Why Are So Many In Custody, Apparently Being Interrogated, When None Required?

Over the past few months, I have spent the 바카라�lockdown바카라� nights reading detective fiction and watching crime shows on Netflix. I바카라�m partial to that genre: British crime dramas, and thrillers by John Le Carre (and only him). As the pandemic stretches indefinitely, and as summer peaks, I find myself turning to traditionally twisty murder mysteries set amidst comfortingly beautiful landscapes. 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, activists who have been summoned by the crime branch for some 바카라�baat-cheet바카라�.

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 witnesses바카라� homes to chat with them, form a narrative about the murder, identify a suspect바카라�and it바카라�s only when they gather enough independent evidence that 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, it바카라�d be less a traditional murder mystery, more a comment on the criminal justice system.

But I now know that it바카라�s as much to do with law as 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 90 days. Government reports on criminal justice reform have referred to the 바카라�culture of investigation바카라� among Scottish police, which does not rely on badgering suspects for information alone, while reiterating the desirability of brief timelines for questioning in detention.

Scotland, quite justifiably, prided itself on all the protections recognised in Scottish criminal law to ensure fair investigation and trial: recording of police interviews; inadmissibility of statements obtained through coercion; the requirement for corroboration of all statements made to the police; adverse inferences not being allowed to be drawn from 바카라�silence바카라�; and the limited duration of detention. At the same time, Scotland did not allow for the presence of solicitors during questioning of a suspect, which was considered an incivility. England and Wales had it, as did certain other common law jurisdictions like the US and Canada. Moreover, the European Convention for Human Rights recognised it too. Therefore, the United Kingdom Supreme Court ruled peremptorily in Cadder v. HM Advocate [(2010) UKSC 43], that 바카라�the guarantees otherwise available [under the Scottish system] are entirely commendable바카라�, but they couldn바카라�t be an excuse to exclude additional rights available under the European Convention.

It바카라�s important to note that Cadder was decided in the context of admissibility of evidence in trial of confessions and other statements obtained during interrogation in police custody. 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. However, the effect of the new law that introduces lawyers during questioning also impacts the balance of power during the process of investigation.

After the ruling in Cadder, changes were made to Scottish law and, as per the latest amendments of 2016, a custody officer shall review all requests for extension of custody beyond the first six hours, and grant a further six if it is shown by the investigating officer that keeping the suspect in custody is 바카라�necessary and proportionate바카라�. 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 바카라�terrorist바카라� offence.

The 2016 Act was based on Lord Carloway바카라�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 per cent detentions ended within six hours; the mean detention period was four hours; 15.7 per cent detentions exceeded six hours; less than 0.5 per cent detentions exceeded 12 hours (amounting to about 350 detentions annually).

A subtle difference between a Scottish crime show and a British one is that while the Scots keep saying 바카라�we don바카라�t have enough to bring him in for questioning바카라�, the English say 바카라�we will have to let him go; we don바카라�t have enough to charge him바카라�. The Police and Criminal Evidence Act (PACE), 1984, for England (and Wales) allows the police to detain suspects for questioning for 24 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.

Now there is 바카라�security바카라� 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: it바카라�s considered 바카라�an extended period of detention for terror suspects in order to allow the police to obtain, preserve, analyse or examine evidence for use in criminal proceedings바카라�.

Some might argue that really you바카라�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 among 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 바카라�lockdown바카라� months, a significant number of concerns relate to anxiety-inducing phone calls from the crime branch asking them to 바카라�come to the station바카라�.

바카라�Ma바카라�am, I asked what it was about and the IO (investigating officer) said, 바카라�North Delhi riots ke baare mein enquiry karni hai바카라�.바카라�

바카라�You바카라�re an accused?바카라� I ask.

바카라�Pata nahin, Ma바카라�am. He said, 바카라�aa jiyo warna likhit mein bula leinge, phir tum dekh lena바카라�! Ma바카라�am, then I said, 바카라�Sir, mera kya role hai?바카라�, and he said 바카라�naam aaya hai바카라�.바카라�

Occasionally, I exchange a text with my client in the late afternoon: 바카라�Everything ok?바카라� I ask. 바카라�Waiting Ma바카라�am. IO saheb is busy!바카라�

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. 바카라�If only you were in Scotland...,바카라� I think to myself.

Section 41A of the Code of Criminal Procedure gives a police officer the power to compel attendance of a suspect for questioning, where 바카라�a reasonable suspicion exists that he has committed a cognisable offence바카라�. So far so good! But at the same time Section 41 gives the power to the police officer to arrest the suspect on 바카라�reasonable belief바카라� made on the strength of a 바카라�reasonable complaint바카라� or 바카라�credible information received바카라�. In the UK, 바카라�reasonable belief바카라� 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 바카라�belief바카라� 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 24 hours. In the courtroom, 바카라�reasonable belief바카라� is sought to be bolstered by the narrative in the case diary, together with witness statements and other material. In cases concerning the Delhi riots, the prosecution바카라�s case requesting extended remand (at first appearance) is argued by rote: 바카라�Custodial interrogation of the accused is required to unearth the conspiracy and to confront with technical data and information collected during the investigation.바카라� This hardly reflects 바카라�reasonable바카라� belief, but at best a suspicion, which is causing an itch to interrogate further.

As to the second part of the submission, Scottish investigators use their six hours to 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 바카라�released under investigation바카라�바카라�some restraints are put on free movement, through after-work curfews etc바카라�and the understanding is that the suspect may still be charged upon completion of investigation. This is in accordance with common law, where 바카라�reasonable suspicion, belief or cause바카라� 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 15 days, at the end of which police may still oppose release and ask for the accused to be sent to 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 바카라�security legislations바카라�.

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? I 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?

I do not for a moment think that the actual workings of the criminal justice system in the UK are perfect. In Lord Carloway바카라�s report, there is a reference to a study that interviewed people who had been detained for questioning in Scotland. Short though the period may be, an overwhelming majority still described the experience as 바카라�intolerable바카라�. Yet, there are possibilities in engaging with the normative and comparing it with law as it stands today in India.

With gratitude to advocate Nitya Ramakrishnan for the discussion.

Alam is a Lawyer at the  Supreme Court of India. (Views expressed are personal )