Criminal Law

Question 1

Who is a custody officer?

Answer 1

They must be a police officer of the rank of at least sergeant.

They must be unrelated to the investigation.

They must authorise the arrest after being given information regarding reasons for arrest.

If there is not sufficient evidence to authorise the arrest, the detainee must be released except where detention is necessary in order to a) secure evidence or b) obtain evidence by questioning.

They are responsible for the handling and welfare of suspects in detention.

They must conduct a risk assessment (e.g. establish if suspect is vulnerable).

They must make special arrangements if necessary, including arranging interpreters or medic.

Question 2

Who is a review officer?

Answer 2

Must be an officer of at least the rank of inspector.

They must be unrelated to the investigation and cannot be the custody officer.

Reviews the arrest to satisfy that detention is still necessary.

Question 3

What is the custody record?

Answer 3

Must include circumstances of the arrest and why it was necessary.
Any comments made by the person arrested.
Must be available for the solicitor to view.

Question 4

What is the maximum period of detention?

Answer 4

24 hours from the relevant time.

The relevant time = the moment the suspect arrives at the police station following arrest.

Where a person voluntarily arrives at police station - relevant time = the time of arrest.

Question 5

Who can authorise the extension of detention time limits?

Answer 5

An officer of at least the rank of superintendent if they have reasonable grounds for believing that detention is necessary to secure evidence where the offence is indictable only.

Question 6

What are the rules relating to extension of the time limit for detention after the initial 24 hours from the relevant time?

Answer 6

Detention can be extended for a further 12 hours - making 36 hours permissible if there has been a second review has occurred within the initial 24 hours.

Note that the grounds for extension must be explained to suspect and noted on the custody record.
Representations from the suspect and the solicitor are permitted.

Detention can then be extended by 36 hours where a court order from the MC has been obtained.

The maximum period of detention can therefore total 96 hours.

Remember: this is only applicable to indictable only offences and only an office above the rank of superintendent or above.

Question 7

How long can the right to a solicitor be delayed?

Answer 7

Maximum of 36 hours where the following criteria is met:
1. The offence is indictable only.
2. Rights are delayed in writing by a police officer of at least the rank of superintendent.
2. They have reasonable grounds to believe that consulting with a solicitor may interfere with or harm evidence / or alert others / or hinder recovery of evidence.

Question 8

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

Answer 8

Maximum of 36 hours where the following criteria is met:
1. The offence is indictable only.
2. Inspector has reasonable grounds to believe that informing someone of the detainees arrest may interfere with or harm evidence / or alert others / or hinder recovery of evidence.

Question 9

How can confession evidence be excluded?

Answer 9

S 76(2) PACE:
- Where oppression has caused the confession.
- Or where the confession was obtained as a result of something that renders it unreliable.

S 78 PACE:
- Where the confession would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
- This applies to all evidence whereas s 76 applies exclusively to confession evidence.

Question 10

What is the effect of s 34 on Adverse Inferences?

Answer 10

S 34 allows for an inference to be drawn where the defendant later relies on a factor in their defence that was not offered up at the time of questioning.

• No obligation to draw an inference but if a court does, then it must be “proper”.

Requirements for drawing an inference here:
- The suspect MUST have been cautioned.
- It must have been reasonable at the time to have mentioned the fact.

Question 11

What is the effect of s 36 on Adverse Inferences?

Answer 11

S 36 allows for an inference to be drawn where there is a failure to account for a mark, object or substance.

Ability to draw inferences arises AS SOON AS there is a failure by the defendant to account for their possession of the object in question.

S 36 may include a failure to account for bruising or a hammer in the suspect’s rucksack.

A special warning is required to allow an adverse inference to be drawn here.
- This involves the suspect being told what the offence is, what fact they being asked to account for, that this fact may be due to them partaking in the offence, that a court may draw a proper inference if they fail or refuse to account for it, and that record of the interview is taking place.

Question 12

What is the effect of s 37 on Adverse Inferences?

Answer 12

S 37 allows for an inference to be drawn when the suspect fails to account for their presence on arrest at a particular place at the time / or near the time the offence was allegedly committed.

Ability to draw inferences arises AS SOON AS there is a failure by the defendant to account for their presence at the scene in question.

S 37 may include failing to explain why they were found on a burglary victim’s driveway.

A special warning is required to allow an adverse inference to be drawn here.
- This involves the suspect being told what the offence is, what fact they being asked to account for, that this fact may be due to them partaking in the offence, that a court may draw a proper inference if they fail or refuse to account for it, and that record of the interview is taking place.

Question 13

What is the procedure involved in Video Identification in identification procedures?

Answer 13

If the suspects identity is known, the eye witness is shown moving images of a the known suspect, together with similar images of others who resemble the suspect.

Question 14

What is the procedure involved in an Identification Parade when identifying a known suspect?

Answer 14

This involves the eye-witness seeing the suspect in a line of others who resemble the suspect.

Question 15

What is the group identification process when identifying a known suspect?

Answer 15

This involves the eye witness seeing the suspect in an informal group of people.

Question 16

In a video indentification, how many other suspects must be placed alongside the primary suspect?

Answer 16

EIGHT! (who resemble them)

Question 17

In an identification parade, how many other suspects must be placed alongside the primary suspect?

Answer 17

At least EIGHT (who resemble them).
Only where there are 2 suspects of similar appearance will there be at least 12 images shown to the witness.

Question 18

What is the procedure for an identification parade?

Answer 18

Suspect must be allows solicitor or friend present.
Must take place behind a screen to protect eye-witness’s identity.
Video recording or photographs must be taken.
Suspect is placed amongst at least 8 others who resemble them.
Only where there are 2 suspects of similar appearance will there be at least 12 images shown to the witness.
Steps may be taken to conceal or replicate distinctive features on a suspect.
Eye witnesses must not communicate with one another.
Immediately before the witness inspects the identification parade, they’re 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 19

What is the time limit on when a charge should be brought after arrest.

Answer 19

Generally there is no statute of limitation requiring a charge to be brought within a specific period of time.

For summary only offences:
- The information must be laid or the complaint made within 6 months of the date of the alleged offence.

For indictable only offences:
- There is no time limit for charging the accused.

Question 20

When must the first review of a suspect’s detention take place?

Answer 20

The first review of a suspect’s detention must take place no more than 6 hours after the suspect’s detention was first authorised by the custody officer.

After that, it will take place every 9 hours.

Question 21

When should a Turnbull Direction be given?

Answer 21

When a case depends wholly or substantially on identification evidence, then the court will apply the Turnbull Guidelines:

The judge should instruct the jury as to the reason for the need for such a warning (mistaken witnesses for example)

The judge should direct the jury to examine the circumstances in which the identification by each witnesses can be made

The judge should remind the jury of any specific weaknesses in the identification evidence.

Question 22

What are Argent Factors ? (in the context of formulating advice to your client)

Answer 22

Argent Factors are circumstances where the court should not draw inferences from where the suspect’s condition, such as ill-health, mental confusion, intoxication or shock, gives the lawyer concern.

Question 23

Does the defendant have a right to know why bail was refused?

Answer 23

Yes - under s 4 BA 1976, the court must give reasons if it refuses bail or imposes conditions.

Question 24

What are the custody time limits for a summary only or either way offence in the magistrates court where bail has been refused?

Answer 24

For summary only or either-way offences in the Magistrates Court - 56 DAYS

Question 25

What are the custody time limits for an indictable only or either way offence in the Crown Court where bail has been refused?

Answer 25

For indictable only or either-way offences in the Crown Court - 182 DAYS (minus any days spent in custody prior to the case being sent to the Crown Court).

Question 26

What is the procedure following a bail application being refused?

Answer 26

Following first hearing in Magistrates Court where bail has been refused….

Where there is strong evidence, the solicitor should apply to the Crown Court in writing.
The bail application will be reheard by the judge in chambers within 48 hours.

Question 27

How are Bail conditions varied?

Answer 27

Application can be made to the court which granted bail to vary conditions of bail.
If the parties agree, the court may vary conditions without hearing.

Question 28

Is breach of bail conditions an offence?

Answer 28

No - but it may result in the accused being arrested and having their bail withdrawn.
However:

It is a criminal offence to fail, without reasonable cause, to surrender to custody.

Failure to Surrender is punishable summarily by up to three months imprisonment + or an unlimited fine. Alternatively, it may be 12 months imprisonment + or and unlimited fine on indictment.

Question 29

What is the objective test for disclosure that the prosecution has an obligation under during trial?

Answer 29

The prosecution must disclose all material that that might reasonably be considered to be capable of undermining the case for the prosecution or of assisting the case for the accused.

The prosecution is also under a duty to disclose unused material that they have collected but which will not be relied upon as evidence, including disciplinary findings etc.

Question 30

When can the defence make an application for specific disclosure

Answer 30

Where the defence believes that the prosecution has relevant material it has failed to disclose! The prosecution must respond within 10 days in writing.

An application for specific disclosure can only be made once the defence has served a defence statement - even where it is only optional.

Question 31

when must the defence serve a defence statement?

Answer 31

Mandatory in the Crown Court:
Must be served within 28 days of prosecution’s disclosure. (Extension can be requested as long as it is requested within the 28 day period)

Option in the Magistrates Court:
Must be served within 10 days of prosecution disclosure). (Extension of time can be applied for).

Question 32

What is the COMMON LAW power of the courts to exclude evidence?

Answer 32

When the probative value of the evidence is outweighed by its prejudicial effect.
ONLY APPLIES TO PROSECUTION EVIDENCE!

This principle is distinct from statutory provisions like Section 78 of PACE, which focuses on fairness, and is often applied to ensure that evidence presented does not unfairly sway a jury or cause undue harm to the fairness of the trial.

Question 33

When should a Turnbull Direction be given?

Answer 33

General application – Turnbull direction should be given when the case relies wholly or substantially on the correctness of visual identification which the defendant disputes.

Mistaken Identity – Turnbull direction should be given in cases where there defendant is recognised by the witness (e.g. mistaken recognition of a stranger).

Disputed Presence – If the defendant admits their presence at the scene but disputes their role, a Turnbull direction may not be necessary bit it may be applied depending on the facts.

Question 34

What are the key elements of a Turnbull Direction?

Answer 34

Jury must be informed that mistaken witnesses can appear convincing.
The jury should assess the circumstances in which the identification was made.
The judge should remind the jury of any weaknesses in the identification evidence.

Question 35

When can a s 78 PACE application be made?

Answer 35

• Before trial
• At commencement of trial
• Just prior to the prosecution seeking to admit the evidence which the defence wished to be excluded.

Question 36

What is the main aim of the Youth Justice System?
What must the court consider when sentencing children and young people?

Answer 36

Aim: To prevent offending by children and young people.
Court Considerations:
Principal aim of the Youth Justice System.
Welfare of the child or young person.
Age (chronological, developmental, emotional).
Seriousness of the offence (culpability and harm).
Likelihood of further offences.
Extent of harm likely to result from further offences.

Question 37

What are parenting orders, and when can they be imposed?
What happens if parents breach the order?

Answer 37

Parenting Order - Statutory requirement for parents / guardians to attend all stages of proceedings unless unreasonable.
Any breach of parenting order is punishable by fine.
(Available in all courts)

Parenting Bind Over - Court has duty to make parental bind over / impose parenting order to prevent commission of further offences.
This power becomes discretionary for children 16 and 17.
Any breach of parenting bind over is punishable by fine.
(Only available in youth court or magistrates court).

Question 38

What constitutes a persistent offender for youth?

Answer 38

They have 3 findings of guilt within past 12 months for imprisonable offences of comparable nature.
No need for previous convictions.

Question 39

What is the relevant age for sentencing of youths?

Answer 39

Date at conviction

Question 40

What is the relevant age for allocation of youths?

Answer 40

Date at first hearing

Question 41

What is a youth rehabilitation order and what does it involve?

Answer 41

Definition: Flexible community order tailored to the offender.

Requirements:
Activity, supervision, unpaid work, curfew, exclusion, electronic monitoring.
Education, mental health, drug treatment, and fostering requirements.
Intensive supervision and surveillance for serious offences.

Restrictions:
Unpaid work and residence requirements: Only for 16–17-year-olds.
Intensive supervision and surveillance and fostering are only available for imprisonable offences where the custody threshold has been passed.
Where child is under 15, they must be a persistent offender.

Custody Threshold:
Offence must be serious enough.

Question 42

What are referral orders?
What’s the difference between mandatory and discretionary referral orders?

Answer 42

Definition: A contract with a youth offender panel. Minimum 3 months, maximum 12 months.

Mandatory: First conviction, guilty plea, imprisonable offence.
Discretionary: Second (or later) conviction or non-imprisonable offences.

Where a referral order is breached:
Court may revoke and re-sentence or impose a fine/extend contract period. (Extension cannot be longer than 3 months).

Question 43

What is a detention and training order?

Answer 43

Custodial sentence.
Only applies where young person has been convicted of an offence which is punishable with imprisonment if they were an adult:

Restrictions:
Not available for 10 or 11 yrs.
Not available for 12- 14 yrs unless persistent offender.

Sentencing:
May be within half to two thirds of the adult sentence for 15 - 17yrs.
Greater reduction for those under 15.

Minimum 4 months.
Maximum 24 months.
May only be 4, 6, 8, 10, 12, 18 or 24 months.
Consecutive DTO’s can amount to 24 months max.

Where custody threshold is not passed - intensive supervision and surveillance requirement and fostering requirement are all community alternatives.

If a defendant does plead guilty to an imprisonable offence, a referral order must be made unless the sentence is one fixed by law or the court proposes to pass a custodial sentence, an absolute or conditional discharge or make a hospital order.