Chapter 3 charging the suspect Flashcards
Custody officers 4 options
(a) release the suspect (either without taking any further action or release under investigation);
(b) release the suspect without charge but on bail whilst the police make further enquiries;
(c) charge the suspect (and either release on bail or keep in custody until the suspect’s first
court appearance); or
(d) offer the suspect an alternative to charge.
Release under investigation
If insufficient evidence and unlikely further evidence will be obtained = suspect released without charge.
Can release suspect on bail whilst making further enquiries.
Custody officers can authorise the first period of pre
charge bail to a period of 3 months in standard police cases.
Extensions to 6 months - rank of inspector or above
Extensions to 9 months - superintendent or above.
9+ months - judicial approval needs to be sought.
Bail before charge
Granted if bail is necessary and proportionate in all the circumstances (have regard to conditions).
Max of 3 months.
Can be extended to 6 months - inspector.
Extended to 9 months - superintendent.
Magistrates up to 18 months (some cases 24 months).
IO under a duty to seek views of victims about bail conditions if reasonably practicable.
When the suspect answers their bail, the police may:
(a) release them without charge;
(b) exercise further investigative powers;
(c) release the suspect again on bail if their further enquiries are incomplete or, having completed their enquiries, they wish to
pass their file to the CPS for advice; or
(d) charge the suspect
Bail before charge - CPS
S37B Police and Justice Act (PJA) 2006
In cases other than straightforward ones, CPS determine whether suspect should be charged.
2 part test:
(a) there must be sufficient evidence to provide a ‘realistic prospect of conviction’; and
(b) if there is sufficient evidence, the CPS will then need to determine if it is in the ‘public interest’ to charge the suspect
When the suspect answers
their bail, the police may:
(a) charge the suspect;
(b) exercise further investigative powers if the CPS considered that further evidence was
needed;
(c) release the suspect without charge; or
(d) deal with the matter other than by way of a charge if the CPS found there was sufficient
evidence to charge the suspect, but a charge was not in the public interest
The decision to charge
When a decision has been made to charge a suspect, the suspect will be formally charged at the police station.
Para 16.2 of Code C - the suspect must be cautioned on
charge and anything the suspect says in response to the charge should be written down.
The suspect should also be given a written notice (the ‘charge sheet’) which gives the
particulars of the offence.
Paragraph 16.3 of Code C states:
As far as possible the particulars of the charge shall be stated in simple terms, but
they shall also show the precise offence in law with which the detainee is charged.
Interviewing after charge
A suspect who has been charged cannot be interviewed further by the police about the
offence for which they have been charged, unless the interview is necessary:
(a) to prevent or minimise harm or loss to some other persons, or the public;
(b) to clear up an ambiguity in a previous answer or statement; or
(c) in the interests of justice for the suspect to have put to him, and to have an opportunity to comment on, information concerning the offence which has come to light since he was
charged (Code C, para 16.5).
Must be cautioned.
May remain silent without adverse inferences being drawn.
Bail after charge - denied
Can be denied where the custody officer has reasonable grounds:
* to doubt the name or address provided is the suspect’s proper name or address or where
such name or address cannot be confirmed;
* to believe that the person arrested will fail to appear in court to answer bail;
* to believe that the detention of the person arrested is necessary to prevent them from
committing an offence;
* to believe that detention of the person is necessary to enable a sample to be taken;
* to prevent them from causing physical injury to any other person or from causing loss of or
damage to property;
* to prevent them from interfering with the administration of justice or with the investigation
of offences or of a particular offence; and
* to believe that the detention of the person arrested is necessary for their own protection.
* to believe that the person arrested will fail to appear in court to answer bail;
* to believe that the detention of the person arrested is necessary to prevent them from
committing an offence;
* to believe that detention of the person is necessary to enable a sample to be taken;
* to prevent them from causing physical injury to any other person or from causing loss of or
damage to property;
* to prevent them from interfering with the administration of justice or with the investigation
of offences or of a particular offence; and
* to believe that the detention of the person arrested is necessary for their own protection.
Suspect wishes to vary bail conditions
Either:
(a) ask the custody officer who imposed the conditions (or another custody officer at the
same police station) to vary the conditions (Bail Act 1976, s 3A(4)); or
(b) make an application to the magistrates’ court for the conditions to be varied (Magistrates’
Courts Act 1980, s 43(B)(1) and CrimPR, r 14.6).
When will the suspect make their first appearance at court?
- Suspects granted bail by the police
First appearance in the magistrates’ court is likely to be within one to two weeks of being charged
(s 47(3A)) - Suspects denied bail
Must be brought
before the magistrates’ court as soon as is practicable, and in any event not later than the
first sitting of the court after they are charged with the offence (s 46(2)). In practice this means that the suspect will normally appear before the court within 24 hours of being charged. There
are remand courts that sit on Saturdays, but not on Sundays.
Alternatives to charging
Where the suspect is aged over 17, rather than
charging them, it may be possible to deal with the matter in one of the following ways:
(a) an informal warning
Do not appear in record.
(b) a penalty notice
Fixed penalty notice for minor road traffic accidents, littering etc.
Penalty notices for disorder often for anti social behaviour, first time minor shoplifting etc.
(c) a formal caution
3 conditions:
1. sufficient evidence
2. clear and reliable evidence of a voluntary admission by the offender
3. the offender must agree to being cautioned, having been made aware that the caution
might be raised in court were they to be convicted of a later offence.
Indictable only offences or either way offences specified by the secretary of state:
- carrying firearm
- child cruelty
- sex trafficking
- class a drugs
- sexual offences against kids and porn
(d) a conditional caution.
Alternatives to charging - conditional caution
Can only be given with approval of CPS.
s22 CJA 2003 if over 18 can get one if 5 requirements satisfied:
(a) there must be evidence that the offender has committed an offence;
(b) a relevant prosecutor or an authorised person must determine that there is sufficient evidence to charge the offender with the offence, and that a conditional caution should be given;
(c) the offender must admit that they committed the offence;
(d) the effect of the conditional caution must be explained to the offender, and they must be warned that any failure to comply with any of the conditions attached to the caution may
result in them being prosecuted; and
(e) the offender must sign a document containing the details of the offence, an admission that they committed the offence, their consent to a conditional caution and the conditions
attached to the caution.
Disadvantages of accepting a (conditional) caution:
(a) a caution is a formal recorded admission of guilt which will form part of an offender’s criminal record and may affect how they are sentenced should they re- offend in future;
(b) the client will almost certainly lose the opportunity of receiving a caution on a subsequent occasion;
(c) the existence of the caution will be disclosable should the client apply for certain types of employment (particularly entry to a profession);
(d) if the offence is sexual, the client will also be placed on the sex offenders register; and
(e) the police may retain fingerprints and other identification data taken from the client (a record of cautions is usually kept for a minimum of five years).
Commencing a case other than by charge (CrimPR, Parts 4 and 7)
For some offences (particularly summary- only offences including many road traffic offences), a relevant prosecutor can now send to the person a document called a ‘written charge’, which charges that person with the offence (CJA 2003, s 29(1)).
Requires person to appear before mags.
