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Ed Cape

University of the West of England, Bristol Law School, Faculty Member

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Professor of Criminal Law and Practice, and non-practising solicitor. I write Defending Suspects at Police Stations (6th edn., LAG, 2011), am a contributing author of Blackstone's Criminal Practice (OUP, annual), contribute case commentaries to Criminal Law Review, and write a bi-annual Police Station Law and Practice Update for the journal Legal Action. I have two studies of access to effective criminal defence in Europe, and recently published a book on a similar project in Latin America. I recently completed a European Commission funded empirical project examining the rights of suspects in police detention in four European jurisdictions, and a handbook on early access to legal aid commissioned by the UN Office on Drugs and Crime.
Phone: +441173282899
Address: Bristol Law School, University of the West of England, Coldharbour Lane, Bristol BS16 1QY, United Kingdom

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Books by Ed Cape

Effective Criminal Defence in Latin America

by Alberto Binder, Ed Cape, and Zaza Namoradze

The book reports the results of a research study on the procedural rights of suspscts and defenda... more The book reports the results of a research study on the procedural rights of suspscts and defendants in practice in six Latin American countries: Argentina, Brazil, Columbia, Guatemala, Mexico and Peru. The aim of the book is to inspire a constructive and effective programme of policies and actions for setting standards and guidelines, both nationally in the countries in the study, and regionally within the Organisation of American States and the Inter-American Commission of Human Rights.

Defensa penal efectiva en America Latina

This book, co-authored with Alberto Binder and Zaza Namoradze, is the outcome of a research proje... more This book, co-authored with Alberto Binder and Zaza Namoradze, is the outcome of a research project examining the criminal justice systems of Argentina, Brazil, Columbia, Guatemala, Mexico and Peru. The research was funded by the Open Society Foundations, and replicates the methodology originally developed for a study in Europe, Effective Criminal Defence in Europe, which was funded by the European Commission. The book is also available in English.

Early access to legal aid in criminal justice processes: a handbook for policymakers and practitioners

The handbook is intended as a practical guide to developing and implementing policies and program... more

Inside Police Custody: An empirical account of suspects' rights in four jurisdictions

An empirical study of the procedural rights of suspects in four European jurisdictions - England ... more An empirical study of the procedural rights of suspects in four European jurisdictions - England and Wales, France, the Netherlands and Scotland, funded by the European Commission. The study focuses on three of the rights set out in the European Union Roadmap for strengthening the procedural rights of suspected and accused persons in criminal procedings - the right to interpretation and translation, the right to information and the letter of rights, and the right of access to a lawyer before and during police interrogation, as well as the right to silence. The book also includes a training framework for police officers and lawyers across Europe.

Regulating Policing: The Police and Criminal Evidence Act 1984 Past, Present and Future

An edited collection examining the contribution of a major piece of legislation, the Police and C... more

Suspects in Europe: Procedural rights at the investigative stage of the criminal process in the European Union

Based on cross-jurisdictional research funded by the European Union, this book provides an insigh... more Based on cross-jurisdictional research funded by the European Union, this book provides an insight into the investigative stage of the criminal process and, in particular, the legal protection of persons suspected of crime, in Belgium, England and Wales, Germany, Greece, Italy, the Netherlands and Poland. The book aims to provide a nuanced understanding of how the investigative stage of teh criminal process operates in a variety of EU jurisdictions, and to contribute to the development of EU policy in this field

Effective criminal defence in Europe

This book is based on a three year research study of access to effective criminal defence in nine... more This book is based on a three year research study of access to effective criminal defence in nine European countries, which was funded by the EU. It explores and compares access to effective criminal defence in a range of countries representing the three major legal traditions in Europe; inquisitorial, adversarial, and post-state socialist.

Defending Suspects at Police Stations

A comprehensive guide to law and practice for lawyers advising detainees at police stations in En... more

Effective Criminal Defence in Eastern Europe

"This book is devoted to criminal defence in Eastern Europe, based on a research project conducte... more "This book is devoted to criminal defence in Eastern Europe, based on a research project conducted in Bulgaria, Georgia, Lithuania, Moldova and Ukraine during 2010 and 2011.The book starts with an analysis of the key requirements and standards concerning effective criminal defence according to the European Convention on Human Rights, the case-law of the European Court of Human Rights, and legislation under the European Union’s procedural rights ‘roadmap’. Each country in the study is the subject of a separate chapter describing and analysing laws, institutions, processes, practices and attitudes relating to effective criminal defence, and concluding with recommendations for improving access to effective defence as an essential element of the right to fair trial. The data from the five countries is then subjected to a cross-jurisdictional analysis of compliance with European standards including, where relevant, reference to the fi ndings of the original nine country study.

"

Improving pretrial justice: The roles of lawyers and paralegals

"Using evidence from around the world, this book seeks to demonstrate that early intervention by ... more "Using evidence from around the world, this book seeks to demonstrate that early intervention by lawyers and paralegals can have a positive impact on pretrial justice in general, and pretrial detention in particular. The evidence shows that early intervention schemes can reduce the use of pretrial detention, improve the performance of criminal justice personnel, lead to more rational and effective decision-making, and increase accountability and respect for the rule of law.

"

Papers by Ed Cape

Pre-trial detention: a system designed to make mistakes?

by Thomas Smith and Ed Cape

England and Wales has a pre-trial detention system which results in thousands of people being unn... more England and Wales has a pre-trial detention system which results in thousands of people being unnecessarily imprisoned pending trial or sentence, and which does not have the confidence of a significant proportion of criminal defence lawyers. It might fairly be characterised as a system which is designed to make mistakes. This article considers the current problems, as highlighted in a recent empirical study conducted by the authors.

Cape, Ed and Smith, T. (2016) The practice of pre-trial detention in England and Wales: Research report

by Ed Cape and Thomas Smith

This study of pre-trial detention (PTD) decision-making in England and Wales is part of a 10 coun... more This study of pre-trial detention (PTD) decision-making in England and Wales is part of a 10 country study funded by the European Commission, and managed by Fair Trials. The authors conducted a defence lawyer survey, observed PTD hearings, examined CPS files, and interviewed judges, magistrates and Crown prosecutors, between November 2014 and June 2015. The information obtained provides important insights into the way in which PTD is regulated and how that works in practice, and the authors make a number of significant recommendations designed to improve the decision-making process and reduce the inappropriate use of PTD.

The Practice of Pre-trial Detention in England and Wales

This study of pre-trial detention (PTD) decision-making in England and Wales is part of a 10 coun... more This study of pre-trial detention (PTD) decision-making in England and Wales is part of a 10 country study funded by the European Commission, and managed by Fair Trials. The authors conducted a defence lawyer survey, observed PTD hearings, examined CPS files, and interviewed judges, magistrates and Crown prosecutors, between November 2014 and June 2015. The information obtained provides important insights into the way in which PTD is regulated and how that works in practice, and the authors make a number of significant recommendations designed to improve the decision-making process and reduce the inappropriate use of PTD.

What if police bail was abolished?

This paper presents an argument for the abolition of police bail without charge. The police have ... more This paper presents an argument for the abolition of police bail without charge. The police have extensive powers to release on bail a person who they have arrested, without charging them with an offence. Moreover, they have extensive powers to attach conditions to that bail. There is no time limit on the period for which a person can be bailed, and little judicial oversight. These powers can have severe detrimental effects on persons bailed, and yet are almost unenforceable - and there is little or no evidence of their efficacy. The paper argues that government plans to regulate police bail are unlikely to be effective, that powers to impose conditions should be abolished, and that bail without charge should be limited to 14 days.

Transposing the EU Directive on the right to information: A firecracker or a damp squib?

Criminal Law Review, Jan 2015

The article examines the transposition of the EU Directive on the right to information in crimina... more The article examines the transposition of the EU Directive on the right to information in criminal proceedings into English law, examining revisions to the PACE Code of Practice C. It concludes that whilst the Directive has substantially been incorporated into domestic law, its impact will depend upon the approaches taken by the police and the judiciary.

The right of access to a lawyer at police stations: Making the European Union Directive work in practice

by Ed Cape and Jacqueline Hodgson

New Journal of European Criminal Law, Dec 2014

Drawing on recent empirical research, the article examines the conditions necessary for effective... more

The Counter-Terrorism Provisions of the Protection of Freedoms Act 2012: Preventing Misuse or a Case of Smoke and Mirrors?

Criminal Law Review, May 2013

This article examines two major provisions of the Protection of Freedoms Act 2012 concerning terr... more This article examines two major provisions of the Protection of Freedoms Act 2012 concerning terrorism: the reduction in the maximum period of pre-charge detention; and revision of the Terrorism Act stop and search powers. It argues that whilst the changes are broadly to be welcomed, their effects are likely to be relatively limited.

Police Bail Without Charge: The Human Rights Implications

Cambridge Law Journal, 69 (3). 529 -560, 2011

Whilst the power of the police to release a person on bail prior to trial has existed for centuri... more Whilst the power of the police to release a person on bail prior to trial has existed for centuries, the power to release on bail a person suspected of but not charged with a criminal offence has been available to the police only since 1925. The power to attach conditions to pre-charge bail is of very recent origin, having been introduced for the first time in 2003 but rapidly expanded since then. Whilst imposing restrictions on the liberty of a person should, constitutionally, be reserved to the judiciary, the fact that it was originally conceived, in part at least, as a mechanism for enhancing liberty reduced the constitutional tension created by allowing members of the executive such powers. However, the changing role of arrest in the investigation of crime and the granting of extensive powers to the police to impose bail conditions means that the police now have the ability to place controls on people not charged with a criminal offence for extended periods of time. It is argued here that this is in breach of the right to liberty under Article 5 of the European Convention on Human Rights and, in practice, may also breach other Convention rights.

Rebalancing the criminal justice process: Ethical challenges for criminal defence lawyers

Legal Ethics (1). pp. 56-79. ISSN 1460-728X , 2006

This article considers the ethical obligations of criminal defence lawyers in the context of sign... more This article considers the ethical obligations of criminal defence lawyers in the context of significant change to the criminal process in England and Wales. It argues that since coming to power in 1997 the government has been engaged in a programme of changing the criminal justice system from one based upon the principle of fair trial rights to one based on managerialist values, an agenda that has been endorsed and supported by some members of the senior judiciary. Using examples taken from legislation and case-law, it demonstrates that defence lawyers are increasingly being prevented from acting in the best interests of their clients. Current, and proposed, professional conduct rules fail to adequately articulate and prioritise the relationship between the lawyer's obligation to the client and to the court, with the result that lawyers are left to resolve ethical dilemmas created or exacerbated by the transformation of the criminal process without adequate ethical guidance. It proposes that the legal professions should challenge the government's plans to transform the criminal process, and refashion professional conduct rules around human rights values.

The Protection of Freedoms Act 2012: The retention and use of biometric data provisions

Criminal Law Review, 2013

The article examines the retention and use of biometric data provisions of the Protection of Free... more The article examines the retention and use of biometric data provisions of the Protection of Freedoms Act 2012, in the context of the expansion of police powers to take biometric samples, the adverse ECtHR decision in S and Marper v UK, and the New Labour government's response. Following an analysis of the new provisions, it considers whether they are likely to be compliant with the ECHR.

Effective Criminal Defence in Latin America

by Alberto Binder, Ed Cape, and Zaza Namoradze

The book reports the results of a research study on the procedural rights of suspscts and defenda... more The book reports the results of a research study on the procedural rights of suspscts and defendants in practice in six Latin American countries: Argentina, Brazil, Columbia, Guatemala, Mexico and Peru. The aim of the book is to inspire a constructive and effective programme of policies and actions for setting standards and guidelines, both nationally in the countries in the study, and regionally within the Organisation of American States and the Inter-American Commission of Human Rights.

Defensa penal efectiva en America Latina

This book, co-authored with Alberto Binder and Zaza Namoradze, is the outcome of a research proje... more This book, co-authored with Alberto Binder and Zaza Namoradze, is the outcome of a research project examining the criminal justice systems of Argentina, Brazil, Columbia, Guatemala, Mexico and Peru. The research was funded by the Open Society Foundations, and replicates the methodology originally developed for a study in Europe, Effective Criminal Defence in Europe, which was funded by the European Commission. The book is also available in English.

Early access to legal aid in criminal justice processes: a handbook for policymakers and practitioners

The handbook is intended as a practical guide to developing and implementing policies and program... more

Inside Police Custody: An empirical account of suspects' rights in four jurisdictions

An empirical study of the procedural rights of suspects in four European jurisdictions - England ... more An empirical study of the procedural rights of suspects in four European jurisdictions - England and Wales, France, the Netherlands and Scotland, funded by the European Commission. The study focuses on three of the rights set out in the European Union Roadmap for strengthening the procedural rights of suspected and accused persons in criminal procedings - the right to interpretation and translation, the right to information and the letter of rights, and the right of access to a lawyer before and during police interrogation, as well as the right to silence. The book also includes a training framework for police officers and lawyers across Europe.

Regulating Policing: The Police and Criminal Evidence Act 1984 Past, Present and Future

An edited collection examining the contribution of a major piece of legislation, the Police and C... more

Suspects in Europe: Procedural rights at the investigative stage of the criminal process in the European Union

Based on cross-jurisdictional research funded by the European Union, this book provides an insigh... more Based on cross-jurisdictional research funded by the European Union, this book provides an insight into the investigative stage of the criminal process and, in particular, the legal protection of persons suspected of crime, in Belgium, England and Wales, Germany, Greece, Italy, the Netherlands and Poland. The book aims to provide a nuanced understanding of how the investigative stage of teh criminal process operates in a variety of EU jurisdictions, and to contribute to the development of EU policy in this field

Effective criminal defence in Europe

This book is based on a three year research study of access to effective criminal defence in nine... more This book is based on a three year research study of access to effective criminal defence in nine European countries, which was funded by the EU. It explores and compares access to effective criminal defence in a range of countries representing the three major legal traditions in Europe; inquisitorial, adversarial, and post-state socialist.

Defending Suspects at Police Stations

A comprehensive guide to law and practice for lawyers advising detainees at police stations in En... more

Effective Criminal Defence in Eastern Europe

"This book is devoted to criminal defence in Eastern Europe, based on a research project conducte... more "This book is devoted to criminal defence in Eastern Europe, based on a research project conducted in Bulgaria, Georgia, Lithuania, Moldova and Ukraine during 2010 and 2011.The book starts with an analysis of the key requirements and standards concerning effective criminal defence according to the European Convention on Human Rights, the case-law of the European Court of Human Rights, and legislation under the European Union’s procedural rights ‘roadmap’. Each country in the study is the subject of a separate chapter describing and analysing laws, institutions, processes, practices and attitudes relating to effective criminal defence, and concluding with recommendations for improving access to effective defence as an essential element of the right to fair trial. The data from the five countries is then subjected to a cross-jurisdictional analysis of compliance with European standards including, where relevant, reference to the fi ndings of the original nine country study.

"

Improving pretrial justice: The roles of lawyers and paralegals

"Using evidence from around the world, this book seeks to demonstrate that early intervention by ... more "Using evidence from around the world, this book seeks to demonstrate that early intervention by lawyers and paralegals can have a positive impact on pretrial justice in general, and pretrial detention in particular. The evidence shows that early intervention schemes can reduce the use of pretrial detention, improve the performance of criminal justice personnel, lead to more rational and effective decision-making, and increase accountability and respect for the rule of law.

"

Pre-trial detention: a system designed to make mistakes?

by Thomas Smith and Ed Cape

England and Wales has a pre-trial detention system which results in thousands of people being unn... more England and Wales has a pre-trial detention system which results in thousands of people being unnecessarily imprisoned pending trial or sentence, and which does not have the confidence of a significant proportion of criminal defence lawyers. It might fairly be characterised as a system which is designed to make mistakes. This article considers the current problems, as highlighted in a recent empirical study conducted by the authors.

Cape, Ed and Smith, T. (2016) The practice of pre-trial detention in England and Wales: Research report

by Ed Cape and Thomas Smith

This study of pre-trial detention (PTD) decision-making in England and Wales is part of a 10 coun... more This study of pre-trial detention (PTD) decision-making in England and Wales is part of a 10 country study funded by the European Commission, and managed by Fair Trials. The authors conducted a defence lawyer survey, observed PTD hearings, examined CPS files, and interviewed judges, magistrates and Crown prosecutors, between November 2014 and June 2015. The information obtained provides important insights into the way in which PTD is regulated and how that works in practice, and the authors make a number of significant recommendations designed to improve the decision-making process and reduce the inappropriate use of PTD.

The Practice of Pre-trial Detention in England and Wales

This study of pre-trial detention (PTD) decision-making in England and Wales is part of a 10 coun... more This study of pre-trial detention (PTD) decision-making in England and Wales is part of a 10 country study funded by the European Commission, and managed by Fair Trials. The authors conducted a defence lawyer survey, observed PTD hearings, examined CPS files, and interviewed judges, magistrates and Crown prosecutors, between November 2014 and June 2015. The information obtained provides important insights into the way in which PTD is regulated and how that works in practice, and the authors make a number of significant recommendations designed to improve the decision-making process and reduce the inappropriate use of PTD.

What if police bail was abolished?

This paper presents an argument for the abolition of police bail without charge. The police have ... more This paper presents an argument for the abolition of police bail without charge. The police have extensive powers to release on bail a person who they have arrested, without charging them with an offence. Moreover, they have extensive powers to attach conditions to that bail. There is no time limit on the period for which a person can be bailed, and little judicial oversight. These powers can have severe detrimental effects on persons bailed, and yet are almost unenforceable - and there is little or no evidence of their efficacy. The paper argues that government plans to regulate police bail are unlikely to be effective, that powers to impose conditions should be abolished, and that bail without charge should be limited to 14 days.

Transposing the EU Directive on the right to information: A firecracker or a damp squib?

Criminal Law Review, Jan 2015

The article examines the transposition of the EU Directive on the right to information in crimina... more The article examines the transposition of the EU Directive on the right to information in criminal proceedings into English law, examining revisions to the PACE Code of Practice C. It concludes that whilst the Directive has substantially been incorporated into domestic law, its impact will depend upon the approaches taken by the police and the judiciary.

The right of access to a lawyer at police stations: Making the European Union Directive work in practice

by Ed Cape and Jacqueline Hodgson

New Journal of European Criminal Law, Dec 2014

Drawing on recent empirical research, the article examines the conditions necessary for effective... more

The Counter-Terrorism Provisions of the Protection of Freedoms Act 2012: Preventing Misuse or a Case of Smoke and Mirrors?

Criminal Law Review, May 2013

This article examines two major provisions of the Protection of Freedoms Act 2012 concerning terr... more This article examines two major provisions of the Protection of Freedoms Act 2012 concerning terrorism: the reduction in the maximum period of pre-charge detention; and revision of the Terrorism Act stop and search powers. It argues that whilst the changes are broadly to be welcomed, their effects are likely to be relatively limited.

Police Bail Without Charge: The Human Rights Implications

Cambridge Law Journal, 69 (3). 529 -560, 2011

Whilst the power of the police to release a person on bail prior to trial has existed for centuri... more Whilst the power of the police to release a person on bail prior to trial has existed for centuries, the power to release on bail a person suspected of but not charged with a criminal offence has been available to the police only since 1925. The power to attach conditions to pre-charge bail is of very recent origin, having been introduced for the first time in 2003 but rapidly expanded since then. Whilst imposing restrictions on the liberty of a person should, constitutionally, be reserved to the judiciary, the fact that it was originally conceived, in part at least, as a mechanism for enhancing liberty reduced the constitutional tension created by allowing members of the executive such powers. However, the changing role of arrest in the investigation of crime and the granting of extensive powers to the police to impose bail conditions means that the police now have the ability to place controls on people not charged with a criminal offence for extended periods of time. It is argued here that this is in breach of the right to liberty under Article 5 of the European Convention on Human Rights and, in practice, may also breach other Convention rights.

Rebalancing the criminal justice process: Ethical challenges for criminal defence lawyers

Legal Ethics (1). pp. 56-79. ISSN 1460-728X , 2006

This article considers the ethical obligations of criminal defence lawyers in the context of sign... more This article considers the ethical obligations of criminal defence lawyers in the context of significant change to the criminal process in England and Wales. It argues that since coming to power in 1997 the government has been engaged in a programme of changing the criminal justice system from one based upon the principle of fair trial rights to one based on managerialist values, an agenda that has been endorsed and supported by some members of the senior judiciary. Using examples taken from legislation and case-law, it demonstrates that defence lawyers are increasingly being prevented from acting in the best interests of their clients. Current, and proposed, professional conduct rules fail to adequately articulate and prioritise the relationship between the lawyer's obligation to the client and to the court, with the result that lawyers are left to resolve ethical dilemmas created or exacerbated by the transformation of the criminal process without adequate ethical guidance. It proposes that the legal professions should challenge the government's plans to transform the criminal process, and refashion professional conduct rules around human rights values.

The Protection of Freedoms Act 2012: The retention and use of biometric data provisions

Criminal Law Review, 2013

The article examines the retention and use of biometric data provisions of the Protection of Free... more The article examines the retention and use of biometric data provisions of the Protection of Freedoms Act 2012, in the context of the expansion of police powers to take biometric samples, the adverse ECtHR decision in S and Marper v UK, and the New Labour government's response. Following an analysis of the new provisions, it considers whether they are likely to be compliant with the ECHR.

50th anniversary article: The rise (and fall?) of a criminal defence profession

Criminal Law Review, 50th A. pp. 401-416. , 2004