Chapter 2: Advising Clients at the Police Station

Question 1

Where are a suspect’s rights set out when detained at a police station?

Answer 1

Police and Criminal Evidence Act 1984 (PACE)

Question 2

What are a suspect’s key rights when detained at a police station?

Answer 2

1. Access to free legal advice, free medical help, and a free interpreter,
2. The right to notify someone of their arrest,
3. The right to inspect police Codes of Practice (regulations governing police powers under PACE),

4.The right to silence,

5. The right to be informed of the reason for the arrest,
6. The right to inspect documents relating to the arrest and detention, and
7. The right to information on detention time limits

Question 3

What are the ranks within the police force? (low - high)

Answer 3

1. Constable,
2. Sergeant,
3. Inspector,
4. Chief Inspector,
5. Superintendent,
6. Chief Superintendent,
7. Assistant Chief Constable,
8. Deputy Chief Constable, and
9. Chief Constable

Question 4

What is a suspect’s right to legal advice?

Answer 4

A person under arrest has the right to receive free, private legal advice at any time during detention.

This is independent of the police and prosecution + can include consulting with a legal representative on the phone or in person.

Question 5

What happens when a suspect requests legal advice?

Answer 5

The Defence Solicitors Call Centre (DSCC) is contacted (unless the suspect requests the advice to be paid for).

The DSCC then determines whether telephone advice is sufficient or whether a solicitor should attend the police station.

Question 6

When is delay in accessing legal advice permitted?

Answer 6

Permitted only when:

1. The suspect is arrested on an indictable only or either way offence,
2. A police officer of the rank of superintendant or above has authorised the delay, and
3. The officer has reasonable grounds to believe that exercise of the right will lead to:
   - interference with others,
   - interference with evidence,
   - alerting other suspects, or
   - hindering the recovery of property related to the offence.

Question 7

How long can the right to legal advice be delayed for?

Answer 7

36 hours at most.

Question 8

Why is it extremely rare for the right to legal advice to be delayed in practice?

Answer 8

Legal advice is a fundamental right + a failure to access such advice is likely to cause problems for the admissibility of evidence collected prior to advice.

Question 9

What is the right to have someone informed of arrest?

Answer 9

Suspect has a right to have a friend, relative, or other person informed of their arrest.

Question 10

When is delay of the right to have someone informed of arrest permitted?

Answer 10

Only when:
1. The suspect is arrested on an indictable only or either way offence,

2. A police officer of the rank of inspector or above has authorised the delay in writing, and
3. The officer has reasonable grounds to believe that exercise of the right will lead to:
   - interference with evidence,
   - interference with others,
   - alerting other suspects, or
   - hindering the recovery of property related to the offence.

Question 11

How long can the right to have someone informed of arrest be delayed for?

Answer 11

Can be delayed a maximum of 36 hours + should be delayed only as long as necessary.

Any delay must be proportionate.

Question 12

What is the general rule re maximum time a suspect can be kept in custody without a charge?

Answer 12

Maximum time a suspect can be kept in custody without being charged in 24 hours from the relevant time.

Question 13

What is the ‘relevant time’?

Answer 13

Generally when the suspect has entered the police station.

Question 14

What first extension of the custody time limit is allowed? When is it allowed?

Answer 14

A further 12-hour extension can be granted if:

1. The suspect is arrested on suspicion of an indictable only or either way offence,
2. An officer of the rank of superintendent or higher authorises the continued detention,
3. The officer has reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning, and
4. The investigation is being conducted diligently and expeditiously.

Question 15

How can the custody time limit be extended beyond 36 hours?

Answer 15

Suspect may be held beyond 36 hours only if a warrant for further detention is sought from the Magistrates’ Court.

Court can grant a further 36 hours on 1st application, and an additional 24 hours on a 2nd application.

Question 16

What is the absolute maximum time a suspect can remain in custody prior to being charged?

Answer 16

96 hours (4 days)

Question 17

When will the Magistrates’ Court authorise further detention?

Answer 17

If:

1. the suspect is arrested on suspicion of an indictable only or either way offence,
2. The Court has reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning, and
3. The investigation is being conducted diligently and expeditiously

Question 18

When must an identification procedure be held?

Answer 18

When:
1. A witness has identified or purported to identify a suspect,

2. A witness expresses an ability to identify a suspect, or
3. There is a reasonable chance of an eyewitness being able to identify a suspect.

Question 19

What may the police do if a suspect has not yet been identified?

Answer 19

The police may take the witness to the scene of the offence to see if the suspect can be identified locally.

If this procedure is followed and a suspect is identified and arrested at the scene, a formal identification procedure must then be carried out.

Question 20

What rights does the suspect have in relation to the conduct of any identification procedure?

Answer 20

1. To have the purpose of the procedure explained,
2. To have free legal advice + to have a solicitor or friend present,
3. To have their obligations explained and the consequences of their decisions, namely that:

• the suspect need not cooperate, but a procedure may still be conducted covertly + the failure to cooperate may be raised at trial, and
• if the suspect changes their appearance between the notification and conduct of the procedure, it may affect the conduct of the procedure + may be raised at trial

Question 21

What are the different types of identification procedure?

Answer 21

1. Video identification
2. Identification parade
3. Confrontation
4. Group identification

Question 22

Where are the procedures for conducting each type of identification procedure set out?

Answer 22

Code D of PACE 1984

Question 23

What happens in a video identification procedure?

Answer 23

i. moving images of the suspect + 8 or more others are shown to the witness

ii. the others must resemble the suspect in age, height, appearance, and position in life, and any distinguishing features must be concealed,

iii. suspect and their solicitor must have a chance to raise reasonable objections

iv. witnesses must be shown images at least twice + be warned that the suspect may not be featured in the videos

v. if there are multiple witnesses, they must be separated

Question 24

What happens during an identification parade?

Answer 24

i. suspect and 8 or more others who resemble the suspect appear in a line

ii. suspect may object to arrangements + participants + choose their position in the line

iii. the witness must be warned that the suspect may not be featured in the parade

iv. if there are multiple witnesses, they must be separated

v. the parade should be recorded or colour photographed

Question 25

What happens during group identification?

Answer 25

i. witness sees the suspect in an informal group

ii. the procedure may take place with or without the suspect’s consent

iii. the location should take into account the appearance of others present

iv. a colour photograph or video should be taken immediately after identification

Question 26

What happens during confrontation?

Answer 26

i. the witness must be warned that the suspect may not be present

ii. the suspect’s solicitor or friend may be present unless it would cause undue delay

iii. the suspect should not be restrained at the time of the identification

iv. the witness is asked, “is this the person you saw on the earlier occasion?”

v. very rare + usually takes place at the police station

Question 27

What is the most common identification procedure?

Answer 27

Video identification

Question 28

What do possible objections to admission of video identification include?

Answer 28

1. Failure to take into account reasonable objections to the appearance of others in the identification procedure,
2. Failure to keep the witness away from the suspect before or during the identification process,
3. Failure to keep witnesses apart before or during the identification process, or
4. Failure to warn witnesses that the suspect might not be shown at all.

Question 29

What happens if there is a breach of Code D?

Answer 29

It may lead to the identification evidence being excluded.

The court will consider whether its admission would have such an adverse effect on the fairness of trial that it ought to be excluded.

Question 30

What is required of a recording of police interview?

Answer 30

Interview takes place in an interview room + is recorded so that it can be used in evidence should the case proceed to trial.

The recording has to comprise an audio recording but may also include a video recording.

Common practice for interviews to be recorded onto 2 audio tapes (master copy + working copy)

Question 31

When should a suspect not be interviewed?

Answer 31

If the suspect seems unable to appreciate the significance of the questions or answers, or understand what is happening owing to intoxication or any other condition.

Question 32

What will a legal representative at the police station do?

Answer 32

1. Inspect the custody record
2. Obtain disclosure prior to interview from the investigating officer
3. Advise the suspect whether to answer questions during the interview

Question 33

What is the custody record?

Answer 33

A custody record is a log of a suspect’s time in detention at the police station maintained by the custody officer.

Question 34

What must the police disclose to the suspect’s legal representative?

Answer 34

No duty to provide any evidence, but they must provide sufficient information for the representative to understand the nature of the offence and the reasons why the detainee is under suspicion.

The legal representative will seek to gain as much information as possible from the police in order to inform their advice to the client.

Question 35

When will a caution be given?

Answer 35

Caution will be given to the suspect at the start of the interview, setting out the suspect’s rights in the interview.

Question 36

What must a suspect be told when being cautioned?

Answer 36

Must be told they have a right to silence + are under no obligation to answer questions.

They must also be warned anything they say will be taken down in evidence and may be used against them at trial.

Suspect must further be warned that if the suspect fails to mention something which they later rely on in court, and it is a fact they could reasonably have been expected to mention in interview, an adverse inference may be drawn by the court regarding why the defendant didn’t raise the matter when questioned.

Question 37

What is the special caution? When is it needed?

Answer 37

An adverse inference may be drawn if a defendant failed to account for their presence at the scene of the offence or an object, substance, or mark found on the defendant at the time of arrest.

If this is a relevant factor, the interviewing officer must give a special caution, outlining what offence is being investigated + what fact the suspect is being asked to comment on, before warning that an adverse inference may be drawn if they fail to provide an account now that they later rely upon in court.

Question 38

What options does a suspect have available to them during interview?

Answer 38

1. Answer questions + give a full account in the interview
2. Decline to answer questions (‘no comment’ or staying silent), or
3. Hand in a written statement, setting out their account + decline to answer any further questions

Question 39

Under PACE, when are further safeguards put in place?

Answer 39

For vulnerable suspects

Question 40

Who are vulnerable suspects?

Answer 40

Youths (under 18),
Suspects with mental disabilities, or
Other vulnerabilities.

Question 41

Whose responsibility is it to identify vulnerable suspects?

Answer 41

It is the responsibility of the custody officer to identify vulnerable suspects at the beginning of a suspect’s detention.

Question 42

What is one important safeguard vulnerable suspects are entitled to?

Answer 42

Entitled to access an appropriate adult.

Question 43

What is an appropriate adult?

Answer 43

Can be the suspect’s:
- parent or guardian,
- a representative from a care organisation when appropriate,
- a social worker, or
- a volunteer who is not affiliated with the police.

Question 44

What does an appropriate adult do?

Answer 44

Can provide support + explanation to the suspect during their time in custody.

The appropriate adult should be present during the interview of a vulnerable suspect.

Question 45

What should be taken into account when appointing an appropriate adult?

Answer 45

The wishes of the suspect should be taken into account.

Question 46

What is the effect if a suspect is vulnerable and an appropriate adult was not called in?

Answer 46

By accident or otherwise, the admissibility of any evidence obtained during interview may be excluded.

Question 47

When can the investigating officers proceed to interview?

Answer 47

If the suspect is deemed fit for interview and they have received appropriate legal advice + have the support of an appropriate adult if applicable.

Question 48

What is the wording of the caution a suspect will be given at the beginning of an interview?

Answer 48

“You do not have to say anything, but it may harm your defence if you do not mention when questioned something why you later rely on in court. Anything you do say may be given in evidence.”

Question 49

What is oppression?

Answer 49

Includes torture, inhuman, or degrading treatment, and the use or threat of violence.

Should avoid too many officers being present during the interview

Question 50

What is the position re inducements to confess?

Answer 50

There must be no inducements to confess used (e.g., a promise of a police caution - a simple police warning - or police bail).

Question 51

What is required of an interview room?

Answer 51

Must be conduct in a room which is heated, ventilated, and lit

Question 52

Under PACE, what is the solicitor’s role at the police station?

Answer 52

Only role at the police station is to protect and advance the legal rights of their client in the face of the police investigation.

This includes:
i. protecting suspect’s rights under PACE,
ii. obtaining disclosure from the police, and
iii. advising the suspect on answering questions in the interview.

Question 53

What may a solicitor do during the police interview?

Answer 53

Solicitor may intervene in order to:
- Seek clarification,
- Challenge an improper question or manner of questioning,
- Advise their client not to reply to particular questions, or
- Ask for the interview to be halted to give the suspect further legal advice.

Question 54

What must a solicitor not do at the police station?

Answer 54

Must not obstruct the conduct of the interview.

Question 55

What does obstructing the conduct of the interview include?

Answer 55

Includes telling the suspect what to say during interview or answering on the suspect’s behalf.

Question 56

What happens if the solicitor obstructs the interview?

Answer 56

They may be removed from the room.

This may be authorised by a superintendant an is extremely rare.

In such circumstances, the defendant would be entitled to speak with another solicitor.

Question 57

What happens if the decision is taken to charge the suspect?

Answer 57

The custody officer at the police station will decide whether the suspect should be remanded in custody and produced at court at the next available opportunity, or whether they can be remanded on bail to appear at court at a set date.

The custody officer will hear submissions by the defence representative before making a decision.

The custody officer must take into account the same factors used in deciding the grant of court bail.