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Two detectives from the BBC series The Detectives

The Detectives

This series offers frontline insight into Greater Manchester Police's battle against organised crime.

About the programme

A series filmed over two years with unprecedented access to Greater Manchester Police, offering frontline insight into one police force's battle against organised crime.

The first two episodes of The Detectives: Fighting Organised Crime were broadcast at 9pm on Tuesday 23rd and 30th March 2021 on BBC Two. Full broadcast details and links to watch on BBC iPlayer can be found on the BBC programme pages .

Discover the range of qualifications and modules from the OU related to this programme:

A picture of the city of Manchester, taken at night

Richard Heyes from Tecmark via Flickr under Creative-Commons license

Staying silent during a police interview.

What happens if a suspect refuses to answer questions when interviewed under police caution? This article explores the legal effect of using a “no comment” response in criminal proceedings.

Question mark against a concrete background

A striking feature of The Detectives: Series 3 is the multiple use of the phrase “no comment” during the police interviews. The persistent and probing questions of the detectives were met by an equally determined refusal by the murder and kidnap suspects to provide an answer to even the most basic factual questions.

Viewers of the two documentary programmes, which follow the work of Greater Manchester Police’s Major Incident Team, may have felt increasingly frustrated that suspects in very serious criminal investigations refused to answer questions, a frustration that was no doubt shared by the team of detectives working on the cases.

How does the law treat a refusal to answer questions when being interviewed by police? Is staying silent a way for those responsible for criminal acts to escape being convicted?

Nothing said - Speech bubble with ...

Although there are sound legal reasons for protecting a suspect’s right to refuse to answer questions, the law does try to strike a balance between the interests of the individual under suspicion and the wider public interest of ensuring those guilty of criminal conduct are convicted.

The basic starting point of the legal approach to “no comment” comes from the common law of England and Wales. This acknowledges that we all have a right to silence, which is sometimes referred to as the privilege against self-incrimination. This means that individuals who are subject to criminal proceedings can’t be compelled to answer questions at trial.

Legal scales graphic on a concrete background

This protection is seen as a key plank in ensuring a fair trial, a right that is recognised in Article 6 of the European Convention on Human Rights . There have been a number of occasions where vulnerable suspects  have made a confession under questioning which has led to a conviction later to be ruled unsafe. A series of miscarriages of justice including The Guildford Four (1974); The Birmingham Six (1975); The Maguire Seven (1976) and Judith Ward (1974), several involving false confessions, led to the establishment of the Criminal Cases Review Commission  by the Criminal Appeal Act 1995 which investigates claims of unsafe convictions.

However, as with many legal rights protecting individuals, limitations have been imposed on the right to silence in order to strike a balance with the wider public interest. Section 34 of the Criminal Justice and Public Order Act 1994  allows for ‘adverse inferences ’ to be made by a court when determining the guilt of a suspect who remains silent, but later relies on information she has could reasonably be expected to provide when interviewed under caution. For example, where a defendant answers “no comment” to questioning in a police interview and later offers an alibi during the trial, it is permissible for the prosecution to cast doubt on the reliability of their evidence on the basis that if it was true, the defendant could reasonably have mentioned it during questioning.

So, although the legal right to rely on a “no comment” response to questions in a police interview is one that may cause frustration for investigators and TV viewers, the provisions on adverse inference aim to ensure that it isn’t also a cause of injustice.

A gavel against a black background

How does a court decide a sentence?

How do judges decide what sentence to give those found guilty of criminal offences in England and Wales? This article outlines the key principles that guide judges in their decision making.

At the end of both episodes of Series 3 of the BBC/Open University documentary The Detectives we learn who was convicted for the very serious crimes investigated in the programmes. Not all the suspects are found guilty, and those who were received a very wide range of sentences, some facing one or two years in prison, whilst others received as much as 36 years; a remarkably lengthy sentence for a UK court.  

A judges gavel
Judges and magistrates do not have unlimited discretion regarding the type or length of sentence they pass...

Sentencing is the responsibility of the judges and magistrates who work in the criminal justice system. Magistrates sit in Magistrates Courts , dealing with minor criminal matters and have limited sentencing powers, whereas more serious offences are dealt with by judges in Crown Courts . How do judges and magistrates decide what sentence to give those found guilty of criminal offences?

Judges and magistrates do not have unlimited discretion regarding the type or length of sentence they pass but are guided by a large body of legal rules and guidance intended to shape their decision-making process. A key part of this is the provision in section 142 of the Criminal Justice Act 2003  where Parliament has outlined the key purposes that should be considered when deciding a sentence:

  • the punishment of offenders
  • the reduction of crime (including its reduction by deterrence)
  • the reform and rehabilitation of offenders
  • the protection of the public
  • the making of reparation by offenders to persons affected by their offences.

A thief looks into a car

In addition to this guidance, judges and magistrates have to pass a sentence that is within the permitted maximum for the particular offence. Unsurprisingly, this can vary widely depending on the nature of the criminal act. For example, section 7 of  the Theft Act 1968  tells judges that the maximum possible sentence for theft is seven years imprisonment, whereas the Dangerous Dogs Act 1991  states that up to a six month prison sentence can be given to a dog owner whose dog is dangerously out of control.  

A prisoner's silhouette from behind

Photo by Donald Tong from Pexels

In addition to any relevant statutory limits on the maximum sentence, judges are also given detailed guidance on what factors to consider when deciding on the length of the sentence. Such guidance will outline significant aggravating and mitigating factors. These might include the personal circumstances of the defendant, their previous record, the level of harm caused to the victim and whether or not they admitted their guilt. For example, the Sentencing Council  provides guidance for determining the length of a sentence for theft. These state that a longer sentence should be passed if the value of the object stolen was over £100,000 or if there was a significant breach of trust or threats or intimidation were used. A shorter sentence is likely where little or no planning is in evidence or the defendant was intimidated by another party into committing the offence.

The most severe sentence available to a UK court is a life sentence which applies to the whole of the defendant’s life, although normally not all of the sentence is served in prison as the offender may be released on licence . The court can set a minimum period before which a prisoner serving a life sentence cannot be considered for release from custody. For the most serious crimes, the Sentencing Act 2020  provides that the court is able to pass a life sentence with a whole life order, which means the offender will never be released from prison. Ministry of Justice  figures show that as of December 2020 there are 60 whole life prisoners in England and Wales, out of a total prison population of 78,000.

So, although the sentences given to the suspects in the TV programmes were decided by a judge, the surprisingly large variety in the length of the sentence is due to the need to follow the legal guidelines and to weigh up the particular aggravating and mitigating circumstances relevant to each defendant.

Murder and the mental state of the defendant

How does the law treat defendants who suffer from conditions which impair their mental functioning? What if this has been impaired through voluntary intoxication?

The early episodes of The Detectives: Murder on the Streets show the Manchester Major Incident Team painstakingly assemble evidence that will be used to support the prosecution case for the murder of Daniel Smith.

Daniel had been brutally attacked in a make shift homeless camp situated under railway arches in Manchester. As the narrative unfolds it becomes clear that Spice, a form of synthetic cannabis, had been widely used by members of the homeless community living at this site, as well as by those who are suspected of involvement in the attack. The implication is that those who are responsible for Daniel’s murder may have acted under the influence of this potent psychoactive substance.

Can it be a defence to a charge to murder to argue that the defendant didn’t intend to kill or harm the victim, but acted as they did because they were under the influence of alcohol or a drug like Spice?

To understand how the law treats defendants who perform criminal acts whilst under the influence of substances that effect their mental state it is helpful to tease out the elements of criminal liability. To be found guilty of murder it must be shown that a defendant has carried out both the relevant physical action, in addition to having the relevant state of mind. Lawyers often use the Latin phrases actus reus (guilty action) and mens rea (guilty mind) as short hand for this principle. To be guilty of murder a defendant must have both the relevant actus reus (causing the death of a human being) and the relevant mens rea (either the intention to kill, or the intention to cause serious harm).

Courts have long wrestled with the issue of how to treat defendants who have performed the actus reus, but whose mental state has been affected by illness or intoxication, or most perhaps even a combination of both.

Can it be a defence to a charge to murder to argue that the defendant didn’t intend to kill or harm the victim, but acted as they did because they were under the influence of alcohol or a drug like Spice?

The mental state of a defendant

Photo by Abbat on Unsplash

The law does recognise that there are circumstances when, even though a defendant has performed an act that would normally be considered criminal, they should not be convicted of any offence. For example if a defendant’s action is entirely involuntary she may rely on the defence of automatism. Automatism will only work as a defence to a criminal charge if the defendant has acted without any consciousness of what is being done and is therefore performed involuntarily. Examples include involuntary actions resulting from concussion after a blow to the head, involuntary movements of an anaesthetised patient or the effects experienced by a diabetic who fails to eat after taking insulin.

However if the action results from a ‘disease of the mind’ then the related defence of insanity may apply, as provided by the Trial of Lunatics Act 1883 . Although a successful defence of automatism will result in an acquittal, if defendant is found not guilty by reason of insanity the court has the authority to detain the defendant for treatment for their mental illness. Insanity has been used as a defence where defendants have been suffering from conditions which impact upon mental functioning such as schizophrenia, epilepsy and even sleepwalking. 

Voluntary Intoxication

Discarded Heineken beer bottle

Photo by hitesh choudhary from Pexels

Although the law is sympathetic to defendants who act without the required mens rea, due to mental conditions for which they are blameless, it takes a less than sympathetic view to defendants who impair their mental state by voluntary intoxication through drink or drugs.

Obviously allowing criminal acts to go unpunished merely because a defendant was acting under the influence of drink or drugs would not be in the public interest. However, in some circumstances, voluntary intoxication can reduce the level of criminal liability. This is because voluntary intoxication can work as a defence to crimes of specific intention.

Most criminal offences are offences of basic intent, which means that the mens rea requires either an intention or recklessness to cause the prohibited outcome. A specific intent crime is one where recklessness is not sufficient for the mens rea. Murder is an example of a specific intent crime as the mens rea requires either an intention to kill, or an intention to cause serious harm.

Therefore if a defendant charged with murder can show that, due to taking drink or drugs, she was unable to form the intention to kill or cause serious harm then voluntary intoxication could be used as a defence. However, in such circumstances it is likely that the defendant would still be guilty of manslaughter.

Critics argue that the current state of the law in this area is confusing and is ripe for reform and modernisation.  The Law Commission  have begun the process of reviewing this area of law and have published several documents on the work they have conducted so far, which is an excellent place to start if you would like to learn more about how a defendant’s mental state can impact on their criminal liability.

Meet the OU experts

Dr Zoe WalkingtonSenior Lecturer, Psychology - Deputy Director for Learning, Centre for Policing Research and Learning. VIEW FULL PROFILE
Dr Zoe WalkingtonSenior Lecturer, Psychology - Deputy Director for Learning, Centre for Policing Research and Learning.

I have worked as a full time psychology lecturer since 2003, and I started working with the Open University as an Associate Lecturer in 2004. In 2013 I obtained my PhD in Forensic Psychology at the University of Liverpool, and I obtained a position working full time for the Open University as a Staff Tutor in late 2014.

I am currently working on the Citizen Forensics project grant which looks at how Citizens can collaborate with police and other services through online tools. 

My other research interests include; how narrative strategy and interviewee bias can influence investigative interviewing - and the impacts that reading can have on individuals psychologically, and how story can be used to 'create' or inform individuals identity. For example, how police identity is created and shaped on Facebook sites. 

A picture of Francine Ryan
Francine RyanSenior Lecturer in Law - The Faculty of Business & LawVIEW FULL PROFILE
A picture of Francine Ryan
Francine RyanSenior Lecturer in Law - The Faculty of Business & Law

My research centres around gender and the law, in particularly examining how the criminal legal system deals with vulnerable witnesses and upon the intersection of gender, criminal law and professional regulation.

I also have an interest in legal education and considering the growth of different pedagogies and practices, including clinical legal education and how that influences the employability agenda and the changing legal services market on UK legal education. I am Director of The Open University Law Clinic and part of the Open Justice Centre. I am the co-lead editor of the Journal of Commonwealth Legal Education.

This work is all closely connected to OU teaching projects. I was a member of the module team on W203- Public and Criminal law, and W350 Exploring legal boundaries and was responsible for writing on sexual offences and vulnerable witnesses.

A photograph of Hugh McFaul
Hugh McFaulLecturer in Law - Faculty of Business and LawVIEW FULL PROFILE
A photograph of Hugh McFaul
Hugh McFaulLecturer in Law - Faculty of Business and Law

I have research interests in human rights law including freedom of religion with a focus on religious freedom for minority religions in Eastern Europe. Additionally, I am conducting research on virtue ethics theory and its impact on legal ethics education practices.

I have extensive experience of teaching criminal law and have developed an innovative partnership arrangement with UK prisons to promote legal literacy amongst prison learners. This has included jointly produced prison radio programmes, prison based seminars and legal research events.


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