Criminal Practice Flashcards
How must persons in custody be dealt with?
expeditiously + therefore release them as soon as the need for detention no longer applies
Who is the custody officer?
*officer of at least the rank of sergeant
*will not be involved in the investigation
*responsible for authorising detention of the suspect and supervising their welfare whilst in police custody
When must a suspect be brought to the custody officer?
as soon as practicable
What initial steps must the custody officer take?
(1) maintain a custody record, containing:
*(a) suspect’s name, address, telephone number, DoB, occupation
*(b) offence for which the suspect has been arrested and why the arresting officer considered it necessary to arrest the suspect
*(c) time of suspect’s arrest and arrival at police station
*(d) reason why the suspect’s ongoing detention has been authorised by the custody officer
*(e) confirmation that suspect has been given details of the rights they may exercise whilst detained + whether suspect has requested legal advice from a solicitor
*(f) details of the items of property the suspect had on their person
*(g) details of any medical condition suspect suffers from
(2) authorise a search to the extent the officer considers necessary to ascertain what items the suspect has on their person
(3) determine whether there is already sufficient evidence to charge the suspect with the offence for which they have been arrested
If there is no sufficient evidence to charge the suspect, what should happen to the suspect?
suspect should be released on bail or without bail unless: custody officer has reasonable grounds for (a) believing that detaining the suspect without charge is necessary to secure or perserve evidence or (b) it is necessary to obtain such evidence by questioning
*if the custody officer becomes aware at any time that the grounds on which a suspect’s detention was authorised have ceased to apply, the suspect must be released immediately
What are the conditions of detention?
(1) cell must be adequately heated, cleaned, ventilated, and adequately lit
(2) any bedding supplied must be of reasonable standard and in a clean and sanitary condition
(3) suspect must be provided with access to toilet and washing facilities
(4) suspect must be offered at least 2 light meals and 1 main meal in any 24-hour period + drinks should be provided at meal times and upon reasonable request between meals
(5) if the custody officer considers that a suspect is injured, appears to be suffering from physical or mental disorder or appears to need clinical attention, custody officer must make arrangements for receipt of clinical attention as soon as reasonably practicable
What are the key rights of a suspect being detained by the police for questioning?
(1) right to have someone informed of the suspect’s arrest
(2) right to consult privately with a solicitor/to legal advice
(3) right to consult the Codes of Practice
(4) right to be informed about the offence - why they have been arrested and detained
What does the “right to have someone informed” entails + when can the right be delayed?
*right to inform a friend or relative or other person who is known to the suspect or who is likely to take an interest in their welfare
*they should be informed as soon as practicable
*right can be delayed - but this must be authorised by an officer of at least the rank of inspector and can only be authorised when the suspect has been detained for an indictable offence
- authorisation can be given orally, but would to be confirmed in writing as soon as is practicable
grounds for delay: reasonable grounds of belief that telling the named person of the arrest will
*(a) lead to interference with or harm to evidence connected with an indictable offence
*(b) lead to interference with or physical injury to other persons
*(c) lead to the altering of other persons suspected of having committed such an offence but not yet arrested for it
*(d) hinder the recovery of any property obtained as a result of such an offence
*max length of delay is 36 hours
What does the “right to legal advice” entail?
*if the suspect makes a request for legal advice, they must be allowed to e.g. consult a solicitor privately as soon as practicable
*in all cases where legal advice is sought, unless a suspect asks for legal advice to be paid for privately, police must contact the Defence Solicitor Call Centre
*if a solicitor attends the police station to see a particular suspect, that suspect must be informed of their arrival and they must be asked if they would like to see the solicitor
at no time should a police officer do or say anything with the intention of dissuading a person from obtaining legal advice - e.g. saying that period of detention or time taken to complete interview might be reduced if no legal advice or no solicitor present
Under what circumstances could the exercise of the “right to legal advice” be delayed?
v limited
*must be authorised by an officer of at least the rank of superintendent
*can only be authorised when a suspect has been arrested for an indictable offence
grounds for delay [reasonable belief]:
*(a) belief that exercise of right to access will interfere with or harm evidence connected with an indictable offence, or interference with or physical injury to other persons
*(b) exercise will lead to the altering of other persons suspected of having committed such an offence but not yet arrested for it
*(c) will hinder the recovery of any property obtained as a result of such an offence
subjective belief is required - i.e. belief that legal adviser will deliberately do one of the conditions or do so inadvertently (rare)
max delay: 36 hours + authorisation can be given orally but would need to be confirmed in writing as soon as is practicable
How long can a suspect be detained for (intially) before charge?
24 hours
*if the person attended voluntary and is then arrested: timer starts from time of arrest
*if person attends police station to answer street bail: timer starts from when they arrive at the police station
*if person has been arrested away from the police station: timer starts from when the suspect arrives at the first police station to which they are taken after arrest
Under what circumstances can the period of intial detention be extended?
*police have the power to add an additional 12 hours (total possible detention goes to 36 hours)
*must be given by an officer of the rank of superintendent and may only be given if the superintendent has reasonable grounds for believing that:
*(a) 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) offence is an indictable offence, and
*(c) investigation is being carried out diligently and expeditiously
Under what circumstances can the police obtain a warrant of further detention?
*obtained from the magistrates (who are grant further detention of up to 36 hours) [full grant would result in a detention for 3 days/72 hours]
*magistrates will grant this if they consider that there are reasonable grounds for believing that further detention of the person to whom the application relates is justified on the basis that:
*(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) investigation is being conducted diligently and expeditiously
Under what circumstances would magistrates grant an extention of warrant of further detention?
magistrates will only grant if satisfied there are reasonable grounds for believing that the further detention is justified
*extension cannot be longer than 36 hours, or end later than 96 hours after the relevant time (i.e. time of arrest or arrival at police station)
When must the police carry out reviews of the suspect’s detention? + who can carry out the reviews?
1st review: no later than 6 hours after custody officer first authorised detention
2nd review: no later than 9 hours after first review
subsequent reviews must take place at intervals of not more than 9 hours
*reviews are to ensure that the grounds on which detention was initially authorised by the custody officer are still applicable + if reviews are not carried out, amount to tort of false imprisonment
*review must be carried out by an officer of at least the rank of inspector who is not directly involved in the investigation
What is the role of the solicitor at the police station?
to protect and advance the legal rights of their client
What is the solicitor entitled to do with respect to the custody report and detention log?
to inspect to gather information
*entitled to inspect upon arrival and at any other time whilst the suspect is in custody
*a legal representative or an appropriate adult is entitled to request a copy of the custody record when a detainee leaves police detention or is taken before a court
What information will the solicitor obtain from the custody officer/report?
*client’s basic info
*alleged offence(s)
*time when detention was authorised and reason for giving the authorisation
*any significant comments made by the client whilst at the police station
*any samples, fingerprints, or impressions of footwear which may already have been taken from the client
*any identification procedure which may already have taken place
*any interview which may already have taken place at the police station
*whether client is under any form of physical or mental disability, or requires the attendance of an appropriate adult
*any illness which the client may be suffering from, or any indication that the client is in any way vulernable or requires medical treatment
*whether the client is suffering from the effects of drink and/or drugs
*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
*details of any detention reviews which have been carried out
What information will the solicitor obtain from the investigating officer?
*in general, the solicitor should push the investigating officer to disclose as much information as possible about the case against their client
*the level of disclosure is at the investigating officer’s discretion - however, the client and solicitor must be given sufficient information to enable them to understand the nature of the offence and why they are suspected of committing it (in order to allow for the effective exercise of the rights of the defence)
*try to find out if the police have any other evidence in addition to statements from witnesses - e.g. forensic evidence, CCTV evidence
*significant statements and/or silence
*next steps the investigation officer proposes to take
How should the solicitor consult with their client - initial convo?
(1) make clear to the client that solicitor is there to provide them with free, independent legal advice + solicitor has no connection with the police
(2) solicitor must tell the client anything they are told by the client will remain confidential - although solicitor is bound by certain rules of professional conduct, which in certain circumstances may limit what they are to do or say on the client’s behalf
(3) give client details of what the solicitor has been told by the investigating officer of the offence the client is being investigated for - solicitor should advise client about the relevant substantive law + what the police will need to prove in order to obtain a conviction for the offence for which the client has been arrested
(4) client should give there version of events
(5) solicitor will need to advise the client as to what the next steps in the police investigation are likely to be + potentially, prepare the client for interview
What are the 4 options for a client when being interviewed by the police?
(1) answer all questions put to them
(2) no comment interview
(3) selective silence, where the client answers some questions but not others [usually the worst option]
(4) give a no comment interview, but either during the interview or before being charged, hand a written statement to the police setting out facts the client will rely upon in their defence at trial [could avoid adverse inferences of recent fabrication being drawn at trial]
*usually if solicitor has doubts as to the accuracy of the instructions received from their client, statement prepared could be used/handed in later [but this could result in adverse inference (doubt as to strength of defence in the face of police scrutiny/investigation)]
What happens if the interview is recorded on tape/disc?
master tape/disc will be sealed in the presence of the suspect at the end of the interview and will only be broken if there is any dispute about what was said + others will be used to prepare a written summary or transcript of interview
When could a suspect who requested for legal advice be interviewed before such advice has been received?
under the exceptions to the general rule (that they can’t be interviewed under such circumstances):
(a) if police exercise power to delay a suspect receiving legal advice
*for (a), caution at the start of interview will be modified + restriction on the drawing of adverse inference applies
(b) if the solicitor which the suspect has asked to speak to either cannot be contacted or has declined to attend the police station, and the suspect has declined the opportunity to consult the duty solicitor
(c) if a suspect asks for legal advice and changes their mind about this - provided that
*(i) an officer of the rank of inspector or above speaks to the suspect to enquire about the reasons for their change of mind + makes, or directs the making of, reasonable efforts to ascertain the solicitor’s expected time of arrival and to inform the solicitor that the suspect has stated they wish to change their mind
*(ii) suspect confirms in writing that they want the interview to proceed without speaking to a solicitor + signing an entry to this effect in the custody record
*(iii) an officer of the rank of inspector or above is satisfied that it is proper for the interview to proceed in these circumstances and give authority in writing for the interview to proceed
when the interview starts, interviewer should remind the suspect of their right to legal advice AND ensure that the following is recorded in the interview record:
*(i) confirmation that detainee has changed their mind and reasons for it
*(ii) fact that authority for the interview to proceed has been given
*(iii) 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 + at any time of the interview, detainee may again ask for legal advice and if they do, a break will be taken to allow them to do so
What happens before and at the start of the interview?
(1) parties will be asked to identify/introduce themselves
(2) police officer conducting interview will caution suspect - “you do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you say may be given in evidence”
(3) officer must remind the suspect that they are entitled to free and independent legal advice, even if the suspect has a solicitor present at the interview
(4) interviewing officer must put to the suspect significant statements or silences which occured in the presence and hearing of a police officer
*suspect to confirm or deny earlier statements/silences
*failing to put these to the suspect may result in the contents of that statement or the nature of that silence being ruled inadmissible under section 78 PACE
What are the rules of conduct that the interviewer must comply with?
(1) may not try to obtain answers or elicit a statement by use of oppression: e.g. raising voice, shouting, making threatening gestures, leaning towards the suspect so they are in their face, standing over or behind the suspect, threatening to detain the suspect indefinietly unless they make a confession
(2) shall not 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
When must the interview cease?
officer in charge of the investigation:
(a) is satisfied all relevant questions about the offence have been put to the suspect (including giving the suspect an opportunity to give an innocent explanation),
(b) has taken account of any other available evidence, and
(c) reasonably believes there is sufficient evidence to provide a realistic prospect of conviction for offence
When should breaks take place during the interview?
*at recognised mealtimes + short refreshment breaks should be taken at approximately 2 hour intervals
*if interviews take place over more than one day, in any period of 24 hours, the suspect must be given a continuous period of at least 8 hours of rest (i.e. free from questioning or any other interruption in connection with the offence)
What are the key points which the solicitor should inform the clients of in relation to the interview?
*interview will be audibly recorded
*interview may be stopped if the client requires further legal advice from solicitor
*solicitor will be present in the interview to protect the client’s interests and will intervene when necessary
*if the client is to remain silent in the interview, they should be advised to use the stock phrase of “no comment” in answer to all questions which are put to them
*explain tactics the police are likely to adopt in an attempt to get them to answer questions (e.g. ask apparently innocuous questions that have nothing to do with the offence under investigation, try to alienate the client from the solicitor by suggesting that the legal advice received is incorrect)
*if the client is advised to answer questions, solicitor should remind them not to “lose their cool” and not to become hostile or abusive in their comments towards the interviewing officer + not to make an attack on the character of another person
How can the solicitor play an active role in the interview?
solicitor to intervene to seek clarification, challenge an improper question to their client or the manner in which it is put, advise their client not to reply to particular questions or if they wish, to give their client further legal advice
What type of behaviour is inappropriate/unacceptable from the solicitor?
*answering questions on behalf of the client
*writing down answers for the client to read out
What does the Law Society advise the solicitor to do at the start of the interview?
make an opening statement explaining the role which they play in the interview: to make clear to the police that the solicitor knows their role and to give client confidence in the solicitor’s ability for psychological support
*Law Society advises this should be done irrespective of the client’s experience at the police station or the seriousness of the charge
When may a solicitor be removed from an interview and what is the procedure?
*solicitor may be required to leave the interview only if their conduct is such that the interviewer is unable properly to put questions to the suspect (inappropriate behaviour)
*interviewing officer would need to consult an officer of at least superintendent rank who will speak to the solicitor and decide if the interview should continue in their presence or not
*if not, suspect must be given the opportunity to consult another solicitor before the interview continues
*if superintendent not readily available, an officer not below inspector rank
*if removed, superintendent or above must report to SRA (even if procedure ^ was taken by inspector)
What should the solicitor do if the client admits guilt to them but they wish to deny committing the offence at interview?
solicitor can only attend interview if the client intends to give a “no comment” response to questions as this would not involve giving false information and misleading the court
Who are juveniles? (for the purposes of police station)
suspects aged 10-17 inclusive + police should treat anyone who appears to be under 18 as juvenile in the absence of clear evidence to the contrary
What should the custody officer do if a suspect does not speak/understand English or has a hearing/speech impediment?
obtain an interpreter or someone able to assist the suspect with communication
What should the custody officer do if a suspect is blind/suffers from a serious visual impairment?
ensure that there is someone not involved in the investigation to help them check any documentation
What additional right (upon arrest) is granted to juveniles?
custody officer must, if practicable, find out the person responsible for the juvenile’s welfare + they must be informed as soon as practicable that the juvenile has been arrested, why, and where they are being detained [cannot be delayed]
Who is an appropriate adult?
person who attends the police station to provide support and assistance to a juvenile or suspect with a mental health condition/disorder
(1) juvenile’s parent/guardian
if (1) is unavailable, (2) social worker from the local authority
if (2) if unavailable, another responsible adult who is aged 18 or over and not connected to the police - e.g. aunt, uncle, grandparent
*a person 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 should not fulfil this role
*an interested party (victim/potential witness) cannot be an appropriate adult
*juvenile can expressly and specifically object the presence of an estranged parent
What is the role of the appropriate adult and what are their main responsibilities?
*to ensure that the suspect understands what is happening to them and why
*support, advise, assist suspect
*ensure suspect understands their rights whilst at the police station, and the role played by the appropriate adult in protecting those rights
*observe whether the police are acting properly, fairly, and with respect for the rights of the suspect
*assist with communication between suspect and police
NOT to give legal advice but appropriate adult should consider whether legal advice from a solicitor is required (even if the vulnerable suspect indicates they do not want legal advice, AA has the right to ask for the solicitor to attend if this would be in the best interests of the suspect)
How should the custody officer explain a juvenile’s rights?
in the presence of AA - if already explained to juvenile previously, repeated in AA’s presence
What should not happen in the absence of the AA?
normally, vulnerable suspect must not be interviewed, or asked to provide/sign a written statement under caution or record of interview
When may an appropriate adult be removed from an interview and what is the procedure?
AA may be required to leave the interview if their conduct is such that the interviewer is unable to properly put questions to the suspect
*to remove, interviewing officer must consult an officer not below superintendent rank, if one is readily available (otherwise an officer not below inspector rank)
*officer consulted must remind the adult that their role does not allow them to obstruct proper questioning and give the adult an opportunity to respond - officer consulted to then decide if the interview should continue without the attendance of that appropriate adult
*another AA must be obtained before interview continues (save certain circumstances)
Whose consent will the police need to require a juvenile/someone suffering from a mental health condition/disorder to take part in an identification procedure or obtain other forensic evidence?
*if suspect is aged 14-17, consent must be obtained both from juvenile and from parent/guardian
*if suspect is 10-13, consent must be obtained from juvenile’s parent/guardian
*if suspect is suffering from a mental health condition/disorder, consent must be given in the presence of the AA
Where would juveniles be remanded into if the custody officer denies bail after charge?
*normally into the care of the local authority (rather than at the police station pending their first appearance before the youth court), UNLESS
*(a) it is impraticable to move the suspect to local authority accommodation, or [impracticable concerns travel requirements + ground usually only successful in exceptional cases]
*(b) if juvenile is aged at least 12, there is no secure local authority accommodation available AND keeping them in other (non-secure) local authority accommodation would not be adequate to protect the public from serious harm from them - then police station
What are the rules of remanding a juvenile at the police station?
they must be kept separate from adult suspects and must not be detained in a cell unless it is not practicable to supervise the juvenile other than in a cell
What are the alternatives to charging juveniles?
(1) community resolution: will not form part of the offender’s criminal record (aimed at first-time offenders)
(2) youth cautions
*offered where there is sufficient evidence to charge the offender, the offender admits that they committed the office, and the police do not consider that the offender should be prosecuted or given a youth conditional caution (i.e. it is not in the public interest to deal with the matter in another way) - police will consider seriousness of offence
*caution must be given in the presence of an AA
(3) youth conditional cautions
When can a youth conditional caution be given?
all satisfied:
(1) there is sufficient evidence against the offender to provide a realistic prospect of conviction
(2) it is be determined that a youth conditional caution should be given
(3) offender admits to having commited the offence
(4) effect of caution must be explained to the offender and they must be warned that failure to comply with conditions may result in prosection
*if aged 17 or under, explanation and warning must be given in the presence of AA
(5) offender must sign a document containing details of offence, their admission, consent to be given to a youth conditional caution, and details of the conditions attached
What are the limits imposed on the conditions that can be given?
*for summary-only, conditions must be capable of being completed within 16 weeks of the date of original offence
*a period of longer than 16 weeks from the date the conditional caution is adminiterested may be suitable for an offence triable either-way or an indictable-only offence - must not exceed 20 weeks
What are the advantages of accepting a caution?
avoids client being charged and having to appear at youth court + cautions are not criminal convictions
What are the consequences of accepting cautions?
*record of caution will be retained by the police
*cautions will form part of the client’s criminal record and may be referred to if an employee makes a Criminal Record Bureau check
*caution will be taken into consideration before decision is made regarding a future offending disposal
*police must refer the client to the appropriate Youth Offender Team who will assess the client and must arrange for them to participate in a rehabilitation programe
*if offence is covered by Part 2 Sexual Offences Act 2003, client will be placed on the sex offenders register
What are the 4 options available to the custody officer (in relation to charge/no charge)?
(1) release suspect - without charge and without requirement that the suspect return to police station at a later date (no further action)
(2) release suspect without charge but on bail whilst the police make further enquiries
(3) charge suspect (and release on bail or keep in custody until suspect’s first court appearance)
(4) offer the suspect an alternative to charge (informal warning, penalty notice, formal (simple) caution, conditional caution)
When would the police release a suspect without charge and without bail?
when they determine that the suspect did not in fact commit the crime OR there is insufficient evidence against the suspect and it is unlikely that any other further evidence be obtained
When would the police release a suspect without charge but on bail?
[replaced release under investigation (which was imposed due to a presumption against pre-charge bail (now removed))]
*custody officers can authorise the first period of pre-charge bail to a period of 3 months in standard police cases (this can be extended with approval of inspector (to 6 months) or superintendent (to 9 months)) - + further extension granted by magistrates’ to a max period of 18 months
*custody officer must be satisfied that releasing the suspect on bail is necessary and proportionate in all the circumstances
*investigating officer must seek the victims of the victims about any relevant bail conditions
*when the suspect answer bail, police may release them without charge, exercise further investigative powers, release suspect on bail if their further enquiries are incomplete, charge suspect
What test will the CPS apply when determining whether to charge suspect?
when cases are not straightforward - it is for the CPS to decide whether suspect should be charged:
(1) there must be sufficient evidence to provide a realistic prospect of conviction
(2) if there is sufficient evidence, determine if it is in the public interest to charge the suspect or whether the matter should be dealt with other than by way of charge
What is the procedure for the police to charge suspect?
i.e. in minor cases
*suspect must be cautioned on charge and anything the suspect says in response to the charge should be written down
*suspect should be given a written notice which gives the particulars of the offence (this should be stated in simple terms + show the precise offence in law which the detainee is charged)
*suspect who has been charged cannot be interviewed further by the police unless necessary - to prevent/minimise harm/loss to other, clear up ambiguity, in the interests of justice
Under what circumstances can bail be denied to a suspect who has been charged?
where the custody officer has reasonable grounds:
*to doubt that the name/address provided is the suspect’s proper name or address or where such name or address cannot be confirmed
*to believe that the person arrested will fail to appear in court to answer bail
*to believe that the detention of the person arrested is necessary to prevent them from committing an offence
*to believe that detention is necessary to enable a sample to be taken
*to prevent them from causing physical injury to others or from causing loss of or damage to property
*to prevent them from interfering with the administration of justice or with the investigation of offences or of a particular offence
*to believe that the detention of the person is necessary for their own protection
When will a charged individual be brought in front of the magistrates’ court for the first hearing?
*if granted bail, within 1-2 weeks of being charged
*if not granted bail, suspect will be kept in police custody, unless they are a juvenile, and must be brought before the magistreates’ court as soon as is practicable, and in any event, not later than the first sitting of the court after they are charged (usually within 24 hours (except Sundays))
When would a fixed penalty notice be given?
*specified offences: theft, criminal damage, possession of cannabis + may also be issued under the Anti-social Behaviour Act 2003 for offences relating to graffiti and illegal advertising
*must be given by a police officer who has reasonable grounds to believe a person has committed a penalty offence
*will NOT form part of the person’s criminal record
What is a formal (simple) caution?
*intended for low-level, first-time offending [cannot be granted within 2 years of similar offence]
*should be given by a police officer of at least rank of inspector
conditions to be met before caution given:
*sufficient evidence must have been collected to have justified a prosecution
*clear and reliable evidence of a voluntary admission of guilt by the offender that they have committed the offence
*offender must agree to being cautioned, having been made aware that the caution might be raised in court were they to be convicted of a later offence (offender must sign a form acknowledging they agree to caution and admit to offence)
not available for indictable-only offences unless a police officer of at least superintendent rank determines that there are exceptional circumstances and CPS agrees
+ not available for either-way offences specified by Secretary of State unless a police officer of at least inspector rank determined that there are exceptional circumstances (offensive weapon and bladed article offence, carrying a firearm in a public place, child cruelty, sexual offences against children, sex trafficking, indecent and pornographic images of children, importing/exporting/producing/supplying/possessing with intent to supply to another Class A drugs)
When may a conditional caution be given?
(1) an authorised person (constable, investigating officer or a person authorised by a relevant prosecutor) has evidence that an offender has committed an offence
(2) the relevant prosecutor (includes AG, DPP, director of Serious Fraud Office and the Commissioners of Customs and Excise) decides there is sufficient evidence to charge and a conditional caution is appropriate
(3) offender admits the offence
(4) authorised person explains the effect of a conditional caution to an offender and that failure to comply with the conditions may result in a prosecution for the offence
(5) offender signs a document setting out details of offence, admission to committing offence, consent to a conditional caution, and conditions attached
What are the disadvantages of accepting a caution?
*it is a formal recorded admission of guilt, will form part of the offender’s criminal record, and may affect how they are sentenced in the future if they re-offend
*client will likely lose opportunity of receiving a caution on a subsequent occasion
*existence of caution will be disclosable should the client apply for certain types of employment
*if offence is sexual, client will be placed on sex offenders register
*police may retain fingerprints and other identification data taken from the client
What are identification procedures designed to do?
(a) test the witness’ ability to identify the suspect as the person they saw on a previous occasion
(b) provide safeguards against mistaken identification
What should happen in cases when the suspect’s identity is not known before ID procedures?
*police can take a witness to a particular neighbourhood or place to see if they can identify the person they saw commit the crime alleged: street identification, or
*eye-witness shown pictures:
*(a) witness’ first description of the suspect must have been recorded prior to being shown any photographs
*(b) witness must be shown at least 12 photographs at a time
*(c) as soon as witness makes a positive identification, no other witnesses should be shown the photographs + all witnesses (including the one who made the identification) should be asked to take part in one of the identification procedures
What should happen in cases where the suspect’s identity is known and they have been arrested (before ID procedures)?
police must keep a record of the suspect’s description as first given to them by a potential witness + before any form of identification procedure, a copy of this record should be given to the suspect or their solicitor
When must an identification procedure be held?
(1) a witness thinks they can identify the suspect or there is reasonable chance that the witness can identify the suspect +
(2) suspect disputes being the person the witness claims to have seen
*hold procedures if (1) and (2) are satisfied unless it is not practicable or would serve no useful purpose in proving or disproving suspect’s involvement in commission of offence
When would an ID procedure not be necessary (due to not useful)?
*when the suspect admits being at the sccene and gives an account which does not contradict what the witness saw
*when it is not disputed that the suspect is already known to the witness (i.e. there needs to be some form of relationship - being in the same school but different classes (known for 2 years) does not suffice)
When may an identification procedure be held?
officer in charge of investigation, after consultation with the identification officer, considers it would be useful
What are the different types of identification procedures? + how to determine which procedure to use?
(1) video identification
(2) identification parade
(3) group identification
(4) confrontation by witness
*video identification should be initially offered (usually most preferred as it can be arranged and completed sooner than an ID) unless
(a) not practicable, or
(b) an identification parade is both practicable and more suitable than VI, or
(c) officer in charge considers a group identification is more suitable than a VI and IP and identification officer considers it practicable to arrange
Who must be notified if a witness attending an identification procedure has previously been shown photos, or a computerised or artist’s composite?
suspect/his solicitor - but if the case subsequently comes to trial, witness will not be allowed to rely/say they originally identified the suspect from photos
Who is the identification officer?
*officer responsible for procedures
*must not be below the rank of inspector + must not be involved in investigation
*they must be present throughout the procedure + be in uniform
What must the identification officer do before a video identification, identification parade, or group identification is arranged?
explain to the suspect:
(a) purpose of the identification procedure to be used
(b) suspect’s entitlement to free legal advice
(c) procedure to be followed, including the suspect’s right to have a solicitor or friend present
(d) if the suspect refuses to consent to ID taking place, such refusal may be given in evidence at trial, or police may proceed covertly without suspect’s consent, or make other arrangements to test whether a witness can identify (e.g. confrontation)
*if video identification is not consented to, such a procedure can be arranged using images of a suspect that are not taken under identical conditions as the images of the other people in the procedure
(e) if the suspect has significantly altered their appearance between being offered an ID and time of procedure, this may be given in evidence at trial and officer may consider other forms of identification
(f) whether, before the suspect’s identity became known, the witness was shown photos, computerised or artist’s composite likenesses or picutures
(g) that the suspect or their solicitor will be provided with details of the description of the suspect as first given by any witness who are to attend the identification procedure before it takes place
How many people must be shown in a video identification + what criteria must these other people meet?
*people in similar position or carrying out same sequence of movements
*people must resemble the suspect in age, general appearance and position in life
*suspect must be shown with at least 8 other people
*generally, only one suspect shall appear in any set of images, unless there are two suspects of roughly similar appearance, in which case they may be shown together with at least 12 other people
What should be done is a suspect has unusual features (e.g. facial scar, tattoo, distinctive hairstyle) before the video identification?
police may take steps to electronically conceal those features on the video or replicate those features on the imges of the other people (witness, after seeing the video images, can request to see without the concealment/replication)
What is the suspect/solicitor entitled to in relation to a video identification?
*they are entitled to see a full set of images before shown to the witness (they must be given reasonable opportunity to do so!) - if there is a reasonable objection to the images, the police must take steps, if practicable, to remove the grounds for rejection
*the suspect is NOT entitled to be present at the video identification
*solicitor should be given reasonable notice of the time and place of the video identification so they can attend and ensure that it is carried out properly
How many witnesses can see the video at one time + what are witnesses not to do before seeing the video?
*only 1 witness may see the video at a time
*before they see, they must not communicate with each other about the case, see any of the images which are to be shown, see (or be reminded of) any photographs or description of the suspect, or be given any other indication as to the suspect’s identity, or overhear a witness who has already seen the material
What does an identification parade involve?
witness sees the suspect in a line of other persons who resemble the suspect - will consist of at least 8 other people who, so far as possible, resembles in age, height, general appearance and position in life
*witnesses should be separated - cannot communicate with each other, see any member of the parade, see/be reminded of any photo/description of suspect
*before inspecting, witnesses should be told that the person they saw on a specified earlier occasion may or may not be present and if they cannot make a positive identification, they should say so + they should not make any decision about whether the person they saw is on the parade until they have looked at each member twice
*witnesses will be brought in one at a time
*witness can ask parade member to speak, move, or adopt a particular posture - but before, they should be asked whether they can identify any person on the basis of appearance only (witness who asks members to speak must be reminded that participants have been chosen on the basis of physical appearance only)
*witness may request that the person they have indicated remove anything used to conceal the location of an unusual physical feature
*a colour photo/video of the identification parade must be taken to help guard against any later dispute that other members of the parade were not sufficiently similar to suspect (+ video recording or photo must be made available to the solicitor/their solicitor within a reasonable time upon request)
What is the suspect entitled to do in relation to an identification parade?
can choose position in the line and may change positions between witnesses - but cannot otherwise alter the order of people forming the line
What does a group identification involve?
when witness sees suspect in an informal group of people - should be held in a place where other people are passing by or waiting around informally (e.g. bus station, shopping centre) + in choosing a venue, police must reasonably expect that the witness will see some people whose appearance is broadly similar to suspect
[GI can be held convertly (i.e. even where suspects refuses to consent)]
What does confrontation by witness involve?
witness is brought face-to-face with a suspect in the police station
*before, witness must be told that the person they saw may or may not be the person they are to confront and that if they are not that person, they should say so
*force may not be used to make the suspect’s face visible to the witness
What tests must the defendant satisfy to be eligible for criminal legal aid in the magistrates’ court?
(1) interests of justice test
(2) means test
submit online application form (Form CRM14)
When would an individual be likely to lose their liberty, livelihood, or suffer serious damage to reputation (interests of justice test)?
*if found guilty, defendant is likely to face a custodial sentence - refer to Sentencing Guidelines
*lose livelihood: applicable to any defendant in employment who is likely to face a prison sentence OR defendants who are not likely to receive a prison sentence but have particular types of jobs which may be lost in the event of the conviction (e.g. bus driver charged with a road traffic offence, teacher charged with common assault)
*serious damage to reputation: can only apply to defendants who have no previous convictions OR convictions for v minor offences or spent offences [must also consider seriousness of offence] - balancing exercise e.g.: if a defendant has no previous convictions and has a position of standing or respect in community (e.g. vicar, school governor), conviction for even relatively minor offence may have serious damage]
When is it likely for proceedings to involve consideration of a substantial question of law (interests of justice test)?
when evidence is in dispute: Turnbull, adverse inferences, hearsay evidence, confession evidence, bad character evidence
What are the 4 other grounds for the interests of justice test?
(3) when individual may be unable to understand proceedings or state their own case - e.g. due to mental/physical disability, poor knowledge of English, age, vulnerability
(4) proceedings may involve tracing, interview, or expert cross-examination of witnesses on the individual’s behalf
(5) when it is in the interests of another person that the individual be represented - i.e. inappropriate for defendant to represent themselves because they would need to cross-examine prosecution witness in person (e.g. sexual/violence offence)
(6) any other reasons
What does the means test involve?
*will be automatically satisfied if applicant receives income support, income-based jobseeker’s allowance, guaranteed state pension credit, income-based employment and support allowance, universal credit, or if defendant is under 18
*if not, complete CRM15 form and send evidence of financial status
