2. Prelims to Prosecution Flashcards
What is an interview?
Questioning of a person regarding their involvement in a criminal offence which must be carried out under caution
Caution is not necessary if:
- To establish the identity or ownership of a vehicle.
- To obtain information under the Road Traffic Act 1988. (Drink drive procedure not an interview.)
- Furtherance of proper or effective search.
- Seek verification of a written record of comment made outside the interview.
Where can an interview take place?
An interview must normally be conducted at a police station or other authorised place.
Exceptions to location of interview (Where delay would lead to…)
- Interference or harm with evidence or harm to others or loss or damage to property.
- Alerting other suspects.
- Hinder the recovery of property
The interview must cease once the risk has been averted, which led to an exception
Can a police officer interview a suspect over live link?
yes (PACE allows it).
At the start of an interview, the police officer must…
- Cautioned the suspect
- Give suspect or solicitor enough information to understand the nature of the offence and why they are a suspect
- Remind the suspect of his right to free legal advice.
- Must put to the defendant any significant statement of silence which occurred in the presence of a police officer
What happens if a suspect requests a solicitor?
The caution must be changed.
“ You do not have to say anything but anything you do say may be given an evidence”
Cannot draw inference from silence once requests a solicitor
Who should the caution be given to?
Anyone whether our grounds to suspect.
Have reasonable or objective grounds for suspicion based on known facts or information at the time.
No requirement to caution whether our sub grounds but where these grounds do not amount to a reasonable suspicion.
Failure to caution is a…
Significant and substantial breach of code C
Does a failure to caution automatically mean that evidence will be inadmissible?
No, not automatically.
What is a significant statement?
One which is capable of being used in evidence it is often a direct admission of guilt
What is significant silence?
A failure or refusal to answer a question under caution which might give rise to an adverse inference
The police cannot obtain answers to questions in interview through…
- Oppression
- Intimidation
- Indicating an answer
- Indicating what will happen if they don’t answer.
(It was improper for a police officer to tell a church organist that was accused of theft that unless she confessed he would have to interview all of the choir boys)
Not every tactic will amount to evidence being excluded but there is a positive duty on the police to not mislead a suspect.
When should an interview cease?
When the officer in charge Is satisfied that all questions have been put to the suspect.
And where the officer reasonably believes that there is sufficient evidence to provide a realistic prospect of conviction
How should interviews be recorded?
Usually through an authorised recording device.
Visual recording is not mandatory
What should happen if the police are interviewing a child or vulnerable person?
That person must have an appropriate adult with them.
Unless the conditions for non-police station interviews apply (e.g risk to evidence)
Can children be interviewed at school by the police?
Only in exceptional circumstances and with the agreement of the principle.
Provided at the school was not the victim of the alleged offence the principle may also act as the appropriate adult.
Custody officer determines needs an interpreter
They must not be interviewed without an interpreter unless authorised by an officer of the rank of superintendent or above.
The interpreter can be present via live link; he Does not need to be physically present
Persons unable to appreciate the significance of the questions
The police are precluded from interviewing any person who is unable to appreciate the significance of questions and their answers or to understand what is happening because of the effects of drink drugs or any illness ailment or condition, Unless it is authorised by officer of rank of superintendent or above
Reasonable suspicion
Relates to the existence of facts and not the state of the law.
An officer who reasonably but mistakenly proceeds on a particular view of the law and thus exercises his power of arrest does not have reasonable suspicion
What two things does a reasonable suspicion require?
- Genuine suspicion on the part of the officer concerned
- Objective basis for that suspicion
Reasonable suspicion requires both that the constable carrying out the arrest actually suspects and that a reasonable person in possession of the same facts as the constable would also suspect.
Reasonableness assessed without reference to hindsight.
Does the officer require to identify a specific suspicious offence?
no, But the constable must reasonably suspect the existence of facts amounting to an offence of a kind in mind.
Can an officer use force?
Yes, A police officer may use reasonable force in the exercise of their power
In what situations can an officer use reasonable force?
Force used in connexion with a stop and search
Entry and search of a premises
Arrest
Intimate search of detained person
Fingerprinting without consent
Taking of non intimate sample
In what situations would the police officer not be able to use reasonable force?
In connexion with the conduct of a visual identification procedure
Taking of intimate samples
Both of these require the consent of the detainee.
can a of civilian use reasonable force?
Yes, civilians have the power to use such force as it is reasonable in the circumstances in the prevention of crime or in affecting or assisting in the lawful arrest of an offender or suspected offender, or person unlawfully at large.
For force to be reasonable, it must be both…
- Necessary
and - Proportionate
How will a court determine what forces reasonable?
The court may take into account all of the circumstances including the nature and degree of the force used
the gravity of the offence for which the arrest is to be made
the harm that would flow from the use of the force
and the possibility of affecting the arrest or preventing the harm by other means.
Does serious injury make the force unreasonable?
no,
When is a person arrested
If as a result of what is said or done the person is under compulsion and is not free to go.
Lewis - Whether the person has been deprived of their liberty to go where he or she pleases
Is there a presumption that arrest will always follow by a charge?
No
Although the power of arrest must be exercised for a proper purpose the fact that in the rest is motivated by a desire to investigate another more serious offence does not render it invalid providing their valid grounds for the arrest
When should the person be informed that they are under arrest?
As soon as is practicable after the arrest.
Applies even if the arrest is obvious.
What makes an arrest unlawful?
- If the person being arrested is not informed as soon as practicable after the arrest of the grounds for the arrest.
- If the officer fails to state why he believed an arrest was necessary. (fail to do this = does not make arrest unlawful.) as such).
What is the test for whether the words used (in arrest) were sufficient?
Having regard to all the circumstances of the case the person arrested was told in simple non technical language that the person can understand the essential legal and factual grounds for the arrest.
Who must give this information of the arrest to the suspect?
It does not need to be an arresting officer it could be a colleague of the arresting officer
When can an officer withhold his reasons for the arrest at the time of the arrest?
When it is impractical to inform the suspect
Does a failure to administer a caution render the arrest unlawful?
no provide the ground for exclusion of evidence under section 76 x or 78 of the police and criminal evidence act
What must be recorded by the arresting officer in the officer’s pocketbook?
Nature and circumstances of the offence leading to the arrest.
The reasons why the arrest was necessary
The caution
And anything said by the arrested person at the time of the arrest
when must an arresting officer record these in his pocketbook?
It must be made at the time of the arrest unless impracticable in which case must be completed as soon as possible thereafter.
When the arrested person is taken into a police station the pocketbook information must be attached to the custody record.
When can a police officer take a suspect to a place other than the police station?
Can only be made in exceptional circumstances
This might include taking the suspect from the place where he was arrested to another place to cheque an alibi or entry and search of premises
When must an officer release the suspect?
Where they are satisfied that there are no grounds for keeping the arrested person under arrest or releasing on bail
One must a constable release a suspect on bail?
Where the constable is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances having regard in particular to any conditions of bail which may be imposed.
Must be authorised by a custody officer.
For what offences can a civilian make an arrest
Indictable only
Who can a constable arrest without a warrant
- Any one who is about to commit an offence
- Anyone who is in the act of committing an offence.
- Anyone whom he has reasonable grounds for suspecting to be about to commit an offence
- Anyone who he has reasonable grounds for suspecting to be committing an offence
When does he breach of the peace occur?
Whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault afraid riot unlawful assembly or other disturbance.
Can a magistrate issue a warrant
yes.
It empowers justice to issue a warrant on the basis of written information substantiated on oath that a person has or is suspected of having committed an offence
Power of the magistrates to issue warrant is limited… how?
To any person who has attained the age of 18.
The offence concern must be indictable or punishable with imprisonment
or the person’s address must not be sufficiently established for a summons to be served.
A warrant to arrest any person for non appearance before a magistrate’s court must not be issued unless the offence to which the warrant relates is also punishable with imprisonment
They also have the power to issue a warrant for the arrest of a person who has failed to appear to answer a summons
What happens where an indictment has been signed but the person charged has not been sent for trial
The Crown Court may issue a summons requiring that person to appear before it or may issue an arrest warrant
When is a person in police detention?
The person has been taken to a police station after being arrested for an offence or has been arrested at a police station after attending voluntarily or accompanying a constable to it and is detained there or somewhere else in the charge of a constable.
A person who is at court after being charged is not in police detention
Neither is a person who attended police station to answer to live link bail
Which police station must a suspect be taken to?
The person may be taken to any police station unless it is anticipated that detention of more than six hours will be necessary in which case the person should be taken to a police station designated for such.
A police station must have a custody officer who is ranked at least a sergeant
If a custody officer is not available or if the suspect is taken to nondesignated police station another officer can perform the role but they cannot be involved in the investigation of the offence of which the person is in detention
Whose responsibility is it for a suspect in police detention
The custody officer it is their responsibility to ensure that the person in police detention is treated in accordance with PACE and codes of practice.
When must a custody record be made?
As soon as is practicable once they are brought to a police station under arrest or attended the police station and arrested there voluntarily
The custody officer responsible for the custody record
Does time in police detention before the release on bail count towards the maximum period of detention?
yes,
What right does a person have after their persons been arrested and taken to a police station
right to legal advice
right of notification
What is the right of notification
The arrested person has a right at their request to have one friend or relative or other person who is known to him told of the arrest and place of detention this has to be done as soon as practicable.
The custody officer must inform the suspect of this right and ask Whether they wish to exercise it
How many alternatives can a suspect give in respect of the right’s notification
2 - But the custody officer has discretion to allow further attempts until the information has been conveyed to that person
Does an appropriate adult have a right to independent legal advice?
yes, Even if the child or young person or vulnerable adult doesn’t want one
Can a vulnerable person be forced to see a solicitor?
no,
When must the person be told to their right to free legal advice
When they are:
Brought to the police Station
Beginning of interview
Recommencements of interview
After charge
Before a police officer wishes to bring to attention a statement to the suspect
Where a person is re interviewed
Before being asked to provide an intimate sample
Before an intimate drug search is conducted
Before X ray or ultrasound scan
What should an officer do if he suspects that a suspect may be vulnerable?
Must treat that person as vulnerable.
Custody officer must take steps to establish whether such reasons for believing a person is vulnerable exist
They need to be assessed as soon as possible
How do you define an appropriate adult?
Parents or guardian
or if the child or young person is in the care of a local authority or voluntary organisation a person representing that authority or organisation
a social worker of a local authority
or failing these some other responsible person who is not a police officer employed by the police or under the directional control of the chief police officer
Can a solicitor act as a appropriate adult?
No,
What is the role of an appropriate adult?
Safeguard the rights, entitlements, and welfare of children and vulnerable persons
They are expected to support advise and assist the suspects and observe whether the police are acting appropriately and fairly
They also assist detainees to communicate with the police while respecting their right to say nothing unless they do not want to
Can a child of a person be interviewed or provide a statement in the absence of an appropriate adult?
yes, but one of the exceptions has to apply - otherwise no
exceptions - Delay would likely to interfere with or harm to evidence connected with the offence or interference with or physical harm to other people or serious loss of damage to property and alerting other suspects not yet arrested etc
What is the role of an appropriate adult in strip searches
If the person has attained the age of 14 but is under 18, Consent is required from the young person and his parents or guardian
If under 14 years old the consent of the parents or garden is required and unless the appropriate adult is a parent or guardian they cannot give consent
What is the normal maximum. Without charge?
Twenty four hours from the relevant time.
What happens after the time limit runs out and they have not charged
Suspect must be released
Can detention time limits be extended?
yes.
Indictable offence extended up to a total of 36 hours from the relevant time by an officer of rank of superintendent or above
Indictable offences can be extended by the magistrate court up to a total of 96 hours
When does the time period Start and stop?
It starts from the relevant time.
. Hospital for medical treatment does not count towards the time limit
What is the relevant time
Normally the relevant time is the time an arrested person arrives at the police station or twenty four hours after arrest whichever is the earlier.
If new evidence arises justifying a further arrest the relevant time will be that relating to the subsequent arrest
Is the crown prosecution service he part of the police
No the crown prosecution service takes over prosecutions that have begun by the police therefore they exercise independent judgement in deciding any legal questions which arise
What are the ways in which an accused appearance can be secured before a magistrate’s court
Accused may be arrested after the police have sought advice from the crown prosecution service and charged by the police and details of the offences will appear on a charge sheet
The accused may be arrested and then granted police bail while the cps decide whether there is sufficient evidence to justify a charge the cps may then start a prosecution by using the written charge and requisition procedure
The accused may be arrested and then be granted police bail subject of a requirement of returning to a police station at a specific date during which the cps decide whether there is sufficient evidence
The accused may be served with a written charge and requisition Without first having been arrested
Upon application to the magistrate’s courts for the issue of a summons or arrest warrant requiring the accused to attend before the court
Who is a relevant prosecutor?
The police
The Crown Prosecution Service
The SFO
the NCA
And the attorney general as well as those specified by the secretary of state
This also includes various government departments such as the driver and vehicle standards agency the transport for London the environment agency specified local authorities railway operators and the tv licencing authority
These may institute proceedings using the written charge procedure. Where the prosecutor issues a written charge a requisition must be issued at the same time this requires the accused to appear before a magistrate’s court to answer the written charge
This method is only available to relevant prosecutors
To whom is the written charge and requisition procedure available?
Relevant prosecutors
