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Criminal Litigation > 2) Prelims to Prosecution > Flashcards

2) Prelims to Prosecution Flashcards

1
Q

What police power are largely governed by PACE?

A

Several police powers are largely governed by PACE 1984:

  • Arrest
  • Detention
  • Interrogation
  • Entry & search of premises
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2
Q

What happens if someone breaches pace?

A

Breach of PACE does not make indv. Liable s.67(10) PACE 1975

  • However, they are admissible as evidence in proceedings s.67(11) PACE 1984
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3
Q

Definition of interview

A

Interview =‘questioning of a person regarding the involvement or suspected involvement in criminal offence’

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4
Q

What happens to non-question in interview?

A

They are not admissible

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5
Q

Caution is generally needed before interview, what are the exceptions?

A

Caution not needed to:

  1. Establish ownership of vehicle
  2. Obtain info in accordance with statutory requirement (e.g. drink driving s.165 RTA)
  3. The furtherance of a search
    • If Q’s go further, (did you intend to sell drugs) need caution
  4. The seek verification of a written record of comments
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6
Q

When does someone become a suspect in relation to interviews?

A

Suspect = ‘some reasonable, objective grounds for suspicion based on known fact or info’ Guidance 10A

  • This means there can be some suspicion without requiring causation
  • If indv. starts incriminating themselves, caution should be given (Ibrahim v UK)
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7
Q

Where must an interview be conducted?

GR and 4 exceptions

A

General rule - Should be at police station or authorised place of detention C11.1

Exceptions - Where delay would likely

  1. Interfere/Harm with evidence or other person
  2. Serious loss/ damage to property
  3. Alerting other suspects
  4. Hinder the recovery of property
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8
Q

Can a person be interviewed by live link?

A

Yes

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9
Q

What is the normal caution?

When can the specific word be deviated from?

A

“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 maybe giving evidence.”

  • Minor deviation is okay C10.7
  • If suspect does not understand caution, should be given in own words
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10
Q

What is the altered caution?

When is it used and why?

A

When interview after charge, or has requested Sol. But not been able to consult with one, caution is:

“You do not have to say anything, but anything you do say may be given in evidence”

  • This is because inferences cannot be drawn under ss.34,36 or 37 CJPO 1994
  • Although Code C doesn’t require caution after charge, it should be given (R v Paul)
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11
Q

When is the special caution used?

A

Given when sus. Is interview after arrest, and asked to account for:

  1. object, mark or substance; or
  2. his presence at the place he was arrested
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12
Q

What happens if a caution is not given?

A

Does not necessarily result in the exclusion of evidence, compare (Armas-Rodrigues) & (Devani) with (Miller)

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13
Q

What info should and should not be given to the interviewee?

A

Must have enough info to understand the charge brought against them C.11.1A

  • E.g. Sus. Arrested for theft, not told the victim has died (Kirk)

Does not include info which might prejudice the investigation

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14
Q

What info should the interviewee be given about legal advice?

A

Prior to commencement of interview, interviewing officer must remind sus. Of access to free legal advice C11.2

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15
Q
  1. Re. interview, what should be done with a significant statement or silence?
  2. What is a significant statement?
A
  1. After caution, interviewer must put any sig. statement or silence to sus. C11.4
  2. Sig. statement = one which appears capable of being used as evidence
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16
Q

What 5 things should the police not do in interview?

A
  1. Cannot use oppression
  2. Cannot indicate what action police will take if sus. Refuses/ answers a Q.
    • Unless directly asked to do so
      • Action stated must be proper and warranted C11.5
  3. Police should not seek a confession by offering a caution (R (U) v Metropolitan Police Commissioner)
  4. There is a positive duty on the police not to actively mislead a sus. (Imran and Hussain)
  5. Hypothetical questions should be approached with caution (Stringer)
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17
Q

Re. interviews, what constitutes oppression?

A
  1. Continued Q’s after repeated denials could be oppressive (Paris)
  2. Hectoring and bullying is oppressive (Beales)
  3. Rude questioning, raised voices and bad language not oppressive (Emmerson)
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18
Q

When should an interview cease?

A

When officer in charge thinks: C11.6

  1. all relevant questions have been put to the Sus; and
  2. Officer has taken account of other available evidence; and
  3. Reasonably believes there is sufficient evidence to provide realistic prospect of conviction
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19
Q

What should officer do when there is sufficient info to charge?

How does this change if suspect is detained for more than one offence?

A

When officer in charge of investigation believes there is enough information to charge, should take sus. into custody without delay.

  • This would normally preclude further interviewing s.37(7) PACE

Where sus. Is detain for more than one offence, C16.1 allows delaying informing the custody officer until sufficient info for each offence

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20
Q

How must interviews in police station be recorded?

A

Visual recording not mandatory, but when used must have regard to Code F

Must be recorded using authorised recording device Code E2.1

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21
Q

What happens if interview not recorded?

A

Failure to record has lead to exclusions of evidence (Canale)

No always so (Walters)

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22
Q

What should be done with comments outside of interview?

A

Comments outside of interview must be recorded and where practicable sus. given opportunity to verify record C11.13

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23
Q
  1. What are the four categories of persons which have different provisions to protect them?
  2. What are the provisions for each of those categories?
  3. What are (if any) the exception to these provisions?
A

1. Special Persons = A Child or Young/ Mentally disordered/ venerable person

  • Must not be interview without appropriate adult
    • Unless:
      1. interview away from station and conditions in Code C11.1 are satisfied; or
      2. Interview is authorised by superintendent or above under Code C 11.18

2. Needs Interpreter

  • If custody officer has determined person need an interpreter must not be interviewed without one
  • Unless superintendent or above satisfied that:
  1. delaying interview would lead to the consequences; and
  2. It would not significantly harmed persons physical or mental state

3. Intoxicated

  • Interview not allowed if person unable to appreciate significance of questions Code C11.18
  • Exception - Can be authorised by superintendent and above (subject same conditions as a exception to interpreter)

4. Can’t read

  • Anything recorded in writing, record must be read to suspect in order to verify
24
Q

Can a child be interview at school?

When may a headteacher be an appropriate adult?

A

Child/ Young Person should only be interview at place of education in exceptional circs.

If school is not the victim, the principle may act as appropriate adult Code C11.16

25
Q

What is reasonable suspicion in relation to stop and search?

A

Requires both genuine suspicion & objective basis for that suspicion PACE Code A para2.2

26
Q

What is reasonable suspicion in relation to arrest?

A

Must be some reasonable, objective grounds for the suspicion based on known facts and info.

27
Q

What does the case law tell us about reasonable suspicion?

  • 5 points

How does stop and search and arrest differ?

A
  1. Requires both a subjective (the officer suspects) and objective (a reasonable person would suspect)
  2. Reasonableness is assessed without hindsight (Redmond-Bate v DPP)
  3. May take into account inadmissible evidence (Hussien v Chong Fook Kam)
  4. Not necessary for constable to have identified specific offence of which he is suspicious
    • Must reasonable suspect facts amounting to the kind of offence (Chapman v DPP)
  5. Must be Wednesbury reasonable, i.e. not irrational (Castorina v Chief Constable of Surrey)

The above applies to bother stop and search and arrest (Howarth v Metropolitan Police Commissioner)

28
Q

When can a constable use reasonable force?

  • 8 points

When can’t a constable use reasonable force?

  • 2 points

What are designated civilians (i.e. community support officers) powers?

What are normal civilians powers?

A

1. Constable can use reasonable force for

  1. Stop & search PACE Part 1
  2. Entry & search of premises s.17
  3. Arrest s.24
  4. Detention at police station PACE Part IV
  5. Search of person s.54
  6. Intimate search s.55
  7. Fingerprinting s.61
  8. Taking non-intimate sample s.63

2. Constable can’t use reasonable force for

  1. Visual identification procedure PACE Code D
  2. Taking of intimate sample s.62

3. Civilian designate under s.38(8) PRA 2002, may use reasonable force as above

4. Any person may use reasonable force to present crime or assist in lawful arrest s.3 CLA 1967

29
Q
  1. What should the court take into account when accessing of force was reasonable?
  2. What shuldn’t be taken into account?
A

1. Should take into account:

  1. All circ. Including nature and degree of force uses
  2. Gravity of offence
  3. The harm that would flow from use of force
  4. Possibility of making arrest by other means

2. Should not take into account:

  • The fact the force results in serious injury does not necessarily make it unreasonable.
30
Q

When should handcuffs be used?

A

Should only be used where reasonably necessary to prevent escape/ violent breach of the peace (Lockley)

Same rules for handcuffs in court (Cambridge Justices, ex parte Peacock)

31
Q

In what circs may a constable arrest WO warrant?

A
  1. anyone who is about to commit an offence;
  2. anyone who is in the act of committing an offence;
  3. anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
  4. anyone whom he has reasonable grounds for suspecting to be committing an offence.
32
Q

Definition of arrested?

When is somebody not arrested but unlawfully detained?

  • 4 points

Who has burden of proof for:

  1. Whether arrest was lawful
  2. Whether there was excessive force
A

Definition of arrested?

  • When someone is not free to go at they please (Aderson v Booth)

When is somebody not arrested but unlawfully detained?

  • Handcuffed, but told not under arrest
  • Confining someone to a space without arrest
  • if officer know there is no possibility of charge even if they have reasonable suspicion they have committed an offence.

Who has burden of proof for:

  1. Whether arrest was lawful
  2. Whether there was excessive force
33
Q
  1. What must the person arrested be informed of at the time of arrest/ ASAP?
  2. What should the person arrested be informed of at the time of arrest/ ASAP?
A
  1. Person arrested must be informed at the time of arrest or ASAP that:
  2. they are under arrest s.28(1) PACE; and
  3. The grounds of the arrest s.28(3)
  4. Person should be informed:
  5. why the arrest is necessary s.24(4)
  6. in simple, non-technical language the essential legal and factual grounds for arrest
  7. of the nature of offence + when and where it was allegedly committed
34
Q

What happens if officer fails to caution on arrest?

A

Failure to caution does not render arrest unlawful, may provide grounds for exclusion of evidence under s.76 or 78 PACE

35
Q

What must the arresting officer make a record of on arrest?

A

The arresting officer must make a record of Code G4.2

  1. The nature & circs. Leading to arrest
  2. Reason(s) why arrest was necessary
  3. Giving of caution
  4. Anything said by the arrested person
36
Q

What must generally happen to the arrested after arrest?

What are the 2 exceptions to this?

What are the 4 justifications to one of these exceptions?

A

Generally arrested person must be taken to police station straight away

Excepitons

1. May delay under if:

  1. Constable needs to carry out investigations which are necessary
  2. Taking suspect somewhere to check alibi
  3. To search the arrested person under
  4. Search a premises under

On discovering no grounds for arrest after delay - suspect must be releases

2. Suspect may be released on bail

37
Q

Arrest WO warrant

What can police arrest people for?

What can civilians arrest people for?

A

Police may arrest for any offence s.24

Civilian may arrest for indictable offence only s.24A

38
Q

Arrest for breach of peace

1. What is ‘breach of peace?

2. Who can arrest for breach of peace?

3. When can someone be arrested?

  • 3 points
A
  1. Breach of the Peace =
  • Harm is done/ likely to be done to another person or property
  • Where person is afraid of being harmed from assault/ affray/ riot or other disturbance
  1. Constable or Civilian has a common-law power to arrest for breach of peace
  2. Can be arrest when
  • Breach of the peace is committed
  • Has reasonable belief a breach will be committed
  • Has reasonable belief that breach has been committed & further breach is threatened

Reasonable belief = objective test/ subjective - What would a reasonable person believe if they were in the same circumstances as the arrestor thought they were in.

39
Q

When can mags issue warrant for arrest?

When can CC issue warrant for arrest?

A

Mags

  1. For offence indictable/ punishable by imprisonment or address not certain s.1(4)
  2. For failure to appear to answer a summons

CC

  1. Indictment has been signed, but D. not yet sent to trial (summons or warrant)
  2. Convicted person fails to appear b4 CC.
40
Q
  1. When is someone not in police detention?
  2. What impact does this generally have + what are the exceptions?
A

1. Not in detention

  1. Person attending court after charge not in police detention s.118(2)
  2. Person attending station to answer live-link bail

2. The means generally PACE does not apply

Exceptions:

  1. Right to intimation s.56 (not to be held incommunicado)
  2. Right to legal advice s.58
41
Q

What are the responsibilities of Custody Officer?

What cannot be done WO their authorisation?

A

Responsible to ensure person is treated in accordance with PACE

Person can only be detained s.37(1) & released s.34(2) on authority from custody officer

42
Q

When must a custody record be opened?

A

Must be opened ASAP for anyone who:

  1. is arrested;
  2. attends station in accordance with bail
43
Q

What is right to notification?

What must the custody officer do?

A

Person arrested has the right for someone else to be notified of his arrest and the place he is being kept, should be done ASAP.

Custody officer must:

  1. inform of this right, and ask if they want to exercise it
  2. If can’t contact, Custody officer should try to contact two other people, beyond that at their discretion
44
Q

Right to Sol.

  1. When does arrested have right to Sol?
  2. What right does an Appropriate Adult have to Sol?
  3. When must D be told of this right?
    * 10 points
A

1. If arrested & held in custody, indv. has the right to consult a Solicitor at any time

2. Appropriate adult for child/ venerable person themselves have a right to consult sol.

  • Even in the arrested doesn’t want one

3. D must be told of this right when:

  1. When he is brought to the police station/ arrested at police station
  2. Immediately b4 any interview
  3. B4 review of his detention is conducted
  4. After charge/ informed he may be prosecuted
  5. Where officer wished to draw his attention to content of any interview
  6. When he is re-interviewed
  7. B4 being asked to give an intimate sample
  8. B4 intimate drugs each
  9. B4 being interviewed after charge
  10. B4 identification parade
45
Q

Re. arrest what is a child?

Exception to that general position?

A

Anyone appearing under 18

Age is 17 for conditions attached to bail, testing for class A, for the purposes of the meaning of ‘appropriate consent’ (fingerprints, footwear impressions, intimate sample, non-intimate samples)

46
Q
  1. When is someone classes as mentally disordered/ vulnerable.
  2. How does this affect how that person is detained?
    * 4 points
A

1. If an officer has any reason at any time to suspect that a person may be vulnerable, they should be treated as such.

  • Suspicion may be dispelled by investigation of forensic medical officer

2. -

  1. Must be kept in a place of safety
    • Police station only appropriate if there is risk of harm or death and the PS is the only reasonable place to detian.
  2. Before moving/ keeping someone at a place of safety, constable must if practicable consult medical practitioner
  3. Child cannot be detained in a cell as a place of safety
  4. Max period of detention is 24 hours, may be extended by 12 hours if authorisation of medical practitioner
47
Q

1) Generally, who shouldn’t be used as an ‘appropriate adult’
2) Who should and shouldn’t be used for child?
3) Who is appropriate for disabled/ vulnerable?
4) What are the roles of appropriate adult
* 6 points

A

1) Who shouldn’t be a responsible adult?

  1. Solicitor attending station on D.’s behalf
  2. A person suspected of involvement in offence
  3. The victim or witness
  4. If involved in the investigation
  5. Has received admissions from sus. before acting as AA

2) Child

  • Good - Parent or guardian, social worker
  • Bad:
    1. An estranged parent whom the child specifically objects to

A parent with low IQ who cannot appreciate the gravity of the situation

3) Disabled/ vunerable?

  • Good - Relative, guardian or person responsible for car, someone who has experience dealing with person
    • Will be more satisfactory for it to be someone trained

4) Roles of AA

  1. Support, advise and assit. on any procedure
  2. Observe whether police are acting fairly
  3. Assist sus. to communicate with police
  4. Help sus. to understand and protect their rights
  5. For identification and other evidential procedures
    • 14 - 18, need consent of sus. and AA
    • For <14 only need consent of AA
  6. Can be present during privilege conversation between sus. And sol.
48
Q

Detention TLs

1) What are the detention TL?
2) How does this change for indictable offences?
3) If released WO charge, when can you be re-arrested
4) Does time in hospital count?
5) When does time start / re-start?
6) What happens re time on bail?

A

1) 24 hours
2) For indictable offence, normal max period is 24 hours

  • Can be extended to 36 hours by superintendent or above
  • Can be extended to 96 hours by mags.

3) new evidence has arisen which could not have been reasonably be discovered
4) Time in hospital does not count
5) Starts when arrest person arrives at Station, or 24 hours after arrest (whichever earlier). Starts again when re-arrested
6) Time does not run whilst on bail.

49
Q

What are the duties of DPP?

  1. -
    • -
    • -
    • -
    • -
  2. -
    • -
    • -
  3. -
    • -
    • -
  4. -
  5. -
    • -
    • -
  6. -
    • -
    • -
    • -
A

1. To take over conduct of:

  • All criminal proceedings other than ‘specified proceedings’
  • Criminal cases where it appears necessary to do so due to importance or difficulty
  • All ‘binding-over’ proceedings instituted on behalf of a police force
  • Criminal proceedings issued by NCA

2. To have the conduct of:

  • extradition proceedings
  • Criminal behaviour orders ABCOA 2014

3. To discharge duties

  • Under pt. 5 (recovery of proceedings from unlawful conduct) & pt.8 civil recovery/ disclosure order in confiscation investigations) POCA 2002
  • Assigned to him but A-G

4. To advise police forces on matters relating to criminal offences

5. To appear for P when court order on:

  • Appeals to HC & SC
  • Appeals to CC against mags use of powers under s.12 Contempt of Court Act 1981

6. To issue code of guidance for Crown prosecutors on:

  • Determining whether proceedings could be instituted/ continued
  • Determining what charges should be preferred
  • What representations should be made to the Mags regarding allocation
50
Q

1) Re. DPP role, what impact to specified proceedings have?

2) What are specified proceedings?

  • 3 points

3) When do cases cease to be specified?

  • 6 points
A

1) DPP does not take conduct over them

2) SP includes:

  1. Various road traffic offences
  2. Criminal damage
  3. Low-value shoplifting

3) Case ceases to be specified if:

  1. (Summary) - D also served with paperwork to enable GP by post
  2. (Triable either way) - D served with statement of facts, or P’s W statements
  3. Mags begin to hear evidence
  4. Issued under s.27(7)(d) PACE 1984
  5. D under 16
  6. Mag’s consider a custodial sentence
51
Q

In practice who conducts cases.

A

Crown Prosecutors conduct cases not the DPP

52
Q

How can appearance of D be secured?

  • 4 ways, 2 if arrested 2 if not
A

If arrested

  1. Charged by police (either straight away on on return to staionafter bail
  2. CPS can start with ‘written charge & Requisition’

If not arrested

  1. Can be served with ‘written charge & requisition’
  2. Application can be made to Mags for the issue of summons/ arrest warrant
53
Q

Who can bring Written charge & Requisition?

  • 6 points
A
  1. Police
  2. Director of Serious fraud office
  3. DPP (therefore CPS)
  4. Director general of the NCA
  5. A-G (not yet in force)
  6. A person specified by Secretary of States under
54
Q

What the difference between app. to Mags for summons/ arrest and a charge and requisition order?

A

charge and requisition order can only be made by:

  1. Police
  2. Director of Serious fraud office
  3. DPP (therefore CPS)
  4. Director general of the NCA
  5. A-G (not yet in force)
  6. A person specified by Secretary of States under
55
Q

1) What must both app. to Mags for summons/ arrest and a charge and requisition order contain?
* 6 points
2) In addition, what must a written charge and requisition contain?

A

1) In both:

  1. Statement of the offence & relevant legislation
  2. Sufficient particulars to make clear what P alleges
  3. If there is TL, demonstrate app has been made in time
  4. Set out where and when accused must attend court
  5. Specify each offence
  6. Identify issuing court

2) In addition, for written charge and requisition:

  • Identify the person under who’s authority it is issue
56
Q

TLs for commencing trial

1) For summary offence
2) for indictable offence
3) Does a statutory TL ovr4rule general TL
4) When does TL stop for written charges?

A

1) Summary offence = 6 months
2) No TL for indictable
3) Summary offence TL of 6 months not overruled by a statutory TL
4) TL stops for written charges when completed and ready for service

Criminal Litigation (4 decks)

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