My Jekyll And Hyde Encounters

I spend the day advising assorted clients on the phone, or when the matter is quite sensitive, then on 'telegram'. My clients invariably fall into one of two categories: those who would like a divorce, and quite disparately, students mostly from the humanities who have been summoned by the crime branch for some 'baat-cheet'.

All of last week I watched 'Shetland', eponymously set in the Scottish archipelago with its emerald hills and its rugged coast. Each time there is a murder, the police detectives drive all over the island to witnesses' homes to chat with them, form a narrative about the murder, identify a 'suspect', and it's only when they gather enough independent evidence is the suspect 'brought in for questioning', and then formally charged, or if she is only a 'red-herring' in the story, then let off.

I always thought it was a plot device: the long drawn conversations over tea with witnesses, the collation of clues and only then the final denouement, so that the audience has an opportunity to solve the murder alongside. Also, if the police just detained the main suspect right in the beginning of the episode and made him confess to the crime during 'custodial interrogation', it'd be less a traditional murder mystery, more a comment on the criminal justice system.

But I now know that it's as much to do with Law, as it is to do with literary form. Scottish law traditionally allowed a suspect to be held in custody for a sum total of six hours, without being formally charged. In India the period can stretch to ninety days. Reports on criminal justice reform have referred to the 'culture of investigation' amongst Scottish Police, which does not rely on badgering suspects for information alone, while reiterating the desirability of brief timelines for questioning in detention.

Formerly, in Scotland, suspects were not 'arrested' for purposes of questioning, which resulted in an anomaly whereby there was no legal provision to compel appearance for questioning in a police station of a suspect (it is indeed noteworthy that lack of a legal provision presented an issue in getting people to the police station in the first place). Therefore in 1995, Criminal Procedure (Scotland) Act introduced the idea of 'detention' and allowed for suspects to be questioned in custody up to a maximum period of six hours, at the end of which they were either to be arrested and charged, or released. A formal charge would entail precise accusations in terms of each act of omission or commission, reasonably believed to have been committed by the accused, on the basis of sufficient evidence: not much latitude is provided in terms of lack of precision in the accusations. It wouldn't do, for instance, to merely allege at the time of first appearance in court of the accused that 'larger conspiracy was at play to overawe the government', or even that 'based on evidence available on record, there was prima facie conspiracy', or 'further investigation was required to determine the real conspiracy', etc.

However, during the period of detention the suspect was not entitled to legal assistance during questioning, nor was he to be produced before a Court of Law. Pertinently, though, once charged and produced before a Court the suspect (now the 'accused') is sent back to police custody only in special circumstances and under specific time-bound authorization of the Court. The Police's case against the accused had to be completed in those six hours of questioning (and of course the investigation preceding).

Still it was considered an incivility for Scotland to not allow the presence of a solicitor during questioning of a suspect. England and Wales had it, as did certain other common law jurisdictions like the US and Canada. [Miranda v. Arizona 384 US 436 (1966) had widened the notion of 'police custody' to include situations where the suspect was not under formal arrest, but deprived of his freedom of action in any significant way. Thus the right against self-incrimination and the right to legal representation – both recognized rights in the Indian context too– were further interpreted to include a duty to explicitly read out to a suspect, her right to remain silent and to have a lawyer present with her throughout custodial interrogation. The explications are not available to suspects being questioned in India].

The European Convention for Human Rights recognizes the right and the European Court in Salduz v. Turkey [(2009) 49 EHRR 19] has given it the same expanded meaning as in Miranda: where the suspect did not have the benefit of legal assistance while he was being interrogated in police custody, the 'practical and effective right' which leads to a fair trial remained violated.

In view of the European Court's ruling, the question whether the right to have an advocate present during questioning would also apply to Scottish trials was discussed in HM Advocate v. McLean [(2009) HCJAC 97]. The High Court decided that the evaluation of fairness of the criminal investigation system should be considered in its entirety, in terms of all the protections available to the suspect/accused, and should not only hinge on the 'right to legal assistance during detention' as a separate, independent barometer of fairness. The Court enumerated all the protections recognized in Scottish Law: recording of police interviews; inadmissibility of statements obtained through coercion; the requirement for corroborating of all statements made to the police; adverse inferences are not allowed to be drawn from 'silence' and finally the limited duration of detention to rule that there was really quite enough fairness and the additional right to have a solicitor present during questioning was not required.

A year later, in Cadder v. HM Advocate [(2010) UKSC 43], a case that was in effect an appeal against the decision in McLean, the UK Supreme Court ruled peremptorily that 'the guarantees otherwise available [under the Scottish System] are entirely commendable', but they couldn't be an excuse to exclude additional rights available under the European Convention. The UKSC concluded that the 'contracting states are under a duty to organise their systems in such a way as to ensure that, unless in the particular circumstances of the case there are compelling reasons for restricting the right, a person who is detained has access to advice from a lawyer before he is subjected to questioning.'

It's important to note that the decision in Cadder recognizes the right to a solicitor during detention, not as an inherent right, but as one emanating from the Convention and binding the contracting states. Second both Salduz and Cadder insist on legal advice at the time of 'first interrogation' but not necessarily throughout the interrogation. Most European states allow for a lawyer to be present throughout questioning. Indian law also gives the right to 'arrestees' to meet a lawyer of their choice, although the lawyer may not be allowed to be present throughout interrogation. Finally, Salduz, McLean and Cadder were all decided in the context of admissibility as evidence in trial of confessions and other statements obtained during interrogation in police custody: thus the references to 'fair trial'. The question for consideration was whether, given the dynamic of power, statements given by the accused to the police, in the absence of any solicitor, be trusted to have been obtained without coercion, and free of any violations of the right against self-incrimination? [In India, confessions made to a police officer are not admissible in trial to begin with (unless they lead to the discovery of a separate piece of evidence that can be independently corroborated)]. However, the effect of these three decisions and the change in law to include lawyers throughout questioning impacts the balance of power during the process of investigation too.

The ruling in Cadder caused quite a political storm in Scotland, and was viewed in some sections at least as 'poking of noses by judges whose familiarity with Scottish legal procedures was inexact at best'. [I can only imagine how the irascible Inspector Rebus would have reacted]. But nevertheless Scottish Parliament complied. Cadder had extended the protection afforded at 'arrest' to the first point of questioning during 'detention'. Several changes were made to the law in 2010 and again in 2016, and the distinction between 'detention' and 'arrest' was removed. The new law also placed a statutory duty on the police to take every precaution to ensure that no person is unnecessarily held in police custody.^§

Now a suspect may be 'arrested' for the purposes of questioning, on the authorization of a senior officer, who has not been involved with the investigation in question. The 'custody officer' shall review the need for extension of custody after the first six hours of questioning and then extend it to twelve hours if it is shown by the investigating officer that keeping the person in custody is necessary and proportionate. Interestingly, if a person is let off after eight hours of questioning on day 1, the police will have only 4 more hours left on any other day that they may choose to call him back for further questioning. Controversially, the 2016 law has given the option of a further (and final) extension of another 12 hours before filing of charges against the suspect. The extension is to be given in extraordinary circumstances. In Shetland (Season 4) it was given in the context of what one might call a 'terrorist' offence.

The 2016 Act was based on Lord Carloway's Report, who was commissioned to review the law and practice of questioning suspects during a criminal investigation in Scotland. The Report relied on available data to argue that investigation practices in Scotland did not require more than 12 hours of questioning the suspect. Apparently 83.5% detentions ended within 6 hours; the mean detention period was 4 hours; 15.7% detentions exceeded 6 hours; less than 0.5% detentions exceeded 12 hours (amounting to about 350 detentions annually).

Within two days of the accused being charged, she makes her first appearance in court in what are known as 'solemn proceedings'. The Procurator Fiscal initiates proceedings setting out the nature of the charges and the accused is 'committed for further examination' (CFE). Within eight days, there is a judicial examination of the charges pressed and depending on the decision made the accused may be 'fully committed for trial' (FC). This is akin to taking judicial cognizance of the Police/Fiscal's Report. It is both possible that the accused is granted bail through these stages of committal, or that she is remanded in custody. If it is the latter, then everything is 'fast-tracked': indictment – the court document framing the charges, and including the list of witnesses and productions for the case – has to be served on the accused within 80 days of full committal, and trial must commence within 140 days. If trial does not commence within 12 months of the first appearance of the accused in court, she shall not be tried.

If you compare a Scottish crime show with a British one [I can recommend 'Broadchurch, River, and Criminal (UK)], a subtle difference in the refrain is that while the Scots keep saying 'we don't have enough to bring him in for questioning', the English say 'we will have to let him go; we don't have enough to charge him'. Compared to Scots law, English (and Welsh) law gives much more time to the police for questioning in detention, but yet it is finite. The Police and Criminal Evidence Act (PACE), 1984 allows the police to detain suspects for questioning for twenty-four hours, and then an additional 12 hours, with the permission of a superior officer. The suspect must be produced in Court after 36 hours, and with the permission of a magistrate, the Police may have further custody for a total of 96 hours. Charges must be brought at the end of four days. Quite an eternity compared to Scots law, but still something. There is no statutory requirement for video recording of an interrogation, but the latest Code of Practice introduces the concept for investigators who choose to be transparent.

Now there is 'security' legislation applicable to England, Scotland and Wales that upsets this arrangement. The Terrorism Act, 2000 (amended in 2006) allows for pre-charge detention of up to 14 days by permission of a magistrate: it's considered ' an extended period of detention for 'terror' suspects in order to allow the police to obtain, preserve, analyze or examine evidence for use in criminal proceedings'. The UK government had sought to make the period of 'pre-charge detention' up to ninety days (where extensions after the first 14 days could be requested not from a magistrate but from a High Court judge), but the Bill was defeated in parliament as it was considered a travesty to human liberty.

A very recent Report reviewing the 'Terrorism Legislation' records that 'the vast majority of arrests of suspected terrorists continue to be made under the Police and Criminal Evidence Act 1984 in England and Wales, the Criminal Justice (Scotland) Act 2016 in Scotland, and the Police and Criminal Evidence (Northern Ireland) Order 1989 in Northern Ireland. As with terrorist investigations generally, police use their ordinary powers without recourse to specialist terrorism legislation.'

Some might argue that really you're selecting the best statistics (a bit like what our government does with covid death rates) and they may well have a point. I had actually just meant to tell a story about the cognitive dissonance caused by going to sleep amongst the Shetland meadows and waking up sweating and claustrophobic in humid Noida to frantic phone calls.

As I was saying, I divide my energies between divorcees and dissidents. With respect to the latter, in the 'lockdown' months, a significant number of concerns relate to anxiety inducing phone calls from the crime branch asking them to 'come to the station'.

'Ma'am, I asked what it was about and IO said "North Delhi riots ke baare mein enquiry karni hai"'.

'You're an accused?' I ask.

'Pata nahin, Ma'am. He said "aa jiyo warna likhit mein bula leinge, phir tum dekh lena"! Ma'am, then I said "Sir, mera kya role hai?", then he said "naam aaya hai."'

As far as I have been able to make out, the students are not witnesses to an incident, or even witnesses against a person or group accused of an actual offence. They are witnesses to a political idea: that it is important to express dissent. How does 'detention for questioning' aid the investigation of a political idea?

Sometimes, written notices are sent too, 'directing attendance for purposes of interrogation' at the given police station and at a specified time and place. Such notices also describe the case number and the offences involved. Section 160 of the Code of Criminal Procedure gives the power to the police officer to require attendance of witnesses, who are within the jurisdiction (or thereabouts) of his police station, although it's not uncommon these days for people to receive S.160 notices directing attendance at police stations across states.

Occasionally, I exchange a text with my client in the late afternoon: 'Everything ok?' I ask.

'Waiting Ma'am. IO saheb is busy!'

The average waiting time can be quite long. Sometimes witnesses are told at the end of the waiting day to come back the next day. Sometimes they are questioned for up to 10 hours. 'If only you were in Scotland...', I think to myself.

S. 41A of the Code gives a police officer the power to compel attendance of a suspect for questioning, where 'a reasonable suspicion exists that he has committed a cognizable offence'. So far so good! But at the same time S. 41 gives the power to the police officer to arrest the suspect on reasonable belief made on the strength of a 'reasonable complaint' or 'credible information received'. In the United Kingdom, reasonable belief of guilt has to be backed by a formal charge before a Court of Law. In India, it seems to be a more private emotion of the investigating officer. The belief results in the arrest of the suspect, but there is no corresponding requirement to formally charge at the time.

The arrested person has to be produced before a magistrate within twenty-four hours. In the courtroom, reasonable belief is sought to be bolstered by the narrative in the 'case diary', together with witness statements and other material. Courts often rely on the gravity of the offence, and vague references to the role of the accused in the case diary, which may need further investigation, to grant extended remand.

In cases concerning the Delhi riots, the prosecution's case requesting extended remand is argued by rote: 'custodial interrogation of the accused is required to unearth the conspiracy and to confront with technical data and information collected during the investigation'. This hardly reflects reasonable belief, but at best a suspicion, which is causing an itch to further interrogate. The reference to an unnamed conspiracy, to be unearthed during custodial interrogation, is equally surprising because the general understanding in adversarial jurisdictions is that arrests should not be used as a tool to aid broad-spectrum investigations. As to the second part of the submission, Scottish investigators use their six hours to do precisely that: confront the suspect with carefully collated evidence in order to seek a possible explanation, since the law especially bars extended remand for such expositions.

Yet, there may be situations when an investigation is unwieldy and evolving (for instance, bullying students into naming other students and teachers who support public protests, such that you have a new 'suspect' every day and the investigation into the grand conspiracy carries on). In similar situations (for this exact scenario might cause a right royal scandal), England and Scotland have devised a concept where the suspect is 'released under investigation'- some restraints are put on free movement, through after-work curfews etc. – and the understanding is that the suspect may still be charged upon completion of investigation. This is in accordance with common law, where 'reasonable suspicion, belief or cause' is valid ground for arrest, but only for the briefest period, and to confirm the suspicion by putting it to the suspect. Common law arrest is to be continued only where there is sufficiency of evidence upon which to charge.

Contrary to common law principles, the police in India can be given custody of the accused person for up to fifteen days, at the end of which, police may still oppose release and ask for the accused to be sent into judicial remand, and still without having formally charged the accused. The statutory limit for formally charging, or deciding to not charge in the final report submitted before the magistrate is 90 days for serious offences under the Indian Penal Code, and up to six months under the 'security legislations'.

In practice that departs from common law traditions, it has become commonplace in India for suspects (against whom there isn't yet sufficient evidence to charge) to seek bail, instead of challenging the legality of their continued detention while the police gathers evidence. Elsewhere, such extended pre-charge detentions would be considered a perfidy.

The US Federal Court has also of course dealt with these questions: is it desirable to allow the taking into and continuance of custody of a person who cannot (yet) be charged with a crime? And if charged, is it desirable that the police are given further remand for in-custody investigation for the purpose of obtaining evidence sufficient for conviction? In Mallory v. United States [354 U.S. 449 (1957)], the US Supreme Court held that 'Presumably, whoever the police arrest, they must arrest on "probable cause". It is not the function of the police to arrest, as it were, at large and to use an interrogating process at police headquarters in order to determine whom they should charge before a committing magistrate on "probable cause".' The underlying assumption seems to be that standards for arresting on suspicion, and for charging are really the same and therefore detention for questioning without charge is not desirable. [Here, Mallory seems to have outdone the Scots even]. Mallory further holds that "the scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion, but only on "probable cause." The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible, so that he may be advised of his rights and so that the issue of probable cause may be promptly determined. The arrested person may, of course, be "booked" by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt."

Again it must be stated that Mallory too primarily dealt with the admissibility of a confession that was extracted in police custody, where the police had had every opportunity to first present the suspect before a committing magistrate but had not done so (Federal Law mandates the production of the arrestee before a magistrate without 'unncessary delay'). The Court felt that the police had been overzealous in trying to obtain the 'best evidence' and that had impacted the fairness of the trial.

But in the present Indian Context, Mallory is attractive also for its attempt to rebalance the investigative process. In these dystopian times, I am sometimes struck by odd thoughts: what if investigations are not even aimed at obtaining better evidence for trial, but rather to disrupt the lives of witnesses and suspects in the present? Who can tell – but I do wonder whether a complaint against a published article or a speech does not simply entail a determination in court of whether a crime has occurred in the first place, rather than long and sustained questioning of the author/publisher by the police? Or in relation to the recent Tuticorin custodial deaths, what could have been the purpose of custodial interrogation where the allegations simply involved breach of curfew by the accused in the presence of witnesses, and on CCTV camera. Why are there so many people in custody, apparently being interrogated, where none is required?

Mallory pertains to Federal Law alone. In a very detailed overview of state law and practice with respect to detentions for investigations, the author Lafave argues that contrary to Federal law laid down in Mallory, most states make a distinction between standards for arrest (reasonable suspicion) and standards for formally charging ('probable cause', which requires additional evidence to withstand judicial scrutiny) and therefore allow arrest without charge. Neither the legislatures, nor the courts have directly addressed the issue and thus there is no finite time limit to charge the suspect, but as per current practice it is expected to be a 'brief' period. State statutes prescribe different time limits for first appearance of the detainee before a magistrate, and in situations where the brief custody has not yielded sufficient evidence to charge, but the police is still hopeful that with extended custody they might find 'probable cause', she may extend the time for detention for questioning to up to 72 hours in some states. As LaFave convincingly shows through his analysis of cases, extended remand is granted in cases where there is a specific line of interrogation (or if something/ someone is awaited) that is expected to conclude the investigation and not for the purposes of a roving enquiry. If the police don't make any progress after a time, they will be obligated to release the suspect.

LaFave points out two further principles that weigh on the prosecutor's (and the Court's) mind when considering the question of detention: even at the time of the defendant's first appearance before the magistrate, when he is entitled to be released on bail, the prosecutor is expected to have made up her mind about whether to charge the defendant or not (even if she is asking for extended remand for further questioning before the defendant is actually charged), for it is considered improper for the prosecutor to oppose bail/ ask for further custody without having first decided whether to charge the suspect or not. Second, it is also considered improper to ask for custody post-charge since ' it is one thing to say that after a person has been taken into custody a brief period of investigation might be allowed where necessary to enable the prosecuting authorities to decide whether to charge or release; it is another to contend that the detention should continue while evidence sufficient to insure the suspect's conviction is gathered.'

India's criminal justice system, where until the time that the magistrate takes cognizance of the final investigative report submitted by the police, the process of investigation is not considered 'adversarial', actually most closely resembles the French inquisitorial system. In France, the conduct of criminal investigation is supervised by a judicial officer, who represents public interest and the 'search for truth' and is expected to ensure diligent and thorough investigations from the police, which might either exculpate or inculpate the suspect. The rights of the accused person are presumed to be naturally safeguarded through the supervisory presence of the magistrate.

However, writing about the actual state of supervision of investigative processes, Jacqueline Hodgson says that the thing that made it distinct from adversarial systems, where there is a 'premature fixation upon the guilt of the suspect, and the tendency to construct the case against her, and the pressure to obtain evidence' does not really exist on the ground. 'The supervision of the police is characterized more by trust than actual close supervision' (which sounds familiar to our contexts too). Hodgson records that 'the principal objective of supervision, which is understood in largely procedural terms, is the production of a legally coherent dossier of evidence that will stand up in court, rather than engagement with the enquiry while it is still ongoing. In this way, supervision is perhaps best characterized as being concerned with the outcome and the form of the police investigation rather than with its method'. France allows pre-charge detention for a period of 48 hours, and up to 6 days in the case of terrorist offences.

To conclude this rather long exposition on the company that we don't keep, I have three things to say.

• a)It may be argued that it isn't quite fair to compare 'Shetlands' (of about 70 people and 7000 sheep) with the gritty realities of everyday life of the overworked and underresourced criminal justice system in India. And I would agree. I do not for a moment think that the actual workings of the criminal justice system in the United Kingdom (far less in the US) are perfect. In Lord Carloway's review Report, there is a reference to a study which interviewed people who had been detained for questioning in Scotland. Short though the period may be, an overwhelming majority still described the experience as 'intolerable'. There are diverse reports in the UK and France that record the common investigative technique of establishing authority over suspects during questioning, through verbal aggresion. Institutionalized racism is a fact of life; BLM is still raging in the US in the aftermath of a very public murder. Yet, there are possibilities in engaging with the normative and comparing it with law as it stands today in India.

It may also be argued that the police may well 'charge' within 24 hours (keeping the option of supplemenatry chargesheets open), without making it any less difficult for the accused to obtain release pending trial. I concede that it might happen, in the same way as many other distortions in law and practice.

• b)Normative law in India – independent of its distortions – offers many significant protections that are not available in several other common law jurisdictions. Indeed, the duty upon the police to produce detainees in court within 24 hours, failing which the detention itself becomes illegal; the inadmissibility of confesisons made to the police; and most strikingly in terms of the visuals seen on US TV, the bar on handcuffing of suspects. Still, there exists in India a system of criminal investigation that may need further balancing in terms of the rights of suspects. We have inherited our criminal investigation system from the British, which thought of the colonial police less as detectives, rather more as a brute force to keep the public in check. Perhaps, the methods of investigation need to be reconsidered.

• c)It is also often argued that it is difficult to strike such a perfect balance in the face of serious security concerns. I believe that in making that a policy consideration when reviewing law and practice that restrains liberty, we are being the outliers. It has been demonstrated over time that harsh processes do not necessarily curb violence: they only result in detentions that are 'unwarranted', 'unproven' and 'legally highly problematic' [White Paper of the Working Group on Detentions without Trial, 2009]. Equally, law and practice that gives primacy to maintaining 'order' over individual liberties has in the past been seen to coincide with the consolidation of authoritarian and immoral regimes.