Advising Clients Police Station Procedures (Preliminaries to prosecution) Flashcards
Rights of suspect; ID Procedures; Advising Clients; Procedure for interviewing
What is the maximum time a suspect can spend in police custody without being charged?
A suspect must be charged or released within 24 hours from arrival at the police station
What are the suspect’s rights?
- Right to legal advice
- Right to have someone informed of arrest
What are the powers under PACE to delay these rights?
- Right to legal advice can be delayed
- Right to have someone informed can be delayed
- Review of detention time limits (extension of detention)
What are the grounds for detention?
It must be necessary to detain the suspect to investigate the offence
Grounds:
- Secure or preserve evidence
- Obtain such evidence by questioning (police station interview)
What is the custody record?
All information is recorded in the custody record. Basic information includes:
- requirement to inform the person of the reason for their arrest
- circumstances of the arrest
- why the arrest was necessary
- any comments made by the arrested person
The solicitor attending the police station must view this record
Reviews of detention
- Must be carried out by officer at least the rank of inspector (who is not connected with the investigation or the custody officer)
- The review officer must be satisfied that the detention is still necessary
- First review must take place not more than 6 hours after suspect’s detention was first authorised by custody officer (time limit from when detention is authorised)
- Then review must take place every nine hours thereafter
Power to extend detention beyond 24 hours
s42 PACE allows for detention to be extended for a further 12 hours (lawful detention up to 36 hours from time of arrival):
- Offence is an indictable offence
- At least the rank of superintendent must authorise the detention
- Reasonable grounds to believe is necessary to obtain evidence by questioning, or secure or preserve evidence
Power to detain beyond 36 hours
Police must apply for a warrant of further detention from the Magistrates’ Court (s43 and s44 PACE)
Criteria:
- reasonable grounds
- indictable offence
- investigation being conducted diligently and expeditiously
The right to free and independent legal advice and power to delay the right
Where legal advice is sought, it must be provided as soon as is practicable
Power to delay the right:
- the right can only be delayed up to max 36 hours
- grounds must be recorded and suspect informed
- if the suspect is interview before they are able to consult a solicitor as the right has been delayed, there are restrictions on drawing adverse inferences at trial
Criteria:
- indictable offence
- authorised by at least rank of superintendent
- reasonable grounds to believe exercise of the right will lead to: interference with evidence; interference with others or those suspected of an offence but not yet arrested
The reasonable grounds must be in relation to a specific solicitor, not the right in general
- if delaying access to a specific solicitor, the suspect must be allowed access to an alternative
On what grounds can access to a solicitor be delayed?
For example if there are reasonable grounds to believe solicitor would inadvertently or otherwise pass on a message from the suspect or act in a way which would harm the investigation.
Access to see a solicitor cannot be delayed on the grounds that they might advise a detainee not to comment in the interview
- in any event, the detainee should have been allowed access to an alternative solicitor
The right to have someone informed of the arrest
The suspect has the right to have someone informed of their arrest. This could be a friend, relative or any other person who is known to them or likely to take an interest in their welfare.
Therefore, client had right to have x informed of their arrest and being held in custody, as soon as practicable
The power to delay the right to have someone informed of the arrest
Criteria (delay to this right is only permitted if):
- indictable offence
- authorised by at least the rank of an inspector
- reasonable grounds to believe it will lead to the consequences: interference with evidence; interference with others; hinder recovery of property
Any delay or denial of the rights should be proportionate and last no longer than necessary
- Can only be delayed up to a maximum of 36 hours
- Delay can only continue as long as grounds continue
The right to an appropriate adult
If a person is under 18 or the suspect is mentally disordered/vulnerable, they must have an appropriate adult present at the police station
Who can act as an appropriate adult?
Young detainee:
- parent/guardian
- social worker/care authority
- any person 18 or over who is not a police officer or employee
Mentally disordered detainee:
- parent/relative
- someone who has experience in dealing with such persons
Who cannot act as an appropriate adult?
- A solicitor/legal representative attending police station for the suspect
- A person suspected of involvement in the offence
- Witness of the offence
- Victim of the offence
- Involved in the investigation
- Person who has received admissions
- of low IQ
- an estranged parent whom arrested youth does not wish to attend and specifically objects to
What is the role of the appropriate adult?
- ensure the detained person understands what is happening and why
- support, advise and assist
- observe whether the police are acting properly and fairly
- assist with communication
- ensure detained person understands their rights and those rights are protected
There is no duty of confidentiality with the Appropriate Adult
What are the grounds to proceed without an appropriate adult?
A young or mentally disordered person should not be interviewed or asked to provide a written statement without presence of AA, unless delay would likely lead to:
- interference/harm to evidence
- interference/harm to other people
- serious damage to property
- altering other suspects
- hindering recovery of property
This must be authorised by a superintendent or above - provided they are satisfied that an urgent interview would not significantly harm the person’s physical or mental state
Questioning without an AA must not continue once sufficient information to avert the risk has been obtained
Role of a defence representative
The solicitor’s role is to protect and advance the legal rights of the client. They should actively defend and promote the client’s interest
Solicitors have active role at police station:
- can pause interviews
- can challenge officers
- can ask to slow down
Active defence includes:
- obtaining as much information as possible
- advising client fully
- advising on issues which arise
- attending and advising during the interview
However, solicitors cannot be obstructive so that the interview cannot go ahead
What is solicitor’s role regarding vulnerable suspects?
The solicitor should be even more conscious of their role and responsibilities when dealing with a vulnerable client
- ensure that the appropriate adult is appointed
- take as much time as necessary to advise the client clearly
- Note, a person under influence or drink/drugs is not treated as vulnerable
Consultation with the client
Consultation should take place in private and is confidential
Procedure for interviews
An interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence
Interviews take place at the police station, unless delay would lead to interference with evidence, altering persons suspected or hindering recovery of property
- must be carried out under caution
- must be allowed to consult with solicitor
- an accurate record should be kept of what is said
Prior to commencement or re-commencement of an interview, the suspect should be reminded of their right to legal advice
Police station process
The detainee:
- will see custody office who must authorise their continued detention
- be informed of their rights
- certain non-intimate samples taken
- may see healthcare professional, if necessary
- speak to legal representative
- will be interviewed
What are the options for a detainee after they leave the police station?
Detainee may be:
- released under investigation or on police bail, after the interview; or
- charged and released on police bail to appear at MC at a later date; or
- charged and remanded in custody to appear at MC the following day
Disclosure of significant statements
At the beginning of an interview, after caution, any significant statement made by the person interviewed in the presence of a police officer must be put to them
- Significant statement = one that appears capable of being used in evidence and any direct admission of guilt
What evidence must be provided to the solicitor can the disclosure stage?
No obligation to provide information about strength of the case or evidence
Information that must be provided is limited to:
- sufficient information to enable solicitor to understand nature of offence and why suspect is suspected
- decision of disclosure rests with investigating officer
What must a solicitor do before the interview?
- Speak with custody officer and obtain copy of the custody record
- Speak to investigating officer
- Obtain disclosure
- Have a private consultation with their client
What are the only grounds a solicitor can be excluded from the interview?
A solicitor can only be excluded if they are preventing or obstructing questions being put to the client
- A superintendent must authorise a solicitor being excluded
What is the process of charging a suspect?
Moving from the investigation stage to the court stage
- the police gather evidence and decide whether to convict
What are the different types of ID Procedures?
If the suspect is known to the police and they are available, procedures which can be used:
- VIPER - the most usual type (if the suspect refuses it, an alternative can be considered)
- Parade - suspect physically stands in line up along with others
- Group - takes place in public
- Confrontation
Covert procedures are only used as a last resort
What must be the case for ID Procedures to take place?
All of the ID Procedures can only take place if the suspect is known to the police
- Where the suspect is known = duty to hold ID procedures
Where suspect’s identity is not known, the witness:
- may be shown images; or
- may be taken to a particular location
What happens if the suspect refuses to participate in ID Procedure?
Alternatives can be considered
- covert procedures should only be used as a last resort and only if all other procedures have been considered and refused
- the police may proceed covertly without consent or make other arrangements
If the suspect does not consent to the ID Procedure, then adverse inferences can be drawn at trial - their refusal may be given in evidence
- advise client on risk of adverse inferences being drawn at trial
What can be done in circumstances where the suspect is not yet known?
The witness could be shown photographs to see if they can identify someone, or taken to a particular place to point someone out
What happens if identification is an issue and it is disputed by the suspect?
Some form of visual ID procedure MUST be held
If the suspect denies the offence and there is an eyewitness who expresses an ability to identify the suspect = must conduct ID procedure
VIPER Procedure Rules
- Only one eye witness can see a set of images at a time
- Consist of at least 8 people, in addition to suspect
- if the suspect has an unusual physical feature, steps can be taken to conceal or replicate that feature on the other people
- suspect, solicitor, appropriate adult must be given reasonable opportunity to see the complete set of images before it is shown to any eyewitnesses
Identification officer
The identification officer is responsible for arranging and conducting the identification procedures
- is not below the rank of inspector
- is not involved with the investigation
Options in an interview
Advising a client on the options to take in an interview is a key role of the solicitor
- Answer the questions
- Don’t answer = ‘no comment’
- Provide a written statement and say ‘no comment’
Whether jury/magistrates consider it would be appropriate to draw an adverse inference depends on (Argent factors):
- the amount of disclosure,
- strength of the case,
- whether the suspect will admit/deny,
- credibility of any account,
- physical and mental state of the suspect
What is the suspect’s right to silence?
The basic principle is that every suspect has the right to silence. There is no obligation to answer questions in a police interview.
But, exercising the right to silence could mean that adverse inferences may later be drawn against the client at trial
What is the risk of silence?
If it goes to trial, adverse inferences may be drawn from silences at interview
Adverse inferences
An adverse inference is a common sense conclusion which is adverse to the interests of the party in the proceedings
- s34 allows for an inference to be drawn when the defendant later relies on a fact in their defence that was not offered at the time of questioning, but it would have been reasonable to have mentioned
Whether or not it was ‘reasonable’ is a matter for the jury/magistrates, depending on issues such as
- reliance on legal advice
Adverse inferences and conviction
There must be other evidence - cannot convict solely on adverse inferences
Inferences under s36 and s37
s36 - failure to account for object, substance or mark
s37 - failure to account for presence at arrest
For these inferences to be drawn, the police officer must give a suspect a special warning in the interview
Effect of an adverse inference
Court can draw inference from suspect’s a failure to account
s36 and s37: no question of reasonableness
- both these inferences arise from arrest
- object / mark must be on them at arrest / presence must be where they were arrested
Adverse inferences are only relevant if the case proceeds to trial
- solicitor needs to balance likelihood of trial against the risk of inference if trial does take place
What is the effect/consequence of an adverse inference?
It undermines the defence
It suggests that:
- the explanation given at trial has been fabricated since the interview; or
- defendant withheld their account as they knew it would not stand up to questioning; or
- at the time of the interview the defendant had no reasonable explanation which would refute the prosecution’s case
Caution
The suspect must be cautioned
- If the suspect is not cautioned, then no inference can be drawn
