The PACE Code of Conduct CODE C "Detention, Treatment and Questioning of persons by police officers" in England and Wales was amended with effect from 00:00 on 2nd June 2014 to reflect the provisions of the European Directive 2012/2013 PRE-CONS 78/11. This directive contains the following provisions:-

Article 6 Right to information about the accusation

1. Member States shall ensure that suspects or accused persons are provided with information about the criminal act they are suspected or accused of having committed. That information shall be provided promptly and in such detail as is necessary to safeguard the fairness of the proceedings and the effective exercise of the rights of the defence.

2. Member States shall ensure that suspects or accused persons who are arrested or detained are informed of the reasons for their arrest or detention, including the criminal act they are suspected or accused of having committed.

3. Member States shall ensure that, at the latest on submission of the merits of the accusation to a court, detailed information is provided on the accusation, including the nature and legal classification of the criminal offence, as well as the nature of participation by the accused person.

4. Member States shall ensure that suspects or accused persons are informed promptly of any changes in the information given in accordance with this Article where this is necessary to safeguard the fairness of the proceedings.

Article 7 Right of access to the materials of the case

1. Where a person is arrested and detained at any stage of the criminal proceedings, Member States shall ensure that documents related to the specific case in the possession of the competent authorities which are essential to challenging effectively, in accordance with national law, the lawfulness of the arrest or detention, are made available to arrested persons or to their lawyers.

2. Member States shall ensure that access is granted at least to all material evidence in the possession of the competent authorities, whether for or against suspects or accused persons, to those persons or their lawyers in order to safeguard the fairness of the proceedings and to prepare the defence.

3. Without prejudice to paragraph 1, access to the materials referred to in paragraph 2 shall be granted in due time to allow the effective exercise of the rights of the defence and at the latest upon submission of the merits of the accusation to the judgement of a court. Where further material evidence comes into the possession of the competent authorities, access shall be granted to it in due time to allow for it to be considered.

4. By way of derogation from paragraphs 2 and 3, provided that this does not prejudice the right to a fair trial, access to certain materials may be refused if such access may lead to a serious threat to the life or the fundamental rights of another person or if such refusal is strictly necessary to safeguard an important public interest, such as in cases where access could prejudice an ongoing investigation or seriously harm the national security of the Member State in which the criminal proceedings are instituted. Member States shall ensure that, in accordance with procedures in national law, a decision to refuse access to certain materials in accordance with this paragraph is taken by a judicial authority or is at least subject to judicial review.

5. Access, as referred to in this Article, shall be provided free of charge.

Under the previous version (2013) of the Codes paragraph 11.1.A provided

"11.1.A An interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under paragraph 10.1, must be carried out under caution. Whenever a person is interviewed they must be informed of the nature of the offence, or further offence. Procedures under the Road Traffic Act 1988, section 7 or the Transport and Works Act 1992, section 31 do not constitute interviewing for the purpose of this Code."

The new paragraph 11.1.A provides:-

"Before a person is interviewed, they and, if they are represented, their solicitor must be given sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it (see paragraphs 3.4(a) and 10.3), in order to allow for the effective exercise of the rights of the defence. However, whilst the information must always be sufficient for the person to understand the nature of any offence (see Note 11ZA), this does not require the disclosure of details at a time which might prejudice the criminal investigation. The decision about what needs to be disclosed for the purpose of this requirement therefore rests with the investigating officer who has sufficient knowledge of the case to make that decision. The officer who discloses the information shall make a record of the information disclosed and when it was disclosed. This record may be made in the interview record, in the officer’s pocket book or other form provided for this purpose. Procedures under the Road Traffic Act 1988, section 7 or the Transport and Works Act 1992, section 31 do not constitute interviewing for the purpose of this Code."

The new paragraph 11.1.A adds the words underlined and can no doubt be used by defence lawyers in seeking further disclosure in advance of an interview. There is obviously a difference between being given information to enable one to understand the nature of an offence and why a suspect is suspected of committing it. Furthermore the use of the word "effective" in describing the exercise of the rights of the defence may give additional ammunition for the hard pressed defence representative. Defence lawyers are used to being given minimal disclosure from the police with a view to the police encouraging dishonest explanations and ambushing the suspect in the course of an interview. The inclusion of this word in the Code of Practice will arguably afford the defence lawyer the opportunity to evoke the spirit and intention of the European Directive in negotiations about disclosure or interventions in the course of an interview. 

In view of the proviso later in the paragraph with regard to prejudicing an investigation it may be prudent for a defence lawyer attending a client at a police station, when the investigating officer is providing disclosure, to enquire as to whether any material is being withheld on the ground that it might at the time prejudice the investigation. Whilst the officer is likely to decline to answer such a question if there is such withheld material he/she will not be able to later say they were never asked and the onus on them to justify withholding would arguably be greater.

There is further scope for negotiations about adequate disclosure prior to interview under the new Codes 3.4(b):-

" Documents and materials which are essential to effectively challenging the lawfulness of the detainee's arrest and detention must be made available to the detainee or his solicitor. Documents and materials will be “essential” for this purpose if they are capable of undermining the reasons and grounds which make the detainee’s arrest and detention necessary. The decision about whether particular documents or materials must be made available for the purpose of this requirement therefore rests with the custody officer who determines whether detention is necessary, in consultation with the investigating officer who has the knowledge of the documents and materials in a particular case necessary to inform that decision. A note should be made in the detainee’s custody record of the fact that documents or materials have been made available under this sub-paragraph and when. The investigating officer should make a separate note of what is made available and how it is made available in a particular case. This sub-paragraph also applies (with modifications) for the purposes of sections 15 (Reviews and extensions of detention) and 16 (Charging detained persons). See Note 3ZAand paragraphs 15.0 and 16.7A."

This provision may prove useful to suspects or their lawyers if they are aware there may be exculpatory evidence which should have come to the attention of the investigating officer. They can then raise this with the investigating officer/custody officer. However, if the suspect or his or her lawyer is not aware of such material its disclosure will depend on the bona fides of the investigating officer and whether he or she discloses this to the custody officer and then the custody officer disclosing it to the suspect or his or her lawyer. If this is not disclosed and the material subsequently comes to light this could form the basis for seeking to exclude any subsequently obtained evidence under Section 78 of PACE as being in breach of Code C 3.4. Defence lawyers may therefore wish to enquire of the investigating officer whether he or she is aware of any document or material (including cctv) which may undermine the reasons and grounds which the officer says makes the detainee's arrest necessary and make a careful note of the reply. There is also scope for tension between an investigating officer and the custody officer if the former has not been entirely frank and open with the latter.

A closer examination of the Directive gives further ammunition to defence lawyer seeking disclosure as follows:-

"(27) Persons accused of having committed a criminal offence should be given all the information on the accusation necessary to enable them to prepare their defence and to safeguard the fairness of the proceedings.

(28) The information provided to suspects or accused persons about the criminal act they are suspected or accused of having committed should be given promptly, and at the latest before their first official interview by the police or another competent authority, and without prejudicing the course of ongoing investigations. A description of the facts, including, where known, time and place, relating to the criminal act that the persons are suspected or accused of having committed and the possible legal classification of the alleged offence should be given in sufficient detail, taking into account the stage of the criminal proceedings when such a description is given, to safeguard the fairness of the proceedings and allow for an effective exercise of the rights of the defence.

(29) Where, in the course of the criminal proceedings, the details of the accusation change to the extent that the position of suspects or accused persons is substantially affected, this should be communicated to them where necessary to safeguard the fairness of the proceedings and in due time to allow for an effective exercise of the rights of the defence.

(30) Documents and, where appropriate, photographs, audio and video recordings, which are essential to challenging effectively the lawfulness of an arrest or detention of suspects or accused persons in accordance with national law, should be made available to suspects or accused persons or to their lawyers at the latest before a competent judicial authority is called to decide upon the lawfulness of the arrest or detention in accordance with Article 5(4) ECHR, and in due time to allow the effective exercise of the right to challenge the lawfulness of the arrest or detention.

(31) For the purpose of this Directive, access to the material evidence, as defined in national law, whether for or against the suspect or accused person, which is in the possession of the competent authorities in relation to the specific criminal case, should include access to materials such as documents, and where appropriate photographs and audio and video recordings. Such materials may be contained in a case file or otherwise held by competent authorities in any appropriate way in accordance with national law.

(32) Access to the material evidence in the possession of the competent authorities, whether for or against the suspect or accused person, as provided for under this Directive, may be refused, in accordance with national law, where such access may lead to a serious threat to the life or fundamental rights of another person or where refusal of such access is strictly necessary to safeguard an important public interest. Any refusal of such access must be weighed against the rights of the defence of the suspect or accused person, taking into account the different stages of the criminal proceedings. Restrictions on such access should be interpreted strictly and in accordance with the principle of the right to a fair trial under the ECHR and as interpreted by the case-law of the European Court of Human Rights.

....... 

(36) Suspects or accused persons or their lawyers should have the right to challenge, in accordance with national law, the possible failure or refusal of the competent authorities to provide information or to disclose certain materials of the case in accordance with this Directive. That right does not entail the obligation for Member States to provide for a specific appeal procedure, a separate mechanism, or a complaint procedure in which such failure or refusal may be challenged.

(37) Without prejudice to judicial independence and to differences in the organisation of the judiciary across the Union, Member States should provide or encourage the provision of adequate training with respect to the objectives of this Directive to the relevant officials in Member States.

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(40) This Directive sets minimum rules. Member States may extend the rights set out in this Directive in order to provide a higher level of protection also in situations not explicitly dealt with in this Directive. The level of protection should never fall below the standards provided by the ECHR as interpreted in the case-law of the European Court of Human Rights.

(41) This Directive respects fundamental rights and observes the principles recognised by the Charter. In particular, this Directive seeks to promote the right to liberty, the right to a fair trial and the rights of the defence. It should be implemented accordingly."

It is important to note that officers should have been provided with training in the relation to the changes and a failure to undergo such training could be a further ground for a challenge under Section 78 of PACE. 

In conclusion the answer to the question posed in the title is that greater pre interview disclosure should be provided by the police as a result of these changes but in practice the writer's view is that police officers are unlikely to change entrenched positions and 'the habits of a lifetime' without appropriate training and defence lawyers asserting their client's rights by using the changes and the Directive as useful tools in their negotiations for greater pre interview disclosure.  It will be interesting to see whether the Directive and the changes will be reflected in the Courts looking again at inadequate disclosure being a justification for a no comment interview and no adverse inference being drawn.