Criminal Practice Flashcards
When must a suspect be brought before the custody officer?
As soon as is practicable (Code C)
What does the Custody Officer do when a suspect arrives at the police station?
Opens and maintains a custody record, attaching a detention log to it.
Authorises a search of the suspect - if necessary to ascertain what items the suspect has on their person.
Informs the suspect of their ongoing rights.
When may a custody officer seize and retain any items of personal clothing and personal effects the suspect has on their person?
If the custody officer has reasonable grounds for believing that they may be evidence, or custody officer believes the suspect may use them;
- to cause physical injury to themself or others
- to cause damage to property
- to interfere with evidence or
- to assist them to escape
What key information is recorded on a custody record?
Suspect’s name, address, telephone number, DOB and occupation.
Offence for which the suspect has been arrested and why the arresting officer considered it necessary to arrest the suspect.
Time of suspect’s arrest and time of arrival at the police station.
Reason why the suspect’s ongoing detention at the police station has been authorised by the custody officer.
Time such detention was authorised.
Confirmation that the suspect has been given details of the rights they may exercise whilst detained at police station and whether they requested legal advice.
Time of solicitor’s arrival and suspect’s decision as to whether to see.
What information is recorded in a detention log?
All the significant events that occur whilst the suspect is in police custody.
What rank will a custody officer usually hold?
Usually a police officer holding at least the rank of sergeant, who should not be involved in the offence investigation.
What is to happen to suspect in the unlikely event that there is sufficient evidence to charge at this early stage of the investigation?
The suspect should be charged straight away, and either released on bail to appear before the Magistrates’ court at a later date or remanded in police custody until they can be brought before the Magistrates’ court.
What happens if there is not sufficient evidence to charge a suspect immediately?
Suspect to be released either on bail or without bail, unless;
- 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; or
- it is necessary to obtain such evidence by questioning at interview (most common).
List some conditions of detention?
- Cell which a suspect is held must be adequately heated, cleaned, ventilated and lit.
- A suspect must be provided with access to toilet and washing facilities.
- A suspect must be offered at least 2 light meals and 1 main meal in any 24-hour period, and drinks to be provided at mealtimes and upon reasonable request between meals.
- A suspect should be offered brief daily outdoor exercise if practicable.
What is to happen if the grounds for detention cease to apply?
The suspect must be released immediately.
What are the ongoing suspect rights whilst in custody?
The right to have someone informed of the suspect’s arrest.
The right to consult privately with a solicitor.
The right to consult the Codes of Practice.
The right to be informed about the offence and any further offences for which they are arrested whilst in custody and explanations for detention.
What is the process when legal advice is sought by a suspect?
The police must contact the Defence Solicitor Call Centre (DSCC) who will determine whether the case is such that telephone advice is sufficient or whether a solicitor should attend.
If attendance is required, suspect must be informed of the solicitor’s arrival at the police station.
How long and by who can the right to have someone informed of the suspect’s arrest be delayed?
By an officer of at least inspector rank for max 36 hours, but only where the suspect has been detained for an indictable offence.
How long and by who can the right to consult privately with a solicitor be delayed?
By an officer of at least superintendent rank for max 36 hours, but only where a suspect has been arrested for an indictable offence.
N.B. Can be given orally but then must be confirmed in writing as soon as is practicable.
What is needed for delay to the suspect receiving legal advice being authorised?
If the officer has reasonable grounds for believing that exercising the right at that time will;
- Lead to interference with or harm to evidence connected with an indictable offence, or physical injury to other persons.
- Lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it (indictable offences).
- Hinder recovery of any property obtained as a result of such an offence.
What is the detention clock?
A person cannot be kept for more than 24 hours without being charged, beginning from ‘relevant time’.
N.B. In practice, police will not usually need the full 24-hour period and will either release the suspect under investigation (RUI), bail the suspect before charge or charge the suspect well within this period.
How does the ‘relevant time’ differ based on the status of the suspect?
Volunteer attending the police station - at time of arrest at the police station.
Suspect on ‘street bail’ - at time of arrival at the police station.
Suspect arrested away from the police station - at time of arrival at the first police station.
What powers do police have to authorised continued detention?
An officer of at least superintendent rank can authorise continued detention for an extra 12 hours (36 hrs from arrival).
Beyond this, MC can grant a warrant of further detention and an extension to the warrant (exceptional circumstances).
What is the maximum amount of time that a detainee can be held without charge?
96 hrs - must be charged or released after this.
What is the review clock?
Mandatory review by officer of at least inspector rank who is not directly involved in the investigation (review officer) to ensure the grounds on which detention was initially authorised are still applicable.
How often must reviews of detention be reviewed?
Review 1 - within 6 hrs of detention being authorised.
Review 2 - within 9 hrs from Review 1.
Subsequent reviews - intervals of no more than 9 hrs.
What are the rights of a volunteer attending the police station?
He shall be entitled to leave at will unless he is placed under arrest.
He shall be informed at once that he is under arrest if a decision is taken by a constable to prevent him leaving at his will.
What is the role of a solicitor at the police station?
To protect and advance the legal rights of their client.
What should a solicitor do on arrival at the police station?
Inspect the detainee’s custody record and detention log from custody officer (usually provided printout but not entitled to receive a copy of it before detainee leaves police detention or is taken before a court).
Obtain or confirm additional details from custody officer.
Speak to client RE information disclosed to him by police and get detailed instructions from client’s POV (as much as time constraints allow). Also advise on next steps (e.g. interview).
Speak to investigating officer RE typed disclosure statement (they choose how much to disclose but push for as much as possible to ensure proper client advice can be given), significant statements and/or silence, and any next steps the investigation officer proposes to take.
What level of information must a solicitor be given before a person is interviewed?
Sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it, in order to allow for the effective exercise of the rights of the defence.
What 4 options are available to the client at interview?
1) Answer all questions
2) Use a prepared written statement handed to police before interview then ‘no comment’
3) Selective silence (rarely advised)
4) ‘No comment’
What are the pros of answering all questions?
- Puts forward defence early, boosting credibility if evidential burden needed.
- May prevent police pursuing further if weak evidence, or reduced sentence due to early guilty plea.
What are the cons of answering all questions?
- Could easily self-incriminate, especially when young/vulnerable.
- Police will look to ‘trip you up’ by revealing pieces of concealed information.
Why is handing in a prepared written statement prior to interview and then saying ‘no comment’ usually advised?
As it enables the client to place their version of events on record to avoid an adverse inference being drawn at trial.
What should the written statement contain and when should it be handed in?
No more than necessary to prevent the drawing of adverse inferences at trial; should all be in client’s own words.
Can be handed in to police either during the interview, or just prior to charge or kept on client’s file.
N.B. If defence solicitor feels the police case is particularly weak, may be better to hold back handing-in the written statement until the police have actually decided to charge the client to prevent statement giving them additional information they use to charge client.
N.B. Solicitor may retain statement on client’s file if they doubt the accuracy of the instructions received from the client and are reluctant to disclose this to police as the account will not stand up to police scrutiny.
What are the pros of answering ‘no comment’
- Avoids self-incrimination or helping police.
- Useful if police lack sufficient evidence to charge.
What are the cons of answering ‘no comment’?
- May weaken credibility if used to hide the truth.
- Risk of adverse inferences being drawn at trial from client’s silence in interview if defence later raised.
List some situations where a solicitor is likely to advise the client to give a ‘no comment’ interview?
- If the solicitor considers the case against the client to be weak, with police lacking sufficient evidence to prove allegation.
- If the solicitor considers that the police have not provided adequate disclosure of the evidence they have against the client (N.B. particularly important if a co-accused has been arrested and police not prepared to disclose their role etc).
- If the solicitor considers that the police may attempt to ‘trip you up’.
- The client is physically or mentally unfit to be interviewed, or the solicitor considers that the client would fail to give a good account of their case in interview.
- The facts of the case are so complex, or relate to matters from so long ago, the client cannot reasonably be expected to provide an immediate response to allegations against them.
What must a solicitor do if client decides to give a ‘no comment’ interview based on legal advice?
Explain to the client that this will not necessarily prevent adverse inferences from being drawn.
Also, make a full written note of the reasons for the advice.
What 4 options are available to the investigating officer after the custody officer has authorised the detention of a suspect, to take steps to further the investigation?
1) Carrying out an audibly record interview with the suspect about the suspect’s alleged involvement in the offence(s).
2) Arranging for an identification procedure to be conducted by another officer.
3) Taking fingerprints from the suspect to see if these match those found at the crime scene.
4) Taking samples from the suspect to see if these match any samples obtained during the course of the police investigation.
What are the requirements for ‘audibly recorded’ police interviews?
Usually recorded on 2 or 3 tapes/discs or as one digital recording.
If the recording is on tape/disc, the master tape/disc is sealed in the presence of the suspect at the end of the interview and will only be opened at trial if there is any dispute about what was said.
One of the other tapes/discs is a working copy and will be used by the investigating officer to prepare a written summary/transcript of the interview.
In what 2 circumstances may a suspect not be interviewed at all?
1) If unable to appreciate the significance of questions or their answers or
2) If unable to understand what is happening due to effects of drink, drugs, or any illness, ailment, or condition (limited exception where interview needs to be held as a matter of urgency).
Can a suspect be interviewed before receiving legal advice?
General rule = NO (means police should even stop an interview where client initially refused but now wants legal advice).
What are the exceptions to the general rule that a suspect cannot be interviewed before receiving legal advice?
- Delaying of the right for up to 36 hours.
- If the solicitor the suspect has asked to speak to either cannot be contacted or has declined to attend, and the suspect then declines the opportunity to consult a duty solicitor.
- If a suspect asks for legal advice and changes their mind about this, the police may interview the suspect, provided;
An officer of inspector rank speaks to the suspect to enquire about their reasons for their change of mind and tries to contact solicitor, with reasons and outcome of efforts to contact solicitor recorded in custody record.
The suspect confirms in writing that they wish to proceed without a solicitor and do not want to wait for one.
An officer of inspector rank gives written approval for interview to proceed in these circumstances.
When the interview starts and the interviewer reminds the suspect of their right to legal advice, interviewer to ensure the following is recorded in the interview record;
- Suspect’s change of mind and reason (if given).
- Confirmation of inspector’s authority.
- That solicitor will be notified if they arrive, and suspect can pause for legal advice.
What is to happen at the start of the interview process?
Police must caution suspects ‘you do not have to say anything. But..’
Officer to also remind suspects of their continuing right to legal advice.
(Must also be done after each break from police interviewing).
List some other key features of the interview process?
Significant statements and silences to be put to suspect before the start of the interview, with suspect able to confirm/deny/add to it during interview.
No interviewer may try to obtain answers or elicit a statement by use of oppression (raising voice, shouting, threatening gestures, offering inducements to admit guilt).
Suspects entitled to break from interview approx every 2 hrs.
Solicitors able to intervene to seek clarification, challenge an improper question to their client or advise their client not to reply to particular questions.
Interview must end when officer satisfied that all relevant questions have been asked or all relevant evidence obtained.
What points must a solicitor explain to the client prior to the interview?
- The interview will be audibly recorded and all parties will be asked to identify themselves at the start of the interview.
- The interview may be stopped at any time if the client requires further legal advice from the solicitor.
- The solicitor will be present to protect the client’s interests and may intervene if necessary.
- If ‘no comment’, warn of police tactics and importance of remaining cool to ensure credibility is not lost in the eyes of jury/magistrates if recording is played out at trial.
What should the interview seating arrangements be?
Solicitor to ensure they are allowed to sit beside their client during the interview and must never allow the police to prevent them from being able to make eye contact with their client.
What is the opening statement to be given by solicitor at start of interview?
One that explains the role they will play during the interview and puts the police officer(s) conducting the interview on notice that the solicitor intends to play an active role.
Also important to give client confidence in the solicitor’s ability, and should be given at the start of every interview.
List some situations where a solicitor should intervene during the interview?
- The questioning techniques employed by the police are inappropriate or improper.
- The police are behaving in an inappropriate manner.
- The client would benefit from further (private) legal advice.
- Unhappy about seating arrangements for interview.
- Police are acting in oppressive manner.
- Police are asking inappropriate questions as they are irrelevant, misrepresenting the law, misrepresenting the strength of the case against the client, speculative etc.
- Reference to client’s previous convictions.
- Police offer inducements.
- New information introduced that was not disclosed earlier.
When may a solicitor be removed from the interview?
If the investigating officer considers that the solicitors’ conduct is preventing them from properly putting questions to the suspect (e.g. answering on suspect’s behalf or writing down answers for suspect to quote).
In this case, interview to be stopped and officer of at least superintendent rank to be consulted who will decide if solicitor should be removed or not.
If removed, suspect must be given the opportunity to consult and have another solicitor present before interview commences.
What are significant statements and significant silences?
Significant statements - one which appears capable of being used in evidence against the suspect at trial, in particular a direct admission of guilt.
Significant silences - a failure or refusal to answer a question or to answer satisfactorily when under caution, which may allow the court to draw adverse inferences from that silence at trial.
N.B. If the police officer fails to put a significant statement/silence to a suspect at the start of the interview, may result in the contents of that statement or the nature of the silence being ruled inadmissible at trial under s78 PACE.
When must an identification procedure be held?
- When a witness has identified or purported to identify a suspect or
- A witness thinks they can identify the suspect but the suspect disputes being known to the witness.
Who runs identification procedures?
An identification officer (not below inspector rank who is not involved in the investigation) and must be held as soon as is practicable.
Requires suspect being released on bail and requiring their attendance on date of procedure.
What are the 4 types of identification procedure?
1) Video identification (most common, offered first unless not practicable).
2) Identification parade (rare)
3) Group identification (rare)
4) Confrontation by a witness (last resort used where suspect refuses others).
List some key features of the video identification procedure?
Moving images of the suspect shown to witness alongside at least 8 others resembling the suspect as far as is possible.
Suspect and/or solicitor must preview images prior and can raise objections to be addressed by police.
Unusual features to be concealed or replicated but witnesses may request original.
Suspect cannot attend, solicitor may to ensure witness segregation and look for signs of procedure contamination.
What happens if 2 suspects of similar appearance are shown in the same images?
They may be shown together with at least 12 others or procedure incorrect.
List some key features of the identification parade procedure?
Witness views the suspect in a line-up of at least 8 others who resemble the suspect.
Unusual features to be concealed using plaster/hat.
Suspect able to change position in line-up and may change between witnesses.
Witnesses cannot communicate or see a line-up beforehand.
What is to happen if a suspect is picked out in an identification parade after having been asked to speak?
Evidence will be admissible at trial but the judge will warn the jury to treat such evidence with utmost caution as identification should be based on appearance first and foremost.
What steps should be taken by the identification officer prior to the procedure being arranged?
- Explain purpose and procedure to suspect.
- Explain the suspect’s right to have a solicitor or friend present.
- Explain that refusal may be used as evidence and police may still proceed covertly.
- Explain that altering appearance may be used as evidence.
What is an appropriate adult and what is the hierarchy used to select one?
A person who attends the police station to provide assistance and support to a juvenile (suspect aged 10-17) or suspect suffering from mental health condition/disorder.
- Select parent/guardian first unless ‘estranged’.
- Social worker from local authority.
- A responsible 18+ adult not connected to the police e.g. aunt.
N.B. Can be removed from interview under same procedure as removing solicitors.
Who is excluded from being an appropriate adult?
All solicitors, police officers, and interested parties, ruling out witnesses, victims and e.g. a parent who the suspect has made an admission to.
Can social workers as appropriate adults be present when a solicitor consults with a suspect?
No as not bound by same duty of confidentiality a solicitor is. Could therefore disclose anything under cross-examination.
When may adverse inferences be drawn under s34 CJPOA 1994? - General
When a suspect is silent when questioned under caution prior to charge.
A failure to mention facts later relied on in defence that suspect could reasonably have been expected to mention at interview.
When may adverse inferences be drawn under s36 CJPOA 1994?
When a failure to account for objects, marks or substances arises.
Special caution required; suspects must be informed of the potential for adverse inferences and the specific facts they are being asked to explain.
N.B. Applies even if no defence raised at trial.
When may adverse inferences be drawn under s37 CJPOA 1994?
When a failure to account for presence at a particular place at the time.
Special caution required; suspects must be informed of potential for adverse inferences to be drawn from silence.
N.B. Applies even if no defence raised at trial.
Can suspects be charged off adverse inferences alone?
No
What consent is required for identification procedures for vulnerable clients?
Must come from both the juvenile (if 14+) and their parent/guardian, or solely from parent/guardian (if under 14).
For those with mental health conditions, consent must also be in the presence of an appropriate adult.
What usually happens if juveniles are denied bail?
Remanded to local authority care, unless public safety concerns or impracticality of transfer apply.
If refused bail after charge, usually remanded to local authority care unless impractical.
List some alternatives to charging juveniles?
Community resolutions, youth cautions, youth conditional orders based on offence severity.
