Criminal Practice 1 - Suspect Rights Flashcards
Procedure on arrival
Taken
‘as soon as practicable’ after arrest.
Custody officer -
at least rank of sergeant not involved in investigation.
Brought before ‘as soon as practicable’
Responsible for opening and maintaining record.
Electronic document which states-
name, addresser and why necessary to arrest.
time of arrest and arrival.
reason why ongoing authorised
time detention was authorised
confirmation suspect been given details of rights.
Must inform of ongoing rights.
Search -
Allows custody officer to seize and retain any items to the extent they think necessary to seize and retain item.
Clothing and personal effects only seized if reasonable grounds to believe they may be evidence.
Of if they believe -
might cause injury to others
cause damage to property
interfere with evidence.
or
assist them to escape.
Then must decide if sufficient evidence by speaking to investigating officer often in presence of suspect.
Or steps will take before (interview etc..).
Record comments but not ask questions to suspect.
Grounds for detention
If not sufficient grounds. Should release on bail or without bail unless -
a) custody officer has reasonable grounds for believing that detaining the suspect without charge is necessary to secure or preserve evidence.
b) necessary to obtain by questioning
Rights of being detained or questioned
Must first be informed.
a) right to shave someone informed of arrest
b) right to consult privately with a solicitor
c) right to consult codes or practice. Also right to be informed about offence or any further offence for which they are arrested while in custody.
Right to legal advice -
free and independent legal advice.
As soon as practicable.
Unless privately have to pay for call to solicitor.
On telephone.
Should attendance be required duty or private will come down.
Defence Solicitor Call Centre
Must be informed of solicitor arrival (whether or not interviewed)
Must then be asked even if declined earlier.
Attendance and decision noted on record.
Should not persuade from obtaining advice.
Cannot say time detained reduced if;
-if do not ask for advice
if have asked but do ot have.
Delaying right?
Authorised by at least rank of superintendent.
Can be authorised orally but must be confirmed in writing as soon as practicable.
Only authorised -
lead to intereference with or harm to evidence connected with an indictable offence
lead to alerting of other persons suspected of having committed such an offence
Hinder the recover of any property obtained as a result of such offence.
Very probable to happen.
Must be towards particular legal advisor.
Right to have someone informed
Friend, relative or other person who is known to him who is likely to take an interest in his welfare told as soon as practicable.
Delay?
Authorised by officer at least rank of inspector, and only when indictable.
Max of 36 hours from relevant time.
Confirmed in writing as soon as practicable.
Only if reasonable rounds for believing -
Lead to interference with or harm to evidence connected with an indictable offence or interference with or physical injury to other person.
lead to alerting of other person suspected of having committed such an offence but not yet arrested for it
hinder the recovery of any property obtained as a result of such an offence.
Detention period
Initial period - 24 hours
Relevant time -
voluntary attending (time of arrest)
street bail - time arrive
arrested away form station (when they arrive at police station).
Usually release under investigation or bail.
S42 - can extend up to 36 hours (12 on top) from relevant time if;
Rank of superintendent or above.
Reasonable grounds believing that;
-detention without charge necessary to secure or procure evidence
-offence is indictable
-investigating carried out diligently and expeditiously.
Warrant of further detention from mag court.
Such a time as mags think fit up to max of 36 hours
Total 72 in total (first 24, then 12, then up to 36).
May be justified if;
-suspect detention without charge necessary to secure or preserve evidence and
-investigation is being conducted diligently and expeditiously.
(s43)
Exceptional -
S44 -
If s43 conditions above filled and reasonable grounds for believing further detention is justified.
Shall be for any period as the court sees fit -
longer than 36 hours
end later than 96 hours (four days) after relevant time.
Detention reviews
Periodic reviews of suspect detention to ensure grounds are still applicable.
If not tort of false imprisonment
At least rank of inspector who is not directly involved.
Must take place no longer than six hours after custody officer first authorised.
Second review no longer than 9 hours after first review.
Subsequent at intervals of 9 hours.
Rights of volunteer attending police station
No obligation to attend.
generally advised to.
May arrest if in interview gives sufficient grounds.
Questions
Solicitor role to protect and advance legal rights of client.
Information
custody officer (custody record)
investigating officer
the client
Custody on arrival likely to speak to. Basic information about detention.
Should allow to inspect custody record and log.
Should use to obtain name, address, DOB.
Following information in custody record;
- alleged offence
-time at which custody authorised and reason
-significant comments made by client
-samples, fingerprints or impressions of footwear
-identification procedure
-interview which may already have taken place
-whether client is under any form of physical or mental disability
-any illness or vulnerability. Effects of drinks and rugs
-significant items found
-if client has even at station for six hours or more. Details of detention reviews.
Legal representative or appropriate adult may request a copy of the records when suspect leaves or is taken to court.
Then speak to investigating officer
-disclosure (not obligated to usually provide) If does not should point out cannot advise.
Before interviewed and if represented, solicitor must be given sufficient information to enable them to understand the nature of the offence and why there are suspected of committing it.
Not details which may prejudice investigation
Officer who discloses makes record of information disclosed.
-significant statements
-next step investigation officer proposes to take.
Then speak to client directly.
state role and identity.
Anything will remain confidential, although bound by certain rules
Details of alleged offence
advise on substantive law
Client’s instructions -
get clients version
Make note
Prepare for interview -
if no comment - written statement on behalf.
Advising on roles in the interviews.
Answering questions
Answer all questions -
Important if self-defence.
Credibility boosted.
No adverse inferences
Mitigating later in court.
_____
May say something incriminating.
Transcript played to court
Hard if vulnerable
Hard if police withholding information to trip up.
May attack the other person (allow attack on their character)
Remaining silent -
No comment
If weak case stops information being disclosed
_____________
Adverse inferences
Avoids damaging admissions.
Other scenarios -
not adequate disclosure by police (co-arrested as well)
-police may attempt to ambush
-client denies and police do not have sufficient evidence
- likely to perform badly in interview
-facts of case complex, or relate to matters long ago
-client does not have a viable case or defence
-other good personal reasons.
Solicitor must explain implications. Full written note of reasons for advice.
selective silence -
comes across badly.
Written statement
If perform badly in interview
statement then read out
in own words, drafted by solicitor. Any defences relied upon
Say no more than necessary.
May retain and not hand to police if solicitor has doubts as to accuracy of instructions
Still adverse inferences may be drawn
may later produce to court
If change inference of recent fabrication
Must ensure new account is truthful
Interviewing (PACE)
Police may
-carry out recorded video
-arrange ID procedure
-taking fingerprints
-taking samples
Must comply with Code C and E
Tape sealed in presence of suspect
Should not generally be interviewed -
a) appreciate significance of questions or their answers
b) understand what is happening because of drink, drugs or illness
General position
Should not be interviewed beef legal advice (Para C Para 6.6)
if changed mind should stop interview
Exceptions
a) S58(8) allows police to delay up to 36 hours.
b) If awaiting for silicone would cause unreasonable delay to process of investigation
c) if solicitor contacted cannot be reached or declined and suspect has declined duty solicitor
d) if asks and changes can proceed if
Rank of inspector checks reasons
ascertain solicitor arrival time and inform they changed mind and reason
reasons in custody record
suspect confirms in writing after being told reasons by signing entry in custody record.
officer of rank of inspector or above satisfies it is proper to proceed and gives authority in writing.
If not recorded must ensure custody record shows date and time of authority and where recorded and takes or directs taking of reasonable steps to inform the solicitor that the authority has been given and time when interview expected to commence and reminds of legal right.
When interview starts makes sure recorded;
-confirmation that detainee has changed their mind and reasons
-fact that authority has been given
-that is solicitor arrives before interview complete detainee informed without delay and a break will be taken to allow them to speak to the solicitor if they wish.
And at any time may request again and a break.
In this situation caution just;
you do not have to say anything, but anything you do say may be given in evidence.
No adverse inferences if not allowed access to legal advice.
Absolute right to remain silent.
Only where solicitor cannot be contacted and declined duty or awaiting arrival.
Start of interview
Caution -
You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.
Must remind entitled to free and independent legal advice.
May then put towards the suspect any significant statements or silence which occurred in presence before start of interview.
-Significant (capable of being used in evidence)
Silence -
failure or refusal to answer a question when under caution which might allow the court to draw adverse influences.
May not use oppression (Code C)
-raises voice
-makes threatening gestures
-leans towards suspect (in face)
-stands over or behind suspect
-threatens to detain suspect indefinitely unless they make a confession.
Must no offer inducements.
Must cease when officer in charge is satisfied all questions have been put to suspect
Or
sufficient evidence to provide realistic prospect of conviction.
If over a day suspect must be given continuous period of at least eight hours rest.
Breaks at recognised meal times and short refreshments breaks.
Role of defence
Prepare client.
Explain;
-audibly recorded
-may be stopped at any time if needs further legal advice, or solicitor may intervene
-solicitor will be present
-if to remain silent say ‘no comment’
-police will employ methods to try to get them to talk e..g alienating.
-Ignore such tactics
-Not to lose cool. Not make personal attacks on others. May adduce previous convictions at trial.
Should ensure allowed to sit behind client, must be able to make eye contact.
Will not play passive role. Intervene.
Only excluded for unreasonable conduct.
Make opening statement.
Will intervene if behaviour inappropriate.
After taking legal advice my client has …
When should a solicitor intervene?
questioning techniques employed are inappropriate
behaving in an inappropriate manner
client would benefit form further private legal advice.
Examples
unhappy about seating
making statements asserting facts
misrrepresenting law or strength of case
hypothetical questions
inducements
reference to previous convictions
new information dislocated that was not ealirer
ask if they would like to take part in further investigate procedures beef solicitor has been able to give client advice.
solicitor concerned about client behaviour
already sufficient evidence to charge
Removal of solicitor?
Conduct such that the interviewer is unable properly to put question to the suspect.
Prevents or unreasonably obstructs proper questions.
E.g. answering on behalf or providing written quotes.
If believe being unreasonable must then conduct at least rank of Superintendent.
If granted must be given chance to speak to another solicitor.
Conduct issues
Admits guilt -
cannot attend interview where client denying.
Attempt to dissuade.
Conflict
Joint prepertrators -
determine after arriving if conflict
Speak to first suspect who has requested.
If accounts suggest conflict (clear), decline to act for second and inform police.
Ongoing duty - may be potential if later mitigation the other played a bigger role.
If emerges after seeing both must cease to act for both.
If act for both must not disclose information from the other unless;
-consent (preferably in writing)
-both client putting forward consistent instructions
-solicitor consider in best interests information disclosed.
Overriding duty not to mislead the court.
Must not pass information. Get second client story first.
If consistent may pass on.
If inconsistent withdraw.
Third party (another solicitor acting for co-accused)
If consider it in best interest, rarely the case.
Obtain authority from client.
Duty of disclosure -
client aware of all material information.
Unless -
prohibited by national security or prevention of crime
-client gives informed consent to information not being disclosed
-information is contained in privileged document mistakenly disclosed.
Withdrawing -
explain no longer
tell client entitled to free legal advice from another or duty solicitor.
will not tell police (confidentiality)
tell officer no longer able to act but do not disclose why.
