prelim to prosecution Flashcards
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Definition of interview
questioning of a person regarding their involvement or suspected involvement in a criminal offence which must be carried out under caution
10.1
a person whom there are grounds to suspect of an offence must be cautioned before any questions about an offence, are put to them. if either the suspect’s answers or their silence. (ie: failure or refusal to answer or answer satisfactorily) may be given in evidence to a court in a prosecution.
when is a caution not necessary
a) solely to establish identity or ownership of a vehicle
b) to obtain info in accordance with a statutory requirement
c) in furtherance of the proper and effective conduct of a search
d) to seek verification of a written record of comments made by the person outside an interview
does the questioning of a person where the caution does not need to be administered amount to an interview for the purposes of code C?
no.
does questioning a person about an offence where there are grounds to suspect him amount to an interview?
yes, even if the person has not been arrested and no decision to arrest has been made
what does an offence mean?
a caution must be given if the person is questioned about an offence other than that for which he has been arrested if there are grounds to suspect the person of it
where may an interview be conducted?
he must normally be interviewed only at a police station or other authorised place of detention
defn of decision to arrest
if a police officer has decided to arrest a person, the arrest should not be delayed in order to question the suspect before doing so
what are the exceptions to conducting an interview at the police station?
delay would:
a) lead to interference with or harm to evidence connected with an offence, interference with or physical harm to other persons, or serious loss of, or damage to property
b) altering of other persons suspected of having committed an offence but not yet arrested for it
c) hinder the recovery of property obtained in consequences of the commission of an offence.
interviewing in these circumstances must cease once risk is averted.
can police officer not at the station interview detainee?
yes, s75 allows police not at the station to interview using a live link.
defn of live link
enables a custody officer to transfer or permit the transfer of the detained person to a police officer for the purposes of a live link interview conducted by another officer.
when must a caution be administered?
must be administered at the commencement of an interview whether or not it is conducted at a police station
does caution need to be repeated after breaks?
yes. if there’s any doubt, the caution should be given again in full.
must caution be given on arrest?
yes
what’s contained in the caution?
“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”
are minor deviations from caution allowed?
yes as long as the sense of the caution is preserved
what if the interpreter does not perfectly translate the caution?
it will not be invalid provided the essential features are adequately conveyed to the suspect. if the suspect does not understand, the person giving it should explain it in his or her own words
is the caution different if a suspect is interviewed after charge in circumstances where solicitor has been requested but has not been permitted
yes. it reads “you do not have to say anything, but anything you do say may be given in evidence”. the reason for the different caution is that in such circumstances inferences cannot be drawn under the CJPO 1994 ss34,36 or 37. although code C does not require a caution to be given if a statement is taken after charge, it should be given.
what does grounds to suspect mean?
there must be some reasonable, objective grounds for the suspicion, based on known facts or information
are grounds for caution an objective or subjective?
objective- does not depend on how the police regarded the matter
does failure to administer caution in circumstances where it is required a breach of code C?
yes-its a significant and substantial breach of code C but it will not necessarily result in exclusion of evidence in the interview.
will giving the wrong caution lead to exclusion?
no
kirk 1999
D was arrested for theft and was not told that V had died; believing himself to be facing only theft, he made admissions. it was held that these should have been excluded.
when must a special warning be given?
a) asked to account for object, mark or substance found on himself/clothing/footwear/his possession/place where arrest took place
b) account for his presence at the place where arrest took place
- inferences cannot be drawn if warning is not given.
- requirement to give special warning does not apply where person who has requested solicitor is interviewed without having been given the opportunity to consult solicitor, since inferences from refusal or failure to account cannot be drawn as a result of the CJPO 1994 ss36(4A) and 37(3A)
what can a significant statement do?
capable of being used in evidence, and in particular a direct admission of guilt
defn of significant silence
failure or refusal to answer a question or answer satisfactorily when under caution
what can significant silence do?
allowing for restrictions on drawing inferences from silence, could give rise to adverse inference
can police indicate what action they will take in an attempt to get an answer?
no- they can only do so in answer to a direct question from suspect
can police seek a confession by offering a caution?
no
are hypothetical questions allowed?
yes but must be approached with care
is it oppressive for police to keep questioning after repeated denials?
may be oppresive
whats not oppressive during questioning?
rude, discourteous, raised voices and some bad language
when are interviews recorded?
must normally be recorded whether or not its conducted at the police station
what about comments relevant to the offence that was made outside the context of an interview?
must be recorded and suspect must be given opportunity to verify the record
what if evidence is not recorded?
could potentially lead to exclusion of evidence but its not always so
when is an appropriate adult needed?
in an interview/provide signed written agreement involving a child, young person or a mentally disordered or vulnerable person
when does the exception of using an appropriate adult apply
a) condition for conducting an interview away from station under code c para 11.1 is satisfied
b) interview is authorised by an officer of the rank of superintendent or above under code C
can a principle act as an appropriate adult?
yes, if the school is not the victim of the alleged offence
what about people who need an interpreter
they must not be interviewed without one unless a superintendent authorises it, being satisfied that delaying the interview will lead to consequences in code C para 11.1 a-c.
can the interpreter be present through live link?
yes if the custody officer is satisfied that this would not adversely affect the suspect’s ability to communicate confidently and effectively
can the interpreter be present through live link?
yes if the custody officer is satisfied that this would not adversely affect the suspect’s ability to communicate confidently and effectively
are you allowed to interview an intoxicated person?
no- you cannot interview anyone who is unable to appreciate the significance of questions and answers or to understand what is happening because of alcohol, drugs, illness, ailment or condition unless its authorised by a superintendent (authorisation is subject to the same condition as for a person who requires an interpreter
ECHR article 5(1)(C)
permits a person to be deprived of liberty on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
is the test for reasonable grounds the same for every event?
no, stop and search follows the echr article 5.
arrest, detention without charge and bail follows a more stringent test
what does reasonable suspicion entail?
relates to the existence of facts and not to the state of the law.
when does an officer not have reasonable suspicion?
when he reasonably but mistakenly proceeds on a particular view of the law and exercises his power of arrest
what happens in the absence of a specific statutory requirement?
precise legal power under which the constable acts does not have to be identified
defn of reasonable suspicion in relation to stop and search
explained in relation to stop and search of PACE code A: requires both a genuine suspicion on the part of the officer and an objective basis for that suspicion
defn of reasonable suspicion in relation to arrest
Code G: must be some reasonable, objective grounds for the suspicion, based on known facts and information.
*facts and information should not be confined to those which. tend to indicate guilt, but should include facts and information that tend to dispel suspicion
test for reasonable suspicion
constable must actually suspect (subjective test) and a reasonable person in possession of the same facts would also suspect (objective). it must also be wednesbury reasonable.
how is reasonable suspicion determined?
determined based on what the constable knew and perceived at the time, reasonableness is to be evaluated without reference to hindsight.
*info required to form a reasonable suspicion is of a lower standard than that required to est a prima facie case.
difference of proof between establishing a prima facie case and reasonable suspicion
prima facie proof must be based on admissible evidence.
reasonable suspicion may take into account matters which are not admissible in evidence or matters which while admissible could not form part of a prima facie case
is it necessary to identify the specific suspicious event?
no, but constable must reasonably have suspected the evidence of facts amounting to an offence of a kind in mind.
the use of force
where any provision of the act confers a power on a constable and does not provide that the power may be exercised only with the consent of a person other than a police officer, the officer may use reasonable force, if necessary in the exercise of the power
does visual identification or taking of intimate sample require consent?
yes
does visual identification or taking of intimate sample require consent?
yes
CLA 1967 s3
empowers any person to use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of an offender or suspected offender or of persons unlawfully at large
how is reasonableness in force determined?
court may take into account all the circumstances including the nature and degree of the force used, the gravity of the offence for which arrest is to be made, the harm that would flow from the use of force against the suspect, and the possibility of affecting the arrest or preventing the harm by other means.
is it unreasonable if the forced used results in serious injury?
not necessarily unreasonable
will use of excessive force render the arrest unlawful?
no
when should handcuffs be used?
should only be used where they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace by the prisoner
what if handcuffs are unjustifiably used?
its use will constitute a trespass even though the arrest itself is lawful
legal characteristics of arrest
where a situation amounts to a deprivation of liberty as opposed to a restriction of movement is a matter of degree and intensity and is highly fact sensitive.
Things to consider: individual’s specific situation, the context in which the restriction occurs and the purpose of the confinement or restriction
when is an arrest unlawful?
where the officer knows at the time of arrest that there is no possibility of a charge being made. (even if if made on the basis of reasonable suspicion)
burden of proof for lawful arrest rests on?
police
burden of proof for excessive force?
complainent
when is an arrest unlawful?
if the person is not informed of being under arrest as soon as is practicable after the arrest
