2 - Preliminaries to Prosecution Flashcards
What are a defendants rights to free advice at the police station?
All suspects are entitled to free legal advice at the police station, regardless of their financial situation.
Free advice is accessed through the Defence Solicitor Call Centre (DSCC).
For non-imprisonable offences, free advice is limited to telephone consultations.
The legal practitioner attending the police station must be accredited.
Under the Police and Criminal Evidence Act 1984 (PACE), “solicitor” includes:
Solicitors with a practising certificate.
Accredited representatives listed by the Legal Aid Agency (LAA).
Accredited representatives can include:
Trainees, paralegals, or ex-police officers.
Solicitors must complete the accreditation process to attend police stations under an LAA contract.
Can a client obtain public funding for representation in court?
If not paying privately, a client can seek public funding through the Legal Aid Agency.
To obtain a representation order, the defendant must pass two tests: the means test and the merits (interests of justice) test.
Both tests must be passed to secure public funding.
Some defendants are automatically “passported,” meaning they automatically pass the means test do not complete the Financial Statement for Legal Aid (CRM 15) form.
These include:
- Defendants under 18
- Those on specified welfare benefits like Universal Credit and income-based jobseeker’s allowance
Other defendants must demonstrate eligibility, with the means test differing for cases tried in the magistrates’ or Crown Court.
Despite this, defendants must still pass the merits test.
What is the means test to obtain public funding in court?
Magistrates’ Court Means Test:
Initial assessment calculates weighted gross annual income, including any partner’s income unless there’s a conflict (e.g. partner is the complainant).
- Eligible for funding: If income is below £12,475.
- Ineligible for funding: If income is above £22,325.
- Full means test required: If income is between £12,475 and £22,325, to establish disposable income.
Full Means Test:
Funded if disposable income is below £3,398.
Appeals: Applicants can apply for eligibility or hardship reviews.
Crown Court Means Test:
Assessed on income and capital (e.g. property equity).
- After a combined capital and equity allowance of £30,000 is applied, contributions may be required by applicants.
- The outcome may require payment of all, some, or none of the defence costs.
- Contributions can be taken from income (payable during the case) and/or capital (payable at the end, if income doesn’t cover the costs).
Disposable Income:
- Ineligible if disposable income is £37,500 or more.
- Eligible without contribution if income is £3,398 or less.
- Eligible with contribution if between £3,399 and £37,499.99 (90% of disposable income, over six months in instalments).
Appeals: Eligibility and hardship reviews available for incorrect assessments or changing circumstances.
What is the merits test to obtain public funding in court?
To qualify, a defendant must complete a CRM14 form to show it is in the interests of justice to have legal representation.
Automatic qualification if:
- Charged with an indictable-only offence.
- Either-way offence is sent to the Crown Court.
The test evaluates if the case is too serious or complex for self-representation.
What are the 10 propositions used in the merits test?
- I will lose my liberty: Consider if a custodial sentence is likely, based on sentencing guidelines and aggravating factors.
- Non-custodial sentence: Detail any suspended or non-custodial sentences that may be activated if the defendant is convicted of the new offence.
- Livelihood loss: Demonstrate if the conviction could impact employment, requiring mitigation to avoid job loss.
- Reputation damage: Explain serious damage to reputation, particularly for professionals or in sensitive cases like sexual offences.
- Substantial question of law: Identify significant legal issues, such as breaches of PACE or complex legal arguments.
- Understanding proceedings: Address barriers like language issues, mental health problems, or youth that may impair the defendant’s ability to represent themselves.
- Witnesses: Justify why the solicitor needs to trace or interview witnesses on behalf of the defendant.
- Expert cross-examination: Highlight challenges in cross-examining witnesses, especially if complex or expert testimony is involved.
- Interests of another: Consider if it is in the interest of another person involved in the proceedings (e.g., a vulnerable witness) that the defendant is represented.
- Other reasons: Include any additional information that supports the need for legal representation, such as the case’s complexity or specific vulnerabilities.
What happens when a representation order is granted?
Once granted, solicitors can undertake:
Case preparation: Includes witness interviews, document reviews, and trial preparation.
Advocacy: Includes bail applications and other court representations.
Routine communications: Covers letters and phone calls related to the case.
What happens if the defendant fails the means or merits tests?
Fails the Means Test
No right of appeal.
Can submit a new application if circumstances change.
Fails the Merits Test (Magistrates’ Court)
Can submit an interests of justice appeal online to the Legal Aid Agency.
Additional Options:
Duty Solicitor: Can consult if charged with an imprisonable offence, but only for one occasion, typically the first court hearing.
Private Representation: Defendants can choose to instruct a solicitor privately.
Self-Representation: Defendants may represent themselves with court support if public funding is not granted.
How to determine whether police have used their power lawfully?
P: Identify the power.
A - What is the legal authority granting the power?
C- What criteria need to be met and how are they met on the facts.
E - How should the power be exercised and has it been exercised correctly on the facts.
Apply this criteria to the facts provided to decide if the police have the power and then look at how it was exercise.
The PACE codes of Practice are admissible in evidence in criminal or civil proceedings.
For detention without charge, what must the police demonstrate to determine if their actions are lawful?
A police officer will have to be able to demonstrate:
- Legal authority to exercise the power; and
- The police officer has exercised the power lawfully.
What takes place following an arrest?
Usually a person arrested must be taken to a police station as soon as practicable.
Exception is where their presence at a place other than a police station is necessary to carry out such investigations as it is reasonable to conduct immediately, including:
- Being searched
- Being taken to premises and being searched.
- Being taken to a place to check their alibi.
Any police station UNLESS it is anticipated that they will be detained for more than 6 hours, in this case they need to be taken to a designated police station.
The person can also be granted “street bail” to attend a police station at a later date - a condition attached to the bail.
What happens when a detainee arrives at the police station?
When the arrested person arrives at the police station:
- The detainee will see the custody officer who must authorise continued detention.
- The detainee will be informed of their rights.
- The detainee will have certain non-intimate samples taken.
- The detainee may see the appropriate healthcare professional if necessary.
- If the detainee requests, they will speak to a solicitor.
- The detainee may be interviewed, often with their solicitor present.
After the interview, the detainee may be:
- Released under investigation or on police bail;
- Charged and released on police bail to appear at the magistrates’ court at a later date; or
- Charged and remanded in police custody to appear at the magistrates’ court on the following day.
What is the role of a custody officer?
On arrival, the arrested person will be presented to the custody officer as soon as possible, responsible for :
- Handling and welfare of suspects in detention at the police station
- Must be a police officer of the rank of at least sergeant.
- Must be unrelated to the process of the investigation of the offence.
Authorises detention after receiving the reason for arrest and must release the detainee if grounds for detention no longer exist, though another officer may step in if the custody officer is unavailable (typically not involved in the investigation).
Opens a custody record and assesses whether sufficient evidence exists to charge. If not, releases the detainee unless further detention is necessary to secure or obtain evidence.
Informs the detainee of the reason for arrest, the reason for detention, and their rights.
Ensures the welfare of the detainee, including conducting risk assessments, arranging special accommodations for incapacitated individuals, arranging interpreters, managing property, and contacting healthcare professionals if needed.
Ensures compliance with the Codes of Practice, aware that procedural flaws may lead to evidence exclusion or personal accountability.
What information must be recorded on the custody record?
A custody record must be opened for each detainee as soon as practicable, regardless of the circumstances under which they were arrested.
Basic information must include:
- The requirement to inform the person of the reason for their arrest;
- The circumstances of the arrest;
- Why the arrest was necessary; and
- Any comments made by the arrested person.
When must reviews of detention be conducted and what does this entail?
Timing: The first review must occur within 6 hours of the custody officer’s authorisation of detention.
Subsequent reviews must be carried out every 9 hours.
Review Officer: Must be at least the rank of inspector. Cannot be connected with the investigation or the custody officer.
Purpose:
To ensure the detention is still necessary by assessing whether the grounds for detention under s.37 PACE still apply.
Rights of the Detainee: The detainee must be reminded of their right to free legal advice. They have the right to make representations unless they are asleep or unfit to do so.
What are the time limits on detention?
The maximum period a suspect can be kept in custody, before being charged, is 24 hours from the ‘relevant time’. Before this expires, the suspect must either be charged or released.
The relevant time begins at the moment the suspect arrives at the police station. The relevant time is indicated on the custody record.
Detail the authority, exercise and criteria behind powers to extend detention beyond 24 hours.
Authority - Detention may be extended for a further 12 hours, taking the maximum period of detention in the police station to 36 hours calculated from the relevant time.
Detail the power to extend detention beyond 36 hours.
If the police want to detain beyond 36 hours, they must apply to the megistrates’ court for a warrant of further detention under PACE.
The warrant may authorise continued detention for a further 36 hours on first application, and 36 hours (up to a max of 96 hours) on second app, provided:
- The magistrates’ court must be satisfied that further detention is necessary to secure or preserve evidence or to obtain evidence through questioning.
- The offence must be an indictable offence; and
- The investigation is being conducted diligently and expeditiously.
When can the detention time limit not be extended beyond 24 hours?
Where the offence being investigated is a summary-only offence.
What are the rights of a detained person?
- The right to consult privately with a solicitor and the availability of free independent legal advice,
- The right to have someone informed of their arrest,
- The right to consult the Codes of Practice (COP).
What does a detainee’s right to consult a solicitor include?
Detainees are entitled to the free and independent legal advice of a solicitor, which can be provided in person, by telephone, or in writing.
The right must be communicated to the detainee before:
- Commencement or recommencement of an interview
- Request for an intimate sample
Intimate drug search
- Identification parade or video identification procedure
What are the key points regarding the handling of legal advice under s.58 PACE?
Declining and Requesting Advice: If a detainee declines legal advice, it must be recorded. If they later request it, the interview must pause until advice is received.
Advice Provision: Legal advice must be provided as soon as possible. Police should wait for the solicitor’s arrival before starting an interview and must not discourage the detainee from seeking advice.
Do police have the power to delay a detainee’s right to consult a solicitor?
Authority & Criteria:
- The right can be delayed only if the detainee is held for an indictable offence and the delay is authorised in writing by a superintendent with reasonable grounds.
- These grounds include concerns about interference with evidence, harm to others, alerting unarrested suspects, or hindering property recovery.
Duration & Requirements:
- Delay can be up to 36 hours. Reasons for the delay must be recorded, and the suspect must be informed.
- If the right is delayed, adverse inferences cannot generally be drawn if the suspect is interviewed before obtaining legal advice.
Additional Considerations:
- Delay may be justified if the detainee might conceal property obtained from their crime, under the Proceeds of Crime Act 2002.
- While the police can delay access to a specific solicitor if justified, they must allow the suspect to choose an alternative solicitor.
What does a detainee’s right to have someone informed of the arrest include?
- An arrested person has the right to have a friend, relative, or other interested person informed of their arrest.
- This must be exercised as soon as practicable and can be done each time the suspect is moved to a different police station.
- The notification is provided at public expense.
Do the police have the right to delay a detainee’s right right to have someone informed of the arrest?
Only if PACE Criteria is met:
The person must be detained for an indictable offence (i.e., one that can be tried in the Crown Court).
The delay must be authorised in writing by a police officer of at least the rank of inspector.
The inspector must have reasonable grounds to believe that informing someone could:
- Interfere with or harm evidence related to the indictable offence.
- Cause harm to others.
- Alert other suspects not yet arrested.
- Hinder the recovery of property obtained through the offence.
Delay might also be justified if the suspect has property they might try to conceal, which could be confiscated under the Proceeds of Crime Act 2002.
The delay must be proportionate and not exceed 36 hours. Once the purpose of the delay (e.g., search or arrest) is fulfilled, the right must be exercised promptly.
When does a detainee’s right to an appropriate adult arise?
For Minors: If a person is, or appears to be, under 18, they must have an appropriate adult present at the police station.
For Mentally Vulnerable Individuals, if:
- A police officer suspects the person is mentally disordered or otherwise mentally vulnerable.
- An officer has been informed in good faith that the person may be mentally disordered or otherwise mentally vulnerable.
Who can act as a detainee’s appropriate adult?
Young detainee: Parent, guardian.
Young person looked after under the Children Act 1989: A representative of the care authority or voluntary organisation, a social worker.
If none of the above, any person aged over 18 who is not a police officer or employee.
Mentally disordered or vulnerable: Parent, guardian, relative, someone experienced in dealing with such persons, over 18 and not a police officer or employee.
Who cannot be a detainee’s appropriate adult?
- Solicitor or legal rep
- Suspected of involvement in the offence
- The victim of, or a witness to, the offence
- Involved in the investigation
- A person who has received admissions from the detainee before acting as the appropriate adult
- Of low IQ and unable to appreciate the gravity of the situation
- An estranged parent whom the arrested juvenile does not wish to attend and specifically objects to
What is the role of the detainee’s appropriate adult?
- Ensure the detained person understands the situation.
- Support and assist the detainee.
- Monitor and ensure fair treatment by the police.
- Facilitate communication between the detainee and the police.
- Protect and uphold the detainee’s rights.
When is it appropriate to proceed with the process without an appropriate adult (where it is otherwise necessary)?
- If delay would hinder evidence.
- If delay would cause physical harm.
- If delay would result in significant property loss or damage.
- If delay might alert other suspects.
- If delay would impede recovering property linked to the offence.
When does a detainee’s right to an interpreter arise?
Where the custody officer has determined that a suspect requires an interpreter, that suspect must not be interviewed without an interpreter unless superintendent or above authorises, satisfied that delaying the interview will lead to:
- Interference with, or harm to, evidence; or
- Interference with or physical harm to other people; or
- Serious loss of, or damage to, property.
What are the conditions of detention for suspects in a police station according to COP C 8?
- Ideally, no more than one detainee per cell.
- Cells must be heated, cleaned, and ventilated.
- Bedding must be provided.
- Toilet and washing facilities must be available.
- Replacement clothing provided if original clothing is removed.
- Two light meals and one main meal every 24 hours.
What is a police interview?
Questioning of a person regarding their involvement or suspected involvement in a criminal offence (COP C, para 11.1A).
Purpose: To gather information and evidence while ensuring the suspect is not coerced or misled. It is therefore necessary to step in where officers use inappropriate questioning techniques.
What is the police caution required before an interview?
Suspects must be cautioned before any questioning about their suspected involvement in a criminal offence.
Re-caution: Suspects must be cautioned again if the interview resumes after a break.
What are the police rankings?
Constable
Sergeant
Inspector
Chief Inspector
Superintendent
Chief Superintendent
Detective Ranks:
Detective Constable
Detective Sergeant
Detective Inspector
Detective Chief Inspector
Detective Superintendent
Detective Chief Superintendent
Investigating Officer (IO) can be of any rank:
Usually the officer in charge of investigating the offence (also known as the Officer In the Case or OIC).
Main contact for a suspect’s legal representative for pre-interview disclosure.
Likely to lead the interview.
Where should the interview take place?
Interviews should be conducted at a police station or other authorised detention place.
What are the key aspects of disclosure in police interviews?
There is no general right to disclosure, except for:
Significant statements.
The custody record.
Pre-Interview Disclosure: Before an interview, a solicitor must be given enough information to understand the nature of the offence and why their client is suspected.
Competing Interests:
Investigating Officer: Wants to withhold information to obtain an untainted account.
Solicitor: Needs as much information as possible to provide effective legal advice.
Significant Statements: Any significant statement made by the suspect, particularly a direct admission of guilt, must be put to them at the beginning of the interview, after caution.
