Criminal Practice Flashcards
When can a detained person have their affects seized?
- Person affects can be seized if custody officer has reasonably grounds for believing they are evidence (s54(3) PACE); or if the custody officer believes the suspect may use the items to:
o Assist an escape
o Hurt themselves or someone else
o Cause damage to property
o Interfere with evidence
If there is insufficient evidence to charge immediately, the suspect should be released either on bail or without bail. Unless?
o The custody officer has reasonable grounds to believe it is necessary to detain suspect to secure or preserve evidence relating to an offence for which they are under arrest; or
o It is necessary to obtain evidence by questioning (s37 (2) PACE)
If grounds are no longer relevant, must be released.
What are the Code C conditions for detention?
o Cell ventilated, heated and cleaned;
o Clean and sanitary bedding;
o Toilet and washing facilities;
o 2 light meals and a main meal in 24 hour period. Drinks at meal times and upon reasonable request;
o Brief outdoor exercise daily (if practicable); and
o Should be visited in cells every hour.
If CO considers suspect injured, or mental, must get medical help as soon as reasonably practicable – CODE C.
What are a suspect’s rights when detained that the custody officer must inform them of (Code C)?
o Right to have someone informed of arrest (s56);
o Right to consult solicitor privately at any time (& free independent legal advice id available) (s58) – as soon as practicable on request;
o Right to consult Codes of Practice;
o Must inform suspect of solicitors arrival even if being interviewed at the time;
o Must be asked if suspect would like to see solicitor even if declined;
o Can’t do/say anything to dissuade getting legal advice;
When can legal advice be delayed?
Indictable offence, delayed max 36 hours, authorisation by a superintendent - this can be given verbally but must be followed up in writing as soon as reasonably practicable.
Grounds:
if officer has reasonable grounds for believing exercising right will:
o Interference or harm to evidence connected with indictable offence, or interference or physical injury to other persons;
o Alerting of offers suspected of offence but not arrested; or
o Hinder recover of any property obtained as a result of the offence (s58(8).
When can the right to have someone informed of arrest be delayed?
Inspector, indictable offence (& either way). 36 hours
- Oral authorisation but followed up in writing as soon as practicable
- The police officer who authorises the delay may do so only if they have reasonable grounds for believing that telling the named person of the arrest will:
o lead to interference with or harm to evidence connected with an indictable offence, or interference with or physical injury to other persons;
o lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
o hinder the recovery of any property obtained as a result of such an offence (s 56(5))
Detention time limit?
24 hours from relevant time (arrest? arrive at station. Voluntary? time of arrest. Answering street bail? arrive at station).
When can the detention time limit be extended?
- Extend detention by 12 hours (36 total), Superintendent and reasonable grounds for believing:
o Necessary to detain without charge to secure or preserve evidence related to offence (or by questioning);
o Indictable offence (inc. either way); and
o Investigation carried out diligently and expeditiously. - Extend further? Need warrant of further detention from Mag, up to max 36 hours (total 72 hours).
- Grounds for Mag to grant warrant, if they consider there are reasonable grounds for believing further detention is justified. Only justified if:
o the suspect’s detention without charge is necessary to secure or preserve evidence relating to an offence for which they are under arrest, or to obtain such evidence by questioning them; and
o the investigation is being conducted diligently and expeditiously (s 43(4)). - Same as superintendent’s grounds
- Court can extend again by 36 hours up to 96 hours (4 days) after relevant time. Same grounds as above i.e it is justified.
Detention reviews - how carries them out and how often?
- If review not carried out, detention is unlawful and is tort of false imprisonment (Roberts v Chief Constable 1999)
- Review carried out by inspector (not involved in investigation) – review officer
- 6 hours after first authorisation, 9 hours after
What is the solicitor’s role at the police station?
to protect and advance client’s legal rights
How must audibly recorded interviews take place and when should they not?
- Para 11.1A Code C: interviews must be carried out under caution
- Para 11.18(b) Code C: Generally suspect shouldn’t be interviewed if:
o Appear unable to appreciate significance of interview; or
o Appear unable to understand what is happening due to drugs, drink, illness, ailment etc. Exceptions if matter of urgency. - Suspect should not be interviewed until after received legal advice if requested. Exception:
o Legal advice delayed up to 36 hours by Superintendent;
o Awaiting arrival of solicitor causes “unreasonable delay to the process of investigation” (Code C);
Amended caution for the above 2: ‘You do not have to say anything, but anything you do say may be given in evidence.’ No adverse inferences can be drawn.
o Can’t contact solicitor, or has denied coming, and suspect denies getting a different solicitor;
o Asks for legal advice and then changes mind. Can press on if:
Inspector enquires about reasons for changing mind, reasonable efforts to tell solicitor and to find out their expected arrival time;
Suspect’s decision and reasons for changing mind are recorded in custody record;
Suspect signs entry in custody record confirming they want to carry on with interview;
Inspector considers it proper for the interview to proceed and gives authorisation in writing.
When interview starts and suspect is reminder of their right to legal advice, the following is recorded in the custody record: - Detainee changed mind and the reasons
- Authority for interview has been given
- If solicitor arrives before interview over, suspect will be told promptly and break will happen if wants to speak to solicitor. And that suspect can ask for solicitor again at any time.
What must the police do at the start of an interview?
- Caution
- After caution given, police officer must remind suspect they are entitled to free and independent legal advice.
- Officer must then but “any significant statements or silences said before interview” to the suspect and give them a chance to confirm, deny or add anything. Significant statement = capable of being used as evidence against suspect.
Don’t put significant statement or silent to suspect? Could be ruled inadmissible under s78 PACE at trial.
Breaks and meals during interview?
- Interview over 24 hours, need 8 hours of continuous rest
- Breaks at meal times and refreshment breaks every 2 hours
- 2 small meals and one big meal. Drinks at meals or upon reasonable request
When does the interview end?
- CODE C: When investigation offer is satisfied all questions have been put to the suspect to obtain accurate and reliable info, and the suspect has had a chance to give an innocent explanation, and this has been tested; or
- IO reasonably believes enough evidence for a realistic prospect of conviction, or if it is a detained suspect, the decision is the Custody Officer’s.
What is the solicitor’s role in an interview?
- Take an active role
- Can intervene to ask for clarity, challenge improper Qs, or want to give legal advice
- Can’t answer Qs for client or write down answers. ”Unacceptable conduct” and could get chucked out.
When should a solicitor interject in an interview?
o The solicitor is unhappy about the seating arrangements for the interview;
o The police are acting in an oppressive manner;
o The police are asking inappropriate questions because they are:
irrelevant questions
making a statement/asserting facts
misrepresenting the law
misrepresenting the strength of the case against the client
‘upgrading’ a response from the client/putting words in the client’s mouth/making assumptions
hypothetical/speculative questions.
o The police make threats/give legal advice on the consequences of silence.
o The police offer inducements;
o There is reference to a client’s previous convictions;
o New information is introduced that was not disclosed earlier;
o The police ask the client if they would be prepared to take part in further investigative procedures before the solicitor has been able to give the client advice on this;
o The solicitor is concerned about the client’s behaviour or conduct;
o The client is making comments that may have adverse consequences later in the case;
o The police provide an inaccurate summary by the interviewing officer; and
o There is already sufficient evidence to charge
What PACE Code governs ID procedures?
Code D
What can the police do if they don’t know the ID of a suspect?
- If police don’t know ID of suspect, can take witness to neighbourhood and try point them out
- If suspect is known, use ID procedure
- Code D: police must keep record of suspect has first described by witness – copy of this must be given to suspect or solicitor before ID procedure (useful if discrepancies between description and actual appearance)
When must an ID procedure be held?
- Two occasions:
o Witness has identified or purported to identify a suspect; or
o Witness thinks they can ID suspect but it is disputed by suspect - In above cases, para 3.12 of Code D states ID procedure shall be held unless not practicable or serves no useful purpose in proving/disproving suspect was involved in offence
- Not useful:
o Suspect is known to witness
o Suspect admits being at scene and his account doesn’t contradict witness - R v Harris 2003: same school, not been in same class, 2 years ago, accused was 14. Accused disputed ID = ID procedure should have been held
- H v DPP 2003: known victim for 18 months and assault was 7 mins long = no need for procedure
- Hold ID procedure if identified witness in street some time later (test reliability)
- Code D: procedure may be held if officer thinks it would be useful
According to Code D, which ID procedure should be used?
- What should be used? Code D para 3.16, video used, unless:
o Video not practicable;
o Parade is more practicable and suitable than video; or
o Investigation officer considers group ID is ore suitable than video or parade, and officer consider it practicable to arrange. - Decision made by IO and ID officer
What is the procedure if a witness is shown photos?
- Retain first description before showing photos – Code D
- Must show at least 12 photos, as soon as positive ID made no other witnesses shown photos – Code D
- Inform suspect or solicitor if witness doing ID procedure has seen photos
- If goes to trial, witness can’t say they identified suspect from photos first [Charles v The Queen 2007]
What is the Video ID procedure?
- 8 images of other people of “so far as possible resemble the suspect in age, general appearance and position in life” (Code D), or 12 other people if 2 suspects. All of them in same position or carrying out same movements
- Suspect/solicitor see images first, can object (e.g if don’t look similar). Police must remove grounds of objection if practicable
- Identifying mark i.e scar, tattoo, hair, can be concealed but if witness after seeing video wants to see unconcealed video then let them
- Suspect will not be present
- One witness at a time, can playback or freeze as many times as needed.
What can witnesses not do during a video ID procedure?
o Be reminded of photos they have seen
o Talk to each other about case
o Overhear other witnesses
o See videos before procedure
What is the ID parade procedure and what can witnesses not do?
- Sees suspect in line of other people who resemble suspect
- 8 other people or 12 others if 2 suspects (far as possible resemble age, height, general appearance and position in life) – same as video
- Features can be concealed like video
- Witness can’t
o Communicate with each other before parade
o Be reminded of photos they have seen or descriptions given
o See suspect before parade
o See any member of parade - Can request them to speak or do move but must try identify on appearance alone first, police must remind witness participants have only been chosen based on looks
- If person chosen based on speech, will be admissible at trial but judge will give very strong warning to jury
- Photo or video of ID must be taken to avoid disputes