Juvenile interview without solicitor or appropriate adult
On 3 March at 23:40, police arrest 17-year-old D for robbing a convenience store. At the station, D asks for a solicitor. The custody officer delays access for six hours, citing 'operational reasons' but recording no details and without superintendent authorisation. D's mother arrives at 02:00 but is not allowed to act as appropriate adult. D is interviewed at 03:10 without an appropriate adult and without a solicitor. The interview is not audio-recorded; officers say the recorder is broken. D admits being outside the store but says he was pressured by older youths. He has no previous convictions. The CPS charges robbery. The trial is in the Crown Court. Defence counsel is instructed to challenge the admission.
1. Identify the PACE 1984 and Code C breaches and assess whether the admission is likely to be excluded under s.78.
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Breaches. The right to legal advice under PACE 1984 s.58(1) was engaged. Delay is permitted only under s.58(8): the offence must be indictable, a superintendent (or above) must authorise delay, and the reason must be recorded. Here the custody officer acted without superintendent authority and recorded no reasons. Code C para 6.6 also requires the reasons to be recorded. D is a juvenile, so Code C para 11.15 required an appropriate adult; the mother was available but excluded. Code E para 3.1 requires interviews to be audio-recorded; a broken recorder requires a written explanation and authorisation, not merely assertion.
Exclusion. Under s.78(1) the court must consider whether admitting the admission would have such an adverse effect on the fairness of proceedings that it ought not to be admitted. The cumulative breaches are significant and substantial. The absence of an appropriate adult for a 17-year-old is particularly serious because it undermines the safeguard against unreliable or pressured admissions. Although exclusion is discretionary, the admission is likely to be excluded. The prosecution may argue the admission is true, but s.78 protects fairness, not only reliability.
2. How should the court approach the s.78 discretion if the prosecution argues the breaches were not deliberate and the admission is true?
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Approach. The court weighs all the circumstances under s.78(2), including how the evidence was obtained and any unfairness to the accused. The fact that breaches were not deliberate is relevant but not decisive. The key question is whether the proceedings would be unfair, having regard to the seriousness of the breaches and the opportunity to challenge the evidence.
Arguments. The prosecution can say D was cautioned, appeared to understand, and made a limited admission consistent with other evidence. But the absence of a solicitor and appropriate adult prevented meaningful advice and support. The failure to record the interview means the defence cannot test how the admission was elicited. On balance, the court is likely to exclude. If admitted, the judge should give a careful direction about the circumstances and the lack of independent support.