Law in Policing: Legal Regulation and Police Practices

By David Dixon | Go to book overview

4
Detention for Questioning in
England and Wales

to appreciate the dynamic is to be able to recognize the opportunity to affect it ( Rothman 1980: 11).

A central argument of this book is that legal regulation and policing practices are inextricably entwined: their relationship is interactive, one cannot be understood without the other. This theme will be explored in this and the following chapter through examining in some detail the relationship between a key policing practice--detention for questioning--and its legal regulation in two jurisdictions, England and Wales and New South Wales.1 In each case, historical analysis will be followed by consideration of research into current policing practices. This comparison focuses on how two jurisdictions which began from the same legal basis (the common law's insistence that an arrested person should be taken without delay before a magistrate, thereby effectively proscribing custodial interrogation before charge) developed differently in providing legal powers to the police. The analyses begin with discussion of crucial cases in which the legality of detention for questioning was considered.


i. Judicial Approval of Custodial Interrogation

In England and Wales, the courts constructed a power to detain for questioning out of 'common sense', gaps and inferences in the law, perceived policy requirements, and historical misinterpretation. The crucial decisions were Dallison v. Caffery2 and Holgate-Mohammedv. Duke

____________________
1
In contrast, the length of pre-charge detention has not been a significant legal issue in the US despite Mallory v. US 354 US 449 ( 1957); cf. Barrett 1962. Attention has concentrated on Miranda warnings ( Bradley 1993: 102-3).
2
[ 1964] 2 All ER 610.

-126-

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