Criminal Practice Flashcards
explain the custody officers role in the arrest of a suspect
a suspect should be put before the custody officer ‘as soon as is practicable’
- custody officer responsible for maintaining a custody record for each suspect which contains:
- suspects name, address, telephone number, dob and occupation
- the offence + why the arresting officer thought to arrest
- time of arrest and time of arrival at police station
- the reason why the suspect’s ongoing detention at the police station has been authorised by the custody officer
- the time such detention was authorised
- confirmation that the suspect has been given details of the rights they may exercise whilst detained at the police station, and whether they have requested legal advice
from a solicitor
- record of the suspect’s belongings + any medical conditions - detention log
all significant events which happen when the suspect is in detention - the custody officer must inform the suspect of their ongoing rights
- authorise a search of the detained person to the extent the officer considers necessary to ascertain what items the suspect has on their person
- seize and retain any items the suspect has on their person
- only if the custody officer has reasonable grounds for believing that they may be evidence
- or the custody officer believes they may be used to:
(a) to cause physical injury to themself or others;
(b) to cause damage to property;
(c) to interfere with evidence; or
(d) to assist them to escape
Looking at the decision to detain a suspect…
After opening the custody record and informing the suspect of their rights,
the custody officer must determine whether there is already ‘sufficient evidence’ to charge the suspect with the offence for which they have been arrested.
How would the custody officer go about doing this?
- will ask the investigating officer – usually in the presence of the suspect – for details of
the evidence that already exists against the suspect (any comments made by the suspect during this should be noted down) - if not = what steps the officer proposes to
take if the further detention, before charge, of the suspect is authorised (usually an investigative procedure i.e. a recorded interview) - the custody officer should not put any questions to the arrested person about their suspected involvement in any offence
unusual for there to be sufficient evidence to charge a suspect at such an early stage but if there is:
- suspect should be charged straight away
and either
- released on bail or
- appear before a mags court at a later date
- or remanded in police custody until the case can be brought before the mags
-
if there is not ‘sufficient evidence’ to charge the suspect immediately, the suspect should be released either on bail or without bail, but not in what circumstances?
(a) the custody officer has reasonable grounds for believing that detaining the suspect without charge is necessary to secure or preserve evidence relating to an offence for which they are under arrest
(e.g where the police want to search the suspect’s premises or are still looking for evidence)
or
(b) it is necessary to obtain such evidence by questioning
can choose to detain on both grounds - not mutually exclusive
how often should suspects be visited in their cells whilst in detention
at least every hour
Before the custody officer decides whether or not the suspect will be detained before charge, the suspect must first be informed about their ongoing rights which may be exercised at any time whilst the suspect is in custody. What are they?
(a) the right to have someone informed of the suspect’s arrest
(b) the right for the suspect to consult privately with a solicitor (the suspect must be told that free, independent legal advice is available) and
(c) the right to consult the Codes of Practice
+ the suspect has the right to be informed about the offence (and any subsequent offences they may be charged with whilst in custody) and why they have been arrested and detained
what must the police do if the suspect states they would like to speak with a solicitor?
contact Defence Solicitor Call Centre (DSCC) (even if the suspect wants a specific firm/person)
free telephone advice through Criminal Defence Direct (CDD)
if in person required - either duty sol or suspect’s chosen sol
police officers/staff shouldnt try to dissuade the suspect from obtaining legal advice
in which circumstances can a suspect’s right to legal advice be delayed
which case?
- must be authorised by an officer
of at least the rank of superintendent - only indictable offences
- max length of delay 36 hours
- auth can be given orally but must be put in writing as soon as is practicable
delay can only be authorised where the officer has reasonable grounds to believe by exercising their right to legal advice it will:
(a) lead to interference with or harm to evidence connected with an indictable offence, or interference with or physical injury to other persons; or
(b) lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
(c) hinder the recovery of any property obtained as a result of such an offence (s 58(8)).
R v Samuel - guidelines on power to delay this right
subjective belief that consultation with a legal adviser will result in one of the above three conditions happening and that this ‘will very probably happen’
In other words, that the legal adviser will either deliberately do this or do so
inadvertently.
very rare and that further, the belief must
be towards a particular legal adviser
in what circumstances may the police delay a suspect’s right to have someone informed of their arrest?
- at least inspector rank
- indictable offences
- max 36hrs delay from ‘relevant time’
- authorisation may be given orally but should be put in writing as soon as is practicable
same reasons for delay as with power to delay right to legal advice
Explain the detention time limits and reviews of detention under PACE 1984, Code C
this is prior to charge
two different clocks:
- The initial maximum period of detention before charge (the ‘detention clock’)
- 24hrs from relevant time
- the relevant time is determined as follows:
- voluntarily at police station = time of arrest
- to answer ‘street bail’ = time of arrival at station
- arrested away from the police station = arrives at the first police station (but some exceptions) - Detention reviews (the ‘review clock’)
- to ensure that the grounds on which the detention was initially authorised by the custody officer are still applicable
- mandatory and if not done, any detention after that time = false imprisonment
- review officer = at least inspector and not directly involved in the investigation
- first review = no later than six hours after the custody officer first authorised
the detention of the suspect
- second review = no later than nine hours after the first review
- subsequent reviews = intervals of not more than nine hours
Can the police extend the maximum period of detention? (before charge)
- max 36 hrs (additional 12 hrs from original 24 granted from relevant time)
- superintendent or above must have reasonable grounds to believe that:
(a) the detention of the suspect without charge is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest, or to obtain such evidence by questioning them;
(b) the offence is an indictable offence (ie an either- way or an indictable- only offence); and
(c) the investigation is being carried out diligently and expeditiously.
FURTHER EXTENSIONS:
- mags can provide for additional time as they think fit but max of additional 36hrs on top of existing 36hrs (72 total)
- must have reasonable grounds for believing further detention is justified on the grounds:
(a) 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
(b) the investigation is being conducted diligently and expeditiously
additional app to mags if above are satisfied and there are reasonable grounds for justifying further detention:
‘shall be for any period as the court thinks fit’ but cannot:
(a) be longer than 36 hours; or
(b) end later than 96 hours (ie four days) after the ‘relevant time’.
max = 4 days total
what are the main information sources for a solicitor attending a police station?
just list them
- The custody officer (and the custody record)
- The investigating officer
- The client.
what information can the sol obtain from the custody officer?
- can provide basic info to sol
- allow sol to look at custody record and detention log
- the sol can ask:
(a) the alleged offence(s) for which the client has been arrested;
(b) the time at which the custody officer authorised the client’s detention and the reason such authorisation was given
(c) any significant comments made by the client whilst at the police station
(d) any samples, fingerprints or impressions of footwear which may already have been taken from the client;
(e) any identification procedure which may already have taken place
(f) any interview which may already have taken place at the police station
(g) whether the client is under any form of physical or mental disability, or requires the
attendance of an appropriate adult;
(h) any illness which the client may be suffering from, or any indication that the client is in any way vulnerable or requires medical treatment (or details of any medical treatment which the client has already received whilst at the police station).
(i) any significant items found as a result of a search either of the client’s person, or of
any premises owned, used or occupied by the client or premises where the client was
arrested
(j) if the client has already been at the police station for six hours or more, details of any
detention reviews which have been carried out and the reason why the client’s continued detention has been authorised
what information is a sol looking to obtain from an investigating officer
(a) disclosure (the facts of the offence and the evidence supporting those facts)
- investigating officer not obliged to but usually does give some details regarding evidence they have e.g. witness statements
- the sol should push to get as much info as they can
- no obligation for disclosure of details at a time which might prejudice the criminal investigation
- record should be made of the investigating officer about what information has been disclosed
(b) significant statements and/ or silence; and
(c) the next steps the investigation officer proposes to take
- the sol’s identity and role (no connection to the police - their role is to advance the client’s rights)
- the offence + its accompanying substantive law (what will the police need to prove)
- client’s version of events / their instructions
- next steps (usually audibly recorded interview)
- prepare the client for interview
Lord Chief Justice recommendation to make a note of any advice given to the suspect and their instructions in the initial meeting
how should a sol prepare their client for a police interview
(i) advising the client on whether or not to answer questions put to them in the interview (‘safest option’)
(ii) preparing a written statement on the client’s behalf if the client is to give a ‘no
comment’ interview, but hand the statement to the police so that their defence is put ‘on record’
(iii) advising the client how the interview will be conducted by the police
(iv) advising the client what role the solicitor will play in the interview .
what are the advantages of answering all the questions in a police interview?
what is one of the key disadvantages?
- may be helpful where they want to use a specific defence which imposes an evidential burden on them
- if come across well police may choose not to charge
- even if charged the credibility of their evidence at trial will be boosted if it can be shown that the client placed their defence on record at the earliest opportunity
- likely to ensure that at trial the court or
jury will not be allowed to draw adverse inferences against them under CJPOA - if suspect admits guilt but has no previous convictions or cautions, the police may choose just to caution
- admission can be used to mitigate sentencing
disadv = may lead to the suspect making an attack on someone else’s character - if the suspect is subsequently prosecuted this may enable the CPS to raise in evidence at trial any previous convictions the client may have
what is the main disadvantage of giving a silent interview?
if silent interview and later enter into a not guilty plea, the mags or jury may be able to draw adverse inferences i.e if they fail to discuss a defence they later wish to rely on
a sol may advise their client to give a no comment interview where the client has admitted guilt. in what other circumstances might a no comment interview be advised?
(dont include obvious answers)
- police have not provided adequate disclosure of the evidence they have obtained against the client (so the sol is unable to properly advise the client on the strength of the police’s case against them)
- where there is a risk the police are withholding evidence with a view of ambushing the suspect in the interview
- the client is denying involvement and the police do not have enough evidence to charge
what must a sol do if their client decides to give a no comment interview
explain the risk of adverse inferences
make a note of their advice
what 4 options does a suspect have during a police interview before charge?
- answer all Qs
- no comment / silent interview
- selective silence - bad idea
- written statement
a client decides to prepare a written statement which will be handed to the police.
why might a written statement be used?
what should it contain?
- handed to the police either during the interview or after but before the suspect is charged + no comment interview
- can be before but may provide them with some additional info
- may choose to withhold in case the police don’t have enough evidence to charge
- avoid adverse inferences but the sol is concerned the client might perform badly in interview
- drafted by a sol but in the clients own words
- sets out all the facts they may later wish to rely on in court
- should say no more than is necessary to prevent the drawing of adverse inferences at trial
- statement may need updating if the police make further disclosure of their case
in some circumstances the sol may just keep it on the file. may have doubts as to its contents but may try to use it later to show to the court that they havent just made up a defence - wont however stop the court from drawing adverse inferences (the thinking being they werent confident enough in their story at the time)
interviews that take place at a police station must comply with…
- Codes C + E
- audibly recorded interview
- must be recorded
- if on tape/disc = 2/3 (1 sealed in the presence of the suspect and only re opened at trial if there is dispute over what was said, 1 is a working copy for the sol + sometimes extra one for the suspect)
The steps that an investigating officer can take to secure, preserve or obtain evidence whilst the suspect is detained at the police station will involve one or more of the following…
- audibly recorded interview
- identification procedure carried out by another officer to see if a victim/witness can identify the suspect
- taking fingerprints to see if they match those found at the scene or on a weapon
- taking samples to see if they match
which suspects should not take part in an audible interview at the police station?
suspects who:
(a) appreciate the significance of questions or their answers; or
(b) understand what is happening because of the effects of drink, drugs, or any illness,
ailment or condition, should not generally be interviewed (although there are some
limited exceptions to this in cases where an interview needs to be held as a matter of
urgency).
can a suspect take part in an interview at the police station before they have received legal advice?
- a suspect who requires legal advice should not be interviewed until they have received it
- if a suspect states they do not want legal advice but during the interview changes the mind = interview must be stopped and advice obtained
EXCEPTIONS
1. police can delay legal advice up to 36hrs
2. if the sol requested from the suspect cannot be contacted or declined to assist and then the suspect has declined the assistance of the duty solicitor
3. if the suspect wants legal advice and then changes their mind the police can interview without legal advice provided:
i ) an officer of inspector or above enquires about the reasons for the change of mind + informs the sol of this decision/reasons
ii) the suspect’s reason for the change of mind and the outcome of the efforts to contact the solicitor are recorded in the custody record
iii) the suspect after being informed of the outcome in (i) confirm in writing they want to proceed without a sol (put an entry to the custody record)
iv) an officer of the rank of inspector or above is satisfied that it is proper for the
interview to proceed in these circumstances and gives authority in writing for the
interview to proceed + put the authority in writing
v) when the interview starts, the interviewer reminds the suspect of their right to legal advice + :
- confirmation the detainee has changed their mind
- authority for the interview to proceed has been given
- that if the solicitor arrives at the station before the interview is completed, the
detainee will be so informed without delay, and a break will be taken to allow
them to speak to the solicitor if they wish UNLESS
what should the interviewing police officer say at the start of an interview?
- caution
- reminder the suspect is entitled to free, independent legal advice (even if they are will the sol)
- read out any significant statements/silences and ask the suspect if they confirm/deny or would like to add anything
NOTE (failure to put a significant statement/silent to a suspect in interview may result in the contents of that statement or the nature of that silence being ruled inadmissible at trial)
what is a significant silence?
is a failure or refusal to answer a question or to answer satisfactorily when under caution, which might allow the court to draw adverse inferences from that silence at trial
how must an interview be conducted?
when must an interview cease?
‘No interviewer may try to obtain answers or elicit a statement by the use of oppression’.
‘no interviewer shall indicate, except to answer a direct question, what action will be taken by the police if the person being questioned answers questions, makes a statement or refuses to do either’
must cease when officer in charge of the investigation is satisfied all the questions they consider relevant to obtaining accurate and reliable information about the offence have been put to the suspect
If interviews with a suspect take place over more than one day, in any period of 24 hours, what must the suspect have?
a continuous period of at least 8 hours for rest
must be free from questioning + any other interruption in connection with the offence
when should breaks be taken in an interview?
breaks should take place at recognised mealtimes
short refreshment breaks should be taken at approximately 2-hour intervals
a solicitor may be able to intervene in an interview in what circumstances
(i) the questioning techniques employed by the police are inappropriate or improper;
(ii) the police are behaving in an inappropriate manner; or
(iii) the client would benefit from further (private) legal advice.
some non-exhaustive examples:
- The solicitor is unhappy about the seating arrangements for the interview.
- 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.
- There is reference to a client’s previous convictions.
- New information is introduced that was not disclosed earlier.
- 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.
- The solicitor is concerned about the client’s behaviour or conduct.
- The client is making comments that may have adverse consequences later in the case.
- The police provide an inaccurate summary by the interviewing officer.
- There is already sufficient evidence to charge.
in what circumstances may a solicitor be excluded from an interview?
if the interviewer is ‘unable properly unable to put questions to the suspect
- ‘unacceptable conduct’, such as answering questions on behalf of their client or writing down answers for the client to read out
- should not be removed from the interview simply because they tell their client not to answer questions, or because they intervene when they consider the
police are asking questions in an inappropriate manner.
interviewer must stop the interview
and consult an officer of at least the rank of superintendent
this officer must then decide if the interview should continue in the presence
of the solicitor or not
If it is decided that the solicitor should be excluded from the interview, the suspect must be given the opportunity to consult another solicitor before the interview
continues, and that other solicitor must be given an opportunity to be present at the interview.
give some examples of conduct issues that may arise at a police station
- if a suspect tells the sol they are guilty but wants to deny guilt when they are interviewed = the sol cannot be party to a client giving info to the police they know to be false > suggest no comment interview > if client persists > sol cannot act
- sol may be asked to act for suspects jointly > investigating officer may suggest there is a conflict but this is a decision for the sol alone > speak with the first suspect > if conflict inform police the second needs separate legal advice
- if sol has seen both suspects and decided there is a conflict > should cease acting for both > duties of confidentiality and disclosure factor here
If a solicitor decides that there is no conflict of interest and they are able to represent both suspects, they must still not disclose to one client anything they have been told by the other (in order to comply with their duty of confidentiality to the other client), UNLESS:
(a) the solicitor has obtained the other client’s consent (preferably in writing) to disclose this information (ie the client waives their right to confidentiality)
(b) both clients are putting forward consistent instructions; and
(c) the solicitor considers it in their clients’ best interests for the information to be disclosed.
- even if the above satisfied sol must have regard to their overriding duty not to mislead the court > Co- accused who are represented by the same solicitor may attempt to use that solicitor to pass information between each other so that
they can jointly fabricate a defence and give the police a consistent ‘story’ > sol should get them to give their accounts first before any disclosure of the others - if the stories are inconsistent the sol will need to withdraw from the case
when might a sol be able to disclose information about their clients case to a third party e.g. the sol for the co-accused
only when it is in their clients best interests
should explain any reasoning to their client and obtain the clients authority (ideally in writing) to disclose this information
if a sol withdraws from acting for a client it should what?
explain to the client its reasoning
explain their right to free legal advice from another sol or the duty sol
ongoing duty of confidentiality - wont tell police
tell custody officer they can no longer act for professional reasons (no more details than that)
who falls under the special categories of suspect and whom are considered vulnerable?
- juveniles (10-17 - note police should treat anyone who appears to be under 18 as a juvenile in absence of clear evidence to the contrary)
- mental health condition or disorder (if the police suspect that someone suffers from such a condition, then in the absence of any clear evidence to dispel such suspicion, they should treat that person as suffering from such a condition)
- deaf, unable to speak or blind
- cannot speak or do not understand english
what rights do juveniles have when at the police station?
can any of these rights be delayed?
- everyone has rights to have (1) someone notified about their arrest + (2) free, independent legal advice
AND FOR A JUVENILE: - the custody officer must if practicable try to (3) find out the person responsible for their welfare and inform them of the arrest and reasons for detention
- could be parent, someone who has assumed responsibility for them or someone from the local care authority if they are in care or …
- if the juvenile is known to be subject to a court order under which a person/org (‘responsible officer’) is given statutory responsibility to supervise and monitor them, reasonable steps should also be taken to notify them
- juvenile’s arrest and reasons for detention
this right cannot be delayed
what provisions are they regarding girls under the age of 18 and their detention at a police station?
they must be under the care of a woman
what is an appropriate adult, how does this work?
- person who attends the police station to provide support for juveniles or someone with a mental health condition / disorder
- JUVENILE hierarchy of who the police should contact with a view to them becoming the appropriate adult:
a) parent or guardian (someone from local authority)
b) if no one available > social worker for local authority
c) if social worker not available > another responsible adult who is aged 18 or over and not connected to the police e.g. aunt/uncle or grandparent - MENTAL HEALTH hierarchy:
- a relative, guardian or other person responsible for that person’s care or custody;
- someone experienced in dealing with vulnerable people; or
- some other responsible adult.
who should not be an ‘appropriate adult’?
- sol
- police
- an interested party e.g the victim or witness of an offence
- a person, such as a parent or social worker, to whom the juvenile has made admissions prior to that person being asked to attend the police station to fulfil the role of an appropriate adult; and
- an estranged parent (but only when the juvenile expressly and specifically objects to the presence of such a person).
what is the role of the appropriate adult?
not just an observer - there to make sure the suspect knows what is happening to them and why
key roles/responsibilities:
(a) to support, advise and assist the suspect, particularly when the suspect is being
questioned;
(b) to ensure that the suspect understands their rights whilst at the police station, and the role played by the appropriate adult in protecting those rights;
(c) to observe whether the police are acting properly, fairly and with respect for the rights of the suspect; and
(d) to assist with communication between the suspect and the police.
should not provide legal advice but should consider whether legal advice from a solicitor is required
even if the juvenile or mentally vulnerable suspect indicates that they do not want legal advice, the appropriate adult has the right to ask for a solicitor to attend if this would be in the best interests of the suspect
however, the suspect cannot be
forced to see the solicitor if they are adamant that they do not wish to do so
the custody officer should explains the juveniles rights in front of them alongside the AA - if already explained to juvenile without AA, should be repeated in the presence of the AA
a sol should also explain the role of the AA to the AA
are conversations between the appropriate adult and the suspect covered by legal privilege?
no
explain some of the rules around interviewing a vulnerable suspect/witness
- if a juv / mc has been cautioned in the absence of the AA, they must receive the caution again in the presence of the AA
- they must not normally be interviewed, or asked to provide or sign a written
statement under caution or record of interview in the absence of an AA - the interviewer must inform the AA they are not in the interview to act as an observer they should:
(a) advise the person being interviewed;
(b) observe whether the interview is being conducted properly and fairly; and
(c) facilitate communication with the person being interviewed
what would happen if the appropriate adult was preventing the interviewer from properly putting questions to the juvenile / person with mental health condition?
the AA may be asked to leave > consult an officer not below superintendent rank, if one is readily available > otherwise an officer not below inspector rank, not connected with the investigation > the officer should remind the AA their role does not enable them to obstruct + give the AA a chance to respond > if the officer decides the interview should carry on without the AA, another AA must be obtained before the interview can continue
where a juvenile / person with mental health condition is asked to consent to taking part in an identification procedure, who must give the consent?
(a) if the suspect is a juvenile aged 14 or over = juvenile + parent/ guardian consent
(b) if the suspect is a juvenile aged under 14 = parent/guardian consent
(c) If the suspect is suffering from a mental health condition or mental disorder, then the consent must be given in the presence of the appropriate adult.
after a juvenile has been charged, what should be given to the appropriate adult?
the written notice (the ‘charge sheet’), which gives the particulars of the offence
with which the suspect has been charged
what will happen to a juvenile who is refused bail after charge?
- usually put in local authority rather than police custody, pending their appearance at youth court
the only two situations where a juvenile may be kept in police custody after charge =
(a) if it is impracticable to move the suspect to local authority accommodation; or
(b) if the juvenile is aged at least 12, there is no secure local authority accommodation
available and keeping them in other local authority accommodation would not be
adequate to protect the public from serious harm from them
if kept in police custody the juvenile must be kept away from adult suspects and must not be detained in a cell (usually put in juvenile detention room) unless it is not practicable to supervise them outside a cell
who makes decisions on whether to authorise a youth caution or conditional youth caution?
dependent on the severity of the offence:
- Indictable- only offences = CPS
- first- time summary and either- way offences = police
- second and subsequent offences = joint decision from the police, following assessment by the Youth Offending Team
what is a common resolution?
- out of court disposal
- for minor offence or anti- social behaviour
- informal agreement between the parties
- first time offenders + admission of guilt + victim’s views have been taken into account
- doesnt form part of the offender’s criminal record retained by the police
in what circumstances may a youth caution be given?
(a) there is sufficient evidence to charge the offender with an offence;
(b) the offender admits that they committed the offence; and
(c) the police do not consider that the offender should be prosecuted or given a youth conditional caution in respect of the offence, ie it is not in the public interest to deal with the matter in another way.
given to someone 17 or under in the presence of an AA
the police must take into account the seriousness of the offence
what conditions must be met before a youth conditional caution is given?
(a) there is sufficient evidence against the offender to provide a realistic prospect of
conviction;
(b) it must be determined that a youth conditional caution should be given to the offender;
(c) the offender admits to having committed the offence;
(d) the effect of the youth conditional caution must be explained to the offender and they must be warned that failure to comply with any of the conditions may result in prosecution for the original offence (where the young person is aged 16 years or under, the explanation and warning must be given in the presence of an appropriate adult); and
(e) the offender must sign a document containing details of the offence, their admission, consent to be given to a youth conditional caution and details of the conditions attached.
the type of conditions attached to a youth conditional caution must be what?
and in what time frame must the conditions be capable of being completed in?
they must have one of the following objectives in mind:
rehabilitation, reparation and punishment
- summary-only offence = 16 weeks of the date of the original offence
- triable either way or an indictable- only offence = period of longer than 16 weeks may be suitable (depending on the facts of the case) but must not exceed 20 weeks
The solicitor must also ensure that they do not persuade a client to agree to a youth caution and a youth conditional caution in what circumstances?
where the client is adamant they did not commit the offence
what are the advantages of accepting a youth caution / youth conditional caution?
- avoids the client being charged with the offence and having to appear in the youth court
- such cautions are not criminal convictions
what are the disadvantages of accepting a youth caution / youth conditional caution?
(a) A record of such cautions will be retained by the police; this includes having
fingerprints, photographs and DNA samples taken.
(b) will form part of the client’s criminal record retained by the police and may be referred to if an employer makes a Criminal Records Bureau check. In addition, the fact that a caution has already been
issued will be taken into consideration before a decision is made regarding a future offending disposal.
(c) It may also need, in certain circumstances, to be disclosed to an employer or prospective employer.
(d) The police must refer the client to the appropriate Youth Offending Team who will assess the client and must arrange for them to participate in a rehabilitation programme (unless it is inappropriate to do so).
(e) Failure to comply with any conditions imposed under a conditional youth caution can result in prosecution for the original offence.
(f) Any youth cautions given and/ or any report on a failure by a person to participate in a rehabilitation programme may be cited in criminal proceedings similar to how a conviction may be cited.
(g) If the offence is covered by Part 2 of the Sexual Offences Act 2003, the client will be
placed on the sex offenders register.
when may a court not be allowed to draw adverse inferences from a defendant’s silence?
if that silence occurred at a time when the defendant had not been allowed the
opportunity to consult a solicitor to obtain independent legal advice
can you only draw adverse inferences from ‘no comment’ interviews?
No - terms of s 34 CJPOA may be satisfied even where a defendant has answered every question put to them, if at trial they raise some other fact in their defence that they did not mention, but could reasonably have been expected to mention, when interviewed.
in R v Argent the Court of Appeal say that certain conditions had to be satisfied before adverse inferences could be drawn from a defendant’s silence in police interview…what are these pre-conditions?
can a court draw adverse inferences from silence alone?
(a) the interview had to be an interview under caution;
(b) the defendant had to fail to mention any fact later relied on in his defence at trial;
(c) the failure to mention this fact had to occur before the defendant was charged;
(d) the questioning of the defendant at the interview in which the defendant failed to mention the fact had to be directed to trying to discover whether or by whom the alleged offence had been committed; and
(e) the fact which the defendant failed to mention had to be a fact which, in the
circumstances existing at the time, the defendant could reasonably have been expected to mention when questioned.
a jury should only be directed to draw adverse inferences from a D’s silence only if the court are satisfied that the real reason for the defendant’s silence is that they have no answer to the questions that were being put to them, or no answer that would stand up to scrutiny
+
if a D remained silent at their first interview and then answered questions during a subsequent interview, inferences from their failure to answer questions in the first
interview might still be drawn at trial.
explain the position on adverse inferences when looking at the use of written personal statements
In R v Knight [2003], the Court of Appeal held that the purpose of s 34 was
to encourage defendants to make an early disclosure of their defence to the police, not to allow the police to scrutinise and test that defence in interview
Therefore, as long as a written statement which is handed to the police contains all the facts which a defendant later relies on in their defence at court, the court will not be able to draw an adverse inference under s 34 if, having handed in the statement, the defendant then refuses to answer
questions from the police based on the contents of that written statement
Can a defendant avoid an adverse inference by claiming their refusal to answer questions was based on legal advice?
- this will not automatically prevent the court from drawing adverse inferences
- European Court of HR said doesn’t breach Art 6 right to a fair trial but because legal advice if a fundamental part of a fair trial the fact that a defendant was advised by his
solicitor to not answer questions in the police station must be given appropriate weight at trial - the jury will now be directed by the trial judge that adverse inferences should not be drawn under s 34 (and ss 36 and 37) if the jury believe that the defendant genuinely and reasonably relied on the legal advice to remain silent
Conversations between a suspect and their solicitor at the police station are protected by legal privilege. under what circumstances may legal privilege be waived?
- If at trial, in order to prevent an adverse inference being drawn by the court, a defendant gives evidence that they remained silent in interview only following advice from their solicitor, this will not in itself waive privilege
- However, if an adverse inference is
to be avoided, the court is likely to want to know the reasons for the solicitor’s advice. Once a defendant gives this information, legal privilege is said to be waived - This means that if a defendant, when giving evidence- in- chief, gives the reasons
for the legal advice they received, the defendant (and conceivably their solicitor, should the solicitor give evidence on the defendant’s behalf) may then be cross- examined as to any other reason for the solicitor’s decision to advise their client to remain silent. - Similarly, the prosecution will be entitled to cross- examine the defendant (and their solicitor) on the instructions which the defendant gave to their solicitor whilst at the police station which led to the solicitor advising them to remain silent in interview.
explain adverse inferences under s 34 CJPOA
explain adverse inferences under s36 CJPOA
explain adverse inferences under s 37 CJPOA
what are the distinctions between s34/36 and 37 CJPOA and how they can be used to draw adverse inferences?
- s 34 will apply only if a defendant raises a fact which they failed to mention at the police station, in their defence at trial
VS - s 36/37 will operate irrespective of any defence put forward. It may apply even if no
defence is raised at trial, because the inference arises from the defendant’s failure to account for the object/substance/mark or their presence at a particular place at or about the time of the offence at the time of interview - s36/37 require the suspect to have been given a special caution
looking at s36/37 of CJPOA, what is a ‘special caution’?
inferences may be drawn under s 36/37 only if the police officer requesting the explanation for the object, substance or mark/presence in said location has told the
suspect certain specified matters before requesting the explanation:
(a) what the offence under investigation is;
(b) what fact the suspect is being asked to account for;
(c) that the officer believes this fact may be due to the suspect taking part in the commission of the offence in question
(d) that a court may draw an adverse inference from failure to comply with the request; and
(e) that a record is being made of the interview and that it may be given in evidence if the suspect is brought to trial
where will a D make their first court appearance?
the mags
(if over 18)
if a D is charged with an indictable offence, which court will the D appear in?
first appearance at the mags but they will then immediately send the D to the Crown Court
Between April and December 2007, the implementation of CJSSS – ‘Criminal Justice: Simple,
Speedy, Summary’ - was rolled out in England and Wales, intending to speed up proceedings before the Mags and deal with cases as quickly as possible.
What are some of the key principles of CJSSS?
(a) There is a common presumption that a plea will be entered at the first hearing.
(b) For guilty pleas which will be sentenced in the magistrates’ court it is expected that sentence should take place on the same day unless a more detailed pre- sentence report is required.
(c) For not guilty pleas, it is expected that the trial issues should be identified, and a trial date fixed within six to eight weeks.
(d) The CPS should provide sufficient information at the first hearing to ensure the hearing is effective.
criminal offences fall into three categories:
- those triable only on indictment;
- those triable either way; and
- those triable only summarily.
where an Act refers to the phrase ‘indictable offence’ without any further qualification, which of the above is it referring to?
referring to the first two categories
either must or may be tried in the Crown Court on indictment
which court deals with an either-way offence?
- mags or the crown court
- first appearance is at the mags
- if D pleads not guilty, Mags decide whether to keep the case before them or send to the Crown if too serious
- if Mags keep it = D then has the right to elect trial by a judge and jury in the Crown Court or consent to summary trial
which court deals with ‘low-value shoplifting’?
- summary offence
- where the value of the goods does not exceed £200
- NOTE if the defendant is charged at the same time with more than one allegation of shop theft then the
‘aggregate’ value must be under £200 for it to be treated as a summary offence - if they opt for a plea of not-guilty, they still have the option to elect whether to elect trial in the Crown Court
- if guilty plea they cannot be committed to Crown for sentence
- max sentence of mags in low value shoplifting is 6 months custody
which court deals with criminal damage?
- criminal damage = either way
- where the value of the property is less than £5k = summary offence unless the damage was caused by fire or to a memorial
- where damage is caused by fire or is caused to a memorial the value isnt relevant and it will always be treated as an either way offence
what is classed as a memorial for the purposes of criminal damage?
defined widely
- a building or other structure or any other thing erected or installed on land, or
- a garden or any other thing planted or grown on land
where they have a commemorative purpose in relation to any living or deceased person or animal.
where a defendant does not have sufficient means, they may receive legal aid.
who applies for legal aid and who do you apply to?
the defence sol applies on the D’s behalf
and applies to the Legal Aid Agency
The public funding of a defendant’s legal representation in a criminal case is
specifically provided for by Article 6(3) of the European Convention on Human Rights (ECHR),
which states that defendants who do not have sufficient means to pay for legal assistance
should receive this free from charge when this is in the ___________________________________________
interests of justice
who is entitled to free legal advice at the police station?
everyone regardless of their means
work done by a sol in a police station will be claimed under one fixed fee regardless of how long they have been there (although special provision is made for cases that are either of the most serious type or are very time consuming)
who other than solicitors can charge (through legal aid) for their work at the police station?
Non- solicitors (such as trainees) can attend the police station and charge for this work as long as they are either accredited or probationary police station representatives
where does the duty solicitor scheme operate and how does it work?
- mags court
- the particular solicitor on duty that day will be available to advise any defendants who do not have their own solicitor but who require legal advice and/ or representation
- The duty solicitor will claim their costs in attending
court from the LAA under the Advocacy Assistance (Court Duty Solicitor) Scheme.
a D who seeks legal aid in the mags applies for a representation order. they must satisfy two tests, what are they?
how do they apply for the legal aid?
(a) the interests of justice test
(b) the means test – the defendant must demonstrate that their finances are such that they are unable to pay for the cost of their legal representation.
online application form
- if they do not automatically satisfy the means test, they must submit a financial statement with any supporting evidence
when assessing whether providing legal aid to a D would be in the interests of justice, consideration is given to which factors?
(a) whether the individual would, if any matter arising in the proceedings is decided against them, be likely to lose their liberty or livelihood or suffer serious damage to their reputation
- offence is likely to result in a criminal record or previous criminal record which will aggravate the sentence
- a sol would refer to the Sentencing Guidelines
- the sol should take the prosecution’s case at its most serious in order to justify legal aid
- whether the D is to be remanded in custody or bailed is also relevant
- only applies to Ds who either have no previous convictions or convictions for very minor offences
- position of standing in the community
(b) whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law;
- P’s evidence is in dispute
- or the defendant wishes to adduce evidence which the CPS may argue is inadmissible
- e.g. turnbull guidelines, adverse inferences, hearsay, confession should be excluded, bad character evidence/previous convictions
(c) whether the individual may be unable to understand the proceedings or to state their own case;
- mental or physical disability
- poor knowledge of english
- age
- vulnerability
(d) whether the proceedings may involve the tracing, interviewing or expert cross- examination of witnesses on behalf of the individual; and
- witnesses or experts
- D will need to explain why they need legal representation to trace or interview the witnesses
(e) whether it is in the interests of another person that the individual be represented.
- someone else should cross-examine the witness/victim
- e.g. D shouldnt cross examine the victim of sexual assault
which defendants receive legal aid automatically without having to satisfy the means test?
(a) applicants who receive income support, income- based jobseeker’s allowance, guaranteed state pension credit, income- based employment and support allowance or universal credit; and
(b) applicants who are under the age of 18.
The means test considers the applicant’s
income and expenses, but not the applicant’s ___________.
the purpose of the means test is to assess the applicant’s _____________.
capital e.g. inheritance, assets
disposable income
This is done by deducting the following items from the applicant’s gross annual income:
(a) tax and national insurance
(b) annual housing costs
(c) annual childcare costs
(d) annual maintenance to former partners and any children and
(e) an adjusted annual living allowance.
does an applicant have the right to appeal a decision refusing their legal aid based on them failing the means test?
no
but if an applicant does not satisfy the means test
but can demonstrate that they genuinely cannot fund their own defence, the applicant may ask that their entitlement to criminal legal aid be reviewed on the grounds of hardship by completing an application for review on the grounds of hardship (Form CRM16).
what is the difference between legal aid in the mags and legal aid in the crown court?
mag = legal aid is either free or not available
crown = legal aid is available but may be subject to the D contributing towards the costs
If a defendant satisfies both the interests of justice test and the means test, the magistrates’
court will grant a ________________________ and it will be sent to their sol.
criminal defence representation order
The representation order granted to a defendant for a summary- only matter, or an eitherway matter which is dealt with by the magistrates’ court, will cover all the work done by the solicitor in connection with those proceedings in the magistrates’ court.
Are there any other circumstances the above would cover?
may be extended to cover an appeal to the Crown Court against conviction and/ or sentence
if for an either- way matter, the magistrates decline jurisdiction or the defendant elects trial in the
Crown Court, what will the criminal defence representation order cover?
the representation order will extend automatically to cover the proceedings in the Crown Court
a representation order granted for an indictable only offence will cover proceedings in which courts?
both mags and crown court
explain the funding for a D who is being tried for an either- way offence, and has failed the magistrates’ court means test and the case is subsequently committed to the Crown Court.
- funding will not start until the day after the sending hearing
- will only cover work done in the Crown Court
- and only if the defendant passes the means eligibility test in the Crown Court
may a D who’s application for legal aid has been refused on the interests of justice test appeal the decision?
either by
- adding further details to their original Form CRM14 and resubmitting this
- or by requesting an appeal.
At the conclusion of the case, the defence solicitor will then claim costs incurred under the _______________________________ from the ___________.
representation order
Legal Aid Agency
which application forms are submitted to request legal aid in the mags court?
CRM14
and if they do not automatically satisfy the means test they must submit CRM15 together with any supporting evidence
what happens at a first hearing?
- classification of the offence
- the plea the defendant enters in respect of summary or either- way offences
- the level of detail provided by the CPS of the prosecution case; and
- whether public/ private funding has been secured.
there may be rare occasions where the D is not reading to enter into a plea on the first hearing.
in what circumstances may this be the case?
what happens?
- funding has not been finalised
- where the prosecution has not been able to disclose any of their evidence
case is adjourned and the judge make a decision on whether to bail or remand in custody
what should the CPS do at the first hearing?
CPS = provide sufficient disclosure so the D can enter into a plea
explain the procedure for the first hearing of a summary offence
- D enters into plea
GUILTY PLEA ENTERED
- if pleads guilty, CPS present facts of the case and record of previous convictions (if relevant)
- if D is represented = plea in mitigation on the defendant’s behalf
- either sentence straight away or adjourn if they want to obtain any reports before sentencing
- if D pleads guilty but disputes the specific factual allegations = adjourn for Newton hearing
NON GUILTY PLEA ENTERED
- court fixes a date for trial
- case management directions
BOTH GUILTY + NON GUILTY PLEA = if adjourned, need to decide bail or remand in custody
explain the procedure for the first hearing of an either-way offence
GUILTY PLEA:
- treated as having been tried summarily and
convicted (so same procedure applies = CPS relevant facts, D’s sol = plea of mitigation)
BUT
- mags decide whether they should sentence or remit to Crown because the sentencing powers of the mags are insufficient
- may need to adjourn to see reports before sentencing
- may need to adjourn awaiting for sentencing hearing at Crown
NOT GUILTY PLEA
- before anything else decide whether the D is tried in the mags or Crown = ‘plea before venue and allocation procedure’
- if adjourned, mags decide if remanded in custody or bail
explain the procedure for the first hearing of an indictable offence
preliminary hearing at mags
then sent straight to crown
mags decide whether on adjournment = bail or remanded
what is the role of the defence sol in the first hearing?
(a) obtaining funding from the LAA to pay for the work they will do on their client’s behalf (unless the client is paying for their legal costs privately)
(b) obtaining details of the prosecution case from the CPS (for summary and either- way offences);
(c) taking a statement from the client;
(d) advising the client on the strength of the prosecution evidence and the plea the client
should enter (for summary and either- way offences); and
(e) in the case of an either- way offence where the client is indicating a not guilty plea, informing the client that their case may be dealt with either by the magistrates’ court or by the Crown Court, and advising the client about the advantages and disadvantages of
each court; and
(f) making an application for bail, where necessary
need to know which offences are summary / either way / indictable
a sol who has represented their client in the police station may have some information about the CPS’ case but after charge, why is it so important for the defendant’s solicitor to see all the prosecution evidence as soon as possible?
so that they may give timely advice to the defendant on their plea, which in part will be based on the
strength of the case against them, and take instructions on what the prosecution witnesses
are saying
a D is entitled to receive ______________ for all offences
IDPC - initial details of the prosecution case
what happens where the CPS wishes
to introduce information contained in a document that the defence is entitled to and that
document/ information has not been made available to the defence?
the court must not allow the prosecutor to introduce that information unless the court first allows the defendant sufficient time to consider it
what information is included in IDPC?
(a) where the defendant was in police custody for the offence charged immediately before the first hearing in the magistrates’ court:
(i) a summary of the circumstances of the offence; and
(ii) the defendant’s criminal record, if any; or
(b) in all other cases:
(i) a summary of the circumstances of the offence;
(ii) any account given by the defendant in interview, whether contained in that summary or in another document;
(iii) any written witness statement or exhibit that the prosecutor has available and considers material to plea, or to the allocation of the case for trial or to sentence;
(iv) the defendant’s criminal record, if any; and
(v) if available, a victim impact statement.
how does the list of information required in the IDPC change where the D has been released on bail after charge and is not expected to enter into a guilty plea at the first hearing?
- the list of material expands
- the following material should be made available before the first hearing at the mags:
(a) a summary of the circumstances of the offence and any account given by the defendant in interview;
(b) statements and exhibits that the prosecution has identified as being of importance for the purpose of plea or initial case management, including any relevant CCTV that would be relied upon at trial and any Streamlined Forensic Report;
(c) an indication of any medical or other expert evidence that the prosecution is likely to
adduce in relation to a victim or the defendant;
(d) any information as to special measures, bad character or hearsay, where applicable
After the solicitor has obtained details of the prosecution case, the defendant’s solicitor will
then need to take further instructions from their client.
what matters will have to be discussed when advising a D on their plea at the first hearing?
- the client’s response to the prosecution case
- the strength of the prosecution’s case
- Whether it is necessary to obtain any further evidence in support of the defendant’s case.
- Where the client has been charged with an either- way offence and is pleading not guilty - are they electing for the case to be heard in the mags or in the crown?
also appropriate for the sol to raise that an early guilty plea may reduce sentencing
If the magistrates consider that an either- way case is suitable for summary trial, the defendant will then have a choice as to whether they want the trial to take place in the magistrates’ court or the Crown Court.
what are the factors in favour of the crown court?
- greater chance of acquittal
- Better procedure for challenging admissibility of prosecution evidence
- in the crown jury dismissed when deciding admissibility
- mags judge decides on matters of fact and law so may be influenced by the evidence they have seen even if they decide it is inadmissible
- note most magistrates’ courts do now attempt to determine issues of admissibility of evidence at pre- trial hearings (heard by a different bench of mags) rather than at the hearing itself
- more time to prepare the case for trial
If the magistrates consider that an either- way case is suitable for summary trial, the defendant will then have a choice as to whether they want the trial to take place in the magistrates’ court or the Crown Court.
what are the factors in favour of the mags court?
- limited sentencing powers
- maximum sentence which the magistrates may impose is six months’ imprisonment for a single either-way offence
- note the mags still have the power to commit the trial to the crown - speed and stress
- relevant to Ds who have been denied bail and are being remanded in custody
- no wigs and gowns in mags - prosecution costs
- if D convicted in either court = contribution to CPS’ costs
- costs usually higher in Crown due to greater amount of work required - defence costs
- if granted legal aid at mags = no contribution towards defence
- if crown = financial eligibility test and may be asked to contribute to their own defence - no requirement to serve defence statement
if the D tells their sol they are guilty of an offence but wants to enter into a not-guilty plea, can a sol still represent them at trial?
yes but the sol is limited due to their overriding duty not to mislead the court
- able to cross- examine prosecution witnesses
- able to put the prosecution to proof of their case,
- would be able to make a submission of no case to
answer at the end of the prosecution case and to ask the magistrates to dismiss the case e.g. if the prosecution failed to discharge their evidential burden
however
- unable to continue acting if the submission of no case to answer was unsuccessful and the D insisted on entering the witness box to give evidence which the solicitor knew to be false
what are the sentencing powers of the mags for either-way offences?
- up to 6 months imprisonment for one either way offence
- up to a total of 12 months’ imprisonment for two or
more either-way offences
In most cases where a defendant pleads guilty at the plea before venue hearing and is committed to the Crown Court for sentence, the magistrates will not alter the position as regards bail or custody.
what is the effect of this?
if you’ve been remanded in custody prior to the first hearing, in a period of adjournment you are likely to stay remanded in custody
same applies to bail
If the defendant indicates a not guilty plea to an either- way offence, there are some circumstances where the D will be sent to the Crown. What are these circumstances?
what happens if a D doesn’t fall under those categories
(a) the defendant is sent to the Crown Court for trial for a RELATED offence;
(b) the defendant is charged jointly with another adult defendant who is sent to the Crown Court for trial for a RELATED offence;
(c) the defendant is charged jointly, or charged with a RELATED either- way offence, with a youth defendant who is sent to the Crown Court for trial.
In all other cases where a not guilty plea is indicated (or where the defendant refuses to enter a plea, as they are entitled to do), the court must determine whether the offence appears more suitable for summary trial or trial on indictment,
does a D have to enter a guilty/not guilty plea at the first hearing?
no
In certain circumstances, either- way offences will be sent straight to the Crown Court in
accordance with s 50A of the CDA 1998.
which circumstances are these?
limited number of circumstances, including serious/ complex fraud cases; some cases involving children and an either- way offence LINKED to an offence triable only on indictment.
indication of sentence
Occasionally a defendant who is charged with more than one either- way offence will indicate different pleas at the plea before venue hearing. The defendant may indicate a plea of guilty to one offence, but a plea of not guilty to the other.
how does the mags allocate in these situations?
- the mags continue with allocation of the offence to which the defendant has indicated a not guilty plea
- to the offence the D has plead guilty = either sentence, commit or adjourn
note this is as long as the two separate offences are NOT LINKED
a ‘remand’ is an adjournment where the court will want to ensure that the defendant attends the next hearing.
what are the three ways in which a D can be remanded?
(a) a remand in custody;
(b) a remand on bail with conditions attached to that bail; or
(c) a remand on unconditional bail.
what does the contested bail application procedure look like?
Under s 101(3) of the CJA 2003, the court must not admit bad character evidence via Gateway (d) if on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would
have __________________________________________________________________________________________________ .
- such an adverse effect on the fairness of the proceedings that the court ought not to admit it
note this is similar to s 78 PACE but with s 78 the court has discretion to exclude the evidence, whereas here the court MUST exclude the evidence if admitting it would have such an adverse effect on the fairness of the proceedings that the court not to admit it
EXAMPLES of where s 101(3) is likely to apply:
(a) when the nature of a defendant’s previous convictions is such that the jury are likely to convict a defendant on the basis of these convictions alone, rather than examining the other evidence placed before them, or where the evidence of the previous convictions is more prejudicial than probative
(b) when the CPS seeks to adduce previous convictions to support a case which is otherwise weak
(c) when the defendant’s previous convictions are ‘spent’ - see timescales attached
