Criminal Practice Flashcards
Which laws, procedures and processes is PACE Code C concerned with?
Code C covers requirements for the detention, treatment and questioning of suspects in police custody.
What rights does someone have to legal advice? Code C PACE 1984 - 6.1
6.1 - all detainees must be informed that they may at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available
What rights does a suspect have to have someone informed of their arrest under PACE 1984 Code C 5.1?
5.1- any person arrested and held in custody at a police station or other premises may, on request, have one person known to them or likely to take an interest in their welfare informed at public expense of their whereabouts as soon as practicable. If the person cannot be contacted the detainee may choose up to two alternatives. If they cannot be contacted, the person in charge of detention or the investigation has discretion to allow further attempts until the information has been conveyed.
What are a suspects rights in terms of detention time limits under PACE 1984 Code C s.41?
Initial period before charge is no more than 24 hours from the ‘relevant time’
Volunteer attending police station - at the time of arrest at the police station
Suspect on ‘street bail’ - at time of arrival at police station
Suspect arrested away from police station - at the time of arrival at the first police station
In terms of detention what are the suspects rights for periodic review of this detention? under s.40 PACE 1984
First review- within 6 hours of detention being authorised (by officer not below rank of inspector)
Second review- within nine hours of first detention review (15hrs from first detention) (by officer not below rank of inspector)
Third Review- Within nine hours of second detention review (24hrs in detention) (by officer not below rank of inspector) to charge, seek an extension or release suspect without charge
What are the rules regarding extending a detention beyond 24 hours up to 36 hours by an officer of the rank of superindendent or above? S.42 PACE 1984
If detention 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
If the offence for which the suspect has been arrested in connection with is an indictable offence; and
If the investigation is being carried out dilligently and expeditiously
What are the rules regarding extending a detention beyond 36 hours up to a maximum of 72hrs by an officer of the rank of superindendent or above? S.43 PACE 1984
If the offence for which the suspect has been arrested in connection with is an indictable offence;
If detention 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
If the investigation is being carried out dilligently and expeditiously.
What are the rules regarding extending a detention beyond 36 hours up to a maximum of 96hrs in total by the magistrates courts? S.44 PACE 1984
If grounds under s.43 are satisfied; and
There are reasonable grounds for believing that further detention is justified.
This is the MAX period for which a suspect can be detatained (96hrs - 4 days) after which they must be released or charged.
Which laws, procedures and processes is PACE Code D concerned with?
Code D covers the code of practice for exercise by police of statutory powers to identify persons.
When must an identification procedure be held under PACE 1984, Code D 3.12?
If the suspect disputes being the person the eye witness claims to have seen on a previous occasion:
An eye witness has identified a suspect or purported to have identified them; or
There is an eye witness avaliable who expresses an ability to identify the suspect; or
There is a reasonable chance of an eye witness being able to identify the suspect.
When is an identification procedure not necessary under PACE 1984, Code D 3.12?
The suspect admits being at the scene of the crime and gives an eye witness account which does not contradict the eye-wiutness; or
It is not disputed that the suspect is already known to the eye-witness
What are the different types of identification procedure under PACE 1984, Code D?
Video identification- selection of images on a screen, including an image of the suspect
Identification parade - a suspect is lined up with the others who look similar
Group identification - Witness sees the suspect in a informal group of similar people
Witness confrontation - Suspect is directly confronted by the witness
What is the most suitable identification procedure under PACE 1984, Code D 3.14?
Suspect is initially invited to take part in a video identification unless:
Not practicable;
An identification parade is both practical and more suitable;
Group identification is considered more suitable by the officer in charge of the investigation than video or parade.
Process for video identification, PACE Code D, Annex A:
1) Images must include the suspect and at least 8 other people who resemble the suspect in age, height, general appearance and position in life
2) The suspect must be given reasonable opportunity to see the complete set of images before it is shown to any eyewitness
3) If the suspect has reasonable objection to the set of images, or any of the participants, the suspect shall be asked to state the reasons for the objection, and if practicable, steps shall be taken to remove the grounds for objection
4) Unusual features of the suspect which other participants don’t have (e.g. scar or tattoo) should be concealed or replicated on other people
Process for Identification Parade, PACE Code D, Annex B:
1) May take place in a normal room or one with a screen permitting witnesses to see members without being seen
2) Must consist of at least 8 other people who resemble the suspect in age, height, general appearance, and position in life
3)Unusual features of the suspect which other participants don’t have (e.g. scar or tattoo) should be concealed or replicated on other people
4) If the witness wishes to hear any indetification parade member speak, adopt any specified posture or move, they shall first be asked whether they can dentifiy any person on the basis of appearance only.
Process for identification parade, PACE Code D, Annex B:
Process for confrontation, PACE Code D, Annex D:
1) Face to face confrontation should be used as a last resort
2) Must take place in the presence of the suspect’s solicitor (unless this would cause unreasonable delay)
Which laws, procedures and processes is PACE Code E concerned with?
Code E covers audio recording of interviews with suspects in the police station.
What is a suspects right to silence?
A person arrested in connection with a suspected criminal offence has the right to remain silent when interviewed at the police station, however, at trial the court may be allowed to draw adverse inferences from this earlier silence when being questioned under caution.
What happens where a suspect remains silent on the legal advice of a solicitor and seeks to later rely on a fact at trial which was not disclosed?
1) If the suspect genuinely and reasonably relied on the advice of a solicitor to remain silent, no inferences can be drawn
2) If the suspect used the advice to hide the fact that they have no defence, or it was not reasonable for them to rely on the advice, then adverse inferences may be drawn.
Who should the police contact in the case of a juvenile when obtaining an appropriate adult?
1) Parent or guardian
2) Social worker
3) Responsible adult who is not connected to the police
What is the Solicitor’s role during the interview? Code C, 6D
Open with a statement explaining their role and grounds on which they will be intervening in the police questioning such as innapropriate or improper police questioning or the need to give the client further legal advice.
Protect and advance the legal rights of their client
May advise client to avoid giving evidence which would strengthen the prosecution case
May intervene to seek clarification, challenge an improper question to their client, or the manner to which it has been put to them.
May advise their client not to rely to particular questions or give their client further legal advice.
When may a Solicitor be asked to leave during an interview? Code C, 6.9
If their conduct is such that the interviewer is unable to properly put questions to the suspect.
Examples - answering questions on the suspects behalf, or providing written replies for the suspect to quote
Who should the police contact in the case of a vulnerable adult when obtaining an appropriate adult?
1) Relative, guardian, or other person responsible for their care
2) Someone experienced in dealing with vulnerable persons but who is not connected to the police
3) Responsible adult
Who should never be an appropriate adult?
Solicitor acting for the juvenile or vulnerable person
Police officer or employee
Suspect, witness or victim connected to the investigation
Person who has received prior admissions from the suspect
Estranged parent
When is there a general right to bail as per Bail Act 1976?
1) An accused before conviction when he:
- Appears or is brought before a Magistrates’ Court or the Crown Court in the course of or in connection with the proceedings fro an offence; or
-Applies to the court for bail (or a varation of bail conditions) in connection with proceedings
2) An offender after conviction during adjournment for reports
3) An offender who, after being convicted of an offence, appears or is brought before a Magistrates’ Court or the Crown Court for breach:
- Of a requirement of a community order
- Of a reparation order
- Revocation/amendment of a youth rehabilitation order
The general right to bail is subject to statutory exceptions on refusing bail which vary depending on the classification of the offence. What are they when the defendant has been accused or convicted of idictable and either-way imprisonable offences?
Most common grounds to refuse bail are that there are substantial grounds for believing that the defendant will:
Fail to commit to custody;
Commit an offence whilst on bail; or
Interfere with a witness to the case
The general right to bail is subject to statutory exceptions on refusing bail which vary depending on the classification of the offence. What are they when the defendant has been accused or convicted of summary only imprisonable offences?
Bail may be refused on the following grounds:
Failure to surrender to custody
Commission of further offences
Fear of comission of offences likely to cause another person to suffer or fear physical or mental injury
Defendant’s own protection
Defendant serving custody
They have been arrested for absconding or breaching bail conditions and there are substantial grounds for believing that they would fail to surrender, commit an offence, interfere with witnesses or obstruct the course of justice
Lack of sufficient information to determine bail
The general right to bail is subject to statutory exceptions on refusing bail which vary depending on the classification of the offence. What are they when the defendant has been accused or convicted of non-imprisonable offences?
Bail would be refused on the following grounds:
They have been convicted of the offence, having been previously granted bail and failed to surrender and the court believes that they would fail again to surrender to custody if granted bail
They should be kept in custody for their own protection or welfar (if they are under 18 years old)
They were already serving a custodial sentence
They have been arrested for absconding or breaching bail conditions and there are substantial grounds for believing that they would fail to surrrender, commit an offence, interfere with witnesses or obstruct the course of justice.
What are the statutory factors that the court must take into account when deciding if there are ‘substantial grounds’ for refusing bail?
Nature and seriousness of the offence
Character of the defendant
Antecendents
Associations
Community ties
Defendant’s record in relation to previous grants of bail
Strength of evidence against the defendant
When may conditions to be added to the defendant’s bail?
Only if such conditions are ‘necessary’ to:
Ensure attendance at court
To prevent offending while on bail
To prevent interference with witnesses or obstruction of the course of justice
For the defendant’s own protection
To ensure the defendant is avaliable to assist with enquiries or preparation of reports
To ensure the defendant attends an appointment with their legal representative before the next hearing.
If their is a risk of comission of further offences, what are the conditions that would be used?
Curfew
If their is a risk of interfering with witnesses, what are the conditions that would be used?
Non-contact with witnesses
Restriction on entering an area
What is the procedure for applying for bail?
The Justices’ Clerk will provide details of:
- the case history
- Any previous bail hearing decisions
The prosecution will provide details of:
- the current allegation
- any previous convictions
-the results of any drug tests
-any bail representations
The defence will provide details of:
-its version of the allegation
- the defendant’s circumstances
-any bail represenations
There is no requirement for formal evidence to be given.
The court will then consider:
-If the right to bail applies
-if the offence is indictable only, either-way or summary imprisonable, whether if convicted, there is no real prospect of a custodial sentences being imposed
-Whether there are any statutory exceptions to the right to bail
What happens if bail is refused and the defendant appeals?
At the first hearing after the intial hearing where bail was refused, a full application for bail using any arguments as to fact or law mau be permitted
What are the classifications of offences?
Summary only- least serious - only triable in magistrates court
Either-way offences - capable of being tried in magistrates court or crown court depending on seriousness
Indictable only- can only be dealt with in Crown Court
What are the penalties for absconding?
- Magistrates may impose a fine of up to £5000 and a sentence of up to three months
- Crown Court may impose an unlimited fine and a sentence of up to one year
What is ‘The Interests of Justice Test’ in the context of legal aid?
Apply the widgery criteria:
It’s likely the applicant will lose their libery
It’s likely the applicant will lose their livelihood
It’s likely the applicant will suffer serious damage to their reputation
A substantial question of law may be involved
The applicant may not be able to understand the court proceedings or present their own case
The applicant may need witnesses to be traced or interviewed
The proceedings may involve expert cross-examination of a prosecution witness
It’s in the interests of another person that the applicant is represented
What is ‘A Means Test’ in the context of legal aid?
Considers applicant’s financial position, such as their household income, capital and outgoings. The means test determines whether an applicant will be eligible for legal aid depending on the trial venue of the Magistrate’s Court or the Crown Court.
Defendant’s under the age of 18 or on certain government welfare benefits automatically pass the means test.
What will happen at a hearing for an application for representation?
What is the role of a defendant solicitor at the hearing?
What is a plea?
Where are summary only offences dealt with at plea before venue?
Where are indictable only offences dealt with at plea before venue?
