Criminal Litigation Flashcards
Custody record
- solicitor has right to consult 2. should contain everything that has happened to + been said to or by detainee
Reviews of detention - who is review officer
at least rank of least rank of inspector and not the custody officer
Reviews of detention - how often
first review 6 hours after arrest then every 9 hours
Reviews of detention - content
1) review whether grounds still exist for detention 2) remind detained person of right to free legal advice + right to make representations
exception: unfit or asleep
Detention time limits
24, 36, 96 hours
24 hours before being charged or released
extension for further 12 hours
warrant for further 36hrs with magistrate’s court warrant and further 24hrs w another warrant
Conditions for first extension of detention (+12 hours)
- must be superintendent
- must be before initial 24 hours expire but after second review
- solicitor/suspect must have opportunity to make representations
- officer of at least superintendent must authorise
- reasonable grounds for believing necessary to preserve/obtain evidence by questioning
- indictable offence
- diligently and expeditiously
Conditions for second extension of detention (beyond 36 hours)
- must have magistrate’s court warrant
- can extent further 36 hours on first application and 24 hours on second (max 96 hours)
- reasonable grounds for believing necessary to preserve/obtain evidence by questioning
- indictable offence
- diligently and expeditiously
Rights at police station
- right to consult privately with solicitor + free legal advice
- right to have someone informed of their arrest
Right to consult privately with solicitor + free legal advice : conditions to delay
- indictable offence
- at least superintendent, written + inform suspect
- reasonable grounds to believe a. interference/harm to evidence or b. others c. alerting other suspects d. hinder recovery of property obtained through offence
- benefitted from criminal conduct ie got property that may try to conceal
- right to see other solicitor rather than one concerned abut
Right to consult privately with solicitor + free legal advice and/or informing someone of arrest: maximum time to delay
36 hours
Right to consult privately with solicitor + free legal advice: consequences of delay if interviewed before seeing solicitor
restrictions re: drawing adverse inferences in court
Right to inform someone of arrest: conditions to delay
same as right to solicitor except must be police officer of at least inspector
Right to consult privately with solicitor + free legal advice: content
- must be told against before a. starting/further interview b. intimate sample ask 3. intimate drug search ask 4. identification parade/video identification
- if declined must put on custody record
- if sought provide asap
- wait until solicitor arrive before starting interview
- cannot dissuade
- if suspect declines then changes mind during interview must stop and start again after has had advice
- solicitor = current practising certificate or accredited/probationary rep through Legal Aid Agency
Right to appropriate adult: mentally vulnerable
= is mentally disordered/vulnerable or been told that in good faith
= parent, guardian, relative, experienced person, not police officer/employee
NOT suspect, victim/witness, involved in investigation in any way, unable to understand
Right to appropriate adult: child
= parent, guardian
or rep of care authority/voluntary org or social worker
else someone over 18 and not police officer/employee
NOT estranged parent that child rejects
Role of appropriate adult
- detainee understands what is happening
- support advise assist
- make sure police act fairly
- communicate for detainee w police
- make sure detainee understands rights + protect them
- can request solicitor/legal rep but detainee not required to say yes
Proceeding without appropriate adult conditions
Must have one for interview/written statements unless delay likely to lead to
- interference/harm w evidence or people
- serious loss or damage to property
- altering suspects
- hindering recovery of property obtained through offence
Right to interpreter
- custody officer determines if required
- If required cannot be interviewed w/out unless rank of superintendent or above who thinks interference/harm to evidence or ppl or serious loss/damage to property
Treatment of suspects in police station
- no more than one detainee per cell
- must be adequately heated cleaned and ventilated
- bedding
- toilet/washing
- clothes if removed
- two light meals + one main
Interview definition
= questioning of person re: involvement/suspected in criminal offences
Interview under caution
must be cautioned before interview = do not have to say anything but may harm defence if do not mention something that later rely on in court, anything say may be given in evidence
Interview recording
must be recorded, if indictable must audio recorded
exception - can be written if 1) minor offences 2) no arrest 3) takes place other than at police station
Fitness for interview
No interview if cannot
- appreciate sig of questions and answers
- understand bc drinks drugs or illness or condition
Exception - superintendent can authorise
Practicalities: before interview solicitor should -
- obtain pre-interview disclosure 2. have private consultation to discuss case and advise client on options for interview
Police rankings (lowest to highest)
- constable 2. sergeant 3. inspector 4. chief inspector 5. superintendent 6. chief superintendent
also detectives in CID (crim invest depart) that follow same ranking system
Investigating officer
- usually officer investigating that offence = “Officer in the case” (OIC)
- can be officer of any rank
- officer that gives solicitor pre-interview disclosure at station
- most likely leads interview
Police station process
- sees custody officer who authorises continued detention
- informed of rights
- non-intimate samples taken
- healthcare if necessary
- speak to legal rep if
- interview
- released under investigation/on police bail or charged and released on police bail to appear in magistrate’s court later or charged and put in custody to appear in magistrate’s court next day
Disclosure requirements to solicitor
No right to disclosure except 1) significant statement (capable of being evidence) 2) custody record
But solicitor must be given sufficient info to understand nature of offence + why client suspected
When should solicitor intervene in interview
1) info/evidence referred to not disclosed before interview 2. clarification required 3. inappropriate questioning/behaviour 4. further advice needed 5. break required 6. circumstances require
Admissibility of confessions: oppression and unreliability
starting point is = admissible, exceptions-
oppression: torture/inhumane/degrading treatment/threat or use of violence
unreliability: confession not reliable BECAUSE of something said/done (ie breach of PACE)
count must grant exclusion, not automatic
else court can generally exclude evidence if thinks would have adverse effect on fairness of proceedings
When can court exclude evidence
If thinks would have adverse effect on fairness of proceedings
Who must custody officer be
- police officer at least rank of sergeant 2. unrelated to investigation of offence
Role of custody officer
welfare + handling of suspects in detention at police station
What is contained in custody record
- inform person of reason for arrest 2. circumstances of arrest 3. why arrest necessary 4. comments made by arrested person
Role of custody officer: insufficient evidence to charge
then must release unless detention necessary to 1. secure or preserve evidence 2. obtain evidence by questioning
Role of custody officer: sufficient evidence to charge
then must 1. authorise detention of suspect 2. inform of reason for arrest 3. inform reason for detention 4. advise of rights
Reasons allowing for arrest
* To enable the name of the person to be ascertained.
* To enable the address of the person to be ascertained.
To prevent the person:
* Causing physical injury to themselves or any other person
* Suffering physical injury
* Causing loss of or damage to property
* Committing an offence against public decency
* Causing an unlawful obstruction of the highway.
* To protect a child or other vulnerable person from the person in question.
* To allow prompt and effective investigation of the offence or the conduct of the person in question.
* To prevent any prosecution for the offence being hindered by the disappearance of the person in question.
Starting time for review times
When presented to custody officer
Starting time for maximum time being detained before being charged
When arrives at police station
(note, will be time of arrest if is arrested in another police area and brought to station, or if asked to voluntarily attend interview and it arrested)
