2. Preliminaries to Prosecution Flashcards
When must a caution be given to someone? (3)
- A caution is required when there is “some REASONABLE, OBJECTIVE GROUNDS for the suspicion [of an offence], based on known facts or information”.
- A caution must also always be given on arrest.
- A caution must be administered at the commencement of an interview, whether or not it is conducted in a police station. The suspect must also be reminded he is under caution at the recommencement of an interview after any break.
What must a caution consist of?
“You do not have to say anything. But it may harm your defence if you do not mention when questioning something which you later rely on in Court. Anything you do say may be given in evidence.”
Minor deviation from these words is permissible. If it appears that the suspect does not understand the caution, the person giving it should explain it in his own words.
When is a caution not necessary? (4)
a) if questions are solely to establish identity or ownership of a vehicle;
b) to obtain information in accordance with a statutory requirement;
c) in furtherance of the proper and effective conduct of a search;
d) to seek verification of a written record of comments made by the person outside an interview.
It follows that questioning of a person in circumstances where a caution does not have to be administered does not amount to an interview for the purposes of Code C.
Where may a police interview be conducted?
Following arrest, he must NORMALLY be interviewed only at a police station or other authorised place of detention.
BUT, exception where delay would be likely to:
a) lead to interference with or harm to evidence connected with an offence or to other persons or 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 property obtained in consequence of the commission of an offence.
Interviewing in these circumstances MUST CEASE once the relevant risk has been averted or the necessary questions have been put to avert the risk.
What is the time limit for commencing proceedings in respect of a Summary Offence?
Proceedings must be commenced WITHIN 6 MONTHS OF THE COMMISSION of the offence.
(unless the relevant statute says otherwise)
What is the time limit for commencing proceedings in respect of an Either Way Offence?
There is NO TIME LIMIT - unless the relevant statute says otherwise.
What are the three ways of commencing criminal proceedings?
- Written Charge & Requisition
- Private Prosecution
- Charge, following arrest.
When would a Written Charge & Requisition be appropriate?
These are normally reserved for relatively minor offences. It is a way of instigating criminal proceedings without having to involve the court beforehand.
The Written Charge sets out the nature and particulars of the offence and is issued with a Requisition, which requires the recipient to appear before the Mags’ Court to answer the charge.
How does one initiate a private prosecution?
An application may be made to a magistrates’ court for the issue of a summons or an arrest warrant requiring the accused to attend before it (sometimes known as ‘laying an information’).
What two conditions must be satisfied for the police to make an arrest without warrant?
the police must have REASONABLE GROUNDS both for:
(i) suspecting the person has committed, is committing or about to commit an offence; AND
(ii) believing the arrest is NECESSARY to achieve a legitimate objective.
To be reasonable, the basis for suspecting the commission of an offence must be honestly held and objectively rational.
Once arrested, the person should normally be taken to a designated police station straightaway. But what are the two exceptions?
(i) Where the suspect is taken somewhere else consensually, for example to check out his alibi.
(ii) Where the suspect is given ‘street bail’ (where the suspect is released under obligation to attend the police station at a future time and date).
What are the relevant rules concerning Street Bail? (3)
- The bailed suspect must be given a written notice setting out all relevant detail;
- if he fails to attend the police station as required, he will be subject to arrest;
- Pre-charge police bail should last no more than 28 days, unless the circumstances are exceptional, and any changes in bail conditions would normally be sought from the relevant police station.
What 3 requirements must be satisfied for the Magistrates’ Court to issue a warrant authorising search of a premises before an arrest?
(a) if the offence is SERIOUS ENOUGH;
(b) the evidence is likely to be COGENT ENOUGH (and not protected by legal privilege);
(c) there is NO OTHER ALTERNATIVE.
Who is responsible for suspect when they are at the police station? What must they do?
A custody officer. This should be an officer of at least sergeant rank and have no connection to the offence in question.
They must keep a custody record.
Once the Custody Officer has reviewed the suspect’s detention and the evidence against him, what four options does he have?
- Release from custody immediately.
- Charge with an offence.
- Sanction further detention without charge.
- Release on police bail.
How long can the police keep a suspect in custody without reviewing their detention?
6 hours. After the first 6 hours the custody officer must review the suspect’s detention and consider whether further detention is necessary.
If a suspect has been detained without charge for 24 hours, who can authorise further detention and on what basis?
A superintendent or above may authorise 12 further hours of detention if they are satisfied that there are reasonable grounds for believing further detention necessary for securing/preserving evidence or for further questioning.
What must the police do after a suspect has been detained in custody without charge for 15 hours?
Ordinarily, this is when the second review of the suspect’s detention should take place (9 hours after the first review).
What must the police do if they want to detain a suspect for more than 36 hours?
They must apply for authorisation to the Magistrates’ Court. They can give authorisation for a further 36 hours if they are satisfied that there are reasonable grounds for believing further detention necessary for securing/preserving evidence or for further questioning.
Having obtained permission from the Mags’ Court, what must the police do if they wish to detain a suspect beyond 72 hours?
Apply again to the Mags’ Court for authorisation for a further 24 hours detention.
Can the police detain a suspect for more than 96 hours?
No - they must charge or release the suspect, possibly on bail (unless Terrorism Offences apply).
What must the police obtain before asking any witness to take part in an identification procedure regarding a suspect?
A written record of the witness’s description of the alleged perpetrator.
When must a suspect be given the opportunity to an identification procedure?
When their identification as the perpetrator of the offence is disputed by them.
What happens if there is a possibility that the perpetrator’s identification will be challenged in court and the police do not hold an ID procedure before charge?
The witness’s identification evidence could be deemed inadmissible under PACE s78.
Name 3 important rights a suspect must have at the police station.
(i) Right to inform someone of their detention.
(ii) Vulnerable witness’s need special care (e.g. Appropriate Adult).
(iii) Right to legal assistance
When can a suspect’s right to a solicitor be delayed?
When it is an indictable offence and a Superintendent or higher believes there are reasonable grounds for believing that informing the solicitor would lead to the interference of justice or cause undue delay to the investigation.
What are the potential consequences of wrongfully denying access to legal advice at trial?
Otherwise admissible evidence (e.g. a confession) may be deemed inadmissible.
What factors must the CPS/Police consider when deciding whether to charge an accused?
(i) the evidential stage - there must be sufficient evidence for a realistic prospect of conviction.
(ii) If so, they must consider whether pursuing the charge would be in the public interest.
What are the three possible outcomes for a defendant at the end of their First Appearance in the Magistrates’ Court (re Remand/adjournments)
(i) The Magistrates may remand the accused on bail, possibly with conditions attached. The date for the next hearing must be fixed.
(ii) He may be remanded in custody, with the date fixed hearing fixed.
(iii) The Magistrates may simply adjourn the case without remanding the accused, if
- it is for a summary offence (at all points before a conviction)
- when the accused appears following a summons/requisition for an either-way offence when they have not been previously remanded, and providing the offence has not yet been determined for trial on indictment (and before conviction if determined a summary offence).
If Remanded in Custody, how many times can an accused apply for bail on the ‘same information’?
Twice. The accused can make two bail applications on the same information. If he wishes to make a third application, his counsel must show that there is some ‘new information’ in order for the application to be heard.
Can an accused who has already been denied bail once make an application for bail to the Crown Court? If so, what are the requirements?
Yes. An accused who has been denied bail once by the Magistrates’ Court may apply to the Crown Court for bail. They will need a ‘Certificate of Full Argument’ from the Magistrates’ Court.
If the accused has been denied bail twice, they may still make an application to the Crown Court for bail, but will need to show that there is some ‘new information’ in relation to the application.
True or False - An accused who has been denied bail twice and cannot show some ‘new consideration’ will never be able to apply for bail.
False - the court retains a general discretion to allow a bail application.
What are the exemptions to the ‘rebuttable presumption to bail’?
- If an accused is accused of committing homicide/rape and has previous convictions for these offences. Bail may still be granted if there are exceptional circumstances to justify it.
- If an accused is accused of murder then only the Crown Court can grant bail - not the Mags.
An offence which carries a potential prison sentence - how do the CPS overcome the rebuttable presumption to bail?
- the CPS must show that there is a real prospect of a custodial sentence upon conviction for the defendant.
- the CPS must show that there are substantial grounds for believing the defendant would fail to surrender, commit a further offence whilst on bail, and interfere with witnesses or otherwise obstruct the course of justice.
Imprisonable offences - Other than the ‘big 3’, and where there is a real prospect of a custodial sentence upon conviction, what other reasons are there for denying bail?
- for the accused’s own protection;
- where further information is required;
- risk of domestic violence;
- where the accused committing this offence whilst on bail for another;
- where the accused has previously failed to surrender in these proceedings.
For non-imprisonable offences - when can the court deny bail to an accused?
- When the accused is under 18 and has previously failed to surrender in criminal proceedings;
- when the accused is under 18 and has been arrested for breaching bail conditions and the court believes there are substantial grounds for believing they would fail to surrender, commit a further offence, or interfere with the course of justice;
- for the accused’s own protection;
- when there is a domestic violence risk;
- when the accused is already serving a custodial sentence.
If an accused wishes to make an application to vary bail conditions and there case has been sent to the Crown Court, which court would hear the application?
The Crown Court.
The application to VARY VARIES depending on which court the case is currently in.
A police officer can arrest an accused who has been remanded on bail for three reasons - what are they (in relation to bail conditions)?
- A police officer has REASONABLE GROUNDS for believing the accused will fail to surrender to custody;
- a police officer has REASONABLE GROUNDS for believing that the accused will breach bail conditions, or already has done so;
- a Surety has written to the court stating that they believe the accused will fail to surrender to custody and wishes to withdraw as a surety for this reason.
When can a court impose bail conditions?
A court can impose bail conditions when they believe:
- if is necessary to prevent an accused from absconding, commit further offences, or interfering with the course of justice.
or
- for the accused’s own welfare/interests if they are a young person/child.
If an accused has been arrested on suspicion of breaching bail conditions, what is the procedure? Who will hear the case? When it will be heard?
Suspicion of breaching bail conditions will always be heard in the Magistrates’ Court, regardless of whether the case has been sent to the Crown Court.
The case may be heard by a Single Justice.
The case must be heard as soon as practicable, and within 24 hours (excluding Sundays).
What must the Magistrates’ consider when an accused appears before them having been arrested on suspicion of breaching (or planning to breach) bail conditions?
- The Magistrates must consider whether the defendant is likely to abscond/breach a bail condition, or if they already have.
If the Magistrates consider that they have (or will), then they must consider whether bail should be granted and, if so, on what conditions.
If an accused has been arrested under s7 (breach of bail conditions), then they will always be denied further bail - true or false?
False. The Magistrates may decide to impose bail again on the same conditions, or on different conditions, or not at all, following an arrest under s7.
If an accused is remanded in custody, what is the general rule in relation to how long they can be remanded for?
The general rule is 8 clear days.
What exemption to the 8 clear days rule does s128A MCA 1980 provide?
An accused may be remanded for a period up to 28 CLEAR DAYS if -
- he was present in the courtroom when this was decided;
- the accused has previously been remanded in custody for the same offence; and
- the court has fixed a date for the next stage of proceedings.
The Accused is fed up with appearing in court every 8 days for a remand hearing. What can he do?
An accused can consent to the next 3 remand hearings to take place in his absence providing:
- he is an adult; and
- is legally represented in the court proceedings.
He must appear on the 4th remand hearing - can only consent to three at a time.
What are the limits on the number of adjournments the court can make?
The only limit on the number of adjournments is the general discretion of the court where they believe that an adjournment would be against the interests of justice.
