2. Preliminaries to prosecution Flashcards
What are the PACE Codes of practice?
PACE codes of practice regulate the investigatory powers of the police.
What is PACE?
Pace is the Police and Criminal Evidence Act 1984 which largely regulates powers of the police.
What will happen if the codes are not complied with?
- Fail to comply will not straight away result in liability to civil/criminal proceedings.
- Codes are admissible in evidence, however.
- Therefore, there may be consequences such as to evidence admissibility gathered during the investigation.
Definition of an interview
Questioning of a person regarding their involvement or suspected involvement in a criminal offence(s) which, under para 10.1 of CODE C, must be carried out under caution.
Where no caution is required, it will not be an interview.
Even if the person has not been arrested, it will count as an interview.
Furthermore, a caution must be given if the person is questioned about an offence other than which they have been arrested if there are grounds to suspect a person of it.
Where should an interview take place?
Generally, a police station.
This is not so where delay would likely:
a. lead to interference with or harm to evidence connected with an offence, interference with or harm to other persons, or serious loss of or damage to property.
b. lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it.
c. hinder the recovery of of property obtained in consequence of the commission of an offence
Interviewing in these circumstances must cease if the risk has been averted.
Can suspects be interviewed via live link?
Yes, but that officer has the same duties under PACE as an officer who is there.
When does a caution need to be administered?
When there are grounds for suspecting a person to have committed a criminal offence.
- At arrest.
- At commencement of interview.
- At recommencement of interview.
When are there grounds for suspecting a person to have committed a criminal offence?
There must be some reasonable, objective grounds for the suspicion, based on known facts or information.
This is an objective question.
Where officers are unaware of a law that may give rise to a suspicion, they are taken to not have one.
When does a caution not have to be administered?
Questioning:
- Solely to establish identity/ownership of a vehicle
- To obtain information in accordance with a statutory requirement
- In furtherance of the proper and effective conduct of a search
- To seek verification of a written record of comments made by a person outside of interview.
What are the words of the caution?
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.
Does the caution need to be perfect?
No, so long as the essence of the caution is kept. The officer can explain in their own words.
What is the consequence of a breach of the requirement to caution?
Evidence might be excluded.
What are the words of the alternaltive caution, and why would this be issued?
You do not have to say anything, but anythign you do say may be given in evidence.
This is for where:
- A suspect is interviewed after charge.
- The suspect has requested a solicitor but has not been permitted to see one.
This is because there will be no ability to draw an inference.
What must happen before an interview?
- Suspect is cautioned.
- Them and their legal advisor should be given sufficient information to allow them to understand the nature of the suspected offence and why they are suspected.
- The suspect must be told before an interview, and at recommencement, about their right to legal advice (except where solicitor is delayed or one of the exceptions apply).
Who decides what to disclose to the suspect and their advisor?
The investigating officer.
Must a record be kept about what and when it was disclosed for an interview?
Yes, the investigating officer must keep this record of what and when disclosures were made.
When must a suspect be told about their right to legal advice?
The suspect must be told before an interview, and at recommencement, about their right to legal advice (except where solicitor is delayed or one of the exceptions apply).
What is a consequence of the failure to inform the suspect of their right to legal advice?
Potentially exclusion of evidence.
When should a suspect be given a special warning?
- They are asked to account for an object, mark, substance, or mark on objects found on their person/clothing, in their possession, or in the place of arrest.
- They are asked to account for their presence at the place of arrest.
This does not apply to situations where no inference can be drawn.
Suspects interviewed at station/authorised detention place post arrest
What is a significant statement?
A statement which is capable of being used in evidence.
What is a significant silence?
Silences which give rise to inferences.
What must the interviewing officer do in relation to significant statements/silences?
He must put to the suspect any of these.
What restrictions on the conduct of interviewers are there?
- Oppressive tactics are not allowed.
- No indication can be made, except in answer to a direct question, the proposed action an officer may take with/without an answer.
- No confession should be sought by offering a caution.
Hypothetical questions are acceptable, though care should be taken.
There is also a positive duty on the police to not actively mislead the suspect.
When must interviews cease?
In respect of a person not charged/informed they may be prosecuted when the officer is satisfied that all relevant questions have been put, account has been made of other available evidence, and the officer reasonably believes there is sufficient evidence to obtain a conviction.
Furthermore, subject to the length of the time detained and restrictions on breaks.
These provisions being met does not preclude a formal question and answer document for POCA proceedings.
What restrictions on recording what suspects say are there?
All interviews must normally be contemporaneously recorded.
Any comment made outside of interview must be recorded and the suspect given the opportunity to verify the record.
What happens if officers do not comply with the recording provisions.
Evidence may be excluded.
How should interviews be recorded?
Via an authorised recording device, or sometimes in writing.
When must a child/young person/mentally disordered/vulnerable person NOT be interviewed/asked to sign a statement?
In the absence of an appropriate adult unless the conditions for conducting an interview away from a police state are satisfied or the interview is authorised by an officer of the rank of superintendent or above under Code C.
Can a child be interviewed at school?
Only in exceptional circumstances and then only if the principal or principal’s nominee agrees.
Efforts should be made to contact the parents or appropriate adult.
In cases of necessity, and that the school is not the victim, the principal may act as the appropriate adult.
The appropriate adult is to be reminded of his or her functions as adviser and observer as well as that of facilitating communication with the person being interviewed.
Is judicial consent required before interviewing a ward of court?
No.
When can a person needing an interpreter be interviewed without one?
Where an officer of superindentent or above authorises this, being satisfied that delaying the interview would lead to:
a. lead to interference with or harm to evidence connected with an offence, interference with or harm to other persons, or serious loss of or damage to property.
b. lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it.
c. hinder the recovery of of property obtained in consequence of the commission of an offence
and that the interview would not significantly harm the persons physical or mental state.
and that the interview would not significantly harm the persons physical or mental state.
Does an interpreter need to be physically present?
No, if the custody officer is satisfied that this would not adversely affect or otherwise undermine or limit the suspect’s ability to communicate effectively and confidently.
What must happen when a suspect is interviewed and the record kept in writing, and the suspect themselves is unable to read?
The record must be read over to the suspect who must be asked to verify it.
When can a person unable to appreciate the significance of their questions and answers, or to understand what is happening because of the effects of drink, drugs, or any illness/ailment/condition be interviewed?
Where an officer of superindentent or above authorises this, being satisfied that delaying the interview would lead to:
a. lead to interference with or harm to evidence connected with an offence, interference with or harm to other persons, or serious loss of or damage to property.
b. lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it.
c. hinder the recovery of of property obtained in consequence of the commission of an offence
and that the interview would not significantly harm the persons physical or mental state.
When may a constable arrest someone without a warrant?
(1) the person arrested is about to commit, is committing or has committed an offence or (2) the police officer has reasonable grounds for suspecting this to be so, provided in every case that the arresting officer has reasonable grounds for believing that the arrest is necessary to:
(a) allow prompt and effective investigation of the offence
(b) ascertain person’s name or address
(c) prevent person from causing/suffering injury, causing loss/damage to property etc.
(d) protect a child or vulnerable person;
(e) prevent P from being hindered by disappearance of person
What does reasonable suspicion mean in relation to a power of arrest?
Defined in case law that reasonable suspicion requires the constable actually suspects (subjective) and that a reasonable person in possession of the same facts would also suspect (objective).
An officer who reasonably but mistakenly proceeds on a wrong view of the law does not have reasonable suspicion.
The arrest must also be Wednesbury reasonable.
The constable must reasonably suspect the existence of facts amounting to some form of offence in mind.
When does it count as someone being under arrest?
a. The person is arrest if, as a result of what is said or done, the person is under compulsion and is not free to go.
b. The second approach is that context or purpose are relevant. In Austin v MPC 2009 [UKHL] 5, the HOL distinguished between deprivation of liberty and a restriction on movement. The difference between the two is a matter of degree and intensity and is fact sensitive.
What must the officer also do at time of arrest to ensure it is lawful?
(1) Inform the suspect of the fact they have been arrested (even if obvious they have)
(2) Inform the suspect of the ground of arrest as soon as is practicable
The suspect must also be informed of the necessity for arrest, though failure to do so will not render the arrest unlawful.
Test for whether the words used were sufficient = whether, having regard to all the circumstances of the case, the person arrested was told, in simple, non-technical language that the person could understand, the essential legal and factual grounds for the arrest.
The words used, even if applicable to more than one offence, will suffice so long as they aptly describe the offence for which the arrest is made.
While he must be cautioned, failure to caution will not make the arrest unlawful.
Where no reasons are given at the time of arrest because of impracticability, do acts done at time of arrest later become invalid because of a later failure to inform the suspect?
No.
