Criminal Litigation

Question 1

What happens once a person is arrested?

Answer 1

Take to police station as soon as practicable, unless presence at a place other than police station is required to carry out investigation - includes being searched/premises being searched/check alibi.

If anticipated that person to be detained for > 6 hours, then take to designated police station. Can be granted ‘street bail’ and asked to attend at later date (conditional bail).

Question 2

What happens when person arrested arrives at police station?

Answer 2

Custody officer to decide whether continued detention to be authorised;
Inform detainee of their rights;
Non-intimate samples;
Appropriate healthcare professional;
If detainee requests, speak to solicitor;
Interview (often with solicitor present)

Question 3

What happens after suspect is interviewed at police station?

Answer 3

Detainee may be released under investigation/on police bail; charged/released on police bail to appear at MC at later date; charged and remanded in police custody to appear at MC

Question 4

Who is the Custody Officer and what is his/her role?

Answer 4

At least rank of sergeant; must be unrelated to investigation process. Responsible for welfare of suspect. If becomes aware that grounds for detaining have ceased to exist, must release.

If grounds to arrest:
Authorise detention;
Open Custody Record
Inform detainee a out reason for arrest;
Advise detainee on rights.
Determine if sufficient evidence to proceed to charge - if not then must be released (unless reasonable grounds to believe detention is necessary (i) to secure/preserve evidence; or (ii) to obtain evidence by questioning).

Question 5

What does the custody record include?

Answer 5

Requirement to inform person of arrest; circumstance of arrest; why arrest was necessary; any comments made by arrested person

Question 6

When does the review of detention need to be carried out and by whom?

Answer 6

Review officer (at least rank of inspector - not connected with investigation and is not custody officer) must carry out review - must be satisfied that detention is still necessary and grounds of detention still exist.

Must take place not more than 6 hours after suspect’s detention was first authorised by Custody Officer - then every 9 hours after.

Question 7

What is the maximum period for detention?

Answer 7

24 hours from relevant time (mostly when suspect arrives at police station). Suspect must be charged/released before 24 hour limit.

Question 8

How can detention be extended and for how long?

Answer 8

Can be extended for further 12 hours (36 hours from relevant tine); authorisation to be given by officer at least rank of Superintendent - if has grounds for believing detention is necessary to secure/preserve evidence or obtain evidence by questioning.

Can only be extended if offence is an indictable offence and investigation must be conducted diligently and expeditiously.

Power to detain beyond 36 hours - apply to MC for further up to 36 hours on first application, and 36 hours on second application (but max 96 hours from relevant time).

Question 9

What rights does a suspect have?

Answer 9

Right to consult solicitor and availability of free independent legal advice;
Right to have someone informed
Right to consult COP
Right to appropriate adult/interpreter (if applicable).

Question 10

How can right to free and independent legal advice be delayed?

Answer 10

Right can be delayed for max 36 hours where grounds are authorised and recorded - suspect must be informed of these. If interview carried out before suspect been able to consult solicitor - can have impact on evidence/restrictions on adverse inferences drawn.

To delay, suspect must be in detention for an indictable offence. Authority to delay has been granted in writing by Superintendent or higher rank - if reasonable grounds to believe that exercise of right by suspect will lead to interference with/cause har to evidence or others; alerting people suspected who have not yet been arrested; or hinder recovery of property obtained in consequence of committing offence. Might also be detained for indictable offence and suspect has benefitted from their criminal conduct.

If grounds to believe named solicitor may pass on message/act in a way, then access to named solicitor can be delayed but does not justify right to legal advice generally - alternative to be provided.

Question 11

How can right to inform someone be delayed?

Answer 11

Detention of indictable offence;
Rank of at least Inspector;
Reasonable grounds to believe - exercise of right will lead to interference with/harm to evidence or others; alerting others not arrested; or hinder recovery of property obtained in consequence of committing an offence.

Max delay for 36 hours. As soon as search conducted and other suspects arrested, appointed person should be notified.

Question 12

Who has right to an appropriate adult?

Answer 12

Suspects under 18 or anyone with mental disorder/vulnerability or anyone whom officer has been told in good faith may be mentally disordered/vulnerable.

Question 13

Who can act as an appropriate adult?

Answer 13

Young detainee: parent/guardian/representative of care authority/social worker/any person aged 18 or over who is not police officer/employee.

Mentally disordered/vulnerable: parent/guardian/relative/someone with experience in dealing with such persons - must be 18 or over and not a police officer/employee.

Question 14

Who cannot act as an appropriate adult?

Answer 14

Suspected of involvement in offence;
Victim/witness;
Involved in investigation;
Person who received admissions from detainee;
Of low IQ and unable to appreciate gravity of situation;
Estranged parent whom juvenile objects to.

Question 15

When can young/mentally disordered/vulnerable detainee be interviewed without presence of appropriate adult?

Answer 15

If delay would lead to:
interference with/harm to evidence;
interference with/physical harm to others;
serious loss of or damage to property;
alerting other suspects not yet arrested
hindering recovery of property obtained during committing an offence

Question 16

When should a detainee be cautioned?

Answer 16

Interviews to be carried out under caution; person must be cautioned before they are asked questions about involvement in committing an offence. Should also be cautioned during recommencement after break.

Question 17

What must be disclosed to solicitor?

Answer 17

Significant statements and custody record; Before interview, solicitor should obtain pre-interview disclosure and have opportunity to privately consult client.

Question 18

What are the factors influencing a client’s choice to answer questions in an interview?

Answer 18

Whether disclosure is insufficient; strength of evidence; admissibility of evidence; client’s account/instructions; state of your client (Argent Factors)

Question 19

For what all can adverse inferences be drawn?

Answer 19

s.34: if fact is later relied on at trial which would have been reasonable to mention in the interview - CAUTION. Court does not have to draw inference but if it does, must be proper.

s.36: failure to account for mark/object/substance - SPECIAL WARNING

s.37: failure to account for presence at scene - SPECIAL WARNING

Question 20

When is there a duty to hold identification procedure of suspects?

Answer 20

Offence has been witnessed by eyewitness;

Has identified suspect/purported to have identified them OR
is available and has expressed an ability to identify the suspect; OR
has a reasonable chance at being able to identify the suspect; and

the suspect disputes being the person eye-witness claims to have seen.

Question 21

What are the different identification procedures?

Answer 21

Video Identification; Identification Parade; Group Identification

Question 22

What does a video identification procedure involve?

Answer 22

Suspect invited to participate in identification (unless not practicable or identification parade more suitable). If refuses, then alternative considered. Covert procedures only to be used as last resort after alternatives considered. Record of description of suspect given by eyewitness. Copy given to suspect/solicitor before any procedure executed.

Notice to be given to suspect (purpose of procedure, entitlement to free legal advice, procedure and right to have someone present). Do not have to consent/cooperate but refusal can be given as evidence and covert procedure may be used.

Suspect filmed, select look alike and video clip produced with at least 8 similar people resembling suspect; unusual physical features concealed/replicated. Suspect/solicitor to be given reasonable opportunity to see images and object. Witness told person may/may not appear and cannot be directed to any individual. Supervised viewing of recording may be requested.

Question 23

What does an identification procedure involve?

Answer 23

Suspect to be given opportunity to have solicitor/friend present. Can take place in normal room/room equipped with screen. Once parade taken place, everything in relation to it must be in presence/hearing of suspect and solicitor/friend.appropriate adult. Recording normally taken and supplied on request.

Parade shall consist of at least 8 people looking similar. Unusual physical characteristics - conceal/replicate. Suspect can select position in line. Witnesses not able to communicate - brought in one at a time. Witness told suspect may/may not be present. Can ask member in line to speak.

Question 24

What does the group identification procedure involve?

Answer 24

May take place with/without suspect’s consent. Location where other people are passing/waiting around, suspect able to join and witness able to see. Photo/video should be taken to give impression of scene/number of people present. Witnesses should not be able to communicate with each other.

Confrontation may take place but ideally in police station.

Question 25

What is the consequence of breaching Code D of PACE (arrangements for VIPER)?

Answer 25

Judge to determine if breach occurred - can be done voire dire. If facts disputed, evidence can be heard under oath. If breach occurred, does not automatically lead to exclusion of evidence - D to apply to exclude evidence under s.78 PACE. Key issue for judge is whether any significant prejudice to accused - if it will have adverse effect on fairness of proceedings. Identification evidence usually excluded where safeguard flouted.

Question 26

What happens where evidence admitted despite breach?

Answer 26

D’s lawyers permitted to comment on breach in closing speech. Trial judge ought to draw jury’s attention to breach and invite them to consider reasons why code been drawn. Jury to assess whether breach was such as to cause doubts re safety of identification.

Question 27

Who makes the decision to charge a suspect?

Answer 27

Crown Prosecutor - exercises powers of DPP, particularly all indictable only offences. Police retain discretion re certain offences - Custody Officer takes decisions in relation to these. DPP may delegate power to lawyers with rights of audience (subject to instructions given by CPS - code).

Question 28

When does a D’s first hearing take place?

Answer 28

When D is on bail, must be within:
14 days of being charged, if anticipated guilty plea which is likely to be sentenced in MC.

28 days of being charged if anticipated that D will plead NG or case likely to go to CC for either trial/sentence.

If D detained in police custody following charge, must be brought before next available court.

Question 29

What happens if D fails to attend first hearing?

Answer 29

Court can issue warrant for d’s arrest. FTS to bail is an offence under the Bail Act (not offence if summoned for minor offences, typically non-imprisonable - provided prosecution has served statements and D aware of hearing, can go ahead without D and penalty can be imposed in absence).

Some offences - D need not attend, court will consider whether appropriate to proceed with hearing. Not possible is hearing is dealing with allocation of either-way offence or sending indictable offence to CC.

Question 30

When does it need to be served by?

Answer 30

CPR Part 8 - Prosecution obliged to serve initial details on court officers as soon as practicable, no later than beginning of day of the first hearing. If not served, not grounds to dismiss case/give rise to abuse of process application - would result in adjournment/costs awarded to defence.

Question 31

What does the IDPC contain?

Answer 31

Summary of circumstances of the offence; account given by D in interview; written statements/exhibits available and material pleas and/or mode of trial/sentence; Victim impact statements; D’s criminal record.

If D in police custody, IDPC only needs to contain summary of circumstances of offence and D’s criminal record.

Must be sufficient information to allow court to take an informed view on plea and venue for trial. Where NG plea anticipated, must be sufficient for court to identify issues and give directions.

Question 32

When can summary only offence be tried in CC?

Answer 32

Related summary offence connected to indictable offence. Those listed in s.40 CJA list will be sent for trial, other offences will be sent for plea only.

When trial for indictable offence over, D asked for plea re summary only offence. If G plea, then CC will deal like MC would have. If NG plea, then remitted back to MC.

Question 33

What happens if D pleads guilty at first hearing for summary only offence?

Answer 33

Court will proceed to sentence, often immediately passed but can be adjourned for further information. Max sentence 6 months imprisonment, most commonly penalty is fine.

For 2 or more either-way offences in MC - 12 months.

Question 34

What happens if D pleads not guilty at first hearing for summary only offence?

Answer 34

Court will set trial date and conduct case management to ensure trial is effective and parties complete PET form. (includes identification of issues, advance warnings re any applications, special arrangements, etc.). Court will set timetable and estimate length - standard directions re preparation (usually re issues such as bad character, hearsay evidence, special measures, disclosure, expert evidence, etc.) must be complied with unless MC directs otherwise.

Question 35

What is a plea before venue?

Answer 35

Where offence is triable either-way, D to indicate plea at first hearing. D provided with IDPC and charge formally read out, D can indicate plea. Where no indication, treated as NG. D must be warned if they plead G, can be sentenced by MC or committed to CC for sentence if insufficient powers. Guilty plea must be equivocal.

Question 36

What happens if D indicates guilty plea to either-way offence?

Answer 36

Court will treat as formal plea and proceed to sentence - MC/CC depending on powers.

If powers sufficient, sentence can be passed immediately or adjourned for pre-sentence report (PSR).

Question 37

When should MC issue order for PSR?

Answer 37

Realistic alternative to custodial sentence; D may be a dangerous offender; or some appropriate reason for doing so.

Question 38

What happens if D pleads NG for an either-way offence?

Answer 38

Court will consider where trial to be held - will follow allocation guideline. Should generally be tried summarily unless (i) courts sentencing powers are insufficient (after mitigation/potential reduction for G plea); or (ii) for reasons of unusual legal/procedural/factual complexity, case should be tried in CC.

Where no complications, MC must bear in mind power to commit for sentence after trial - may retain jurisdiction notwithstanding that sentence may exceed powers.

Question 39

What happens at an allocation hearing?

Answer 39

Likely to be retained and tried in MC (unless so serious needs to be tried in CC) - main consideration is sentencing guideline and associated case law; and submission of parties.

Question 40

What does an election mean for D?

Answer 40

If MC decides to accept/retain jurisdiction, court will explain to D that court has decided summary trial is more suitable. D can either consent or if D wishes then can be tried by jury in CC. If retained, MC will still have power to commit to CC for sentencing.

No election if MC sends case to CC.

Question 41

What happens if D asks for indication of sentence?

Answer 41

D is able to ask for indication of sentence if they were to plead G - court has discretion and can decline. If indication given, confined to stating whether custodial/non-custodial.

Question 42

What if D pleads G to indication given?

Answer 42

Will be treated as if D pleaded G from outset. Where non-custodial sentence indicated, indication will be binding on any later MC. Where custodial, not bound so that a just sentence can be passed later - IOJ

Question 43

What happens if D consents to summary trial at MC?

Answer 43

Case progresses as if summary only offence; Trial date set; Case management conducted.

Question 44

What happens if D elects CC trial?

Answer 44

Matter sent to CC; D will make next appearance at CC, MC will complete Case sent to CC for trial case management questionnaire

Question 45

What is the right to bail and when does it apply?

Answer 45

s.4 of the Bail Act: Court presumes that D is entitled to bail, only if an objection is properly made out by prosecution then bail can be refused. Applies to person even after conviction; where person alleged to have breached requirement of a community order. Presumption applies to most D, other than special circumstances such as murder.

Does not apply to those appealing their conviction/sentence; or if D being committed for sentence from MC to CC.

Question 46

What are the main grounds of objection for indictable offences?

Answer 46

FTS; CFO; Interfere with witnesses/obstruct course of justice (witness intimidation + destruction of evidence)

Question 47

What is the threshold for grounds of objecting bail?

Answer 47

Not for court to conclude that D would have behaved in a way specified in the ground, or even that D’s behaviour would be more likely than not to include such behaviour. Only necessary to show fears of behaviour have substance and merit - substantial grounds for believing.

Question 48

When should bail not be removed under one of the main grounds of objection?

Answer 48

When D is charged with offence where there are no real prospects of D receiving a custodial sentence.

Question 49

What are the grounds for objection to bail for summary only offences?

Answer 49

Additional trigger - grounds for objection only become available if D, having been given bail, breaches condition of breach or has previous conviction for FTS.