Chapter 2: Preliminaries to Prosecution Flashcards
Stopping of a suspect ot interview and potential charge governed by PACE 1984 and Codes of Practice
Failure of a police officer to have regard to the provision of the codes may be relevant to issues of admissibility of evidence under? Section X of Pace
Under S.76 and S.78 of PACE
Arrest: Most powers of arrest depned upon the concept of?
“Reasonable Suspicision”
The test requires the officer to suspect ( subjective test) and that a reasonable person in possession of the same facts as the officer would also suspect ( objective test) that the potential suspect has committed or is about to commit the offence.
A constable may use reasonable force, if necessary in exercising powers of arrest.
In determining whether the degree of force used necessary court look at:
- Circumstances
-nature and degree of force used
-Seriousness of offence
-Harm that flowed from that use of force and possibility of effecting an arrest by other means.
Rmbr v imp Handcuffs may ONLY BE USED WHERE ..
- In order to prevent escape ( have to see situation v carefully)
- Where there is serious breach of peace.
Police power to arrest governed by s.24 PACE
Police power to arrest governed by s.24 PACE
Under s24, a constable may arrest without warrant any person who
-Is about to commit an offence;
-Is in the act of committing an offence;
-He has reasonable grounds for suspecting is about to commit an offence;
-He has reasonable grounds for suspecting has committed an offence.
Arrest: Person MUST be informed that he is under arrest and of the grounds for that arrest as soon as practicable, OTHERWISE ARREST IS UNLAWFUL.
A constable may also arrest a person pursuant to a WARRANT issued by MC or CC
Court warrant may be “backed by bail” or not ( this means person will be held in custody to be brought before the court)
Arrest: A person who is arrested MUST BE cautioned as soon as he is arrested
Anything said at the time of arrest or in response to the caution must be noted down in the officer notebook, either at the time or asap.
An arrested person must usually be taken to a police station asap. Alternatively, they may be bailed to attend at a police station at a later date.
Arrival at police station:
The arrested person will be taken immediately to the custody suite and booked into custody with the CUSTODY OFFICER.
The Custody Officer, will be a police officer of rank of sergenat or above and is responsible for ensuring that a person in detention in a police station is dealt with in compliance with PACE
The arrested person will be told of their “RIGHT OF NOTIFICATION” - the right to have someone notified that he has been arrested and where he is being detained and free legal advice at any time
The detained person will be taken to a cell to await the next stage in process. What is the next stage?
The next stage usually involved being interviewed.
Every event should be recorded in the “custody record” this is vital and should always be obtained by solicitors and checked as a matter of routine.
The solicitor will usually be provided with a copy of the the custody record at this time or if not, they will be allowed to read it.
The officer in charge then speak to solicitor/representative to provide initial disclosure. He or she will generally outline the circumstances leading to the arrest of the suspect.
Solicitor will then be permitted to speak to the client privately to discuss the case and the approach to be taken during interview.
Interview: An interview is any question of a person about their involvement in a criminal offense (Code C, para 11.1A)
A person against whom there are reasonable grounds for suspicion of involvement in a criminal offence “must be cautioned” before being questioned (Code C, para.10.1).
A person against whom there are reasonable grounds for suspicion of involvement in criminal offence MUST BE CAUTIONED before BEING QUESTIONED
Rmbr must be cautioned immediately after arrest
and Must cautioned before being questioned
Interview: Following a decision to arrest, a suspect must be questioned at a police station or at authorised place of detention
There are exceptions to allow for questioning other than at a police station to prevent interference with evidence, the alerting of other suspects, harm to persons or serious damage to property
Interview: The caution must be given AT THE START OF ANY INTERVIEW and after any breaks in the interview
When a person is interviewed, he (solicitor/representative) must be given “sufficient info” to make it possible to understand the nature of the suspected offence and why the person is suspected of involvement
The suspect MUST BE reminded of his right to legal advice before the commencement of any interview
An officer is only able to arrest a person if he has reasonable grounds to believe it necessary:
(Think of Grounds)
a) To enable the name or address of the person to be ascertained
b) To prevent the person from causing physical injury to himself or another or suffering physical injury
c) To prevent the person from causing loss or damage to property
d) prevent cause harm to public
e) protect child or vulnerable person
any other person may arrest another person, if REASONABLY believed the other person about to commit crime
This breach of peace occurs whenver harm is done or likely to be done to a person or is done, in his presence, to his property, or where a person is
Rmbr that an arrested person “must” be cautioned as soon as he is arrested
-> Anything said at the time of arrest or in response to the caution must be noted in the officer notebook, either at the time or as soon as reasonably practicable thereafter.
-> arrested person taken to custody suite booked in with custody officer
This custody officer : Police officer of the rank of sergeant or above and is responsible for ensuring that a person in detention in a police station Is in compliance
-> They told of their right of notification and to free legal advice at any time and informed that they may see the codes of practice
-> Every event should be recorded in the Custody record and this is a vital piece of info and should be obtained by solicitors
Interview
An interview is any questioning of a person about their involvement or suspected involvement in a criminal offense (Code C, para 11. 1A)
A person against whom there’s reasonable grounds for suspicion of involvement in a criminal offence MUST BE cautioned before being questioned ( Code C para 10.1)
When a person is interviewed, he ( and his solicitor/representative) must be given suff info to make it possible to understand the nature of the suspected offence and why the person is suspected of involvement.
Rmbr suspect must be reminded of his right to legal advice before the commencement of any interview
Interview generally in police station or authorized place of detention
A sig silence is a failure to answ under caution where that failure might give rise to an adverse inference
Rmbr if in interview the suspect asked to account for an object, mark or substance, his clothing if asked…
The suspect must be given a SPECIAL WARNING
The warning must make it clear to the suspect what offence is being investigated, what fact he is being asked to account for, that this fact may be related to the commission of the offence, that a court may draw an inference if he fails to account for the fact
Youth or mentally disordered or vulnerable person must generally not be interviewed without the presence of an appropriate adult
A person whom the custody officer has determined has need of interpreter must not be interviewed without an interpreter, unless an officer of superintendent rank or above authorizes that its necessary to do so to prevent interference with evidence, harm to person or damage to property
Identification procedure
held whenever an eye witness has identified a suspect or when a witness is reasonably likely to be able to identify a suspect
These procedure can be
-> video identification
>Identifcation parade
->Group identification
->Confrontation ( as last resort)
Dock identification is the identification of an accused for the first time during the course of trial itself by a witness who has neither prev named him no has participated in identification procedure
Arrested person who are being held in custody have the right to have a friend or family member notified of their arrest and where they are being detained.
-> Arrested person who are being held in custody have the right to free legal advice and consult legal advisors.
-> they can choose to avail themselves of this right, but also must be reminded have right to speak to solicitor on phone
(Imp to know )
Where youths or vunerable persons are entitled to have an appropriate adult present, “that appropriate adult is entitled to his or her own independent legal advice”, whether or not the juvenile/vulnerable person wants to see a solicitor.
Detention time limit
-> Max detention time period before the charge is 24 hrs from the “relevant time”
This period can extend to 36 hrs by an officer of superintendent rank and above and to an absolute max of 96 hours by a mc.
So max by superintendent 60 hrs.
Absolute max by mc -96hrs
The “relevant time” is usually time at which the arrested person arrives at the first police station he is taken to or 24hrs after arrest whichever is earlier
If person is released without charge at the expiry of the detention time limit, he cant be arrested without fresh evidence.
Commencemnt of proceedings
1) charge ( after arrest)
2) wrtitten charge and requistion, (s.29 CJA 2003). This procedure related to prosecutions brought by a number of public bodies, such as DPP, police, Director of SFO.
The prosecutor must notify the accused of the req to attend court
3) charge, following return to the police station on police bail.
4) A written info may be laid before the MC. A summons ( or warrant) will then issued by the court req the def to attend- private prosec only
A written charge or info must contain a statement of the offense and must identify the legislation which creates the offence( if applicable), together with stuff particular to make clear what the p alleges against the D
An information in relation to a summary offence must be laid within six months of the time when the offence was allegedly committed.
No time limits apply in relation to commencing either way/indictable only offences.
