Criminal Procedure-Arrest&Detention/Police Station

Question 1

What is the statute primarily governing police conduct? Explain it

Answer 1

• PACE-Police and Criminal Evidence Act 1984
• It sets up a framework which gives the police quite a lot of power, but it also regulates how they have to use it and if they don’t use it properly this can lead to prosecution

Question 2

What is an arrest?

Answer 2

The start of police detention-when it is made clear that a person is not free to go
•There must be a power of arrest and it must be carried out properly
•Arrest can be made with or without warrant

Question 3

What are the 2 criteria for arrest without warrant?

Answer 3

1) Commission of an offence: Constable may arrest without warrant anyone who is about to commit/committing/has committed an offence (S.24(1)-(3)PACE)
* Officer must have reasonable grounds to suspect the commission of the offence (subjective test)
2) It must be necessary to arrest: Grounds listed in S.24(5) include ascertain his real name and address; prevent them causing injury to himself/another; prevent them causing criminal damage; to allow the prompt investigation of offence or to question the person

Question 4

Information on arrest-what must the suspect be told at the time of his arrest?

Answer 4

1) that he is under arrest; and
2) the reason for his arrest (S.28 PACE)
EVEN if the circumstances make the reason for his arrest obvious
•Should also be cautioned on arrest or as soon as practicable afterwards (Code C and G) but a failure to caution will not invalidate the arrest (but may have evidential consequences)

Question 5

Lawful arrest: Non Constables

Persons other than the police can arrest without a warrant if:

Answer 5

• A person is committing an indictable offence (or have reasonable grounds for believing he is)
• An indictable offence has been committed and the person is guilty of it (or have reasonable grounds for believing he is)

Question 6

What are the four necessity conditions which must be made out for a non constable to arrest without warrant?

Answer 6

• To prevent the person from causing physical injury to himself/another
• To prevent the person from suffering physical injury
• To prevent the person causing loss of or damage to property
• To prevent the person from making off before a constable can assume responsibility for him

Question 7

What is the caution on arrest?

Answer 7

•Code C 10.4/G 3.5:
“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 do say may be given in evidence.”
(note right to silence-“do not have to say anything”, but inferences may be drawn-“but may harm your defence”

Question 8

Why is a “Lawful” arrest so important?

Answer 8

•Suspect’s rights

Question 9

What is s.117 PACE 1984?

Answer 9

Power of constable to use reasonable force.
Where any provision of this Act-
a) confers a power on a constable; and
b) does not provide that the power may only be exercised with the consent of some person, other than a police officer,
the officer may use reasonable force, if necessary, in the exercise of the power.

Question 10

Arrival at the police station-what is the role of the custody officer?

Answer 10

• Sergeant or above independent of the investigation
• Takes decisions on detention, questioning, treatment, bail etc.
• Duty to ensure detention in accordance with PACE
• Duty to inform the suspect of grounds of detention
• Opens and maintains a custody record-unique custody record number
• Gives the suspect his rights and explains
• Decide if detention should be authorised
• Risk assessment-check mental and physical health

Question 11

What are the suspects rights?

Answer 11

On arrival, will be informed of:
•Right to solicitor-s.58 PACE
•Right of intimation-s.56 PACE
•Right to consult the Codes of Practice
Other rights at the police station:
•Right to a copy of the Custody Record
•Right to remain silent
•Right to an appropriate adult (if required)

Question 12

What is the risk assessment the custody officer carries out?

Answer 12

Code C3.6-3.10:
•Is detainee in need of medical treatment?
•Is detainee a risk to staff?
•Is detainee a risk to himself?
•Is detainee mentally vulnerable?
Custody officer is responsible for carrying out this.

Question 13

What is mentioned about healthcare? (With regards to risk assessment by custody officer)

Answer 13

Code C Para 9-if the risk assessment indicates a problem:
•Health care professional will advise on fitness to detain and fitness to interview
•May provide treatment
•May prescribe certain drugs
•Will record injuries etc
•May recommend transfer to hospital
•May advise on how long it will take before suspect is fit for interview

Question 14

What other entitlements does the detainee have?

Answer 14

Code C paras 5 and 8:
•Clean, well-lit and ventilated cell
•Bedding; toilet facilities 
•Adequate replacement clothing
•2 main meals and 1 light meal plus drinks at meal times and upon reasonable request
•Exercise if practicable
•Visit at CO’s discretion
•Writing materials
•Telephone call
•Note this list is not exhaustive

Question 15

What are summary only offences?

Answer 15

• Very Minot offences that can only be dealt with in the Magistrates’ Court
• E.g. assault and battery, shoplifting of items valued less than £200, parking on double yellow lines, no TV license, drunk and disorderly etc.
• Maximum prison sentence the magistrates’ can give is 6 months for each offence

Question 16

What are either way offences?

Answer 16

• Middle of the road in severity
• Can be dealt with in either the Magistrates’ or Crown Court hence name
• E.g. assault occasioning ABH, GBH/wounding without intent (s.20), criminal damage over £5000, theft, burglary, sexual assault
• The sentence will depend upon the specific offence and court

Question 17

What are indictable offences?

Answer 17

• Very serious offences that can only be dealt with in the Crown Court
• Includes murder, manslaughter, rape, robbery, GBH/wounding with intent (s.18)
• Sentence will include life imprisonment

Question 18

What are the detention limits for summary only offences?

Answer 18

24 hours-no extensions applicable

Question 19

What are the detention time limits for either way offences?

Answer 19

•Initial period-24 hours
•1st ext-up to 36 hours by police
•2nd ext-up to 72 hours by magistrates
•3rd ext-up to 96 hours by magistrates
Then either charged or released

Question 20

What are the detention time limits for indictable only offences?
(ss.41-44 PACE)

Answer 20

• initial period-24 hours
• 1st ext-up to 36 hours by police
• 2nd ext-up to 72 hours by magistrates
• 3rd ext-up to 96 hours by magistrates

Question 21

Notes on detention time limits

Answer 21

• Detention clock runs from the time of arrival at the police station
• When someone has been released from custody on police bail, this will stop the clock and will resume on re-arrest
• Once the maximum detention time has been reached the suspect must be charged or released

Question 22

What is the solicitor’s role at the police station?

Answer 22

Code C Note 6D PACE 1984:
“The solicitor’s only role in the police station is to protect and advance the legal rights of his client…”
•includes seeking clarification of an issue; challenging an improper question; advising client not to answer a question; giving further legal advice

Question 23

What are the points about contact with a solicitor in the police station?

Answer 23

• Police cannot dissuade D from having a solicitor
• Police must remind D of right to a solicitor when detained, prior to interview, prior to ID procedure etc
• If D changes his mind Custody Officer must ask for reasons and not on Custody Record
• Duty to contact solicitor as soon as practicable
• Advice can be in person or by telephone

Question 24

What is a police interview?

Answer 24

Code C Para 11.1A: “An interview is the questioning of a person regarding their suspected involvement in a criminal offence which must be carried out under caution”
•If there are grounds to suspect a person of an offence s/he must be cautioned before any questions are put to them (C 10.1)
•Doesn’t include questions solely to establish identity or ownership of vehicle or questions relating to the carrying out of a search

Question 25

Does the interview have to be at the police station?

Answer 25

•The location of an interview is immaterial to the definition. Questioning carried out anywhere is likely to be considered an interview.
•For most crimes s.30 PACE applies:
-Suspect should be taken to a police station as soon as Is practicable after arrest
-BUT if a decision has been made to arrest a person they must not be interviewed except at a police station unless delay might cause harm to evidence, people or property, alert other suspects or hinder recovery of property C11.1

Question 26

Why for most crimes should the interview be at the police station?

Answer 26

• Once at the police station all rights and entitlements apply
• Healthy if suspect can be monitored (risk assessment/access to medical care if necessary)
• Access to legal advice
• Access to Appropriate Adult (if necessary)
• Interviews are recorded

Question 27

Who is the solicitor at the police station and what should they do?

Answer 27

• Solicitor can be D’s preferred choice OR the duty solicitor
• Solicitor should attend the police station for interview in most cases but in less serious cases may give advice over the telephone
• On arrival at station the solicitor will speak with the custody sergeant, look at the custody record, speak to interviewing officers
• Note the police do NOT have to disclose info to the solicitor BUT a failure to do so may have consequences re advice

Question 28

What is the solicitor’s role for interview (prior and during)?

Answer 28

Prior:
•Advise client on whether to answer questions or not
•Advise On interview procedure
In interview:
•Intervene where questioning inappropriate
•Intervene to clarify a question
•Give further legal advice

Question 29

What is meant by misconduct in interview?

Answer 29

Code C Para 11.5-No officer may try to obtain answers by oppression or use any threats or inducements to get answers

• oppression includes torture, inhuman or degrading treatment and threat or use of violence (s.76(8)). R v Fulling:”Use of power in a burdensome, harsh or wrongful manner’”
• inducements include improper promises or statements made by the police during the interview
• threats can lead to exclusion of a confession on the basis of oppression - exclusion of a confession on the basis of something said or done likely to render the confession unreliable

Question 30

3 points about interview records

Answer 30

• An accurate record must be made of each interview (verbatim or accurate summary C11.7)
• Interviews in police stations for indictable only and either way offences must be recorded (Code E)
• Police must also record any “unsolicited comments” outside the context of an interview and give the suspect an opportunity to confirm or deny the comment made (C11.13)

Question 31

What are the categories of vulnerable suspects and what can be done?

Answer 31

1) Juveniles (17 and under)
2) mentally disordered (e.g. mental illness or learning disability)
3) mentally vulnerable (may not understand the significance or what is said due to their mental state or capacity)
•They require the help of an Appropriate Adult (PACE Code C Para 1G)

Question 32

Appropriate Adult-when they are required and who they are?

Answer 32

• Must he called if the police suspect or are told in good faith that D may be a juvenile, mentally disordered or vulnerable
• Can include relatives, guardian, someone with experience of dealing with MD/MV people or some other responsible person
• Must be independent of the police
• A person who is a suspect, victim, witness, investigator, received admissions prior to attending, under 18, the solicitor, lay visitor, police officer etc. cannot act as an appropriate adult

Question 33

What is the role of the appropriate adult?

Answer 33

• Facilitate communication
• To be present when important issues are raised: rights read, cautioned, interviewed, identification, search, charge etc.
• AA can call a solicitor even if suspect does not request one
• Advise regarding rights (not legal)
• Observe the interview is fair

Question 34

What are the disposal options after the procedures at the police station?

Answer 34

• Charge-decision usually by CPS-Custody will pass from the police to the court
• NFA-no further action
• Informal Warning-for v minor cases, not on crim record
• Formal/police caution-will appear on record, avoids court
• Conditional Caition-as above but with conditions attached
• Penalty Notice-used for minor offences, appear on record

Question 35

What is the Full Code test?

Answer 35

2 stage test:

1) Evidential test-is there a realistic prospect of conviction, is there enough evidence? Objective test-is the court more likely than not to convict the defendant?
2) Interests if justice test-is it in the public interest to prosecute?

Question 36

What is the alternative test besides the 2 stage Full Code test?

Answer 36

Alternative “Threshold test” (Code for CPS Para 5.2)
•Applied in limited circumstances where “full Code” test not met but circumstances/seriousness of case justify the making of an immediate charging decision
•Intended to keep D in custody

Question 37

What conditions must be met for the alternative threshold test?

Answer 37

Prosecutors must determine whether…

• there is insufficient evidence currently available to apply the evident stage of the Full Code test; and
• there are reasonable grounds for believing that further evidence will become available within a reasonable period; and
• the seriousness or the circumstances of the case justifies the making of an immediate charging decision; and
• there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so