Preliminaries to prosecution

Question 1

What is the status of the rules of conduct on police powers in criminal courts?

(a) 
The codes are admissible in evidence in criminal or civil proceedings
(b) 
The codes are admissible in evidence in criminal proceedings only

(c) 
The codes are admissible in evidence in civil proceedings only

(d) 
The codes are inadmissible in evidence in criminal or civil proceedings

Answer 1

(a) 
The codes are admissible in evidence in criminal or civil proceedings

Subject to relevance, the PACE Codes of Practice are admissible in evidence in criminal or civil proceedings.


Question 2

What does a custody officer do?

(a) 
Authorises detention and release from detention at a police station
(b) 
Arrests the suspect

(c) 
Advises on charge

Answer 2

(a) 
Authorises detention and release from detention at a police station .

A custody officer must be appointed for each designated police station and must be of the rank of at least sergeant. The custody officer is also responsible for ensuring that the detainee is treated in accordance with PACE 1984 and the Codes of Practice, noting down all the required matters on the custody record.


Question 3

For how long may the police keep a suspect of an indictable offence in custody prior to charge before applying for a warrant of further detention?

(a) 
96 hours

(b) 
36 hours
(c) 
48 hours

(d) 
24 hours

(e) 
72 hours

Answer 3

(b) 
36 hours

Where the offence being investigated is indictable, the time limit can be extended up to a maximum of 36 hours after the relevant time by an officer of the rank of Superintendent or above. Thereafter the maximum period of detention without charge can be extended by the magistrates’ court up to a maximum of 96 hours after the relevant time.


Question 4

What is the procedure when a detainee is taken to the police station?

Answer 4

1. Detainee will see custody officer who must authorise continued detention
2. Detainee will be informed of their rights
3. Detainee will have certain non-intimate samples taken
4. Detainee may see appropriate healthcare professional if necessary
5. If detainee requests, they will speak to solicitor
6. Detainee may be interviewed, often with their solicitor present
7. After interview, detainee may be:
   - Released under investigation or on police bail;
   - Charged and released on police bail to appear at magistrates’ court at later date; or
   - Charged and remanded in police custody to appear at magistrates on following day

Question 5

What will the custody officer do if there are grounds to detain?

Answer 5

Custody officer will:
1. Authorise detention of suspect
2. Open custody record
3. Inform detainee of reason for arrest
4. Inform detainee of reason for detention and
5. Advise detainee of rights

Question 6

What is the rank of a custody officer?

Answer 6

Must be at least rank of sergeant and must be unrelated to the process of the investigation of the offence

Question 7

What information is contained in a custody record and when must one be created?

Answer 7

Custody record must be opened for each detainee as soon as practicable.

Basic info includes:
1. Requirement to inform person for reason of arrest
2. Circumstances of arrest
3. Why arrest was necessary and
4. Any comments made by arrested person

Question 8

What is the rank of a review officer and how often should he custody record be reviewed?

Answer 8

Review officer must be at least the rank of inspector who isn’t connected to investigation and is not custody officer.

First review will take place not more than 6 hours after suspect’s detention was first authorised and periodically every 9 hours thereafter.

Question 9

What are the time limits for detention?

Answer 9

General rule: maximum is 24 hours at the end of which detainee must be released or charged.

Option to extend with authorisation by officer of at least rank of superintendent by 12 hours (total 36) if they have reasonable grounds, given it is an indictable offence, and must be carried out diligently and expeditiously. Must be applied for before initial 24 hours have expired.

Option to extend by applying to magistrates for further 36 hours on first application and 36 on second application so maximum 96 hours. Same factors as above but magistrates need to be satisfied they have reasonable grounds etc.

Question 10

True or false: extension of detention is available for any type of offence.

Answer 10

False - extension is only available for indictable only offences

Question 11

What rights will a detainee be told of by the custody officer?

(a) 
The right to consult privately with a solicitor, the right to free independent legal advice and the right to have someone informed of their arrest

(b) 
The right to consult privately with a solicitor, the right to free independent legal advice and the right to a telephone call

(c) 
The right to consult privately with a solicitor and the right to free independent legal advice

Answer 11

(a) 
The right to consult privately with a solicitor, the right to free independent legal advice and the right to have someone informed of their arrest


Question 12

with the interview in order to minimise physical harm to others, what rank of police officer must authorise this?

(a) 
Constable

(b) 
Inspector

(c) 
Chief Inspector

(d) Superintendent

Answer 12

(d) Superintendent

Where the custody officer has determined that a suspect requires an interpreter, that suspect must not be interviewed without an interpreter unless authorisation is given by an officer of the rank of superintendent or above who is satisfied that delaying the interview will lead to:
* interference with, or harm to, evidence; or
* interference with or physical harm to other people; or
serious loss of, or damage to, property.

Question 13

Which of the following can act as an appropriate adult to someone under the age of 18?

(a) 
Social worker
(b) 
Police Officer

(c) 
Estranged parent

(d) Solicitor

Answer 13

(a) 
Social worker

In the case of a young person looked after under the Children Act 1989 a social worker could act as an appropriate adult. Alternatively, a parent or guardian could act as an appropriate adult.


Question 14

Just prior to his interview, Rory is shouting that he is Napoleon and hurling himself against the wall of his cell. Which answer below correctly describes police duties here?

(a) 
Police should investigate any mental health concerns, if time permits

(b) 
They must ensure his safety and that of their officers but nothing else

(c) 
Police should ensure access to a doctor but nothing else

(d) 
If police suspect Rory may be mentally disordered he must have an appropriate adult present at the police station

Answer 14

(d) 
If police suspect Rory may be mentally disordered he must have an appropriate adult present at the police station

This is the initial action to be taken in respect of those that are mentally disordered or have other forms of vulnerability, informing the appropriate adult and asking them to come to the police station.

Question 15

What are the criteria for the police to delay the right to free independent legal advice under s. 58 PACE?

Answer 15

• Can only be delayed up to maximum of 36 hours
• Where grounds are authorised they must be recorded and suspect must be informed
• If suspect is interviewed before he has been able to consult with solicitor bc right has been delayed, then there are restrictions on drawing of adverse inferences at court

1. Person must be in detention for indictable offence and
2. Authority to delay exercise of right is granted in writing by police officer of at least rank of superintendent and
3. Superintendent has reasonable grounds to believe that exercise of right will lead to any or all of following consequences:
   Interference with/harm to evidence connected with indictable offence
   (i) Interference with/harm to others
   (ii) Alerting of other people suspected of committing indictable offence but not yet arrested for it and/or
   (iii) Hinder recovery of property obtained in consequence off commission of such offence “

Question 16

When can the police delay the right to inform about arrest under s. 56 PACE ?

Answer 16

• Right may also be delayed if person has been detained for indictable offence and has benefited from criminal conduct
• Easier to justify delay under s. 56 than s. 58
• Any delay or denial of rights in this section should be proportionate and should last no longer than necessary
  In any event, it can only be delayed up to maximum of 36 hours
• As soon as search has been conducted or other suspects arrested, appointed person should be notified

Question 17

Who can act as an appropriate adult for a child?

Answer 17

Appropriate adult is defined as:
1. Parent or
2. Guardian or
3. In case of young person looked after under CA 1989:
- Representative of care authority or voluntary organisation or
- Social worker

Failing these, any person aged 18 or over who is not police officer or police employee suffices

Question 18

Who can act as an appropriate adult for a mentally disordered or otherwise mentally vulnerable detainee?

Answer 18

Appropriate adult can be:
1. Parent or
2. Guardian or
3. Relative or
4. Someone who has experience in dealing with such persons

Appropriate adult must be 18 or over and must not be police officer or police employee

Question 19

Who cannot act as an appropriate adult?

Answer 19

Person cannot act as appropriate adult if they are:
1. Suspected of involvement in offence
2. Victim of, or witness to, offence
3. Involved in investigation
4. Person who has received admissions from person detained before acting as appropriate adult
5. Of low IQ and unable to appreciate gravity of situation or
6. An estranged parent whom arrested juvenile does not wish to attend and specifically objects to

Question 20

A woman is arrested by a police constable on the street outside her house for the offence of burglary. The officer arrests her, cautions her and then asks the woman where she was last night. The woman answers.
Which of the following best explains whether this an interview?

(a) 
The police constable’s question amounts to an interview which should have taken place at the police station.
(b) 
The police constable’s question amounts to an interview but it did not need to take place at the police station as she was cautioned.

(c) 
The police constable’s question does not amount to an interview because it’s just one question.

(d) 
The police constable’s question does not amount to an interview as she is not being interviewed formally and her comments are not being audio recorded.

Answer 20

(a) 
The police constable’s question amounts to an interview which should have taken place at the police station.

This falls within the definition of an interview under the Police and Criminal Evidence Act (PACE) 1984 Code of Practice C 11.1A – she is being questioned regarding her suspected involvement in an offence. Interviews should take place at a police station unless an exception applies e.g. where delay would hinder the recovery of property. None of the exceptions seem to apply in this instance. The defence can apply under s 78 PACE 1984 to have her answers ruled inadmissible.

Question 21

A man is arrested for fraud. At the police station he speaks to his solicitor and informs her that he believes the police are in possession of some accounting paperwork that they took from his office when he was arrested. The solicitor speaks to the investigating officer who provides a short background to the case but will not confirm whether the police have the accounting paperwork or what was found in any such paperwork. The man tells the solicitor that he is concerned about an ambush in the interview and asks the solicitor if the police are acting unlawfully regarding disclosure.
Have the police have properly complied with their disclosure obligations?

(a) 
Yes because the police do not have to provide information on the accounting paperwork, as long as they give the solicitor sufficient information to understand the nature of the offence and why the man is suspected.
(b) 
No because the police are obliged to provide the solicitor with any relevant disclosure that the solicitor reasonably requests.

(c) 
No because the police have the discretion to disclose what they decide best assists their line of questioning in interview without reference to the solicitor or the man.

(d) 
No because the police are unlawfully withholding evidence.


Answer 21

(a) 
Yes because the police do not have to provide information on the accounting paperwork, as long as they give the solicitor sufficient information to understand the nature of the offence and why the man is suspected.

This reflects the Police and Criminal Evidence Act (PACE) 1984 Code of Practice C 11.1A. There is no strict requirement to disclose particular items.


Question 22

A man is arrested in connection with an assault occasioning actually bodily harm (‘ABH’). At the police station he decides he does not need a solicitor as he has been interviewed by the police on many previous occasions. Prior to the interview he is told by the officer in the case that if he confesses then they will be able to start the interview quicker and get him out on bail, otherwise he will have to hang around in the cell all day. On this basis the man decides to make a full confession. He is charged with ABH and instructs a solicitor to represent him at court.
Which of these statements best summarises the solicitor’s options regarding the man’s confession?

(a) The solicitor can make an application to exclude the confession for unreliability and because of the adverse effect it would have on the fairness of proceedings.
(b) 
The solicitor can make an application to exclude the confession for oppression.

(c) The solicitor can make an application to exclude the confession because of the adverse effect it would have on the fairness of proceedings.

(d) 
The solicitor can make an application to exclude the confession for unreliability.

Answer 22

(a) The solicitor can make an application to exclude the confession for unreliability and because of the adverse effect it would have on the fairness of proceedings.

It seems that the confession was obtained as the result of something said or done which renders the confession unreliable (section 76(2) Police and Criminal Evidence Act 1984). However, the defence would have to show a causal link between the officer in the case’s comments and the confession. The defence can also make an application on the basis that admitting the confession would have an adverse effect on the fairness of the proceedings (section 78).


Question 23

How are police officers ranked from least important to most important?

Answer 23

1. Constable
2. Sergeant
3. Inspector
4. Chief Inspector
5. Superintendent
6. Chief Superintendent

Question 24

True or false - there is a general right to disclosure towards solicitors before an interview.

Answer 24

False - there is no such general right to disclosure unless
- Significant statement and
- Custody record

However PACE states that: ‘… solicitor must be given sufficient information to enable them to understand the nature of any such offence and why they the client] are suspected of committing it.’

Question 25

True or false: there is a general tule that all interviews should be contemporaneously recorded.

Answer 25

True. General rule: all interviews must be contemporaneously recorded

Interviews under caution for any indictable offence must be audio recorded

Exception to general rule - interview can be recorded in writing where:
- It relates to some minor offences
- Person has not been arrested and
- It takes place other than at police station

Question 26

What does a properly conducted interview look like?

Answer 26

• Takes place in interview room in designated police station
• Is recorded
• Is in presence of lawyer, if suspect has exercised their right under s. 58
• Gives client option to suspend interview and have further consultations with solicitor

Question 27

True or false: all confessions are admissible.

Answer 27

False - the starting point is that all confessions are admissible but:
- s. 76(2) PACE: sets out circumstances in which confession can be excluded from evidence as result of oppression or unreliability - causation requirement
- s. 78 PACE: gives court discretion to exclude evidence that would have such an adverse effect on fairness of proceedings that court ought not to admit it

Question 28

Which of these best describes the role of a solicitor or accredited representative at the police station?

(a) 
To ensure that justice is done.

(b) To advise the suspect properly and in accordance with the law.

(c) 
To ensure that no court of law is misled.

(d) 
To protect and advance the legal rights of their clients.
(e) 
To assist in the smooth running of the criminal justice system.

Answer 28

(d) 
To protect and advance the legal rights of their clients.

This reflects the role of the solicitor as set out in the Police and Criminal Evidence Act 1984 Code of Practice C Notes for Guidance paragraph 6D.


Question 29

Which of these represent a passive rather than active defence approach?

(a) 
Making representations to the custody officer regarding release on bail

(b) 
Raising breaches of PACE with the custody officer

(c) 
Challenging the investigating officer over lack of disclosure

(d) 
Sit by and take notes
(e) 
Intervening during the interview where questioning is inappropriate

Answer 29

(d) 
Sit by and take notes

While comprehensive notetaking is an important aspect of police station practice, active defence requires more than this.

Question 30

In which of these circumstances might a vulnerable suspect at the police station be interviewed without an appropriate adult?

(a) 
A superintendent determines that an urgent interview is required.

(b) 
A superintendent determines that an urgent interview is required to ensure that the suspect is not left waiting too long, which might be a detriment to their health.

(c) 
A superintendent determines an urgent interview is required because delay would lead to interference with evidence.
(d) 
An inspector determines an urgent interview is required because delay would lead to interference with evidence.

Answer 30

(c) 
A superintendent determines an urgent interview is required because delay would lead to interference with evidence.

The superintendent must also be satisfied that it would not significantly harm the person’s physical or mental state.
The other options were incorrect because:
· The rank for authorisation is superintendent or above.
· It must be the case that in the reasonable opinion of the superintendent delay would lead to one of the specified outcomes in PACE Code of Practice C.
· Ensuring that the suspect is not left waiting too long, which might be a detriment to their health is not a valid reason for an urgent interview with a vulnerable person without an appropriate adult.


Question 31

What does having an active role as a solicitor include?

Answer 31

• Obtaining as much info from police as is possible
• Advising client fully and in accordance with your professional obligations
• Advising on issues which arise during police investigation, eg whether to provide samples, extensions of periods of detention, searches of premises and bail
• Attending and advising interview

Question 32

Which of these statements best reflects the approach you should adopt when taking your client’s instructions prior to interview?

(a) 
You should explain the allegations against your client and allow them to provide you with a full account of their version of events. If they admit the offence then you should advise them to answer questions.

(b) 
You should explain the allegations against your client, but you should not take any detailed instructions at this stage. Full instructions should be taken after the interview.

(c) 
You should allow your client to give a full account of their version of events before comparing that version of with the disclosure that has been supplied by the police.

(d) 
You should explain the allegations against your client then allow them to provide you with a full account of their version of events.
(e) 
You should explain the allegations against your client then on that basis of those allegations set out how you think the client should approach the interview.

Answer 32

(d) 
You should explain the allegations against your client then allow them to provide you with a full account of their version of events.

Your clients full account (including whether they accept any involvement) is vitally important when it comes to advising which option to take in interview.
The other options were incorrect because:
· You must take detailed instructions from your client in advance of the interview in order that you can properly advise and protect their interests.
· You must give your client the opportunity to give you their account before you can advise on which option to follow at interview. For example, your client might have a defence that you are not aware of.
· You are not testing the strength of your client’s version (this will be done in interview and possibly later in court). You need to provide them with all the information that you have available in order that they can respond to the allegations.
· While inferences might be drawn, your client is under no obligation to answer questions just because they have admitted an offence to their solicitor. In fact, it may be in the client’s best interests to go ‘no comment’ if the police have insufficient evidence to prove the offence.


Question 33

Which of these is not a relevant factor when advising a client on their options for interview?

(a) 
Disclosure

(b) 
Previous convictions
(c) 
Strength of the evidence

(d) 
Client’s account

(e) 
Physical state of the client

Answer 33

(b) 
Previous convictions

This might be a factor in relation to bail and sentencing but it is not a factor when advising a client on their options for interview.
The other answers were all relevant factors when advising a client on their options for interview:
· The client’s account- For example, does the suspect admit the offence, which might lead to a ‘no comment’ interview?
· Strength of the evidence- For example, if the evidence is weak then answering questions might cause your client to incriminate themselves.
· Physical state of the client- The court might not draw and adverse inference where a defendant was advised not to answer questions because of their physical state.
· Disclosure- Where a court considers that insufficient disclosure was provided prior to interview then it may decide not to draw an adverse inference.


Question 34

Which of these statements about mixed interviews is correct?

(a) 
Mixed interviews are not lawful, and a suspect must select an option for interview.

(b) 
The court cannot draw adverse inferences where there were ‘no comment’ responses.

(c) 
Mixed interviews are not admissible in court as they contain ‘no comment’ responses.

(d) 
A transcript of the interview will be read in court which will include both answers to questions and ‘no comment’ responses.

(e) 
Mixed interviews give the suspect the ability to control the interview and not incriminate themselves.

Answer 34

(d) 
A transcript of the interview will be read in court which will include both answers to questions and ‘no comment’ responses.


Unlike a ‘no comment’ interview, a transcript of a mixed interview is included as evidence. The impact of such a mixed response on the tribunals of fact (the jury or magistrates) is easy to imagine.
The other options were incorrect:
· While not very helpful to a suspect, they are still entitled to reply to some questions and not others.
· If the suspect wishes to remain in control then a ‘no comment’ interview or pre-prepared statement makes far more sense.
· As with interviews where questions are answered the mixed interview transcript would be read in court.
· The court can still draw adverse inferences for those issues where a response was not given.

Question 35

What are a client’s three options in an interview?

Answer 35

1. Answer questions
2. Don’t answer questions (‘go no comment’)
3. Provide written statement and ‘go no comment’

Question 36

What is an adverse inference?

Answer 36

Common sense conclusion that it is adverse to interests of party in proceedings - if man with gun in his hand is found standing next to body with gunshot wounds it can be inferred that he has just shot person on ground

Question 37

What factors should a client consider when deciding whether or not to answer questions in an interview?

Answer 37

1. Amount of disclosure
2. Admissibility and strength of evidence - that you are aware of or that might become available in future
3. Your client’s account/instructions
4. State of your client
5. Significant statements
6. Possible adverse effects

Question 38

Which of the following is necessary in order for the court to draw an adverse inference under section 34 Criminal Justice and Public Order Act 1994 that the defendant relies on a fact that they did not offer at the time of questioning?

(a) The suspect must be cautioned
(b) 
The defendant must plead guilty

(c) 
A special warning must have been given

Answer 38

(a) The suspect must be cautioned

The caution explains the possibility of an adverse inference being drawn.
The other options were incorrect because:
· There must be a trial otherwise any adverse inferences are irrelevant. If the case does not proceed to trial, or the defendant pleads guilty there will be no adverse inference.
· An ordinary language ‘special warning’ is only required for inferences under s 36 ors 37.


Question 39

Which of the following correctly summarises the effect of an adverse inference?

(a) 
No adverse inference can be drawn as every suspect has a right to silence

(b) 
Any suspect can be convicted solely on the basis of an adverse inference

(c) 
No adverse inference can be drawn where the suspect has followed legal advice

(d) 
No suspect can be convicted solely on the basis of an adverse inference

Answer 39

(d) 
No suspect can be convicted solely on the basis of an adverse inference

This is the safeguard within section 38 Criminal Justice and Public Order Act 1994.
The other options are incorrect because:
· No adverse inference can be drawn where the suspect has not been allowed access to legal advice. However, an adverse inference can be drawn even where the suspect has followed legal advice to give a no comment interview.
· The basic principle is that every suspect has a right to silence. However, if a suspect exercises their right to silence at interview then, provided certain statutory conditions are met, a court is allowed to draw inferences at a later trial.

Question 40

A suspect is arrested in connection with an assault in a pub. He is arrested at the pub immediately after the alleged attack and is taken straight to the police station. In interview the suspect does not answer questions.
Which of the below statements is an example of why a section 36 adverse inference might later be drawn at trial?

(a) 
He has exercised his right to silence

(b) 
He does not raise the fact that he was defending himself when he committed the attack

(c) 
He does not explain why he shouted “I’m glad I hit him” on arrest

(d) 
He does not explain why he was in the pub at that time

(e) 
He does not account for the blood stain on his clothing

Answer 40

(e) 
He does not account for the blood stain on his clothing

He has failed to account for an object, substance or mark (in this case a mark) found on him at the time of arrest.
The other options were incorrect because:
· An inference might be drawn under section 37 because he failed to account for his presence in the pub on his arrest.
· If he fails to explain why he shouted “I’m glad I hit him” on arrest or raise self-defence in interview then later does at trial then the court might be entitled to draw adverse inferences under section 34.
· He is entitled to exercise his right to silence, but this does not necessarily cause an inference to be drawn under section 36.

Question 41

What is a significant statement?

Answer 41

COP C para 11.4A: significant statement is one capable of being used in evidence against suspect

At beginning of interview, interviewing officer will put to suspect any significant statement or silence which occurred in presence and hearing of police officer

Question 42

Is an inference allowed under s. 34 CJPOA?

Answer 42

Allows for inference to be drawn by jury/magistrates in circumstances when D later relies on fact in their defence that was not offered at time of questioning

Court does not have to draw inference but if it does it must be proper - can range from:
Acceptance that defence as presented in court is true but then D chose not to reveal in interview; to Inference that D’s account in court is untrue and they are in fact guilty

Requirements
1. Suspect must have been cautioned
2. Thing not mentioned must have been reasonable to have mentioned fact at time, bearing in mind all circumstances existing at time

Question 43

When the jury or magistrates are drawing an adverse inference, what are they basically saying?

Answer 43

Ultimate effect is that it undermines defence

When jury/magistrates draw adverse inference they are effectively saying that:
1. Explanation given at trial has been fabricated since time of interview or
2. D withheld account at interviews as they knew that it would not stand up to police questioning (ambush defence) or
3. At time of interview D had no reasonable explanation which would refute prosecution case

Question 44

Can an inference be drawn under s. 36 CJPOA?

Answer 44

When suspect fails to account for object, substance or mark found on them at time of arrest - might also failure to account for bruising or hammer in suspect’s rucksack

Requirements: special warning

Ability to draw inferences under these sections arise as soon as there is failure by D to account for their possession of object in question or presence - not a requirement that there is failure to mention smth later relied upon

Question 45

Can an inference be drawn under s. 37 CJPOA?

Answer 45

When suspect fails to account for presence on arrest at particular place at or about time offence was allegedly committed - might include failing to explain why they were found on burglary victim’s driveway

Requirements: special warning

Ability to draw inferences under these sections arise as soon as there is failure by D to account for their possession of object in question or presence - not a requirement that there is failure to mention smth later relied upon

Question 46

What are the requirements for a special warning?

Answer 46

• What offence is being investigated
• What fact they are being asked to account for
• This fact may be due to them taking part in commission of offence
• Court may draw proper inference if they fail or refuse to account for this fact and
• Record is being made of interview and it may be given in evidence if they are brought to trial

Question 47

Can an inference be drawn where there is no trial?

Answer 47

No - Adverse inference under any section will only be relevant if D has trial - if case never gets to trial or client pleads guilty then adverse inferences are irrelevant

Question 48

There are many methods by which a person can be identified.
Which of the following is a form of visual identification evidence?

(a) 
Handwriting

(b) 
Fingerprints

(c) 
DNA

(d) 
Voice identification

(e) Witness recognises and names the suspect

Answer 48

(e) Witness recognises and names the suspect

This is a form of visual identification, just like CCTV footage. The other options were other forms of identification evidence. However, people can also be incriminated by other types of evidence such as clothing description, description of the person, the description of the car the person was driving.

Question 49

When the suspect disputes being the person the eye-witness claims to have seen and the witness expresses an ability to identify the suspect or there is a reasonable chance of the eye-witness being able to identify the suspect the police must attempt an identification procedure.
Which of the following is the procedure which should be attempted first?

(a) 
Confrontation

(b) 
Identification parade

(c) 
Video identification
(d) 
Group identification

Answer 49

(c) 
Video identification

If an identification procedure is to be held, the suspect shall initially be invited to take part in a video identification unless: (a) a video identification is not practicable; or (b) an identification parade is both practicable and more suitable than a video identification.


Question 50

In usual circumstances, who has responsibility for arranging the identification procedure?

(a) 
The custody officer

(b) 
An officer with no connection to the case of at least the rank of sergeant

(c) 
The officer in the case

(d) 
An officer with no connection to the case of at least the rank of inspector

Answer 50

(d) 
An officer with no connection to the case of at least the rank of inspector

The arrangements for, and conduct of, the eye-witness identification procedures shall be the responsibility of an officer not below inspector rank who is not involved with the investigation (‘the identification officer’).

Question 51

What doesn’t constitute visual identification evidence?

Answer 51

• Mere description of clothing eg ‘I couldn’t see his face but he was wearing a purple jumper’
• Suspect has connection to particular place or others at scene eg ‘I thought it was Maria bc I know she is always at café on Saturday morning’
• Description of suspect eg ‘He was 5’7 with dark hair and blue eyes’

Question 52

Where will an identification process be held?

Answer 52

1. Offence has been witnessed and eyewitness:
   (a) Has identified suspect or purported to have identified them or
   (b) Is available who expresses ability to identify suspect or
   (c) Has reasonable chance of being able to identify suspect
2. Suspect has disputed being person eye-witness claims to have seen

Question 53

What are the three types of identification processes?

Answer 53

1. Video identification = eye-witness is shown moving images of known suspect, together with similar images of others who resemble suspect
2. Identification parade = eye-witness sees suspect in line of others who resemble suspect
3. Group identification = eye-witness sees suspect in informal group of people

Question 54

What are the formalities for a video identification procedure to be carried out?

Answer 54

• Record shall be made of description of suspect as first given by eye-witness
• Copy of record shall be given to suspect or their solicitor before any identification procedures are carried out
• Notice must be given to suspect and following must be explained:
  (a) Purpose of procedure
  (b) Entitlement to free legal advice
  (c) Procedures for holding it, including their right to have solicitor or friend present
  (d) That they do not have to consent to or cooperate in procedure
  (e) That if they do not consent and cooperate their refusal may be given as evidence is any subsequent trial and police may proceed covertly without their consent or make other arrangements
• Suspect shall be invited to participate in video identification procedure first

Question 55

Can a group identification procedure be undertaken without the suspect’s consent?

Answer 55

Group ids may take place either:
- With suspect’s consent and cooperation or
- Covertly without their consent

Question 56

What are the consequences of breach of Code D with requirements for an identification procedure?

Answer 56

• If there has been breach, remedy for D is to apply to exclude evidence obtained in breach of code under s. 78 PACE
• Breach of code does not automatically lead to exclusion of evidence
• Key issue: whether there has been significant prejudice to accused - if judge has determined that there is prejudice, they must then decide if admission of evidence would have such adverse effect on fairness of proceedings that court ought not to admit it
  Id will usually be excluded when important safeguards have been flouted, eg right to formal id procedure
• D has right to have correctness of visual identification tested under formal conditions
• Where id evidence is admitted into evidence despite breach of Code D:
  (a) Defence advocates are still permitted to comment on breach in closing speech
  (b) Trial judge ought to draw jury’s attention to breach and invite them to consider reasons why code has been drawn in way it has
  (c) Jury should assess whether estimation breaches were such as to cause them to have doubts about safety procedure

Question 57

Who generally provides advice on charge?

(a) 
Charging Officer

(b) 
Investigating Officer

(c) 
Custody Officer

(d) Crown Prosecution Service

Answer 57

(d) Crown Prosecution Service

The Crown Prosecution Service provide advice on charge in all but the most minor cases.

Question 58

What is the time limit for charging or laying an information for a summary only offence?

(a) 
6 months
(b) 
24 months

(c) 
1 month

(d) 
3 months

(e) 
12 months

Answer 58

(a) 
6 months

Six months from the date of alleged commission of the offence.


Question 59

Which method of commencing criminal proceedings would a person use to bring a private prosecution?

(a) 
Laying an information
(b) 
Written charge and requisition

(c) 
Arrest and charge

Answer 59

(a) 
Laying an information

Information alleging an offence is served on a magistrates’ court.
The court will then issue a summons or an arrest warrant requiring the accused to attend. Private prosecutions may only be commenced by summons as they are not brought by ‘relevant prosecutors’ for the purposes of the written charge and requisition procedure under s.29 CJA 2003.


Question 60

What are the three different ways to commence criminal proceedings?

Answer 60

1. Arrest and charge
2. Written charge and requisition and
3. Laying an information

Question 61

What must a written charge or information contain?

Answer 61

1. Statement of offence which describes offence in ordinary language
2. Reference to statutory provision that creates offence (if statutory offence) and
3. Sufficient particulars of conduct complained of for accused to know what is alleged

Question 62

What must a summons or requisition contain?

Answer 62

1.Contain notice setting out when and where accused is required to attend court and
2. Specify each offence in respect of which it has been issued

Summons: must contain issuing court

Requisition: Must identify person under who’s authority it was issued

Question 63

True or false: there is a statute of limitations of 6 months on indictable offences to commence proceedings.

Answer 63

False - No time limit for charging accused with any indictable offence

Question 64

What tests must a defendant pass to obtain representation order?

Answer 64

1. Means test AND
2. Merits test

Question 65

Which defendants are passported through the means test?

Answer 65

Some Ds are passported = automatically pass means test and do not have to complete financial statement for LA in Criminal Proceedings form (CRM 15):
- Ds under 18 years of age; and/or
- Those on specified welfare benefits such as Universal Credit and income-based jobseeker’s allowance

Question 66

What does the means test look like in the magistrates court?

Answer 66

Initial assessment works out weighted gross annual income (applicant’s gross annul income is generally added to any partner’s unless they are complainant) - weighting applied to take into account number of people living in household

Once figure is calculated applicant will :
- Be eligible for public funding if below lower threshold ie at present if weighted gross annual income is £12,475 or less
- Be ineligible for public funding if above upper threshold ie at present present, if the weighted gross annual income is £22,325 or more
- Be required to take full means test if in-between lower and upper thresholds as above, full means test will establish applicant’s annual household disposable income - if it is below threshold applicant will be funded ie at present £3,398 or less

Applicant can apply for eligibility review if they have failed means test or hardship review if eg they have unusually high outgoings or defence costs

Question 67

What does the means test look like in the Crown Court?

Answer 67

Applicant assessed on their income and capital, including any equity in properties owned by applicant

After combined capital and equity allowance of £30.000, applicants can be required to contribute any balance towards defence costs

If contribution towards defence costs are required, it can come from income (payable throughout case) and/or capital (payable at end)
Applicant will be:
- Ineligible for public funding if above eligibility threshold ie £37,500 or more at present
- Eligible for public funding without contribution if below threshold i.e. £3,398 or less at present
- Eligible for public funding with contribution if in between thresholds between £3,399 and £37,499.99 at present - income based-contribution is 90% of disposable income for maximum of 6 months in instalments and subject to maximum based on type of offence (refunded with interests if D acquitted)

Applicant can apply for eligibility review if they have failed means test or hardship review if subject to contribution order eg if applicant suspects error or circumstances have changed

Question 68

What is the merits test?

Answer 68

D must complete form (CRM14 - Application for Legal Aid in Criminal proceedings) to demonstrate that it is in interests of justice for them to be legally represented

D will automatically pass if:
- Charged with indictable-only offence; or
- Either-way offence is later sent to CC

Test requires D to provide info in support of all or some of 10 propositions in application form - purpose of them is to evaluate whether matter is so serious or complicated that D could not conduct their own evidence

Question 69

What are the ten propositions?

Answer 69

1. I will lose my liberty - reference must be made to aggravating and mitigating factors in sentencing guidelines
2. I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence
3. It is likely I will lose my livelihood (If D pleads guilty and requires representation to convey mitigation that will avoid penalty interfering with employment, this needs to be argued here)
4. It is likely I will suffer serious damage to my reputation (Conviction to person who is ‘of good character’ is going to affect reputation for future/current job prospects or conviction for sexual offence damaging to those who may have convictions but of different type)
5. Substantial question of law may be involved (identify issue of law rather than fact - eg ‘identification’ or ‘elements of offence’ likely to be refused)
6. I may not be able to understand court proceedings or present my own case (What language does D normally speak? Why is interpreter not sufficient? Are there legal phrases or technical areas of law that D would still not understand if interpreter provided? Is D a youth?)
7. Witnesses may need to be traced or interviewed on my behalf (If witnesses are known, why is solicitor rather than D speaking to them? Why does witness need to be traced? Is it member of public?)
8. Proceedings may involve expert cross examination of prosecution witness (Could D satisfactorily conduct trial without solicitor but with assistance of court officer? Are there any issues in case that make it difficult for D to cross examine witness?)
9. It is in interests of another person that I am represented (Consider whether complainant/vic would feel uncomfortable if cross examined by D personally (eg if allegation is of sexual nature))
10. Any other reasons (Include any info that you feel makes it necessary for D to receive representation which you have not included earlier - eg:
    I am pleading not guilty and matter will proceed to trial)

Question 70

What happens if D fails means or merits test?

Answer 70

If D:
- Fails means: there is no right of appeal but they can submit some other form if circumstances have changed
- Fails merits in magistrates: can submit another application and if unsuccessful can appeal to magistrates

If D fails either or both tests they may consult with duty solicitor, provided they are charged with imprisonable offence - however duty solicitor can only represent them on one occasion, usually first hearing at court

Question 71

You represent a man suspected of the offence of battery and is charged with common assault. He is currently out of work and so receives welfare benefits.
Which of the following best explains whether you client is eligible for public funding?

(a) 
He will have to pass both the means test and the merits test in order to be granted public funding.

(b) 
He will receive public funding because the offence of battery is an imprisonable offence.

(c) 
He will automatically qualify for public funding because he is in receipt of welfare benefits.

(d) 
He will pass the means test if he can show that his income and capital are below a certain limit.

(e) 
He will automatically pass the means test because he is in receipt of welfare benefits but he must also pass the merits test to be eligible.

Answer 71

(e) 
He will automatically pass the means test because he is in receipt of welfare benefits but he must also pass the merits test to be eligible.

He is passported through the means test because of his receipt of welfare benefits, but he will still have to show that it is in the interests of justice for him to receive public funding for his defence.

Question 72

Your client has been charged with burglary. She is in receipt of benefits and therefore is passported through the means test. You are assisting your client in completing the CRM 14 form.
She informs you that she has numerous convictions for burglary, including one last year when she was given a suspended sentence. She denies the offence and says she has an alibi. However, your client is worried about what the arresting officer will say. The arresting officer said she had admitted the offence on arrest, when she did not say anything. She’s also worried about her daughter who is only 12 and will be left on her own if she is sent to prison.
Which of these is not a matter to include in the CRM 14 form?

(a) 
It is in the interests of her daughter that she is represented
(b) 
An alibi witness will need to be traced and interviewed

(c) 
She is likely to lose her liberty

(d) 
The proceedings will involve the cross examination of a police officer

(e) 
She has been given a sentence that is suspended which will be activated if she is convicted of the current offence


Answer 72

(a) 
It is in the interests of her daughter that she is represented

For the purposes of the merits/ interests of justice test, the interests of another person does not include family members impacted by a sentence.
The other answers while plausible are not correct. All could be included in the relevant sections of the CRM 14 form.


Question 73

Your client is a university professor who lives alone and earns £90,000. He is suspected of the offence of battery on a student and is charged with common assault. He is due to appear before the magistrates’ court He has no previous offences and intends to plead not guilty.
Is your client likely to obtain a representation order that grants public funding for his defence?

(a) 
He will obtain a representation order because it is likely that he will suffer serious damage to his reputation

(b) 
He will not obtain a representation order as will fail the means test
(c) 
He will not obtain a representation order because it is not in the interests of justice that he be represented

(d) 
He will obtain a representation order because it is likely he will lose his livelihood

(e) He will not obtain a representation order because he is not in receipt of benefits

Answer 73

(b) 
He will not obtain a representation order as will fail the means test

In light of the university professor’s salary and the size of his household (he lives alone) he will be ineligible for public funding because his weighted gross annual income will be above the upper threshold i.e. £22, 325.

The other answers while plausible are incorrect:
· While he will suffer serious damage to his reputation, might lose his livelihood and therefore it might be in the interests of justice that he be represented, he will not pass the means test.
· While he is not in receipt of benefits that does not mean he will automatically fail the means test.