.9(1) and Commentary 315) and recommended to the Commission by the authors (Carney and Epstein, op. cit. para. 111); but the Commission chose instead to rely on the incentive created by the proposed four hour limit on custodial investigation which would commence to run immediately upon the person being placed under de facto restraint on the street, although travelling time on a direct route to the station was not to be counted in the four hour period (ALRC 2, paras 89(e), 92).

55 Carney and Epstein, op. cit. paras 82-86.

56 ALRC 2, paras 66-71 and Draft Bill, cl. 22.

57 It was still required by the Bill that a caution be given in certain circumstances but this right to a caution would depend on the highly unsatisfactory criterion of subjective belief by the police officer in question.

58 Proposals to this effect were advanced by the authors: Carney and Epstein, op. cit. paras 82-86, 111. ALRC 2, paras 66-71, 92.

59 ALRC 2, paras 10, 72-78.

60 Criminal Investigation Bill 1977, s. 18(2) (a), (b).

61 These alternative formulations are discussed in A.L.l. Model Code, Commentary 290-296.

62 Criminal Investigation Bill 1977, ss.4(2)(a)(ii), 9(2)(a), (b), 9(3), 10(1), 12(1), 16(1). The criterion was used to define “arrest analogous” situations, to limit the use of arrest and encourage the use of summons procedures, to avoid unnecessary detention once the original justification had disappeared, to delimit powers of entry incident to a power to arrest on warrant, and to define the scope of the new power to require a person to reveal his name and address. In each case the legislation required a belief that the restraint or arrest is “necessary” to achieve statutory purposes, or a belief that the person requested to supply his name “may be able to assist ... in ... inquiries”.

63 Thus, the right to be cautioned would arise when an officer “decides to charge ... to summons ... or to recommend [such action]”: id. s. 19(1). The right to be granted facilities to communicate with a lawyer (and not to be further questioned until that right has been exercised) was to be triggered not only by a specific request from the person in restraint, but also where an officer formed “reasonable grounds for believing [the] person ... wishes to consult a lawyer”: s. 20(1). Parallel responsibilities arose to facilitate communication with a relative or friend (but not to suspend questioning). In each case, the obligations included people who, although not under restraint, had been warned that they need not answer questions and advised of their right to communicate with a lawyer or friend at any time: s. 19(2). Where the person wished to communicate with a lawyer but did not know the name of a lawyer (or appeared not to have this information), there was to be a duty to provide a printed list of available lawyers and questioning was to be suspended until this had been done: ss. 21(3)(c)(ii), 21(4) (b). There was to be an exemption from the duty to facilitate communication where the officer believed on reasonable grounds that the escape of an accomplice or the loss, destruction or fabrication of evidence might be facilitated by such communication: s. 22(2). Also ss. 20(7), 22(3), 22(7).

64 A.L.l. Model Code, Commentary 272-273, 282.

65 This point was brought out during the second reading debate on the Bill: H.R. Deb. 1977, Vol. 105, 1485-1494.

66 ALRC 2, para. 69. Cf. Ashworth, op. cit. 606.

67 A.L.I. Model Code, s. 120.5.

68 ALRC 2, para. 69 n. 100.

69 A.L.I. Model Code, ss. 130.1, 130.2(1).

70 ALRC 2, para. 76.

71 Id. para. 77.

72 Ibid.

73 A.L.I. Model Code, s. 110.2.

74 (1966) 384 U.S. 436.

75 Id. 444.

76 A.L.I. Model Code, s. 130.2, Commentary 333-337.

77 ALRC 2, para. 10.

78 H.R. Deb. 1977, Vol. 105,564.

79 Mitchell Report 88.

80 Carney and Epstein, op. cit.

81 Proposals along these lines were advanced in South Australia: Mitchell Report 14.

82 ALRC 2, para. 67. Separate protection in the form of third party “prisoners' friends” was provided for at the pre-arrest stages of investigation for all aborigines or children questioned in respect of offences punishable by more than six months' imprisonment, and for any offence against the person or against property: id. paras 253-255, 266.

83 Id. para. 66, Draft Bill, cl. 22.

84 Draft Bill, cl.4(2), adopted in cl.17(2) as a limitation on the proposed period of “custodial investigation”.

85 Id. cl. 8(1).

86 ALRC 2, paras 89-93.

87 Id. Draft Bill, cl. 17(1).

88 Id. Draft Bill, cl. 17(2) (a) and (b).

89 Id. para. 74.

90 Id. Draft Bill, cl. 22(1), (2).

91 Criminal Investigation Bill 1977, s. 18(2).

92 Id. ss. 20(7), 21(3), 22(3).

93 Id. s. 18(2).

94 Id. s.18(2)(a) (emphasis added).

95 Ghent, , “What Constitutes 'Custodial Interrogation' Within Rule of Miranda v. Arizona” (1970) 31 American Law Reports 3d 559, 565-696.Google Scholar

96 Smith, , “The Threshold Question in Applying Miranda: What Constitutes Custodial Interrogation?” (1974) 25 South Carolina Law Review 699, 709-710, 732-735.Google Scholar

97 S.110.1(2), (3).

98 S.120.5(2), 120.8(1), (2).

99 Mitchell Report 74.

page 312 note 1 Carney and Epstein, op. cit.

2 Id. paras 77-81. The Criminal Investigation Bill 1977 relied on a somewhat similar intermediate threshold to set the limits of the name and address power (s. 16).

3 Carney and Epstein, op. cit. paras 82-86, 160.

4 Lucas Report paras 169-188.

5 Id. para. 188.

6 Ibid.

7 ALRC 2, para. 8.

8 Ibid. (emphasis added).

9 Mitchell Report 14-15.

10 Id. 15.

11 Lucas Report paras 180-182.

12 E.g. ALRC 2, para. 7; Mitchell Report 73; Lucas Report paras 28, 68; Beach Report 63-65; Thomson Report para. 2.03; Glanville Williams, op. cit. 9-11.

13 Ashworth, op. cit. 607.

14 Mitchell Report 3, para. 3.2.

15 Id. 75; Lucas Report para. 188; ALRC 2, paras 8, 93.

16 Lucas Report paras 186, 188.

17 Id. para. 182; ALRC 2, para. 94.

18 Criminal Investigation Bill 1977, ss. 18, 20-22, 26.

19 H.R. Deb. 1977, Vol. 105, 1493.

20 E.g. the discussion by the High Court of the effect of a failure by the police to permit a suspect to consult his lawyer prior to the commencement of a police interview and the omission to provide the suspect with a copy of the record of interview subsequently obtained: Driscoll v. R. (1977) 51 A.L.J.R. 731, 734 per Barwick C.J., 741 per Gibbs J. See also n. 5 supra p. 284.

21 Davis, , Discretionary Justice (1969) 54-55, 97-98.Google Scholar

22 Id. 98.

23 A.L.I. Model Code, s.120.2(4), Commentary 340-341.

24 Criminal Investigation Bill 1977, s. 76.

25 ALRC 2, para. 180. The police officer would administer to the arrested person a prescribed questionnaire to test on a point scale the probability of the latter's absconding. The object is to bring objectivity and system to the exercise of discretion in granting bail.

26 California Penal Code (1974) Ch.SC, s. 853.6(a)-(j).

27 Kadish, , “Legal Norm and Discretion in the Police and Sentencing Processes” (1962) 75 Harvard Law Review 904, 929.CrossRefGoogle Scholar

28 Id. 929-930.

29 Id. 926-929.

30 Wexler, , “Discretion: The Unacknowledged Side of Law” (1975) 25 University of Toronto Law Journal 120.CrossRefGoogle Scholar

31 Rosett, , “Discretion, Severity and Legality in Criminal Justice” (1972) 46 Southern California Law Review 12, 19.Google Scholar

32 Vorenberg, , “Narrowing the Discretion of Criminal Justice Officials” [1976] Duke Law Journal 651, 652.CrossRefGoogle Scholar