Chapter 2: Preliminaries to Prosecution

Question 1

Detention
1.1 Legal authority and lawful exercise

Answer 1

For the purposes of this section, we are going to focus on only one of the powers contained in the
Police and Criminal Evidence Act (PACE) 1984: detention without charge. A police officer will have to be able to demonstrate:
* Legal authority to exercise the power; and
* The police officer has exercised the power lawfully.

Question 2

When you are asked to consider police powers, adopt a similar approach. You can use PACE as a
mnemonic:

Answer 2

P: Identify the power
A: What is the legal authority granting the power?
C: What criteria need to be met and are they met on the facts?
E: How should the power be exercised and has it been exercised correctly on the facts?
Apply the criteria to the facts provided to decide if the police have the power and then look at
how it was exercised.

Question 3

1.2 Action following arrest

Answer 3

Usually a person arrested must be taken to a police station as soon as practicable. The exception is where their presence at a place other than a police station is necessary to carry out such investigations as it is reasonable to carry out immediately. This can include:
* Being searched;
* Being taken to premises being searched; or
* Being taken to a place to check their alibi

Question 4

1.2 Action following arrest

Answer 4

The person can be taken to any police station unless it is anticipated that they will be detained for more than 6 hours, in which case, the person must be taken to a designated police station. Instead of being taken to a police station, the person arrested can be granted bail to attend a
police station at a later date. This is referred to as ‘street bail’. Conditions can be attached to the
bail.

Question 5

1.3 At the police station: Procedural overview

Answer 5

When the arrested person arrives at the police station, a number of things will happen to that
person:
* The detainee will see the custody officer who must authorise continued detention.
* The detainee will be informed of their rights.
* The detainee will have certain non-intimate samples taken.
* The detainee may see the appropriate healthcare professional if necessary

Question 6

1.3 At the police station: Procedural overview

Answer 6

• If the detainee requests, they will speak to a solicitor.
• The detainee may be interviewed, often with their solicitor present.
• After the interview, the detainee may be:
• Released under investigation or on police bail;
• Charged and released on police bail to appear at the magistrates’ court at a later date; or
• Charged and remanded in police custody to appear at the magistrates’ court on the
  following day.

Question 7

1.4 The role of the custody officer

Answer 7

On arrival at the police station the arrested person will be presented to the custody officer as soon
as possible. The custody officer:
* Is responsible for the handling and welfare of suspects in detention at the police station
* Must be a police officer of the rank of at least sergeant.
* Must be unrelated to the process of the investigation of the offence.

Question 8

1.4 The role of the custody officer

Answer 8

The procedure that should be followed by the custody officer upon arrival at the police station of
the detainee is governed by s. 37 PACE and Code of Practice (COP) C 2, 3 and 4.
The reason for arrest must be explained to the custody officer, who can then authorise detention
of the person arrested. The custody officer must order the release of the person detained if the
custody officer becomes aware that the grounds for detaining the person have ceased to exist. A
person can only be detained at the police station on the authority of the custody officer, and may
be released only on the custody officer’s authority.

Question 9

1.4 The role of the custody officer

Answer 9

If the custody officer is not available, their role may performed by another officer, though that
officer must not normally be involved in the investigation of an offence for which the person is in
detention. The custody officer will firstly determine whether or not there is sufficient evidence to proceed to charge the detainee. If not, then the arrested person must be released unless there are reasonable grounds for believing that detention is necessary to:

Question 10

1.4 The role of the custody officer

Answer 10

• Secure or preserve evidence; or
• Obtain such evidence by questioning.
  If there are grounds to detain, the custody officer will then:
• Authorise detention of the suspect;
• Open a custody record;
• Inform the detainee of the reason for their arrest;
• Inform the detainee of the reason for their detention; and
• Advise the detainee of their rights.

Question 11

The custody officer is responsible for the welfare of each detainee. Additional duties include:

Answer 11

• Conducting a risk assessment procedure for each detainee.
• Making special arrangements, if necessary, for detainees who may be physically or mentally
  incapacitated.
• Arranging for interpreters to be present, where appropriate.
• Dealing with a detainee’s property.
• Contacting healthcare professionals, if needed.

Question 12

Additional duties include:

Answer 12

The role of the custody officer is a vital one. The custody officer is responsible for ensuring that a
detained person is treated in accordance with the provisions of the Codes of Practice. Custody
officers are well aware that if there are any procedural flaws in the detention process, the result
might be the subsequent exclusion of evidence and that ultimately it is they who can be held
accountable.

Question 13

1.4.1 The custody record

Answer 13

A separate custody record must be opened as soon as practicable for each detainee whether a person is brought to the police station under arrest, or arrested at the police station, or surrenders voluntarily at the police station, or surrenders to bail at the police station. All information required to be recorded under COP C must be recorded on the custody record.

Question 14

Basic information to be recorded must include:

Answer 14

The requirement to inform the person of the reason for his arrest;
* The circumstances of the arrest;
* Why the arrest was necessary; and
* Any comments made by the arrested person

Question 15

COP C

Answer 15

It is essential that the solicitor attending the police station view this record as it should contain
everything that has happened to, been said to or been said by the detainee. A solicitor has the right to consult their client’s custody record as soon as practicable after arrival at the police station and at any time while their client is still detained.
‘Solicitor’ in COP C means: a solicitor who holds a current practising certificate or an accredited or probationary representative included on the register of representatives maintained by the Legal
Aid Agency.

Question 16

1.5 Reviews of detention

Answer 16

Reviews of detention must be carried out during the detention of a suspect (s.40 PACE). The review
officer must be satisfied that the detention is still necessary. They must therefore consider whether the grounds for the detention, as authorised by the custody officer under s.37, still exist. The review officer must be an officer of at least the rank of inspector who is not connected with the investigation of the offence and is not the custody officer.

Question 17

1.5 Reviews of detention

Answer 17

Section 40 stipulates that the first review of the suspect’s detention will take place not more than
six hours after the suspect’s detention was first authorised by the custody officer and then
periodically every nine hours thereafter. At the time of the review, the detained person must be reminded of their right to free legal advice, and be given the right to make representations unless they are unfit to make such representations or asleep at the time of the review.

Question 18

1.6 Detention time limits (‘detention clock’)

Answer 18

Under s.41 PACE, the maximum period that a suspect can be kept in custody, before being charged, is 24 hours from the ‘relevant time’. In most cases, where the arrest has taken place within the particular police area, the relevant time begins at the moment the suspect arrives at the police station. The relevant time is indicated on the custody record. Do not confuse the relevant time with the time detention is authorised, as they will generally be different. Before the 24 hour limit on detention has expired the suspect must either be charged or released.

Question 19

1.7 Power to extend beyond 24 hours

Answer 19

1.7.1 Authority
Section 42 PACE allows for detention to be extended for a further 12 hours, taking the maximum period of detention in the police station to 36 hours calculated from the relevant time.

Question 20

1.7 Power to extend beyond 24 hours

Answer 20

1.7.2 Exercise
Section 42 stipulates that:
* Authorisation to extend must be given before the expiry of the initial 24 hours but after the
second review has occurred;
* The grounds for the extension must be explained to the suspect and noted in the custody
record; and
* The suspect and/or the suspect’s solicitor should be allowed an opportunity to make
representations.

Question 21

1.7 Power to extend beyond 24 hours

Answer 21

1.7.3 Criteria
Section 42 specifies that for detention to be extended:
* An officer of at least the rank of superintendent must authorise the continued detention;
* The superintendent or above has reasonable grounds for believing detention is necessary to
secure or preserve evidence or obtain evidence by questioning;
* The offence must be an indictable offence; and
* The investigation must be being conducted diligently and expeditiously

Question 22

1.8 Power to detain beyond 36 hours

Answer 22

If the police want to detain beyond 36 hours then they must apply to the magistrates’ court for a
warrant of further detention under ss.43 and 44 PACE.
The warrant may authorise continued detention for a further 36 hours on a first application and
36 hours (up to a maximum of 96 hours) on a second application

Question 23

The same criteria apply as under s.42 and ss.43 and 44 stipulate that:

Answer 23

• The magistrates’ court is satisfied that there are reasonable grounds for believing further detention is necessary to secure or preserve evidence or obtain evidence by questioning;
• The offence must be an indictable offence; and
• The investigation is being conducted diligently and expeditiously.

Question 24

1.9 Detention time limits: A summary

Answer 24

• The starting point is therefore that the maximum period of detention without charge is 24 hours from ‘the relevant time’.
• The relevant time is the time that the person arrested first arrives at the police station or 24 hours after arrest, whichever is the sooner.
• Where the offence being investigated is a summary-only offence, that time limit cannot be
  extended

Question 25

1.9 Detention time limits: A summary

Answer 25

• Where the offence being investigated is indictable, the time limit can be extended up to a
  maximum of 36 hours after the relevant time by an officer of the rank of superintendent or
  above. Thereafter the maximum period of detention without charge can be extended by the
  magistrates’ court up to a maximum of 96 hours after the relevant time.
• The relevant times to remember are therefore 24, 36 and 96.

Question 26

1.10 Summary

Answer 26

This section considered detention:
* At a police station as soon as practicable after arrest.
* The role of the custody officer- must be a rank of sergeant or above and is responsible for the
handling and welfare of suspects in detention at the police station.
* The custody record- which the solicitor has a right to consult as soon as practicable after their
arrival at the police station. It should contain everything that has happened to, been said to or
been said by the detainee.

Question 27

1.10 Summary

Answer 27

• Reviews of detention- the review officer who is at least the rank of inspector and not the
  custody officer, must be satisfied that detention is still necessary.
• Time limits- the maximum period of detention without charge is 24 hours from ‘the relevant
  time’. Where the offence being investigated is indictable, the time limit can be extended up to a
  maximum of 36 hours after the relevant time by an officer of the rank of superintendent or
  above. Thereafter the maximum period of detention without charge can be extended by the
  magistrates’ court up to a maximum of 96 hours after the relevant time.

Question 28

2 Suspect’s rights

2.1 The rights of a detained person

Answer 28

The custody officer must make sure that a person arrested and taken to a police station or
attending a police station voluntarily is told clearly about the following continuing rights which
may be exercised at any stage during the period in custody:
* The right to consult privately with a solicitor and that free independent legal advice is
available;
* The right to have someone informed of their arrest; and
* The right to consult the Codes of Practice (COP).

Question 29

2.1 The rights of a detained person

Answer 29

There are also circumstances where there is a right to an appropriate adult and/ or an interpreter.
We will look at some of these rights in greater detail in this section.
The custody record will record that these rights have been given and any response made by the
suspect (eg the name of the solicitor or person to be notified).
These rights are very important to the suspect but the Police and Criminal Evidence Act (PACE)
1984 allows for the police to delay a suspect from exercising these rights in certain limited
circumstances which we shall examine in this section

Question 30

2.2 The right to consult a solicitor

Answer 30

The right under s.58 PACE is the fundamental right to free and independent legal advice. This
includes consulting with a solicitor either in person, on the telephone, or in writing. The person detained must be told again of the right to free legal advice immediately before

Question 31

2.2 The right to consult a solicitor

Answer 31

• The commencement or recommencement of an interview
• Being asked to provide an intimate sample
• An intimate drug search
• An identification parade or video identification procedure
• If legal advice is declined, that should be noted on the custody record

Question 32

2.2 The right to consult a solicitor

Answer 32

• Where legal advice is sought, it must be provided as soon as is practicable
• Police should usually await the arrival of a solicitor before beginning an interview
• Nothing should be done to dissuade the suspect from obtaining legal advice
• If a detained person initially declined legal advice but subsequently changes their mind then the interview should cease and can recommence once the detainee has exercised their right to seek legal advice

‘Solicitor’ in COP C means: a solicitor who holds a current practising certificate or an accredited or probationary representative included on the register of representatives maintained by the Legal Aid Agency.

Question 33

2.2.1 Power to delay the right

Answer 33

The decision to delay a suspect’s right to legal advice is a serious step and must be justified by the
police, as it can have major implications for any evidence obtained against the suspect as a
result. A number of domestic and European cases have reinforced the position that the right to
legal advice is a fundamental one.

Question 34

Authority

Answer 34

It can only be delayed in accordance with s.58 and COP C Annex B.

Question 35

Exercise

Answer 35

This right can only be delayed up to a maximum of 36 hours.
Where the grounds are authorised they must be recorded and the suspect must be informed.
If the suspect is interviewed before he has been able to consult with a solicitor because this right
has been delayed, then there are restrictions on the drawing of adverse inferences at court.
Adverse inferences will be dealt with in other sections

Question 36

Criteria

Answer 36

In order to delay the right in accordance with s.58 (see also COP C Annex B):
* The person must be in detention for an indictable offence; and
* The authority to delay the exercise of the right is granted in writing by a police officer of at
least the rank of superintendent; and
* The superintendent has reasonable grounds to believe that the exercise of the right will lead to
any or all of the following consequences:

Question 37

Following consequences:

Answer 37

• Interference with/harm to evidence connected with an indictable offence;
• Interference with/harm to others;
• Alerting of other people suspected of committing an indictable offence but not yet arrested
  for it; and/or
• Hinder the recovery of property obtained in consequence of the commission of such an
  offence.

Question 38

Criteria

Answer 38

The right might also be delayed if the person has been detained for an indictable offence and has
benefited from their criminal conduct ie they have obtained property which they might take steps to try to conceal, such as moving the property outside the jurisdiction. This is property that upon conviction might be confiscated by virtue of the Proceeds of Crime Act 2002 (‘POCA’).

Question 39

COP C Annex B

Answer 39

Provides helpful guidance regarding the power to delay this right. Authority to delay may only be given if there are grounds to believe that the solicitor might pass
on a message or act in some other way that would lead to the consequences mentioned
previously. But although this suggests that, on rare occasions, the police might be justified in
delaying access to a named solicitor if the grounds can be made out, this would not usually provide justification to delay the right to legal advice generally and the suspect must be allowed to choose an alternative solicitor

Question 40

2.3 The right to have someone informed of the arrest

Answer 40

Section 56 PACE provides that an arrested person has the right to have a friend, relative or other
person told that they are under arrest. This right to have one person known to them or likely to take an interest in their welfare informed of their whereabouts as soon as is practicable, is at public expense. The right can be exercised every time the suspect is taken to a different police station.

Question 41

Criteria

Answer 41

In order to delay the right:
* The person must be in detention for an indictable offence (an offence that may be tried in the
Crown Court ie indictable only and either way offences); and
* The authority to delay the exercise of the right is granted in writing by a police officer of at
least the rank of inspector; and
* The inspector has reasonable grounds to believe that the exercise of the right will lead to any
or all of the following consequences:

Question 42

2.3.1 Power to delay the right

Answer 42

Authority: This right can only be delayed if the necessary criteria are met under s.56 PACE.

Question 43

Following consequences:

Answer 43

Interference with/harm to evidence connected with an indictable offence;
- Interference with/harm to others;
- Alerting of other people suspected of committing an indictable offence but not yet arrested
for it; and /or
- Hinder the recovery of property obtained in consequence of the commission of such an
offence.

The right might also be delayed if the person has been detained for an indictable offence and has
benefited from their criminal conduct, ie obtained property which the person might take steps to try to conceal, such as moving the property outside the jurisdiction. This is property that upon conviction might be confiscated by virtue of POCA

Question 44

Exercise

Answer 44

It is easier to justify the delay under s.56 than it is under s.58. Often the police may want to search a suspect’s property and will not want anyone ‘tipping off’ so that evidence can be disposed of before they get there.

Question 45

Exercise

Answer 45

However, any delay or denial of the rights in this section should be proportionate and should last
no longer than necessary. In any event, the exercise of this right can only be delayed up to a
maximum of 36 hours. Therefore, as soon as the search has been conducted or other suspects
arrested the appointed person should be notified

Question 46

2.4 The right to an appropriate adult (where required)

Answer 46

If a person is, or appears to be, under 18, they must have an appropriate adult present at the
police station.
The right to an appropriate adult also applies to anyone whom a police officer suspects may be:
* Mentally disordered or otherwise mentally vulnerable;
* Anyone whom an officer has been told in good faith may be mentally disordered or otherwise
mentally vulnerable.

Question 47

2.4.1 Who can act as an appropriate adult?

Answer 47

In the case of a young detainee, the appropriate adult is defined as:
* A parent; or
* A guardian; or
* In the case of a young person looked after under the Children Act 1989:
- A representative of the care authority or voluntary organisation; or
- A social worker.

Question 48

2.4.1 Who can act as an appropriate adult?

Answer 48

Failing these, any person aged 18 or over who is not a police officer or police employee suffices.
In the case of a detainee who is mentally disordered or otherwise mentally vulnerable, the
appropriate adult can be:
* A parent; or
* A guardian; or
* A relative; or
* Someone who has experience in dealing with such persons.
The appropriate adult must be 18 or over and must not be a police officer or police employee.

Question 49

2.4.2 Who cannot act as an appropriate adult?

Answer 49

A solicitor/ legal representative attending the police station for the suspect should not act as the
appropriate adult.
A person cannot act as an appropriate adult if they are:
* Suspected of involvement in the offence;
* The victim of, or a witness to, the offence;
* Involved in the investigation;
* A person who has received admissions from the person detained before acting as appropriate adult;
* Of low IQ and unable to appreciate the gravity of the situation; or
* An estranged parent whom an arrested juvenile does not wish to attend and specifically objects to.

Question 50

2.4.3 The role of the appropriate adult

Answer 50

The role of the appropriate adult is to:
* Ensure that the detained person understands what is happening and why;
* Support, advise and assist the detained person;
* Observe whether the police are acting properly and fairly and to intervene if they are not;
* Assist with communication between the detained person and the police; and
* Ensure that the detained person understands their rights and that those rights are protected
and respected.

An appropriate adult can request a solicitor/ legal representative on behalf of the person detained, though the person detained does not have to see the solicitor if they do not want to.

Question 51

2.4.4 Proceeding without an appropriate adult

Answer 51

A young or mentally disordered or vulnerable detainee should not be interviewed or asked to provide a written statement without the presence of an appropriate adult unless delay would be likely to lead to:
* Interference with or harm to evidence connected with an offence;
* Interference with or physical harm to other people;
* Serious loss of or damage to property;
* Alerting other suspects not yet arrested; or
* Hindering the recovery of property obtained in consequence of commission of the offence.

Question 52

2.5 The right to an interpreter (where required)

Answer 52

Where the custody officer has determined that a suspect requires an interpreter, that suspect
must not be interviewed without an interpreter unless authorisation is given by an officer of the
rank of superintendent or above who is satisfied that delaying the interview will lead to:
* Interference with, or harm to, evidence; or
* Interference with or physical harm to other people; or
* Serious loss of, or damage to, property.

Question 53

2.6 Treatment of suspects in a police station

Answer 53

COP C 8 gives details on conditions of detention which include:
* So far as practicable, not more than one detainee should be detained in each cell;
* Cells must be adequately heated, cleaned and ventilated;
* Bedding must be supplied;
* Toilet and washing facilities made available;
* If a detainee’s clothes have been removed, replacement clothing of a reasonable standard
shall be provided; and
* Two light meals and one main meal should be provided every twenty-four hours.

Question 54

2.7 Summary

Answer 54

This section considered the rights of a suspect being detained by the police for questioning:
* The right to consult privately with a solicitor and that free independent legal advice is
available;
* The right to have someone informed of their arrest; and
* The right to consult the Codes of Practice.
This section also considered the circumstances where there is a right to:
* An appropriate adult- to support and assist the detained person when they are, or appear to
be, under 18 or a police officer suspects, or has been told in good faith the detained person
may be mentally disordered or otherwise mentally vulnerable.
* An interpreter.
Authorisation to delay these rights can be given in narrow circumstances.

Question 55

2.7 Summary

Answer 55

This section also considered the circumstances where there is a right to:
* An appropriate adult- to support and assist the detained person when they are, or appear to
be, under 18 or a police officer suspects, or has been told in good faith the detained person
may be mentally disordered or otherwise mentally vulnerable.
* An interpreter.
Authorisation to delay these rights can be given in narrow circumstances.

Question 56

3 Interviews

Answer 56

3.1 Introduction
The police interview is an extremely important part of the police investigative process.
In order to ensure that a suspect is not in any way coerced or misled into making statements
which would incriminate themselves, Police and Criminal Evidence Act 1984 (PACE) Code of
Practice (COP) C paragraphs 11 and 12 set out in detail the procedures which must be followed
when an arrested person is being interviewed.

Question 57

3 Interviews

Answer 57

Interviews: An interview is widely defined by Code C, para 11.1A as:
’the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences …’.

Question 58

3.2 Caution

Answer 58

Interviews must be carried out under caution, therefore a person must be cautioned before they
are asked any questions about their suspected involvement in the commission of an offence.
The person should be cautioned again at the recommencement of an interview after a break.
The words of the caution are:
’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 may be given in
evidence.’

Question 59

3.3 Police station process

Answer 59

It is important to see where the interview fits in to the police station process. The detainee:
* Will see the custody officer who must authorise their continued detention.
* Will be informed of their rights.
* Will have certain non-intimate samples taken.
* May see the appropriate healthcare professional, if necessary.
* Will speak to a legal representative, if the detainee requests.
* Will be interviewed.

Question 60

• May be:

Answer 60

• Released under investigation or on police bail, after the interview; or
• Charged and released on police bail to appear at the magistrates’ court at a later date; or
• Charged and remanded in police custody to appear at the magistrates’ court the following
  day.

Question 61

3.4 Police rankings

Answer 61

Statutory powers often require authority from a particular police rank, so it is important to
understand the rankings:
* Constable
* Sergeant
* Inspector
* Chief Inspector
* Superintendent
* Chief Superintendent

There are also detectives in the Criminal Investigation Department (‘CID’) who follow the same
ranking system eg Detective Chief Superintendent or Detective Sergeant.

Question 62

3.4.1 The investigating officer

Answer 62

The Investigating Officer (‘IO’):
* Can be a police officer of any rank;
* Is usually the officer who is in charge of investigating that particular offence, also referred to
as the ‘Officer In the Case’ (‘OIC’);
* Is the officer the suspect’s legal representative would speak to at the police station to obtain
pre-interview disclosure;
* Will most likely lead the interview

Question 63

3.5 Location of interview

Answer 63

Where an officer has decided to arrest a person, that person should be interviewed at a police
station or other authorised place of detention.
The requirement that an interview be conducted at a police station is subject to exceptions, where
delay would be likely to:
* Lead to interference with or harm to evidence connected with an offence;
* Lead to interference with or physical harm to other persons; or
* Lead to serious loss of, or damage to, property; or
* Lead to the alerting of other persons suspected of having committed an offence but not yet
arrested for it; or
* Hinder the recovery of property obtained in consequence of the commission of an offence.

Question 64

3.6 Disclosure

Answer 64

There is no general ‘right to disclosure’ with the exception of:
* A significant statement (see next section); and
* The custody record.
However, PACE COP C 11.1A states that before interview a:
‘… solicitor must be given sufficient information to enable them to understand the nature of
any such offence and why they [the client] are suspected of committing it.’

Question 65

The defence solicitor and police will often have competing interests when it comes to disclosure:

Answer 65

• The investigating officer will want to hold back as much information as possible so that they
  can obtain, so far as possible, an untainted account from the defendant.
• The solicitor will want to have as much information as possible, to be able to give advice that is
  in the best interests of the client, and will do this by assessing the nature and the quality of the
  evidence against the client

Question 66

3.6.1 Disclosure: Significant statements

Answer 66

At the beginning of an interview, but after caution, any significant statement made by the person
interviewed in the presence of a police officer or member of police staff must be put to them.

Significant statement: A significant statement is one that is appears to be capable of being used in evidence, and in particular any direct admission of guilt (ie a confession).

Question 67

3.7 Recording and fitness for interview

Answer 67

3.7.1 Recording
The general rule is that all interviews must be contemporaneously recorded.
Interviews under caution for any indictable offence must be audio recorded. An exception exists to the general rule. The interview can be recorded in writing where:
* It relates to some minor offences;
* The person has not been arrested; and
* It takes place other than at a police station.

Question 68

3.7.2 Fitness for interview

Answer 68

Generally, no person should be interviewed if they are unable to:
* Appreciate the significance of the questions asked and their answers; or
* Understand what is happening because of the effects of drink, drugs or any illness, ailment or
condition. However, an officer of the rank of superintendent can authorise an interview in these
circumstances.

Question 69

3.8 Practicalities

Answer 69

3.8.1 Before the interview
The solicitor should:
* Obtain pre-interview disclosure; and
* Have an opportunity for a private consultation with their client to:
- Discuss the case; and
- Advise the client on their options for the interview.

Question 70

3.8.2 The interview

Answer 70

A properly conducted interview:
* Takes place in an interview room in a designated police station;
* Is recorded;
* Is in the presence of a lawyer, if the suspect has exercised their right under s 58 Police and
Criminal Evidence Act 1984;
* Gives the client the option to suspend the interview and have further consultations with their
solicitor.

Question 71

3.9 In the interview

Answer 71

Your role as a solicitor at the police station is to protect your client’s interests and advance their
case. As such a solicitor should consider intervening in a number of circumstances:
* Information or evidence is referred to or produced that was not disclosed before the interview;
* Clarification on any matter is required at any time;
* There is inappropriate questioning (see next section);
* There is inappropriate behaviour;
* Further advice to the client is needed;
* A break is required; or
* The circumstances require.

Question 72

3.10 Purpose of the interview

Answer 72

It is important to note that the purpose of an interview is to gather evidence. It is therefore
necessary to step in where officers use inappropriate questioning techniques.
Examples of inappropriate questioning include:
* Misrepresenting information, such as upgrading responses, misrepresenting key items of
information or inaccurate summarising;
* Hypothetical questions;
* Repetitive questioning; or
* Disruptive listening, such as not listening to your client’s response, or assuming knowledge of
your client’s response before your client answers or finishes their answer

Question 73

3.11 Confessions

Answer 73

Ideally, the investigating officer would like the suspect to admit the offence in the interview.
The evidential starting point for confessions is that they are admissible. However:
* Section 76(2) PACE 1984 sets out circumstances when a confession can be excluded from
evidence as a result of ’oppression’ or ‘unreliability’.
* Section 78 PACE 1984 gives the court the discretion to exclude evidence that ‘would have such
an adverse effect on the fairness of proceedings that the court ought not to admit it’

Question 74

3.11.1 Section 76(2) PACE 1984

Answer 74

• Oppression is ‘torture, inhuman or degrading treatment, or the use or threat of violence’ (s
  76(8)). The oppression must have caused the confession.
• Unreliability means the confession was obtained as the result of something said or done which renders it unreliable. This might include breaches of PACE including how the interview was
  conducted. Again, the thing said of done must have caused the confessions unreliability.
• The existence of either oppression or unreliability does not automatically exclude such
  evidence, instead the court must grant the defence’s application.

Question 75

3.11.2 Section 78 PACE 1984

Answer 75

• Section 78 may be used to exclude any evidence upon which the prosecution seeks to rely (in
  contrast to section 76 which can only be used in relation to confessions).
• Section 78 can also be used to exclude confessions where there is no suggestion that either
  limb of section 76(2) has been breached.

Question 76

3.12 Summary

Answer 76

This section considered what an interview is and the requirements the police must adhere to when
interviewing a person suspected of an offence.
* The definition of an interview can be found in the Police and Criminal Evidence Act (PACE)
1984 Code of Practice C, para 11.1A:
‘An interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence…’

Question 77

3.12 Summary

Answer 77

• An interview must be carried out under caution and an accurate record made.
• Before the interview the solicitor must be given sufficient information to allow them to
  understand the nature of the offence their client is suspected of committing and why their
  client is suspected of committing it. A ‘significant statement’ that appears to be capable of
  being used in evidence, and in particular any direct admission of guilt (ie a confession) must
  be disclosed at the start of the interview.
• It is a solicitor’s duty to intervene in the interview in order to protect the suspect’s rights and
  advance their case.
• Confession evidence can be excluded through applications under s 76 or s 78 PACE.

Question 78

4 Role of the solicitor at a police station

Answer 78

4.1 Code of Practice (COP) C
The role of the solicitor is set out in the Police and Criminal Evidence Act (PACE) 1984 COP C
Notes for Guidance paragraph 6D:
‘The solicitor’s only role in the police station is to protect and advance the legal rights of their
client. On occasions this may require the solicitor to give advice which has the effect of the
client avoiding giving evidence which strengthens a prosecution case. The solicitor may
intervene in order to seek clarification, challenge an improper question to their client or the
manner in which it is put, advise their client not to reply to particular questions, or if they wish
to give their client further legal advice’.

Question 79

4.2 Active defence

Answer 79

A solicitor should actively defend and promote their client’s interests.
A solicitor’s role is not:
* A passive one; nor
* To sit by and take notes.

Question 80

Active defence should include:

Answer 80

• Obtaining as much information from the police as is possible.
• Advising your client fully and in accordance with your professional obligations.
• Advising on issues which arise during the police investigation, such as whether to provide
  samples, extensions of periods of detention, searches of premises and bail.
• Attending and advising during the interview.

Question 81

4.3 Practical aspects of active defence

Answer 81

• Be familiar with both PACE and the Codes of Practice.
• Avoid confrontation with officers, instead make notes of apparent breaches of PACE and/ or
  the COP.
• Where interviewing officers have refused a reasonable request, speak to the custody officer
  and ask them to make a note in the custody record.
• Don’t be rushed. Take as much time as you need to properly advise your client.

Question 82

4.3.1 Take notes

Answer 82

• It is vital that you maintain a comprehensive contemporaneous record.
• You may have to give evidence at a subsequent trial concerning disclosure, police conduct or
  your advice to your client. Clear and detailed notes are vital if you are to give evidence with
  credibility.
• Taking notes on the go is not always easy, but an important aspect of police station practice.

Question 83

4.4 Vulnerable suspects

Answer 83

In general terms, a solicitor should be even more conscious of their role and responsibilities when
dealing with a vulnerable client.

Question 84

4.4.1 Who is not a ‘vulnerable’ client?

Answer 84

Generally, a person under the influence of drink or drugs should not be treated as vulnerable.

Question 85

4.4.2 Code of Practice C Annex E

Answer 85

Summarises provisions relating to vulnerable persons. Annex E sets out:
* When a suspect should be treated as vulnerable
* Appointment of an appropriate adult and their role
* Duties of the custody officer with regard to a vulnerable suspect
* When the vulnerable suspect can (and cannot) be interviewed

Question 86

COP C 1.13(d) states that ‘‘vulnerable’ applies to any person who, because of a mental health
condition or mental disorder:

Answer 86

(a) May have difficulty understanding or communicating effectively about the full implications
for them of any procedures and processes connected with:
- Their arrest and detention; or (as the case may be)
- Their voluntary attendance at a police station; or their presence elsewhere…for the purpose
of a voluntary interview; and
- The exercise of their rights and entitlements.
(b) Does not appear to understand the significance of what they are told, of questions they are
asked or of their replies;

Question 87

(c) Appears to be particularly prone to:

Answer 87

• Becoming confused and unclear about their position;
• Providing unreliable, misleading, or incriminating information without knowing or wishing to
  do so;
• Accepting or acting on suggestions from others without consciously knowing or wishing to
  do so; or
• Readily agreeing to suggestions or proposals without any protest or question’.

Question 88

4.5 When a suspect should be treated as vulnerable

Answer 88

• At the beginning of the suspect’s detention, the custody officer will undertake a risk assessment and identify whether the suspect is or might be ‘vulnerable’.
• If so, the vulnerable suspect will be provided with access to an appropriate adult.
• The custody officer must inform the appropriate adult of the grounds for detention, where the
  suspect is being detained and ensure the appropriate adult attends the police station as soon
  as possible

Question 89

4.6 Suspecting a person is vulnerable

Answer 89

COP C Annex E states that if at any time an officer (such as the investigating officer) suspects
that a person is vulnerable then the person will be treated as vulnerable unless there is clear
evidence to the contrary.
The officer must then make reasonable enquiries to ascertain whether the person falls within the
definition of vulnerable and record that information

Question 90

The notes for guidance state that relevant information might include:

Answer 90

• The behaviour of the person;
• Their mental health and capacity;
• What the person says about themselves;
• Information from police officers, staff and records;
• Information from health and social care and other professionals who know or have had
  previous contact with the person.

Question 91

4.7 Interviewing without an appropriate adult

Answer 91

Generally, a vulnerable person must not be interviewed or asked to provide or sign a written
statement in the absence of the appropriate adult. However, an urgent interview can take place if
a superintendent or above is satisfied it would not significantly harm the person’s physical or
mental state

Question 92

Delay would lead to:

Answer 92

• Interference with or harm to evidence connected with an offence;
• Interference with or physical harm to other persons; or
• Serious loss of, or damage to, property; or
• The alerting of other persons suspected of having committed an offence but not yet arrested
  for it; or
• Hindering the recovery of property obtained in consequence of the commission of an offence.

Question 93

4.7 Interviewing without an appropriate adult

Answer 93

These provisions are contained in COP C paragraphs 11.1, 11.18- 11.20. Questioning in these
circumstances may not continue in the absence of the appropriate adult once sufficient
information to avert the risk has been obtained. A record must be made of the grounds for any decision to begin an interview in these circumstances.

Question 94

4.8 Representing vulnerable clients

Answer 94

There are ways a solicitor can help protect the interests of a vulnerable client such as:
* Ensure that:
- An appropriate adult has been appointed.
- The custody officer has requested a medical assessment where appropriate.
* Take as much time as is necessary to take your client’s account and to clearly advise them.

Question 95

Ensure the client understands:

Answer 95

• Your role.
• Everything that is happening.
• What will happen in the interview and how to approach the ‘no comment’ interview if that is
  the option taken.
• What happens after interview.

Question 96

In the interview:

Answer 96

• Request regular breaks.
• Be especially mindful of the language and tone used by officers- intervene if necessary

Question 97

4.9 Summary

Answer 97

This section considered the role of the solicitor at the police station including the concept of
‘active defence’ and the conduct of a solicitor when representing a vulnerable client.
* The solicitor’s role in the police station is to actively protect and advance the legal rights and
interests of their client through:
- Advising their client, including on whether to answer police questions
- Intervening to seek clarification of questions or to challenge improper questions asked

Question 98

4.9 Summary

Answer 98

• Solicitors must take additional steps when representing vulnerable suspects at the police
  station including:
• Slower and clearer explanations
• Taking breaks during interview
• Ensuring the tone of questions is appropriate

Question 99

5 Formulating advice to suspects

Answer 99

5.1 Advising the client
The consultation with the client should take place in private and is confidential.
The lawyer should not breach any professional conduct issues by, for example taking instructions
from:
* A relative or third party unless you are satisfied that the person giving instructions has
authority to do so on behalf of your client; or
* Two clients in relation to the same matter and one client blames, or might blame, the other.

Question 100

The lawyer should:

Answer 100

• Be supportive and explain their role.
• Assess the client’s fitness to be interviewed.
• Provide advice on the legal position.
• Explain the options the client has in the interview and consider which option would be best.
• Explain and advise of the consequences of those options.
• If necessary, provide advice on samples.

Question 101

5.1.1 The client’s account

Answer 101

Once the lawyer has outlined the circumstances as provided by the police, the client should be
asked for their version of events:
* Do they accept involvement?
* Do they have a legal defence eg self defence?

Question 102

5.2 Options in the interview

Answer 102

There are three options in the police interview for the client:

• Answer questions
• Don’t answer questions (‘go no comment’)
• Provide a written statement and ‘go no comment’

Question 103

5.2 Options in the interview

Answer 103

Anything that the client says can be used in evidence, so it is important to undertake an assessment and balance the risks of answering questions or remaining silent.
Whilst a client is entitled to remain silent in an interview the lawyer must explain the consequences
of any silence.

Question 104

Adverse inferences

Answer 104

Consequences might include a court drawing ‘adverse inferences’.
Basically, an adverse inference is a common sense conclusion that is adverse to the interests of a
party in proceedings. If a man with a gun in his hand is found standing next to a body with gunshot wounds, an ‘inference’ can be drawn that he has just shot the person on the ground.

Question 105

5.2.1 Handing in a prepared written statement

Answer 105

Handing in a prepared written statement is a strategy sometimes used to try and avoid later
adverse inferences. A statement is handed in at the beginning of the interview which sets out the defence. It is often used where there are facts which will be later relied on at trial but the lawyer thinks that there are reasons why the client should not participate in answering questions.

Question 106

5.2.1 Handing in a prepared written statement

Answer 106

It can be difficult to ensure that sufficient information is contained in the statement as any fact
relied on later that is not mentioned could still attract an adverse inference.
A prepared statement should not be thought of as a ‘best of both worlds’ option between
answering questions and not answering any questions as:
* Avoiding adverse inferences using a statement is very difficult.
* The client will still have to answer ‘no comment’ to questions put in the interview.

Question 107

5.2.2 Mixed interviews

Answer 107

A mixed interview (stating ‘no comment’ to some questions and answering others) is not a valid
option in the interview, and you should advise your client in the strongest terms to avoid this
approach because:
* The transcript of the interview will be read in court. A ‘no comment’ interview is not read as
evidence. Imagine a jury hearing a suspect apparently avoiding some questions.
* The interviewing officers will use tactics and techniques to push the suspect into talking about
matters they had intended not to speak about.
* The suspect is likely to become confused as to what they have already said.

Question 108

5.2.3 Should the client answer questions?

Answer 108

Deciding whether to advise the client to answer questions is a careful balancing exercise . There
are numerous factors to consider:
* Amount of disclosure
* Admissibility and strength of evidence- that you are aware of or that might become available
in the future.
* Your client’s account/ instructions
* The state of your client
* Significant statements
* Possible adverse inferences

Question 109

5.3 Amount of disclosure

Answer 109

Prior to interview a solicitor must be given sufficient information to enable them to understand the
nature of any offence and why their client is suspected of committing it (Code of Practice C
paragraph 11.1A)

Question 110

5.3 Amount of disclosure

Answer 110

Case law has held that if the police disclose little or nothing of the case against the suspect so
that a legal advisor cannot usefully provide advice to their client, then this may be a good reason
for the solicitor to advise the suspect to remain silent.

Question 111

5.3 Amount of disclosure

Answer 111

Where an investigating officer has not provided sufficient disclosure to allow you to usefully
advise your client it can be worth reminding the investigating officer that courts are reluctant to
draw adverse inferences where disclosure was insufficient.

Question 112

5.4 Admissibility of evidence

Answer 112

It might seem a little early in the criminal justice process to be considering admissibility of
evidence, but this must be considered when weighing up the strength of the evidence.
* Have witnesses provided written statements?
* Are witnesses compellable? You will learn in other sections that some witnesses cannot be
compelled to give evidence. Most can, but some cannot.
* Were any significant statements (eg confessions) unlawfully obtained?
* Will any s 78 Police and Criminal Evidence Act (PACE) 1984 applications have to be made at
court (for breach of PACE Codes of Practice for example)?

Question 113

5.5 Strength of evidence

Answer 113

If there is little evidence to suggest that the client is involved then the matter is unlikelyto get to
trial. Remaining silent can be a good option as there is:
* No risk of the client providing incriminating information; and
* Little risk of an inference being drawn from silence as the matter is unlikely to proceed

Question 114

5.5 Strength of evidence

Answer 114

However, further evidence could become available and if so, silence in this interview could then be
relevant. What evidence has yet to be obtained? If the client has admitted their guilt to you then remaining silent can still be an option, especially if the evidence is weak.

Question 115

5.6 Your client’s account/instructions

Answer 115

If the client has a defence then the risks of not putting that forward in the interview must be considered carefully. There are two possible consequences of waiting until trial to put forward a defence:
* Adverse inferences; and
* Losing credibility. There are therefore advantages in putting forward the defence at this early stage especially if the defence might be one of alibi or where the defence has the evidential burden of raising the defence (eg self-defence).

Question 116

5.7 The state of your client

Answer 116

Remember that a police interview can be a frightening experience and you should prepare your
client for what to expect. For example, if your client is going to go ‘no comment’ then you will have
to prepare them for attempts by officers to engage them in what seems like only friendly
conversation

Question 117

5.7 The state of your client

Answer 117

The lawyer needs to assess whether, irrespective of the client’s instructions in relation to the
offence, they would be able to handle the interview.
A number of cases have confirmed that the court should not draw inferences from silence where
the suspect’s condition, such as ill-health (especially mental), confusion, intoxication or shock
gives the lawyer cause for concern.Such factors are referred to as ‘Argent factors’, from the case
of R v Argent [1997] 2 Cr App R 27.

The lawyer should check on the custody record to see whether the forensic medical examiner has
certified the suspect fit for interview.

Question 118

5.8 Summary

Answer 118

This section considered how to formulate advice to a suspect prior to police interview and the
options available to the suspect during that interview.
* The options available to the suspect: answer questions, go no comment, or hand in a prepared
written statement.
* ‘Mixed interviews’ - answering some questions but not others should be avoided.

Question 119

5.8 Summary

Answer 119

Factors the solicitor should consider when formulating their advice:
- Amount of disclosure
- Admissibility and strength of evidence- that you are aware of or that might become
available in the future
- Your client’s account/ instructions
- The state of your client- prepare them for the interview
- Significant statements
- Possible adverse inferences

Question 120

6 Inferences
6.1 Right to silence

Answer 120

The basic principle is that every suspect has a right to silence. This means that there is no
obligation to answer questions in a police interview. However, if a suspect exercises their right to silence at interview then, provided certain statutory conditions are met, a court is allowed to draw inferences at a later trial.

Question 121

Adverse inference

Answer 121

An adverse inference is a common sense conclusion that is adverse to the interests of a party in proceedings. If a man with a gun in his hand is found standing next to a body with gunshot wounds, an
‘inference’ can be drawn that he has just shot the person on the ground.

Question 122

6.2 Adverse inferences

Answer 122

We will look at three inferences that can be drawn under the Criminal Justice and Public Order
Act 1994 in this section:
* Section 34 – if a fact is later relied on at trial and it would have been reasonable to have
mentioned it now.
* Section 36 – if there is a failure to account for a mark, object or substance. This is why careful
consideration of the custody record is important so that you are not ambushed in interview.

Question 123

6.2 Adverse inferences

Answer 123

• Section 37 – if there is a failure to account for presence at the scene. Where was the suspect
  arrested? Can this be linked to their involvement?
  Section 38- contains the safeguard that no defendant may be convicted solely based on an
  adverse inference.
  Section 35- if the accused is silent at trial, will be considered in a separate section

Question 124

6.3 Section 34

Answer 124

Section 34 Criminal Justice and Public Order Act 1994 allows for an inference to be drawn by the
jury or magistrates in circumstances when the defendant later relies on a fact in their defence that was not offered at the time of questioning. A court does not have to draw any inference but, if it does, any inference that is drawn must be ‘proper’. As such an inference can range from

• An acceptance that the defence as presented in court is true but the defendant chose not to reveal it in their interview; to
• An inference that the defendant’s account in court is untrue and they are in fact guilty.

Question 125

6.3.1 The suspect must be cautioned

Answer 125

If the suspect is not cautioned then no inference can be drawn.
The words of the caution explain to the suspect the consequences of not mentioning a fact later
relied upon. The Police and Criminal Evidence Act 1984 (PACE) Code of Practice C paragraph 10.5 states the caution shall be in the following terms:
‘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 may be given in
evidence.’

Question 126

6.3.2 Reasonable to have mentioned

Answer 126

It must have been reasonable to have mentioned the fact at the time, bearing in mind all the
circumstances existing at the time.
Court of Appeal guidance in R v Argent [1997] Crim LR 346 states ‘circumstances existing at the
time’ should be widely interpreted.

Question 127

Guidance from the Law Society states that ‘circumstances existing at the time’ can include:

Answer 127

• What disclosure had been made to the suspect, or their lawyer, by the police;
• What information the prosecution can demonstrate the suspect knew at the time of
  questioning or charge;
• The condition and circumstances of the suspect; and
• Any legal advice that the suspect received.

Question 128

6.3.3 Effect of an adverse inference

Answer 128

The ultimate effect of an adverse inference being drawn at trial from a defendant’s silence at
interview is that it undermines their defence. When the jury or magistrates draw an adverse
inference, they are effectively saying that:
* The explanation given at trial has been fabricated since the time of the interview; or
* The defendant withheld their account at interview as they knew that it would not stand up to
police questioning (the ambush defence); or
* At the time of the interview the defendant had no reasonable explanation which would refute
the prosecution case.

Question 129

6.4 Inferences under section 36 & 37

Answer 129

Section 36 Criminal Justice and Public Order Act 1994- when the suspect fails to account for an
object, substance or mark found on them at the time of arrest.
Section 36 might include a failure to account for bruising or a hammer in the suspect’s rucksack.
Section 37- when the suspect fails to account for their presence on arrest at a particular place at
or about the time the offence was allegedly committed.
Section 37 might include failing to explain why they were found on a burglary victim’s driveway.

Question 130

6.4 Inferences under section 36 & 37

Answer 130

In contrast with section 34 (failure to mention facts), the ability to draw inferences under sections
36 and 37 arise as soon as there is a failure by the defendant to account for their possession of
the object in question or presence.
It is not a requirement that there is a failure to mention something later relied upon.

Both sections 36 and 37 are restrictively worded. They require the defendant to be given an
‘ordinary language caution’, known as a ‘special warning’. The requirements of the special
warning can be found in PACE Code of Practice C paragraph 10.11.

Question 131

They must be told:

Answer 131

• What offence is being investigated;
• What fact they are being asked to account for;
• This fact may be due to them taking part in the commission of the offence;
• A court may draw a proper inference if they fail or refuse to account for this fact; and
• A record is being made of the interview and it may be given in evidence if they are brought to
  trial

Question 132

6.5 Safeguards

Answer 132

There is an important safeguard within s 38 Criminal Justice and Public Order Act 1994 which
states that no defendant may be convicted solely based on an adverse inference. Importantly, no adverse inference can be drawn where the suspect has not been allowed access to legal advice (PACE Code C paragraph 6.6 and Annex C).

Question 133

6.6 No trial: No inferences

Answer 133

It is important to understand that an adverse inference under any section will only be relevant if
the defendant has a trial. If the case never gets to trial or your client pleads guilty then adverse
inferences are irrelevant.
This is an important concept to grasp when advising clients prior to interview at the police station.
The lawyer will have to balance the likelihood of a trial actually happening against the risk of an
inference if it does.

Question 134

6.7 Summary

Answer 134

This section considered the adverse inferences that can be drawn by a court under the Criminal
Justice and Public Order Act 1994 sections 34, 36 and 37.
* Right to silence- suspects are not obliged to answer police questions in interview. However, an
inference can be drawn under the Criminal Justice and Public Order Act 1994:
- Section 34 – if a fact is later relied on at trial and it would have been reasonable to have
mentioned it in the interview. The suspect must have been cautioned.
- Section 36 – if there is a failure to account for a mark, object or substance. The suspect
must have been given a special warning.

Question 135

6.7 Summary

Answer 135

• Section 37 – if there is a failure to account for presence at the scene. The suspect must
  have been given a special warning.
• As the effect of an adverse inference is to undermine the defence case safeguards exist:
• Section 38- no defendant may be convicted solely based on an adverse inference.
• No adverse inference can be drawn where the suspect has not been allowed access to legal
  advice.
• If the case never gets to trial or your client pleads guilty then adverse inferences are irrelevant.

Question 136

7 Visual identification: Investigative stage

7.1 Introduction

Answer 136

In every criminal trial, the prosecution must prove beyond reasonable doubt that the person in the dock is responsible for committing the crime. When identification is disputed, the prosecution can establish that the defendant committed the crime in a number of ways, for example:
* DNA evidence
* Telephone evidence
* Fingerprint evidence
* Testimony from witnesses

Question 137

7.2 Visual identification from an eye-witness

Answer 137

• One of the most common methods of proving that the defendant committed the crime is
  through a visual identification from an eye-witness.
• An eye-witness:
• Might recognise the suspect as someone they have seen before, as a friend or acquaintance, family member or a stranger who travels on the same bus every day; or
• May never have seen the suspect before the crime was committed but were able to give police a description. They may also express an ability to recognise the person if they saw them again.

Question 138

7.3 Visual identification evidence

Answer 138

It is important not to confuse visual identification evidence with other evidence that is capable of
supporting the prosecution’s case.
The following are examples of evidence that do not constitute visual identification evidence:
* Mere description of clothing/vehicle (‘I couldn’t see his face but he was wearing a purple
jumper’)
* The suspect has a connection to a particular place or others at the scene (eg ‘I thought it was
Maria because I know she is always at the café on a Saturday morning’)
* A description of the suspect (‘He was 5’7’ with dark hair and blue eyes’.

Question 139

7.4 The special need for caution

Answer 139

The reliability of eyewitness identification has attracted concern from legal professionals and
academics for over a century as:
* Experience has shown that it is easy for an honest and convincing witness to be mistaken even if the suspect is well known to them.
* A confident identification is no more likely to be reliable than a hesitant one

Question 140

7.4 The special need for caution

Answer 140

A series of miscarriages of justice arising from inaccurate eyewitness testimony led to a wholesale
review of investigatory and trial procedure in the latter part of the 20th century. As a result,
safeguards were introduced at every stage of the process to ensure that identification evidence
before a jury is reliable as possible:
* Investigation stage: Police and Criminal Evidence Act 1984 (PACE) Code of Practice D; and
* Trial: Turnbull guidelines.
This section focuses on the investigation stage

Question 141

7.5 Investigation stage

Answer 141

Following the codification of police powers in PACE, Code D Code of practice for the identification of persons by police officers was issued.
Amongst other things such as the taking of fingerprints and samples, PACE Code D deals with the
process to be adopted by the police where a witness purports to identify a suspect or expresses
an ability to make a visual identification.

Question 142

It was introduced for two reasons:

Answer 142

• To protect an innocent suspect from an incorrect identification; and
• To make a successful identification as watertight and ‘challenge-proof’ as possible

Question 143

7.5.1 Cases when a suspect not known

Answer 143

If the suspect’s identity is not known to the police, then the eye-witness:
* May be taken to a particular neighbourhood or place to see whether they can identify the
person they saw on a previous occasion.
* Can be shown photographs in accordance with Code D, Annex E

Question 144

7.5.2 Cases when a suspect is known

Answer 144

Duty to hold identification procedures Code D paragraph 3.12 states that an identification procedure shall be held (unless an exception exists) where:
* An offence has been witnessed and an eye-witness:
- Has identified a suspect or purported to have identified them; or
- Is available who expresses an ability to identify the suspect; or
- Has a reasonable chance of being able to identify the suspect.
* The suspect disputes being the person the eye-witness claims to have seen. An identification procedure does not need to be held if it is not practicable or it would serve no useful purpose in proving or disproving the suspect was involved in the offence eg the suspect is
already known to the eye-witness.

Question 145

7.6 Identification procedures

Answer 145

If the suspect’s identity is known to the police and they are available, the identification procedures that may be used are:
* Video identification- the eye-witness is shown moving images of a known suspect, together with similar images of others who resemble the suspect.
* Identification parade- the eye-witness sees the suspect in a line of others who resemble the
suspect.
* Group identification- the eye-witness sees the suspect in an informal group of people.

Question 146

7.6 Identification procedures

Answer 146

The arrangements for, and conduct of, the identification procedures above shall be the responsibility of an officer not below inspector rank who is not involved with the investigation (‘the identification officer’)

Question 147

7.7 Video identification procedures

Answer 147

• In the first instance the suspect shall be invited to participate in a video identification
  procedure unless:
• A video identification procedure is not practicable; or
• An identification parade is more suitable.
• If the suspect refuses, then an alternative can be considered.
• Covert procedures should be used as a last resort and only if all other procedures have been
  considered and refused.

Question 148

7.7.1 Formalities

Answer 148

• A record shall be made of the description of the suspect as first given by the eye-witness.
• A copy of the record shall be given to the suspect or their solicitor before any identification
  procedures are carried out.

Question 149

7.7.1 Formalities

Answer 149

• A notice must be given to a suspect and the following must be explained:
• The purpose of the procedure
• Their entitlement to free legal advice
• The procedures for holding it, including their right to have a solicitor or friend present;
• That they do not have to consent to or co-operate in the procedure;
• That if they do not consent to, and co-operate in, a procedure, their refusal may be given in evidence in any subsequent trial and police may proceed covertly without their consent or make other arrangements.
• The suspect shall be invited to participate in a video identification procedure first.

Question 150

7.7.2 Video identification

Answer 150

• The detailed arrangements for a video identification are contained in Code D Annex A.
• It takes the form of VIPER (Video Identification Parade Electronic Recording).
• Officers film the suspect asking them to face the camera and be filmed from the right, left and
  centre.

Question 151

7.7.2 Video identification

Answer 151

• The identification officer, suspect and legal representative select lookalikes from over 10,000 video clips on the VIPER system.
• A video clip is produced with the suspect placed amongst at least eight other individuals who,
  so far as possible, resemble the suspect in age, general appearance and position in life

Question 152

7.7.2 Video identification

Answer 152

• If the suspect has an unusual physical feature eg a facial scar, tattoo, distinctive hairstyle or
  hair colour which does not appear on the images of the other people that are available to be used, steps may be taken to:
• Conceal the location of the feature on the images of the suspect and the other people; or
• Replicate that feature on the images of the other people.

Question 153

7.7.2 Video identification

Answer 153

• The suspect, their solicitor, friend or appropriate adult must be given a reasonable opportunity
  to see the complete set of images before it is shown to any eye-witness.
• If the suspect has a reasonable objection to the set of images or any of the participants, the
  suspect shall be asked to state the reasons for the objection.
• Immediately before the images are shown, the eye-witness shall be told that the person they
  saw on a specified earlier occasion may, or may not, appear in the images.

Question 154

7.7.2 Video identification

Answer 154

• The video clip is then shown to the witnesses.
• The suspect’s solicitor may only be present at the video identification procedure on request
  and with the prior agreement of the identification officer.
• The video identification procedure must be recorded on video with sound. The recording must
  show:
• All persons present within the sight or hearing of the eye-witness whilst the images are
  being viewed;
• What the eye-witness says; and
• What is said to the eye-witness by the identification officer and by any other person
  present

Question 155

7.7.2 Video identification

Answer 155

• Care must be taken not to direct the eye-witness’ attention to any one individual image or give
  any indication of the suspect’s identity.
• A supervised viewing of the recording of the video identification procedure by the suspect
  and/or their solicitor may be arranged on request, at the discretion of the investigating officer.
• Eye-witnesses are not able to communicate with each other. One eye-witness may see the set
  of images at a time.

Question 156

7.8 Identification parades g

Answer 156

• The detailed arrangements for identification parades are contained in Code D Annex B.
• A suspect must be given a reasonable opportunity to have a solicitor or friend present.
• An identification parade may take place either:
• In a normal room; or
• One equipped with a screen permitting witnesses to see members of the identification
  parade without being seen.

Question 157

7.8 Identification parades

Answer 157

• Once the identification parade has been formed, everything afterwards, in respect of it, shall
  take place in the presence and hearing of the suspect and any interpreter, solicitor, friend or
  appropriate adult who is present.
• A video recording or colour photograph must normally be taken of the identification parade
  and supplied, on request, to the suspect or their solicitor within a reasonable time.

Question 158

7.8 Identification parades

Answer 158

• The identification parade shall consist of at least eight people (in addition to the suspect) who,
  so far as possible, resemble the suspect in age, height, general appearance and position in life.
• If the suspect has an unusual physical feature eg a facial scar, tattoo, distinctive hairstyle or
  hair colour which cannot be replicated on other members of the identification parade, steps
  may be taken to conceal the location of that feature on the suspect and the other members. For example, by use of a plaster or a hat, so that all members of the identification parade
  resemble each other in general appearance.

Question 159

7.8 Identification parades

Answer 159

• The suspect may select their own position in the line.
• Witnesses must not be able to:
• Communicate with each other;
• Overhear a witness who has already seen the identification parade;
• See any member of the identification parade; or
• See the suspect before or after the identification parade.

Question 160

7.8 Identification parades

Answer 160

• Witnesses shall be brought in one at a time.
• Immediately before the witness inspects the identification parade, they shall be told the person
  they saw on a specified earlier occasion may, or may not, be present.
• The witness can ask to hear any identification parade member speak, adopt any specified posture or move

Question 161

7.9 Group identification

Answer 161

The detailed arrangements for group identification are contained in Code D Annex C.
* Group identifications may take place either:
- With the suspect’s consent and co-operation; or
- Covertly without their consent.

Question 162

7.9 Group identification

Answer 162

• The location should be one where other people are either passing by or waiting around informally, in groups such that the suspect is able to join them and be capable of being seen
  by the witness at the same time as others in the group. Examples given include people leaving escalators, pedestrians walking through a shopping centre, passengers on railway and bus stations

Question 163

7.9 Group identification

Answer 163

• A colour photograph or video should be taken of the general scene, if practicable, to give a
  general impression of the scene and the number of people present.
• As in other procedures the witnesses should not be able to communicate with each other.

Question 164

7.10 Confrontation by an eye-witness

Answer 164

• Confrontation by an eye-witness is contained in Code D Annex D.
• Before the confrontation takes place, the eye-witness must be told that the person they saw on
  a specified earlier occasion may, or may not, be the person they are to confront and that if they are not that person, then the witness should say so.
• The confrontation should normally take place in the police station, either in a normal room or one equipped with a screen permitting the eye-witness to see the suspect without being seen

Question 165

7.11 Breach of Code D: Consequences

Answer 165

The first issue for a trial judge in these circumstances is to determine if a breach of Code D has in
fact occurred. This can usually be achieved without a voir dire (trial within a trial). However, there
may be circumstances when evidence around the alleged breach is disputed. In those circumstances, a voir dire may be required and the judge will have to hear evidence under oath.

Question 166

7.11 Breach of Code D: Consequences

Answer 166

If there has been a breach of Code D, the remedy for the defendant is to apply to exclude evidence obtained in breach of the code under s 78 PACE 1984. A breach of the code does not automatically lead to the exclusion of the evidence. The key issue for the trial judge to decide is whether there has been any significant prejudice to the accused. If the judge has determined that there is prejudice, they must then decide if the admission of the evidence would have such an adverse effect on the fairness of proceedings that
the court ought not to admit it.

Question 167

7.11 Breach of Code D: Consequences

Answer 167

Identification evidence will usually be excluded when important safeguards have been flouted, such as the right to a formal identification procedure.
The defendant has the right to have the correctness of the visual identification tested under formal conditions.

Question 168

Where identification evidence is admitted into evidence despite a breach of Code D:

Answer 168

• Defence advocates are still permitted to comment on the breach in their closing speech.
• The trial judge ought to draw the jury’s attention to the breach and invite them to consider the
  reasons why the code has been drawn in the way it has.
• The jury should assess whether in their estimation the breaches were such as to cause them to
  have doubts about the safety of the identification

Question 169

7.12 Summary

Answer 169

This section considered visual identification evidence at the investigation stage.
* An ID procedure must be held where: an offence has been witnessed and an eye-witness:
- Has identified a suspect or purported to have identified them; or
- Is available who expresses an ability to identify the suspect; or
- Has a reasonable chance of being able to identify the suspect.

Question 170

7.12 Summary

Answer 170

The suspect disputes being the person the eye-witness claims to have seen.
* The types of visual identification procedure: video identification, identification parade, group
identification and confrontation by an eye-witness.
* Suspects are generally invited to participate in a video identification procedure and covert
procedures should be used as a last resort.
* The defendant can apply to exclude evidence obtained in breach of Code D under s 78 PACE
1984

Question 171

8 Commencing criminal proceedings

8.1 Who makes charging decisions?

Answer 171

In general the decision to charge is taken by a Crown Prosecutor.
Crown Prosecutors exercise the powers of the Director of Public Prosecutions (DPP), who is
required to take over the conduct of all prosecutions commenced by the police. The DPP also has a discretion to take over the conduct of prosecutions commenced privately. All charging decisions for indictable-only offences are taken by a crown prosecutor.

Question 172

8.1 Who makes charging decisions?

Answer 172

The police retain discretion as to whether to charge for a number of summary offences including
various road traffic offences, offences contrary to s.5 Public Order Act 1986, criminal damage where the value of the damage does not exceed £5,000, and low-value shoplifting. Where the
decision is one for the police, it is made by the custody officer.

Question 173

8.1.1 Crown Prosecutors

Answer 173

The DPP may delegate powers to agents who are lawyers with rights of audience. Agents must act
subject to the instructions given by a Crown Prosecutor. Crown Prosecutors exercise the powers of
the DPP. Uniformity in the approach taken by different Crown Prosecutors in relation to charging decisions is sought through the Code for Crown Prosecutors, issued by the DPP.

Question 174

8.1.1 Crown Prosecutors

Answer 174

The DPP may also appoint “associate prosecutors” who are CPS employees who are not lawyers to represent the CPS on bail applications and other pre-trial applications. They may conduct trials where the offence charged is a non-imprisonable summary offence.

Question 175

8.2 The different forms of commencing criminal proceedings

Answer 175

We will consider three different forms of commencing criminal proceedings:
* Arrest and charge;
* Written charge and requisition; and
* Laying an information.

Question 176

8.2.1 Arrest and charge

Answer 176

This is the most common way of commencing criminal proceedings.
The charge may come:
* At the end of the period of detention at the police station after an arrest;
* After a period of police bail when the suspect re-attends the police station; or
* After a period on police bail while the CPS decides what the appropriate charge, if any, is.

Question 177

Practice point

Answer 177

Pre-charge police bail can be imposed in a number of different circumstances including:

(a) Where there is insufficient evidence to charge a suspect and they are released pending
further investigation (ss 34(2), 34(5) and 37(2) of PACE .
(b) Where police consider there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision (s.37(7)(a) PACE).

Question 178

Practice point

Answer 178

It is for the police to decide whether a suspect is released with or without bail and if released on bail, whether any conditions of bail should be imposed. Where it is practicable to do so investigators should seek the views of victims on bail and possible bail conditions. If a suspect is not released on police bail but the police are still looking into the matter, then they are referred to as having been ‘released under investigation’ (RUI).
Pre-charge bail was reformed by schedule 4 of Police, Crime, Sentencing and Courts (PCSC) Act
2022.

Question 179

8.2.2 Written charge and requisition

Answer 179

This is a method of commencement created by s.29 Criminal Justice Act (CJA) 2003. A public prosecutor may commence proceedings by issuing a written charge charging a person with an offence. There is no requirement that the person charged has been arrested when this method of commencement is used. At the same time the public prosecutor issues a requisition, which requires the person charged to attend a magistrates’ court.

Question 180

8.2.2 Written charge and requisition

Answer 180

The charge and requisition must be
served on the person charged and on the magistrates’ court at which that person is to attend. This method of commencement is available only to ‘relevant prosecutors’, broadly speaking, those who prosecute on behalf of the state ie Crown Prosecution Service, Health and Safety Executive, Driver and Vehicle Standards Agency and the Environment Agency.

Question 181

8.2.3 Laying an information

Answer 181

Another way to commence proceedings is for the prosecutor to serve an information alleging an
offence on a magistrates’ court. The court will then issue a summons or an arrest warrant requiring the accused to attend. Private prosecutions may only be commenced by summons as
they are not brought by ‘relevant prosecutors’ for the purposes of the written charge and requisition procedure under s.29 CJA 2003.

Question 182

8.3 Content of the written charge/information or summons/requisition

Answer 182

The written charge or information must contain:
* A statement of the offence which describes the offence in ordinary language;
* A reference to the statutory provision that creates the offence (if it is a statutory offence); and
* Sufficient particulars of the conduct complained of for the accused to know what is alleged.

Question 183

8.3 Content of the written charge/information or summons/requisition

Answer 183

A summons or requisition must:
* Contain a notice setting out when and where the accused is required to attend court; and
* Specify each offence in respect of which it has been issued.
A summons must identify the issuing court.
A requisition must identify the person under whose authority it was issued.

Question 184

8.4 Timing of the charge

Answer 184

There is no ‘Statute of Limitation’ requiring that a charge be brought within a specified period
after the commission of the offence.
The only exception is that s.127(1) Magistrates’ Courts Act 1980 provides that where the alleged
offence is ‘summary only’, a magistrates’ court shall not try an information or hear a complaint
unless the information was laid or the complaint made within six months of the date of the alleged
offence.

Question 185

8.4 Timing of the charge

Answer 185

There is no time limit for charging the accused with any indictable offence.
If there is any dispute as to whether a charge has been brought within the specified period then the prosecution have the burden to satisfy the court to the criminal standard that proceedings were correctly brought in time.

Question 186

8.5 Summary

Answer 186

This section considered:
* Who makes charging decisions:
- Generally, Crown Prosecutors exercising the powers of the Director of Public Prosecutions.
- The police retain discretion as to whether to charge for a number of summary offences, a power exercised by the custody officer

Question 187

8.5 Summary

Answer 187

• Different ways of commencing criminal proceedings:
• Arrest and charge- the most common way of commencing criminal proceedings.
• Written charge and requisition- available only to “relevant prosecutors” such as the Crown
  Prosecution Service and the Environment Agency.
• Laying an information- such as private prosecutions.