CP1 Flashcards
When should a suspect arrested of a crime be taken to a police station and who should they be taken to?
Soon as practicable after arrest, unless granted bail
s30(1A) PACE
Custody officer
How long keep / until release suspect from police station?
Expeditiously and released once no longer need to detain
Initial steps of custody officer
Maintain custody record recording:
- Name/address etc.
- Offence and why arrest
-Time of arrest and arrival
- Reason ongoing detention
- Time detention authorised
- Confirm told rights / whether req legal advice
- their property/medical condition
Inform of rights
Maintain detention log
When can custody officer seize suspects’ items?
Could:
- Cause physical injury
- Cause damage
- Interfere with evi or
- Assist escape
FIRST step : who and how do they decide whether to retain detained suspect?
Custody officer.
Ask investigating officer if:
- Sufficient evi to charge for arrest (rare);
- what do if detain further (e.g. interview)
What are the grounds for detention?
Custody officer has:
- Reasonable grounds for believing necessary to detain suspect longer to secure or preserve evidence (e.g. search property)
or/and
- Necessary obtain evi by questioning
Release soon as don’t apply
What conditions must suspect be detained in ? As in conditions of cell etc
Cell adequately heated, cleaned, ventilated and lit
Clean sanitary bedding
Access to loo and washing facilities
Two light and one main meal in 24-hr period
Drinks at mealtimes/request
Brief outdoor exercise
Visited at least each hour
General timeframe for custody officer to do things
Reasonably practicable
What ongoing rights do suspects have?
- Someone informed of arrest
- Consult privately with solicitor (and told free, independent legal advice is available) soon as practicable
- Consult Codes of Practice
- Why arrested/detained
Where suspect sought legal advice, what happens?
(Unless said paying privately) - Police call Defence Solicitor Call Centre
They decide whether call or attend
If in person - must be informed once arrives and asked if want to see them/if prev declined legal advice
Can police delay right to legal advice?
Only if
- authorised by superintendent +;
- indictable;
- max 36 hours from ‘relevant time’
- confirmed in writing soon as practicable
AND
reas grounds believing would
1. interfere with evi 🫰
2. injury to others 🤕
3. alert other suspects; or 🚨
4. hinder recovering property obtained from offence 🛑
When may police delay exercise of right to inform others of arrest?
- Officer +
- Indictable offence
- Max 36 hours
- Orally but writing once pract
AND
Reas grounds believing:
1. interfere evi
2. injury others
3. alert other suspects; or
4. hinder recovering property obtained from offence
(same as for legal advice except officer not superintendent)
(initial) maximum period for suspect detention
24 hours from ‘relevant time’, which will be:
1. Voluntarily attend - time of arrest
2. Street bail (arrested, then must go police station themselves at specified time) - time arrive
3. Arrested away from station - once arrive
When can suspect be detained longer than usual and how long for?
this is separate to legal advice/inform others
(extension is from relevant time - i.e.arrival or arrest if voluntary attend)
(nb: can give for max 36 hours each time, but can be less)
A) superintendent + if reas grounds:
extend from 24 to 36 hours
1. necessary preserve/secure/obtain through Qs evi
2. either-way or indictable-only
3. diligent and expeditious investigation
OR
B). MAGISTRATES (s43) grant warrant for max of a FURTHER 36 hrs
(so if superintendent+ as already approved, would be total 72 hours)
- necessary secure/preserve/obtain evi
- Diligent and expeditous
OR
C) Magistrates again (s44) for further extension
- cannot be longer than 36 hours and must not end later than 96 hours after initial arrest
if above grounds AND
reas grounds for further detention
What happens if detain suspect for longer than authorised?
How are detention periods reviewed?
Tort of false imprisonment
By inspector + who not involved:
- not later than 6 hours after authorised detention
- no later 9 hours after that (and 9 hours after that etc)
6 - 9 - indep inspector
What rights will a volunteer suspect have?
(e.g. willing to help or police not enough evi but asked to attend)
Can leave at any time unless formally arrested
Generally advise to attend voluntarily if given choice
Usually have legal adviser
Can ask for friend or solicitor in interview
Police can arrest if make admission which gives sufficient grounds to arrest
What info should solicitor get from custody officer?
- Record/log/basic details
Then from officer/record:
- Alleged offence
- Time authorised detention
- Significant comments by client
- Evi already taken
- Any identification procedure
- Interview?
- Disability or illness?
- Items from search?
- Any detention review records?
Who does solicitor need to speak to and in what order?
- Custody officer (basics of detention)
- Investigating officer (disclosure, any statements and next steps)
- Client
(who they are, details of offence, instructions, next steps, interview prep)
What will/should investigating officer provide solicitor with? Do they have to disclose?
Code C =
sufficient info understand NATURE of offence and WHY suspect as long as not prejudice investigation
Not obliged provide with anything else, but normally:
- witness statements
- any other evi e.g. forensic
If they don’t, should say need to properly advise
What should solicitor tell suspect when first meet? (steps 1 and 2)
- Free independent legal advice
Protect and advance rights
Confidential
But prof conduct reqs - Details got from investigating office
Relevant law and what police need to prove
Once informed of their role and details of offence, what should solicitor acquire from/tell client?
- Their instructions
(version of events and take instructions - note if poss) - Tell what next steps will be
- Prep for interview
(whether to respond to Qs, prep written statement if no comment and hand to police, advise how will be conducted and their role)
Advantages of answering all Qs in police interview?
Where is it esp good idea?
- Version of events on record immediately
- Good where evi burden
- Case may not be pursued
Trial:
- Credibility at trial if consistent
- No adverse inferences at trial
- Mitigation
(^ esp if strong case, no previous convictions/cautions and admitting guilt)
Disadvantages answering all Qs at interview
- maybe incriminating or undermine credibility
- police often trip up
- often play transcript (tone, contradict, implausible)
- confusion e.g. young
- if not full police disclosure, could catch out
- may attack another’s character, allows CPS raise other convictions
Advantages and disadvantages of remaining silent
Advantages:
- Not incriminate/inadvertent disclosure/weak case = don’t give more evidence
Disadvantages:
- Adverse inference - sham defence as could have raised at interview
When should you advise client to give no comment interview?
- Police not disclosed enough (esp imp if interviewed co-assued)
- Think they may reveal new info
- Not sufficient evi atm
- Unfit to interview (late/drugs/upset/drunk)
- Age, immaturity, psych vulnerability etc.
- Complex/long ago (can’t immediately respond)
- No valid defence
- Personal reasons (embarrazzing)
Should a solicitor ever advise a client to give selective silence?
No - comes across badly at trial - appears something to hide.
When should a solicitor draft a written statement for suspect? What must it contain?
Put version of events on record to avoid adverse inference at trial, but concerned perform badly at interview if answer Qs
Contain facts wish to rely on in defence;
and
cover matters may ask in interview/be subject of adverse inference
No more than necessary but update if further police disclosure
When should written statement be handed to police?
Usually at interview or prior to charge
Weak police case - hold back until charge
Unsure on client’s accuracy - retain on file and produce at later date to prevent adverse infs such as inconsistency (
but allows other adverse inference (e.g. that not thought of the defence yet)
Steps of investigating officer to obtain/preserve/secure info re suspect?
- Audibly recorded interview
- Identification procedure
- Fingerprints
- Samples
When should an investigating officer NOT interview a suspect?
At time of interview, appear not to:
a) Appreciate significant of Qs or their answers; or
b) Understand what’s happening bcos of drink, drugs, illness or generally shouldn’t be interviewed
(rare limitations if urgent)
General rule on whether a suspect can be interviewed prior to receiving legal advice?
No
(if indicated want legal advice)
(If initially didn’t want it but changed mind, stop interview)
When is delay permitted so can interview without legal advice?
Which can u draw adv inf for?
- Delay permitted (superintendent + stuff) - no adv inf
- Awaiting solicitor = unreas delay - no adv inf
- Specified solicitor can’t be contacted/declined and refused duty solicitor - adv inf
- Change mind on wanting advice - adv inf
(this is correct.)
‘You do not have to say anything, but anything you do say may be given in evidence.’
Instead of “but anything you do say may be given in evi AND harm defence if later relied on in court”
When is the first one said in interview and why?
- Permitted delay legal advice; or
- Too long to wait for solicitor
Because:
In these instances, can’t draw adverse inferences from remaining silent
(absolute right to silence)
(in contrast - if had legal advice or offered b ut declined, would say may be given in evi AND harm defence if later rely on in court)
What should order of start of interview of suspect be?
CLS.
Caution. Legal. Signif.
- Caution
(usually includes that if you do not mention harm defence) - Continuing right to free indep legal advice
(even if solicitor present) - Put fwd any significant statements and silences before interview
(capable used in evi or silence under caution may draw adverse inference on)
What is signif statement/silence and when is it relevant?
st or silence made in presence police officer
- signif st = capable used in evi against at trial
- signif silence = fai answer Q satisfactorily under caution so could draw adv inf at trial
After done caution and legal advice
Put to them
Ask if
- confirm
- deny
- add
When may an interviewing officer use oppression in an interview and what is the implication of this?
- Raise voice or shout (checked this)
- Threatening gestures
- In their face
- Stands over/behind
- Threaten detail indefinitely unless confess
- Indicate release quicker if confess
(such evi may be inadmissible)
When can an interview cease (inc when there should be breaks) and implications if doesn’t?
- Satisfied all Qs put to suspect
and given opportunity explain/answer all Qs; - Believe sufficient evi realistic prospect conviction
3.
Breaks approx every 2 hours at recognsied meal times
- Interview over 24 hours, 8 hours continuous rest
^ Code C breach PACE
If not, any confession/evi obtained may be INADMISSIBLE
How should solicitor prepare client for interview (general)?
could imagine legal writing
- Interview will be recorded and will be asked to identify selves 📹
- May be stopped if you require further legal advice and should be informed of this 🚥
- That will be present and able to intervene 🫸
- If remain silence, use no comment phrase 🤐
TACTICS in no comment🤐
- ask seemingly silly Qs 🤪
- try to alienate from solicitor 👽
- warn dangers not answering ⛔️
And to ignore them!
- Keep your cool and not make personal attacks on others
What must solicitor ensure re set up / during course of interview?
Solicitor must ensure:
- client able to sit by them
- able to make eye contact with them
Actions:
- object improper questioning
- give advice (even in private)
What should solicitor do at start of interview?
- Standard statement (role is and may intervene)
- Let know if exercising right to silence
When should solicitor intervene at interview?
- Seating arrangements
- New info - Oppressive
- Inappropriate Qs
- Police threats/legal advice on silence
- Inducements
- Refer prev convictions
- Already sufficient evi to charge - Ask if prepared further procedures before advised
- Concern re conduct / comments
When can a solicitor be removed from interview with suspect? Who must authorise? What must do if removed?
Obstructive (prevent putting Qs / prevent recording / answering on behalf)
Officer must stop, consult superintendent +, decides if continue
If removed, need another
What should solicitor do if suspect confirms guilt but wants to deny at INTERVIEW stage?
Can’t attend interview if deny but could attend if no comment
If false info, decline act and dissuade lying
(woul be misleading court)
How can solicitor avoid conflict when acting for suspects?
What should u do if only realies conflcit after seen both?
Cautious if jointly alleged commit offence - not conflict in itself but could become one
Speak to one of suspects and if obvs conflict, decline act for second and inform police
(don’t say why)
May occur during course (e.g. in defence)
If only realise after seen both, withdraw completely
Only continue if no tension duty confidentiality and disclosure - rare
When can solicitor disclose another client’s confidential info (joint suspects)? What consideration must they maintain?
- Waives (preferably in writing);
- Both put forward consistent instructions; and
- Considers best interests of both clients to disclose
Duty not to mislead
(co-accused may be using to fabricate - so obtain their account before telling what other said)
Can solicitor disclose client’s case to third party?
No (e.g. co-accused’s solicitor)
Unless considers in client’s best interests (but must first explain reasoning to client and obtain authority)
If withdraw from acting for client, what must solicitor do?
- Explain why
- Tell still entitled free legal advice
- Still confidential
- Inform custody officer but not why
Who are classed as vulnerable suspects?
- Juveniles (10 - 17, and who appears under 18)
- Mental health condition or mental disorder (anyone who appears)
- Deaf or blind 🧏♀️👩🦯
- Can’t speak English🏴
Additional responsibility of custody officer if juvenile arrested?
(NOT same as appropriate adult)
Identify person responsible for welfare:
1. Parent or guardian;
2. If in care, the individual appointed for welfare; or
3. anyone who has assumed resp
And inform that person soon as practicable that arrested, why and where detained - cannot delay
If juvenile is subject to form of monitoring (eg supervision order), reasonable steps to tell parent/guardian
Additional steps where suspect doesn’t speak/understand English or hearing/speech impediment
Interpreter or someone able assist with communication
Additional steps if suspect blind/visual impairment?
Custody officer ensure someone independent who likely interest in welfare to help check any docs
(e.g. solicitor, appropriate adult)
Who can have an appropriate adult and who can be one?
under 18 or ‘vulnerable’ person - inc mental health condition/disorder
(may also be someone w physical if deemed vulnerable)
- relative, guardian or care/custody; or
- experience dealing w vulnerable; or
- some other responsible adult
Order for contacting appropriate adult?
- Parent, guardian or local authority carer
- Not available, ask a social worker
- Still not, another resp adult and independent (e.g. aunt) (18 and over - just turned 18 may still consider not)
Who can never be an appropriate adult?
Solicitor
Police
Interest party (e.g. co-suspect)
Suspect has admitted to (ie told guilty )
(if suspect objects) Estranged parent
Role of appropriate adult?
a) support, advise and assist suspect
b) ensure understand and help uphold rights
c) observe police acting properly, fairly and respectfully
d) assist communication
(custody officer should repeat rights and any caution in presence appropriate adult)
Role of legal representative in relation to appropriate adult
Ensure understand role and not there to help police
Shouldn’t answer Qs on behalf
Should intervene if think not understood a Q
What must police inform AA at interview?
When can they get rid of them?
What happens if get rid?
Purpose of their presence
independent superintendent +, or inspector + if not avail.
who will:
- remind can’t obstruct proper Qs
- give AA opp to respond
- deicde if interview should continue w/o AA
If get rid, usually must get another AA
(there are exceptions but not given in textbook)
What out of court disposals are available for juveniles?
- Community resolution
- Youth cautions
What is a community resolution?
Informal agreement between parties.
Out-of-court for juveniles (non-statutory).
Minor offence or anti-social behaviour.
Usually for first offence where admitted guilt and considered V’s views.
Not form part of criminal record.
When could a youth caution be offered and circumstances?
- sufficient evi to charge;
- admits guilt (!)
- police not consider in public interest to prosecute/conditional caution
If 17 or under, in presence of AA
(nb 16 if youth conditional caution because more serious)
Requirements for youth conditional caution?
- sufficient evi convict;
- ADMITTED guilt
-
effect explained
- warned failure comply may = prosecution original offence 💬
- if 16 and under, in presence AA - offender sign doc containing consent etc 📄
A youth caution is a formal out of court disposal.
Youth conditional cautions are a caution with conditions attached. If a child does not keep to YCC could be prosecuted for the original offence.
(nb, unlike standard ycc - where sufficient evi, guilt, not PI, 17 r under)
Advantages of accepting a youth caution or youth conditional caution?
- Avoids being charged and attending youth court
- Not criminal convictions
Disadvantages for client (juvenile) accepting youth caution / youth conditional caution?
- Record retained by police (inc fingernails etc)
- May appear criminal records check
- Caution may be considered in deciding how deal w future offences
- May need to disclose future employer
- Must refer to Youth Offending Team - assess and rehabilitation programme
- Failure comply can = prosecution original offence
- Caution itself and failure participate rehabilitation may cite criminal proceedings
- Potentials sex offenders register
What does solicitor need from investigating officer when arrive?
- Sufficient info re nature and offence (disclosure)
- Signif statements or silence
- Intended next steps (e.g. interview? bail?)
Which court do all criminal cases start in?
Magistrates
Under 17 usually youth court (type of magistrates)
Key principles of CJSSS - re mags
- common presumption
- if enter guilty plea and to be sentenced in mags, expected ____
- if plead not guilty in mags, expect trial date fixed for ___
- CPS should provide what at first hearing
- is a common presumption that a plea entered at first hearing
- guilty plea sentenced in magistrates = expected sentenced same day unless detailed report required
- non guilty - expected trial issues identified and date fixed 6-8 weeks
- CPS should provide sufficient info at first hearing
Three classifications of offences
Those triable on:
1. Indictment only
2. Either way
3. Summary only
What are indictable-only offences?
Most serious offences which must be dealt with by Crown Court
(still start in Magistrates)
What are either-way offences?
Can be dealt with by magistrates or crown.
Makes first appearance in magistrates
Not guilty plea: magistrates may decline jurisdiction (too serious); or
D elect trial in Crown Court.
Guilty plea: can commit CC for sentencing
What are summary offences ?
Least serious. Only magistrates.
e.g. road traffic accidents
What type of offence is criminal damage?
Over £5000 - either/way
£5000 or less - summary offence UNLESS caused by fire
(fire = either-way)
these stats defo right x
What value for low value shop lifting?
What is the maximum penalty?
£200 and under
Inc combined value if stolen multiple things
Summary
(over is either way)
6 m custody
What is a ‘general criminal contract’?
Firm solicitors contract with Legal Aid Agency which allows to obtain public funding for clients without sufficient means
Are solicitors paid for initial advice at police station?
Always free to client
Solicitor claim as fixed payment under Police Station Advice and Assistance Scheme
(generally same fee regardless how long etc)
What is the duty solicitor scheme? Are they paid?
Magistrates court (NOT police station)
(police station is Police Station Advice and Assistance Scheme so can tell what it is)
Claim costs from Legal Aid Agency’s Advocacy Assistance Scheme.
What tests must a defendant satisfy to apply for legal aid in magistrates court?
- Interests of justice test (aka merits); AND
- Means test
who auto passes IoJ
- CC unless appeal to CC
What factors are considered for the INTERESTS OF JUSTICE test re legal aid in mags?
regardless guilty/not guilty plea:
- likely lose liberty
- livelihood
(e.g. bus driver in road traffic accident) - currently on suspended bail for different offence
- statutory presumption that will activate earlier sentence and so go to prison
Not guilty plea only:
- reputation (eg vicar)
- substantial Q of law relevant
- eg CPS evi disputed (Turnbull, adv inf, hearsay etc) - unable understand proceedings
- interests of another
eg inappropriate for D to cross-examine - Witnesses may need to be traced or interviewed on my behalf
(eg expert witness)
(eg expert cross examination required cos complex) - Cross-examination of CPS witness (expert or not)
-
‘any other reasons’
e.g. likely to receive a demanding community sentence
NB: Crown Court and u18’s - automatically passed
(try to expand on specific examples and see prep 2 in workbook)
what to inc in “other reason” legal aid
- demanding community sentence
- examination-in-chief of D
- state if entering not guilty plea
anything can’t cover in the other headings
When will defendants AUTOMATICALLY pass the means test for legal aid at magistrates?
- Universal credit, job seekers allowance or income support
(not working tax credits) - Under 18
How will a defendant pass means test for legal aid if don’t automatically qualify?
(criminal)
- Complete form and send evi:
e.g. pay slips, rental agreements - ‘Rudimentary’ assessment
- divide gross annual income if got children/partner
- produces ‘ADJUSTED income’
^ £12,475 or less: eligible (CC/Mags)
over £12,475 - less than £22,325: full means test (CC/Mags)
£22,325+: ineligible mags / full means test CC
- FULL MEANS TEST
- calculate disposable income
- e.g. deduct tax, housing, childcare, maintenance and adjusted annual living allowance
Mags: disposable income must be £3,398 or less
- CC: if more than £3,398 and less £37,500, may allow but only if contribute towards legal fees from income or capital
NB: considers income only and not capital (e.g. any pending inheritance)
Can an applicant for legal aid in magistrates appeal against refusal of legal aid on grounds of means test?
No
BUT if can show genuinely cannot fund own defence, may ask entitlement reviewed on grounds of hardship by completing a form
How does legal aid differ for Ds in magistrates and crown?
Magistrates
- either fully free or not available
Crown
- may be available subject to D paying contribution
- no need to satisfy IoJ test
What is a representation order?
Granted if D successful application for criminal legal aid
(ie satisfies IoJ and means tests)
Sent to solicitor
When will representation order cover ALL funding?
Will appeals be covered?
summary-only or either-way dealt with in mags: covers all mags work
^ MAY cover an appeal to CC
Either-way and mags decline or D elects CC: extend automatically to CC work.
Indictment-only: covers mags and CC work.
Either-way, failed mags means test, passes CC test: only covers CC work
Either-way offences where D failed means test and case goes to Crown Court - when does funding commence and what will it cover?
Day AFTER the hearing (which sends to Crown Court)
ONLY work in Crown Court and ONLY if satisfies means test in Crown Court
Order of first HEARING - summary offence?
- D enters plea
- Guilty plea:
- CPS tell facts/prev convictions
- D’s sol mitigation plea
- Magistrates sentence or adjourn
(e.g. require reports/CPS facts disputed) - Not guilty:
- Fix date for trial
- Issue case management directions
Order of FIRST hearing - either-way offence?
-
Charge read out to D by court’s legal adviser, checks D’s solicitor received IDPC
(^ differs from summary only)
2 Court’s legal adviser asks indicate how plead if proceed to trial and that if guilty, treated as such
A) Guilty plea
- Adjourn if CC or need pre-sentence report needed to sentence
(CC if insufficient powers)
B) Not guilty
- determine which court
Procedure for first hearing in offences triable only on indictment (i.e. indictment-only)
- Preliminary hearing at magistrates
- Adjourned whilst magistrates determine bail or custody before hearing
- Crown Court for either trial or sentence
What must Magistrates Court always determine if sending case to Crown Court?
Custody or bail until next hearing
Role of solicitor in first hearing at magistrates?
- obtain any LAA funding
- details from CPS of case
- statement from client
- advise client on CPS strength and plea
- either-way and not guilty, inform may be dealt with by magistrates or crown (and impact)
- make any bail application
What happens to a suspended sentence of imprisonment if you are CONVICTED of another offence?
(Likely) automatically activated
Examples of indictable-only offences
Robbery, aggravated burglary, blackmail, kidnap, conspiracy, s 18 GBH wounding with intent, murder, manslaughter
Examples of either-way offences
Theft, fraud, most burglary (NB not robbery), handling stolen goods, going equipped to steal, INFLICTING GBP/wounding, assault = ABH, sexual assault, affray, threats to kill, criminal damage, dangerous driving, offensive weapon, intent supply, supply drugs
What is an IDPC? (include what offences applies to and who sends it)
Prosecution to defence
Applies to all offences
Access digitally
Contains certain info which CPS will rely on and D entitled to consider before trial
(includes but not just unused material)
What must IDPC include?
How does it differ where defendant was in custody before first hearing in magistrates?
If in custody for that offence immediately before first hearing:
- Summary of circumstances of offence; and
- D’s criminal record, if is one.
^ no requirement statements/CCTV (but CPS will need to ensure any info give to court still made available to D)
What must IDPC include in cases where D not in custody before first hearing in mags?
(nb there’s more stuff CPS must disclose if D on bail and doesn’t anticipate guilty plea - sep card)
- Summary of circumstances of offence
- Account given by D in interview
- Material witness statement or exhibit
- D’s criminal record if any
- Any victim impact statement
If D released on bail and CPS do not anticipate guilty plea, what should IDCP include?
(as well as summary offence/record/victim impact statement etc on previous card)
- Statements and exhibits CPS think imp, inc CCTV/forensic report
- Indicate medical or other expert evi CPS likely to adduce
- Any info re special measures, bad characater or hearsay
What matters must solicitor discuss with client when advising on plea (after receiving IDCP)?
- Response to prosecution case
- discuss CPS witness statements/is it disputed?
- check interview e.g. admissions, anything can exclude - Strength of CPS case
- Any further evi for D required?
- Either-way - which court?
Why would D want Crown Court over Mags?
- Statistically acquittal more likely
- Better procedure for challenging admissibility of prosecution evidence
- absence jury
(if refused, never hear)
- unlike mags - More time to prepare case
- good if complex evi
Factors in favour of Magistrates for Defendant?
- Likely lower sentence
- BUT may commit to CC if turns out more serious - Speed
- Stress
less formal e.g. first time - Prosecution costs
- contribute if convicted and usually higher CC - Defence costs
- if funding, cheaper.
- if legal aid, may have to contribute in CC. - No obligation to serve defence statement
- less detail CPS
- reduces defence costs
- element of surprise !
What should solicitor tell client re pleading guilty?
Reduced sentence
(if told that guilty but want to plead not) - prof limitations of them continuing acting
Can you act for a client who is pleading not guilty despite telling you they were guilty?
Yes but limited.
Could still:
- cross-examine prosecution witnesses
- put prosecutor to proof
- submit no case to answer at end of prosecution case and ask magistrates to dismiss
(e.g. CPS not discharged evidential burden)
When could you defo not continue acting for D if pleaded not guilty when they told you they are?
What should you do?
- No case to answer submission unsuccessful (magistrates not accept); AND
- D insisted giving witness evi which knew false
WITHDRAW.
Procedure if D indicates guilty plea before magistrates for either-way offence?
Order of hearing ?
Treated as being convicted summarily
CPS outline facts / prev convictions
D’s solicitor plea in mitigation
Magistrate decides if sentencing powers sufficient
If sufficient, sentence or adjourn
(e.g. pre-sentence report)
Maximum sentencing powers for magistrate?
6 months for one either-way offence
12 months for 2+ either-way offences
If magistrates commit to Crown Court for sentence and plead guilty, would you put them in bail or custody?
Whichever they were in previously, regardless of guilt.
(if were on bail before, stay on bail now)
this is a bit mad
actually not that mad cos difference is just sentencing instead of convicting
When will a defendant who has entered not guilty plea to either-way offence ALWAYS be sent to Crown Court for trial?
(regardless of Ds preference)
- Sent to CC for related offence; or
- Jointly charged adult D sent to CC for related offence; or
- Jointly charged OR charged with a related either-way offence to a YOUTH Co-D sent to CC
What is an indication of sentence?
What also known as?
aka goodyear directions
can request advance indication of likely sentence from court at PTPH
if judge gives indication and D enters plea, indication by judge will be binding.
What can be done if an either-way offence allocated for summary trial (mags)?
Can either party do this?
What must htey show?
Prosecution only
Can apply BEFORE SUMMARY TRIAL starts
(for e-w which ALREADY allocated to Mags)
to go to CC instead
Only granted if satisfied mags inadequate sentencing powers
What will Court consider when deciding whether sufficient sentencing powers?
Magistrates Court Sentencing Guidelines
Aggravating or mitigating factors
Overall seriousness
What happens if joint defendants and only one elects Crown Court?
ALL Ds sent there regardless
If charged with multiple either-way offences and diff pleas for each, what should mags consider in allocating court?
Allocate based on the offence to which not guilty plea
If multiple either-way offences and D has done both guilty and not guilty plea, explain what mags should do if:
a) accept jurisdiction
b) decline (or D elects CC)
Accept:
- sentence immediately for guilty; or
- adjourn sentencing until end of trial for not guilty plea
Decline:
- send not guilty plea to CC
- either sentence D selves or send to CC for guilty
When can either-way offences be sent straight to Crown Court without allocation hearing?
effect is don’t need to go before mags to decide allocation
- Serious/complex fraud - notice by DPP to court giving evi that without delay go to CC
- Child witness and to avoid prejudice to welfare of child - notice by DPP
- applies offences icn assault or threat of injury to a person, child cruelty, certain sexual offences, kidnapping, false imprisonment and child abduction - Related to an offence which triable only on indictment (or relates to case where notice re child witness/fraud above so must be at CC)
- This offence is related to an offence where ANOTHER Defendent is being sent to CC (either cos triable on indictment or notice served)
What is a remand and how can you remand?
Case adjourned, D remanded to make sure come to next hearing
remand either:
1. in custody
2. on bail with conditions
3. unconditional bail
Basic rule on how long remand in custody for and what to do if successive remands? and exceptions.
Basic rule = no longer than 8 clear days at a time
EXCEPTIONS
1.
- if case still in mags and successive remands into custody
- must bring before court on every fourth remand
- provided consented and legal rep
- court can remand up to 28 days
MAX Up to 28 days if:
- a) prev remanded into custody for same offence;
- b) are before the court; and
- c) have a hearing date
(e.g. been remanded for 6 days. go to court for plea before venue. set date for trial. can do it then)
When can a defendant be remanded for 28 days?
- prev remanded in custody (for the offence in Q); and
- are before the court; and
- can set a date to remand them on (when expect next stage proceedings)
e.g.
- bail application refused by remand court
- remanded into custody by mags for 6 days
- then appears before court again
- at the hearing, mags accept jurisdiction
- bail refused again and remanded for 28 days
- mags could do this because he is before a court, been previously remanded and next stage of proceedings can take place at next hearing
What is OVERALL maximum length of time D can be remanded in custody (i.e. custody time limit)?
Mags:
either way = 70 days before trial
summary-only = 56
either-way but had allocation hearing within 56 days: 56 days
(makes sense cos less reason for delay since know which court be in)
What CPS need to show to extend custody time limit (ie extend from 70/56 hours)?
How?
Can either party appeal decision?
How must CPS make request?
Balance probabilities (lower than usual for CPS)
1. GOOD and SUFFICIENT reason; and
-2. acted due DILIGENCE and EXPEDITION
Orally or writing
- if written must serve 2 days before hearing
Yes:
- both have right to appeal whatever mags decision is (refusing or permitting) to CC
What happens if custody time limit expires?
D released on bail
What happens if defendant charged with one offence but suspected of another during case in mags?
Mags can remand in police custody
up to 3 days
so enquiries re the other offence can be made
eg police suspect and want to interview them
CPS can apply for mags to do this
Must be bring back to mags once enquiries ceased
Entitled same rights as usual when at police station
Can defendant be remanded if they are:
a) on bail
b) due to go before Crown Court
?
Yes
- on bail - may remand for any period subject to D’s consent
(presuming means into custody) - if sent to CC for sentence or trial - may remand bail or custody at any time
How long can a defendant be kept in custody after conviction but before sentencing?
3 weeks
Statutory presumption for when bail will be granted?
- All Ds PRIOR to conviction
- Convicted but case ADJOURNED for court to obtain pre-sentencing reports
- Breached community sentence
(only reason they are at court)
When does statutory presumption in favour of bail not apply?
(Nb not exceptions - just doesn’t apply In first place)
A)
1. Committed to Crown Court for sentencing
2. Appealing any conviction or sentence
will have been convicted ^
B) charged or previously convicted - only if exceptional circumstances:
- Murder or attempted
- Manslaughter
- Rape or attempted
- other serious sexual offences
How may a defendant charged with murder be granted bail?
(who, timeframe and conditions)
Crown Court judge only can grant.
Mags must transfer D to Crown Court (in custody).
CC then has 48 hours to decide
Must think no signif risk of D committing offence likely cause physical / mental injury to another on bail
When wil mags not have power to remand D into custody before case dealt with?
over 18
no real prospect of custodial sentence
not yet convicted offence in those proceedings
(no custody for u!)
Grounds for NOT granting bail indictable or either-way offences?
imp
SUBSTANTIAL grounds to believe:
- Fail surrender custody;
- Commit offence on bail;
- Interfere w witness/obstruct justice.
Also (NB not susbtantial):
- Own protection or (If child) own welfare
- murder - do not grant unless no signif risk committing offence cause injury to another
- not been practicable to obtain sufficient info to make decision due to time
In considering whether to use grounds which are exception to statutory presumption of bail for imprisonable offences, what must court take into account?
- Nature and seriousness of offence AND probable method of dealing with it
- Strength of evi
- Character, associations, community ties
- Records in previous grants of bail
(see further details on one note prep 2)
Grounds for refusing bail for summary-only imprisonable offences?
(eg mags power 6 months)
- Previously failed surrender and fear same again
🤷♂️ - Instant offence was committed on bail and fear further offences
🥊 - Fear commission offences cause others suffer or fear injury
🤕 - if already granted bail for this offence but breached:
fear interfere/abscond/commit
(even if not substantial) - Ds protection or welfare if youth
🤗 - currently serving custody
👮♀️ - lack sufficient info
📝
When would D charged w non-imprisonable offence be denied bail?
- Previously failed to answer bail and believe would happen again
- own protection or if u18 welfare
- currently serving custody for diff offence
- Granted bail earlier in proceedings but failed to answer or broke conditions and believe would fail surrender or commit offence or interfere witnesses/justice
What must conditions attached to bail be necessary to do?
-prevent absconding
-prevent committing further
-prevent interfering witnesses/justice
- ensure makes self available to obtain reports
- ensure keep appointments with solicitor; or
- protect or (if under 18) welfare/interests
What is a surety?
when is court unlikely to accept?
Condition attached to bail to prevent absconding
Where enter into contract with someone who is paid money to ensure every reasonable effort to ensure D attends court.
If D doesn’t, surety must attend court and court determines if some/all should be paid.
Court unlikely accept if criminal record, lives far away or solicitor
Procedure where CPS obect to bail?
- CPS tell defence and give material info
- CPS apply to mags
- CPS outline objections/ grounds/factors
- Defence counter ground and may suggest conditions
- Mags **may hear evi **from others supporting bail
(eg prospective employer or person to provide with accommodation) - Mags decide and copy given to D
(if CPS oppose but bail granted, record reasons for granting and give CPS a copy on rqeuest)
(if surety, oath)
How many further applications for bail can D’s solicitor make?
Entitled two full application before magistrates using any argument
(can repeat self in second app)
Then only make further application if raising new legal or factual argument
(e.g. surety available)
Note: such further applications will only be possible in the magistrates’ court if the defendant’s case is still in that court. If the defendant has been sent or transferred to the Crown Court, any further bail applications will have to be made in that court
How can a defendant appeal bail?
“notice of application” doc - send to CC, mags and CPS.
(as will be heard in CC)
- Specify decision want
(grant bail/conditions varied) - Any further info or legal arguments since decision
- Any suggested conditions
Who considers D’s appeal AGAINST decisions on bail and what must they need?
Once you’ve done 2 applications to mags, Crown Court
(can in theory do after first rejection but no point)
this is an appeal against the mags decision
- Notice of application
- Certificate of full argument (mags confirming denied bail)
- Record any D’s previous conviction
OK so can appeal to mags twice (or if D is transferred to CC, hear it there).
if refuse by mags, can appeal to CC.
after those 2 apps (and any appeal), can only make another if new legal or factual argument).
D’s solicitor - notice of appeal of bail decision - what should it include?
- decision want to take
- each offence D charged with
- why should grant bail or vary conditions
- any further evi come to light since mags decision
- suggested conditions
^ to CC
when should CC hear an appeal by D against bail decision?
soon as reas pract
no later next business day
When/how can CPS appeal decision to grant bail?
Time limits?
Appeal mags decision to CC
Have a right to appeal
- oral notice end of hearing and before D released
- confirm in writing and serve on D under 2 hours after giving oral notice
- CC (not mags) hear appeal no later 2 business days
Code for Prosecutors = grave concern onlt
What steps will court take if D fails to surrender (bail)?
Mags issue warrant for arrest
Warrant will either be backed by bail (arrest then release again) or more commonly not
If not, police arrest and keep in custody
Who makes decision on whether D who fails surrender (bail) is charged for this?
If original bail was given by POLICE - CPS
If given by court, court
What offence can D who fails surrender to bail be charged with?
- Absconding - where no reasonable cause
- Reasonable cause for failing to surrender but didn’t as soon as reasonably practicable
How would court punish a D fails to surrender?
(not the offences themselves but how would they apply those offences)
Sentence immediately (as separate penalty) or wait until conclusion of substantive hearing (i.e. original case)
If don’t impose separate penalty, may refuse bail / attach stringent conditions in next stage of proceedings
(usually only bail if D genuine mistake etc)
When will D breaching bail not have committed criminal offence?
Breached any conditions conditions other than failing to attend court.
When can a police officer arrest D on bail before court hearing?
Reasonably believes they:
1. Are not likely surrender bail; or
2. Has broken/likely break bail conditions
Within what time frame must a D who has been arrested whilst on bail (due to fears won’t surrender etc) be brought before mags?
Role of mags here?
Must be brought before within 24 hours
(detained custody meantime)
Decide whether to remand in custody or grant bail before next hearing
also off topic but NB that only have plea before allocation for either-way offences
When must an identification procedure be held?
Mandatory if:
W claims have / would likely be able to identify
D disputes
Inc if claim identified (eg on street) some time after offence
Unless not reas pract or no useful purpose
Other cases, police disceretion
What are the different types of identification procedure?
- Video identification
- Identification parade
- Group identification
- Confrontation by a witness
Who should undertake ID procedure?
What must they do.
- Identification officer
- Not below inspector
- Independent
- Present throughout and in uniform 🥋
- Must keep formal record📔
All the I’s. Independent. Inspector. Investigating. Independent.
What is the role of a legal adviser at an identification procedure?
- Advise client whether to consent
- Present during any procedure to ensure conducted properly
when no need identification procedure ?
witness DEFO knows suspect
(not just went to school together distantly know but know well - remember D must also be disputing)
or suspect admits there and has same account
or not practicable
What type of identification procedure should be offered first and what are the exceptions to this?
Video
Unless:
1. Not practicable;
- PARADE better (more practicable AND suitable); or
- investigating OFFICER considers GROUP better (practicable and more suitable)
Who makes decision re what type identification procedure to use?
Investigating officer and identification officer together
(Investigating officer has NO resp for procedure)
Procedure where police asking witnesses to identify via photographs they have from previous convictions?
Including how many pics?
not form of ID procedure
- record W first description before show
- 12 photos
- once identify, no other Ws shown pics
- straight to ID procedure
(all Ws inc one who identified asked to take part) - D/lawyer told if W attending procedure identified via pic
- not tell at trial that identified via pic
Explain video identification procedure, including how many other suspects?
Moving images of 8 people (inc suspect).
If 2 co-suspects look similar shown in same pics (eg brothers) - at least 12 OTHER people
(so 14 all together)
Same positions. Same movements.
Age. appearance. position in life.
Only one witness may see video at time. 1️⃣
Playback may be frozen. 🥶
No limit on how many times can see. 🤪
What must police ensure they do before video identification?
Checking with D and their solicitor
Reasonable opportunity to see full images
If have reasonable objection (e.g. don’t resemble), take practical steps to resolve
What happens on video if D has unusual feature?
Conceal or replicate
W may be allowed to see without if request
(wow - checked this is true)
Requirements for witnesses before video identification procedure?
Must not:
- communicate / overhear other Ws
- see images
- reminded photo or description
- police must not say if prev witness identified
(dont say to NT how is everyone else doing. !)
What’s an identification parade?
What must witnesses be told?
How many other people?
Sees suspect in a line of at least 8 other people who (so far as poss) resemble
IN ADDITION TO SUSPECT
(age/height/general appearance/position in life)
Can’t make decision until looked at each TWICE!
Told suspect may not be present and that don’t need to decide
What must police ensure re witnesses before parade identification?
- not communicate/overhear other Ws
- see any member of the parade
- see suspect before or after
- reminded of photo/description suspect
What control does suspect have over identification parade?
Choose their position in line (but can’t rearrange)
Any controls witness has during identification parade?
Ask a member to speak, move or adopt posture
If so, must first ask if can identify on appearance only
Tell have selected on appearance only
(if correct after asked to speak - admissible but judge tell jury treat caution)
What is group identification?
Witness sees suspect in informal group of people
(e.g. bus station)
Location where reas expect someone who looks similar - but beyond that, no requirement for witnesses to acc look similar
Can be with D’s consent or covertly
If covert - take somewhere D is likely to be at specific time
(e.g. leaving work w coworkers)
What is confrontation (identification procedure)?
Witness face to face with suspect in police station
Informed may or may not be suspect
Usually only in presence of suspect’s solicitor
V rare and usually cos D not consented to others
What must identification officer explain to D before video, parade or group?
Explain:
- purpose of selected procedure
- right free legal adivce
- right solicitor/friend present
- if refuse consent, this may be evi at trial or may use other means (eg confrontation/covert)
- signif alter appearance before may be evi
- if W shown photos of before became suspect identified
- will be given W’s description provided before procedure
At what point will identification procedure usually take place?
After suspect’s first interview
And if positively identified then, probs either re-interviewed in light of this and/or charged
What should solicitor advise client re identification procedures?
Consent
If W can’t positively identify, may release w/o charge
If don’t, may use group/confrontation
(not surrounded resemblance)
And trial - may draw adverse infs from not agreeing
What should solicitor do if police decided not to organise identification procedure even though fulfils all requirements to?
(nb would be an issue if client wanted procedure to prove not them)
Representations to investigating officer that this is a breach of Code D.
Ensure this is recorded in custody record - can use to challenge ADMISSIBILITY at court of any later disputed visual identification evidence at trial.
Role of solicitor during video identification?
- Obtain Ws’ first description of suspect
- Check images resemble
- Distinct features
- Ensure Ws segregated / no unauthorised ppl / route
- Check how many Ws
- If consider contaminated, ask W if discussed D’s description and ID officer written record
Solicitor’s role before ID parades
- tell client where to position self and not to draw attention
- check resemble
(representations to IO if not) - check segregated and W’s route
- get W’s initial description
- if suspect contaminated, ask W’s if discussed and IO written note
Police must take a ___ _____ or ____ ____ of the identification parade?
colour photograph
vid recording
If arrested away from station, how many hours and from when can a suspect be detained before charge?
24 hours from arrival at station
Can you appeal refusal of legal aid on interest of justice AND mean test ground?
yes - interests of justice by resubmit app w further evi or requesting appeal
no for means but could ask for review on hardship grounds
Is breach of bail/failure to surrender a criminal offence?
Breach of bail is not criminal offence but failure to surrender COULD be if there is no good reason
What conditions may you attach for absconding?
Residence
Report police station
Passport
Deposit
Sureties
What conditions may you attach to prevent offences on bail?
Restriction entering certain areas
Non-comm w prosecution witnesses
Curfew
(good if always commit certaint time)
Residence
Reporting police station
Bail conditions to prevent interfering with witnesses?
Non-communication with CPS witnesses
Restriction entering specified areas
If requesting bail for a defendant who previously absconded, what steps should be taken?
- Counter CPS grounds
(e.g. does in fact have community ties) - Last time - genuine mistake/turned self in?
- Conditions
2 basic requirements for evidence admissibility at trial?
- Relevant to facts in issue
- Admissible in law
Examples of when LEGAL burden of proof fall on D.
Does this remove prosecution from a burden?
Insanity, duress and diminished responsibility
On balance of probabilities
No - then falls back on CPS (to prove legal and evidential burden / beyond reas doubt)
(nb NOT ALIBI)
When will a defendant have an evidential (not legal) burden of proof?
Example of how they could easily discharge this burden?
Alibi
Self-defence
Loss of self-control
Testifying
After this, prosecution has burden of proving defence is not true
NB: Prosecution have an evidential burden regardless of defence so if fail to present sufficient evidence, entitled to make submission no case to answer
What happens if prosecution haven’t presented sufficient evidence to prove their case?
Defence can make submission of no case to answer and ask court to discharge
What discretion does court have to exclude admission of CPS evidence?
Adverse effect on fairness of proceedings
What should D’s solicitor do if disputed evidence admissibility but admitted anyway?
Cross-examination undermine quality and make representations under Turnbull guidelines
When may evidence from police station identification procedures be inadmissible?
- Video identification - others not resemble
- Identification parade - witnesses not segregated
- Failed hold any identification procedure when should have
When do Turnbull guidelines apply?
W identifies D, and D disputes.
Identified if:
1. pick out D informally; or
2. In identification procedure; or
3. Claims recognise as someone previously knew
(e.g. self-defence so admitting there - won’t rely because not disputed)
When will Turnbull guidelines not apply despite there being a witness who D disputes identification of?
- No direct evi that it was D, other than that D’s physical appearance matches description. (e.g. failed to identify at identification procedure)
- Even though admitted being at scene, there were number of people who represented D.
- Also if no one present who could have resembled D
(almost not deep enough to need the guidelines)
Under Turnbull guidelines, what should court consider in assessing if good quality of eyewitness evidence?
(these are not conclusive but the main ones)
ADVOKATE:
Amount of time observed for
Distance between W and D
Visibility
Obstructions impeding view (see all face?)
Known? or never seen before?
Any particular reason to remember the person?
Time lapse? (eg between sighting and identifying)
Errors or discrepancies (between description and appearance).
What is a Turnbull warning?
When is it given and who by?
Warn jury in closing speech:
- dangers of relying;
- special need for caution when considering;
- honest witness can be mistaken; and
- consider CIRCUMSTANCES original sighting carefully
DCHC
dark candles hot choc
When should a standard Turnbull warning be given?
Identification evidence good quality
(based on judge’s interpretation of ADVOKATE)
Standard = dark candles hot choc dangers caution honest circumstances (‘Turnbull warning’)
When should a slightly more intense Turnbull warning be given?
Identification evidence is poor but supported by other evidence
What needs to be added to Turnbull warning for poor but supported identification evidence?
As well as DCHC
-
Draw attention to:
1. weakness
2. supporting evidence - Tell to look for supporting evidence
- Warn dangers convicting identification evi alone
What will a judge do if evidence is poor and unsupported?
Stop trial and direct jury to acquit
(usually defence will have already submitted no case to answer)
Difference between application Turnbull guidelines in Crown Court and Magistrates?
CC - judge responsible for assessing quality of witness evi
(D solicitor makes representations to court on it. trial judge assesses quality under ADVOKATE and strength - eg poor but supported)
Mags - D’s solicitor address mags on Turnbull guidelines throughout
- submit no case to answer if no supporting evi at end of CPS case
- otherwise, would give mags a Turnbull style warning
(notoriously unreliable)
What would defence solicitor do in mags where good or poor but supported identification evidence?
Unlikely make no case to answer
Instead, closing speech:
- Address Turnbull guidelines
- However strong appear, notoriously unreliable evi and exercise caution
- point out any specific weaknesses
(nb if poor and unsupported - should make no case to answer at end of CPS case)
Can D be convicted solely on an adverse inf?
No
(or at least not under the sections we look at)
When can adverse inference not be drawn from silence in interview?
No opportunity to obtain independent legal advice
(not apply if offered but decline)
What adverse inferences could be drawn from silence in interview?
- Fabricated defence after interview
- Didn’t put it forward because not believe stand up in further investigation
When can adverse inferences be drawn from interview?
Silent (not answering Qs)
Or answered Qs but did not mention something r**easonably expect to **if defence was valid
Conditions for adverse inferences from silence in interview?
( R v Argent the list)?
- Failure to mention was from before charged and during questionning;
- Failed mention fact later relied on
- Questioning aimed discover if or by whom offence was committed; and
- Could have reas expected mention
Adverse inference from silence can only be drawn if court satisfied that the real reason for D’s silence was ______________________?
(Condron v UK)
Had no answer or no answer would stand up to scrutiny
Can adv inf be drawn from a D who did not answer Qs at first interview but did at second?
Yes
(draw from failure in first interview)
Can adverse inferences be drawn silence in interview where written statement provided?
Must do sonething
No, as long as contains all facts relied on in defence
Can adverse inferences be drawn from D’s silence if written statement is prepared by solicitor but not hand in?
CANNOT draw recent fabrication
Can draw that not confident enough in defence to allow police to investigate
What must you do as solicitor if advised no comment interview?
Make note of why told to give no comment
Tell could mean court draws adverse inference
Can defendant avoid adverse inference from silence by claiming they were told to remain silent by solicitor?
Not automatically
Direct jury not to draw if believe D GENUINELY and REASONABLY relied on that advice
Consider if could reasonably expect mention facts relied on at interview
(eg - self-defence, advice remain silent, should have said anyway - not complex facts and no personal circumstances meant couldn’t answer)
When can legal privilege (privacy of comms with solicitor) be waived re adverse inferences? When would this usually happen?
Trial. Not interview.
Raising reason silence was advice of solicitor won’t waive privilege.
But if D says REASON for advice, waives privilege - which likely need to avoid AI.
Allows CPs to cross-examine:
- D (or D’s solicitor ONLY if giving evi on D’s behalf) on any other reason may have given that advice
- D or D’s solicitor on instructions which led to advice
If right to legal advice LAWFULLY postponed, can adverse inferences be drawn from silence in interview?
(eg superintendent says sorry no advice)
No.
Must be told of absolute right to silence at start of interview.
Judge must direct jury what absolute right silence means if D silent at interview and subsequently relies on facts not mentioned.
An adverse inference can be drawn if, when questioned by police, D fails or refuses to account for
_____ , ______ or _____
Object
Substance
Mark
When can adverse inferences be drawn from failure to account for presence at place offence committed?
Yes, if:
- Arrested by constable;
- Found at place at or around time offence;
- that PO or another PO reasonably believes may be because committed;
- constable says so believes and requests account for presence; and
- Fails/refuses to.
And:
Can apply even if no defence raised at trial
Special caution
When can adv inf drawn for failure to account for presence of object, substance or mark?
- Arrested by PO
- Is on:
body
clothing / footwear
otherwise in possession
any place at when arrested - that or another investing PO believes could be cos commmitted
- Informs belief and requests account for
- Fails or refuses to
(v similar to other one except clothing footwear etc)
Difference between adverse inferences for (a) failure account mark and/or presence and (b) silence in terms of being raised at trial?
Silence:
Only if relates to defence D raises
Mark/presence:
Can apply regardless of any defence
But special caution required
What is the ‘special caution’ and when must it be given?
PO BEFORE requesting explanation for OMS or presence:
- What offence is under investigation;
- What being asked to account for;
- Believes may be due to commission in offence;
- May draw adv inf from failure comply; and
- Recording interview and may be given in trial evi.
Applies for failure to account for presence AND for object mark stain
What happens if police officer fails to give special caution?
No adv inf can be drawn at trial
Can inference be drawn from failure to account for presence or OMS if D doesn’t raise a defence?
What is usual inference?
Yes - applies irrespective of defence or even if no defence put forward
No explanation or none that would have stood up to police questionning
Can adverse inferences be drawn from a D’s silence in the trial itself?
(as in not said anything before the court)
Yes if fails give evi on own behalf
But no adv infs re failure to mention defence (since haven’t raised one)
Can a defendant remain silent at trial?
Yes
(i.e. not obliged to give evidence or raise defence)
When can adverse inferences be drawn from a D’s failure to provide evidence in trial and what adv inf?
If prosecution raised issues which call out D to explain and doesn’t
Can infer no explanation or not one that stands up to cross-examination
What must court consider re adverse inference from D’s failure answer prosecution questioning in trial?
What adv inf may be drawn?
- Burden proof remains CPS and have case to answer
- Entitled silence
- Only** sensible explanation **must be that no answer / one which would stand up
- Can’t rely solely on this adv inf for guilt
What does court do if no adv inf can be drawn?
Direct no adverse inference be drawn
Court can use its _______ to direct that adverse inference from D’s failure to give evidence in trial should not drawn where __________________
Discretion
Physical or mental condition makes undesirable to give evidence
Applied strictly
(e.g. epileptic seizure, schizophrenic state, ADHD causing conflicting evidence)
When does court’s discretion to refuse admission of prosecution evidence apply under s 78?
Unfairly or improperly obtained - so such adverse effect on fairness ought not to
Where manner obtained casts doubt reliability
If evi is RELEVANT and manner obtained does not cast doubt on reliability, unlikely to exclude (even if breached PACE).
SIGNIFICANT and SUBSTANTIAL breach.
e.g. stop and search bcos race but find heroin, unlikely exclude - didn’t get there bcos unlawfully searched. confess bcos lied to about strength - more likely cos likely caused
If officer causes someone to commit an offence so they can be prosecuted (entrapment), should court use its discretion to prevent unfairness and exclude evidence?
What should it consider in determining whether to exercise that poerw?
CAN do technically
Since no ‘entrapment’ defence.
But court SHOULD use common law to stop case on basis that allowing CPS case to continue represents abuse of process.
In consider whether abuse of process:
- how intrusive police investigation was
- could police have only cracked offence in covert way
- police behaviour
(did they behave as normal customer might and no more)
- D’s criminal record
- how much supervision of police officers
If the legal burden of proof is on D, what is the standard of proof?
Balance of probabilities
(instead of reasonable doubt)
(nb - on prosecution to disprove)
Do Turnbull guidelines prevent evidence from being admitted?
NO
Evidence already admitted to trial at this point - it’s just about whether to direct jury / stop trial if rly bad
In what summary-only offence can a D entering non-guilty plea choose to be tried in CC?
Low value shoplifting
Can choose to be tried in Crown Court but no plea before venue or allocation process
(bcos so damaging to reputation)
Can you have other witnesses in ID procedure who has a scar/feature that D doesn’t have?
No should exclude - Code D PACE
If been interviewed twice and silent in first but speak in second, can adv infs be drawn from first?
Yes
Disputed identification - order of dealing with it
- Is there visual identification from W?
- Is it disputed?
- Can it be inadmissible under S78
- If admissible, cross-examine ADVOKATE
- (May) argue no case to answer
- If quality good/poor but supported, Turnbull by judge
Does CPS always have a burden?
Yes, regardless of defence, will always have an evidential burden
Means if fail to present evi that client has case to answer, entitled to make submission no case to answer
Diff sections not that imp tbf for adverse inferences
s34 silence at interview
s35 silence at trial
s36 object mark substance
37 presence
38 not convict solely on adverse inf
Conditions attached to youth conditional caution should consider ____, ____ and ____
And be capable of being achieved within…
rehabilitation, reparation and punishment:
- 16 weeks of original offence if summary-only;
- or 16-20 weeks otherwise
- (2 meh u are at 16- 20 still juv)
When will interests of justice for legal aid cases be automatically satisfied?
(criminal)
- under 18
- Crown Court cases
Main conditions attached to bail?
- Residence
(specific address - police check by visiting late night/early morn) - Attend solicitor or probation service appointments
- Deposit (ie security)
- Report police station
- Non-comm w CPS witnesses
- Passport
- Restrict from entering specific areas
- Surety
- Curfew
Instances is s 78 PACE often used
evidence:
- confession
- identification
(eg parades) - covert devices
- illegal search (eg w/o warrant)
- undercover investigations
if suspect refuses legal advice, what steps must be taken?
- Inspector+:
- enquiries why
- reasonable efforts identify solicitor est arrival time and inform them changed mind
- record reason and outcome efforts to contact solicitor in custody record - Suspect
- confirms in writing want interview proceed w/p solicitor
- signs that as entry in custody record - Inspector+
- satisfied proper interview proceed
- authority for that in writing and in custody book (either given or reflected in custody record)
- inform solicitor authority given - Interviewer
- remind right to legal advice
- confirm in interview record that:
a) changed mind advice and reason
b) authority given
c) if solicitor arrives before completed, will allow break
d) will give break if request legal advice any time at interview
CAN draw adv infs here!
What may police do after investigation if considered not committed offence?
NFA (no further action)
i.e. release w/o charge.
Nothing to stop re-arresting at later date if new evi.
what happens to suspect if POLICE are investigating whether to charge them?
- NFA
- release under investigation (RUI)
- could re-arrest if new evi - release on pre-charge bail
custody officer can authorise pre-charge bail for 3 months
inspector can extend to 6 months
superintendent can extent to 9 months
judicial approval beyond 9 months
If pre-charge bail
options custody officer where police finished investigation
- release suspect NFA or RUI
- release suspect on pre-charge bail whilst police investigate
- charge suspect and release on bail or custody
- offer suspect alternative to charge
maximum period for bail
can it be extended?
3 months
can extend to 6 months if authorised inspector
9 months superintendent +
max 18 months - mags
duty of __ officer before pre-charge bail imposed
investigating
seek views of victim re conditions
when suspect answers pre-trial bail, what may police do?
nb bail notice contains date and time must attend
- release w/o charge if insufficient evi
- further powers e.g. re-interview
- release on bail again if need further enquiries or pass case to CPS
- charge if now have sufficient evi
when can pre-charge bail be granted?
- case been passed to CPS for charging decision
or
- custody officer satisfied necessary and proportionate
what pay happen to D pre-charge if case passed to CPS?
(same as pre-trial bail for police except last)
notice requiring to re-attend time and date police station
may then
- charge if CPS sufficient evi
- further investigating powers
- release if insufficient evi
- dealw ith a diff way if found evi but not PI
if police have sufficient evi to charge, what can they do? what usually do?
charge themselves or give to CPS to decide apt charge
usually give to CPS
Code C PACE - what must happen when charged
given charge sheet
details of charge in simple terms
precise offence charged with
can u be interviewed again after charge?
only if
- prevent harm or loss to others
- clarify ambiguity
- IoJ to have opportunity to comment info come to light since charged
^ must give ‘old’ caution
“do not have to say. anything do may give evi”
- so not reminded right to legal advice.
who decides whether to grant bail
custody officer
(after police decided to charge)
when may custody officer refuse bail
REASONABLE grounds:
- doubt name and address
- commit offences
- fail surrender
- interfere justice or investigation
- harm to others or property
- samples taken
- own protection
when can custody officer impose limits on bail
necessary
- protection / welfare u18
- interfere
- commit offences
- abscond
how could u try vary conditions
- ask custody officer
- apply mags
when will suspect make first court appearance?
on bail: 1 - 2 weeks
denied bail: soon as practicable. not later first sitting of court after charged.
^ no remand courts sat / sun
e.g. charge Saturday. Monday morn.
e.g. Tuesday eve. weds morn.
alternatives to charging a defendant (despite having sufficient evi)
if over 17:
- informal warning
- penalty notice
- formal caution
- conditional caution
what’s a
- informal warning
- penalty notice
