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(FLK2) Criminal Litigation > Preliminaries to Prosecution > Flashcards

Preliminaries to Prosecution Flashcards

1
Q

When must an Arrestee be taken to the Station?

A

As soon as practicable, except if their presence elsewhere is necessary to carry out such investigations that reason dictates should handled immediately.

This can include being searched, being taken to a premises being searched, or being taken to a place to check their alibi.

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2
Q

Which Station must the Arrestee be taken to?

A
  • Any Station, unless their detention is anticipated to last more than 6 hours; in which case,
  • They must be taken to a Designated Station.

The Arrestee may also be granted bail to attend a Station at a later date. This is called ‘Street Bail’, and conditions are often attached.

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3
Q

Once the Arrestee arrives at the Station, what is Standard Procedure?

A
  • The Detainee will see the Custody Officer who must authorise continued detention.
  • They will be informed of their rights.
  • They will have certain non-intimate samples taken.
  • They may see the appropriate healthcare professional if necessary.
  • They will speak to a solicitor upon request.
  • They will be interviewed, often with their solicitor present.
  • After the interview, they may be:
    • Released under investigation or on police bail;
    • Charged and released on police bail to appear at the Magistrates’ Court at a later date; or
    • Charged and remanded in police custody to appear at the Magistrates’ Court on the following day.
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4
Q

What is the Role of the Custody Officer?

A

They are responsible for the handling and welfare of Detainees. This includes such duties as:

  • Taking proper care of the Detainee’s property.
  • Conducting a risk assessment for each Detainee.
  • Arranging for interpreters to be present where necessary.
  • Contacting healthcare professionals where necessary.
  • Making special arrangements for Detainees who may be physically or mentally incapacitated where necessary.

They must be a police officer of the rank of at least sergeant and must be unrelated to the relevant investigation.

If the Custody Officer is unavailable, they may be substituted by another unrelated officer.

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5
Q

How will the Custody Officer decide whether to Charge the Detainee?

A
  • The Arresting Officer will deliver them an explanation of the arrest; and
  • Upon judging the available evidence, they will issue a decision.

PACE 1984 — s. 37.

If the Custody Officer becomes aware that the grounds for detaining the Detainee have ceased to exist, they must release them.

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6
Q

If there is insufficient evidence to Charge an Arrestee, on what grounds may they be Detained nonetheless?

A

The Custody Officer reasonably believes detention is necessary to:

  • Secure or preserve evidence; or
  • Obtain such evidence by questioning.
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7
Q

Once Detention is Authorised, what happens next?

A

The Detainee will be informed of:

  • The reason for their arrest;
  • The reason for their detention; and
  • Advised on their rights.

Thereafter, a Custody Record for the Detainee will be opened.

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8
Q

What are the Rights an Arrestee must be informed of?

A

The right to:

  • Consult privately with a solicitor and the availability of free independent legal advice;
  • Have someone informed of their arrest;
  • Consult the Codes of Practice (“COP”).
  • An appropriate adult if they under 18 or are mentally vulnerable;
  • An interpreter.
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9
Q

Who may undertake the role of an Appropriate Adult?

A
  • A parent;
  • A guardian;
  • A relative; or
  • Someone with relevant experience.
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10
Q

Once at the Station, when must an Arrestee be informed of their Right to Legal Advice?

A

Upon Arrival and immediately before:

  • The commencement or recommencement of an Interview;
  • Being asked to provide an intimate sample;
  • An intimate drug search;
  • An ID parade or video ID procedure.

Where legal advice is sought, it must be provided as soon as is practicable, and police must wait for an advisor to arrive before undertaking any of above.

If legal advice is declined, that must be noted on the Custody Record. Nothing should be done to dissuade the Arrestee from obtaining legal advice.

If the Arrestee initially declined legal advice but subsequently changes their mind, then the interview should cease and recommence once they have exercised their right to seek legal advice.

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11
Q

When can Police delay an Arrestee’s Right to Legal Advice?

A

When all of the following are true:

  • The Offence is Indictable.
  • The Authorising Officer is at least a Superintendent.
  • The Police reasonably believe delay will prevent any of the following:
    • Alerting of Suspects.
    • Serious loss or damage to property.
    • Interference with or harm to others.
    • Interference with or harm to relevant Evidence.
    • Escape of Property obtained through the Offence.

PACE 1984 — s. 58.

This right can only be delayed for up to 36 hours.

If the Detainee is interviewed before consulting with a solicitor because of a delay, then the Prosecution’s ability to draw adverse inferences at court are restricted.

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12
Q

When can Police delay an Arrestee’s Right to Inform Another of their Arrest?

A

When all of the following are true:

  • The Offence is Indictable.
  • The Authorising Officer is at least an Inspector.
  • The Inspector reasonably believe delay is necessary to prevent any of the following:
    • Alerting of Suspects.
    • Serious loss or damage to property.
    • Interference with or harm to others.
    • Interference with or harm to relevant Evidence.
    • Escape of Property obtained through the Offence.

PACE 1984 — s. 56.

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13
Q

When can Police delay an Arrestee’s Right to an Appropriate Adult?

A

A Superintendent reasonably believes delay is necessary to prevent any of the following:

  • Alerting of Suspects.
  • Serious loss or damage to property.
  • Interference with or harm to others.
  • Interference with or harm to relevant Evidence.
  • Escape of Property obtained through the Offence.
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14
Q

When can Police delay an Arrestee’s Right to an Interpreter?

A

A Superintendent believes delay is necessary to prevent any of the following:

  • Alerting of Suspects.
  • Serious loss or damage to property.
  • Interference with or harm to others.
  • Interference with or harm to relevant Evidence.
  • Escape of Property obtained through the Offence.
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15
Q

What is a Custody Record?

A

A record of everything that has happened to, been said to, or been said by the Detainee up to that point, including:

  • The reading of their rights;
  • The circumstances of the arrest;
  • Why the arrest was necessary; and
  • Any comments made by the Detainee.

Code of Practice, C.

It is essential that the solicitor attending the Station view this record. It does not contain why the Detainee was suspect nor what evidence the Police has against them; for that, seek the Investigating Officer.

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16
Q

When must an Arrestee’s Detention be Reviewed?

A
  • At the First Instance, within 6 Hours, namely by a Review Officer, who must be satisfied it is still necessary.
  • At all Instances thereafter, every 9 Hours.

PACE 1984 — s. 40.

The Review Officer must be an Inspector, at least, that is unconnected with the Investigation, and cannot be the Custody Officer.

At the time of the review, the Detainee must be reminded of their right to free legal advice, and be given the right to make representations, unless they are unfit to make such representations or asleep at the time of the review.

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17
Q

What is the Maximum Detention Period without an Extension?

A

24 Hours from Arrival at the Station

PACE 1984 — s. 41.

Assuming the Arrest took place in a nearby area.

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18
Q

What is the Maximum Detention Period with an Extension, but without Court Involvement?

A

36 Hours. A 12-Hour Extension will be permitted if:

  • The Offence is Indictable.
  • A Superintendent authorises it.
  • 24 Hours have not yet elapsed and 2 Reviews have taken place.
  • The investigation is being conducted diligently and expeditiously.
  • The Superintendent reasonably believes it is necessary to secure or preserve evidence or obtain evidence by questioning.

PACE 1984 — s. 42.

The grounds for the extension must be explained to the Detainee and noted in the custody record. Moreover, they and their solicitor should be allowed an opportunity to make representations first.

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19
Q

What is the Maximum Detention Period with an Extension and with Court Involvement?

A

96 Hours. The Magistrates’ Court will grant a Warrant of Further Detention if:

  • The Offence is Indictable.
  • The investigation is being conducted diligently and expeditiously.
  • The Court reasonably believes it is necessary to secure or preserve evidence or obtain evidence by questioning.

The Court can only grant 2 Warrants.

PACE 1984 — s. 43-44.

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20
Q

What are the Minimum Standards for Detention conditions?

A
  • Bedding must be supplied.
  • Cells must be adequately heated, cleaned and ventilated.
  • Toilet and washing facilities must made available.
  • Detainees should have their own cells insofar as practicable.
  • Two light meals and one main meal should be provided every 24 Hours.
  • Replacement clothing of a reasonable standard shall be provided if their attire has been removed.
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21
Q

What is the Order of Police Ranking?

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

There are also detectives in the Criminal Investigation Department (“CID”) who follow the same ranking system.

22
Q

Do the Police have a Duty of Disclosure vis-à-vis the Detainee’s Solicitor?

A

No, with the exception of:

  • The Custody Record.
  • Significant Statements.
  • Any information the Solicitor may need to sufficiently understand the Case.
23
Q

What is a Significant Statement?

A

Any statement prior to the Interview that appears to be capable of being used in evidence, and in particular any direct admission of guilt.

After Caution, the first order of business is putting any Significant Statements to the Detainee and asking for repetition, clarification, or elaboration.

24
Q

Are Interviews Recorded?

A

Generally, all Interviews are contemporaneously audio recorded, and indeed, those for indictable offences must be audio recorded.

That said, an Interview can be recorded in writing where:
* It relates to some minor offences;
* The person has not been arrested; and
* It takes place other than at a police station.

25
Q

When may a Detainee be excused from Interview?

A

If they are unable to:

  • Appreciate the significance of the questions asked and their answers; or
  • Understand what is happening because of intoxication, illness, or some debilitating condition.

A Superintendent can authorise an Interview regardless of these circumstances.

26
Q

Upon arriving at the Station, what should the Solicitor do?

A
  • Obtain the Custody Record from the Custody Officer.
  • Obtain disclosure from the Investigating Officer (“IO”) and the Officer in the Case (“OIC”); and
  • Privately consult with the Detainee on the case and their options in the Interview.
27
Q

When should a Solicitor intervene during an Interview?

A
  • A break is required.
  • There is inappropriate behaviour.
  • There is inappropriate questioning.
  • Further advice to the Detainee is needed.
  • Clarification on any matter is required at any time.
  • Information or evidence is referred to or produced that was not disclosed before the Interview.
  • The circumstances require.

A Solicitor cannot answer questions for the Client, help them answer questions, or interrupt to the extent that the Interview cannot progress.

28
Q

What constitutes Inappropriate Questioning?

A

Any technique that does not attempt to objectively gather evidence relevant to the investigation, such as:

  • Disruptive listening;
  • Repetitive questions;
  • Hypothetical questions; or
  • Intentional misrepresentation of information.
29
Q

When can a Confession be excluded from Evidence?

A
  • When it was obtained by oppression or unreliability.
  • When its inclusion would have an intolerably adverse effect on the fairness of proceedings, in the court’s discretion.
30
Q

What constitutes Oppression or Unreliability?

A
  • Oppression is torture, inhuman or degrading treatment, or the use or threat of violence.
  • Unreliability refers to the use of conduct contrary to PACE 1984 or the Codes of Conduct.

Either must have cause the confession for s. 76(2) to bite, and the existence of either does not automatically exclude such evidence, instead forcing the Court to grant the Defence’s application.

31
Q

What are the Consequences of Unauthorised Delays of Rights?

A
  • Disciplinary action against the offending officers.
  • Adverse character evidence at trial.
32
Q

What is the Definition of an Interview?

A

The questioning of a person regarding their involvement or suspected involvement in criminal activity.

COP C — 11.1A

Accordingly, facts may indicate that Interviews have taken place at several instances during an investigation, often contrary to what proper practice dictates.

33
Q

At the start of an Interview, what must the Police give the Detainee?

A
  • Caution that they need not speak; but
  • That it may harm their Defence in court if they fail to answer questions; and
  • That anything they say may be used as Evidence.

COP C —11.1A.

The specific wording is: “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.”

34
Q

When is Caution unnecessary?

A

When asking questions for the following purposes:

  • Establishing identity or vehicle ownership.
  • Obtaining information in accordance with a statutory requirement.
  • Furthering the proper and effective execution of a Search.
  • Verifying a written record of comments made by the person outside of an Interview.

COP C —10.1.

35
Q

When may an Arrestee be Interviewed before being taken to the Station?

A

If the Arresting Officer reasonably believes delay is necessary to prevent any of the following:

  • Alerting of Suspects.
  • Serious loss or damage to property.
  • Interference with or harm to others.
  • Interference with or harm to relevant Evidence.
  • Escape of Property obtained through the Offence.

COP C — 11.1.

Interviewing in any of these circumstances shall cease once the relevant risk has been averted or the necessary questions have been put in order to attempt to avert that risk.

36
Q

Generally, what is the Agenda during a Consultation?

A
  1. Explain the situation and your role.
  2. Get the Client’s account of events.
  3. Explain their options and make a recommendation.
37
Q

What are a Client’s options in Interview?

A
  • Answer questions.
  • Do not answer questions.
  • Draft a written statement and do not answer questions.
38
Q

What is the Risk of not Answering Questions in Interview?

A

It invites the making of adverse inferences.

39
Q

What is the Definition of an Adverse Inference?

A

Inferences contrary to the Accused’s interests when they fail to account for facts they reasonably should have mentioned.

Criminal Justice and Public Order Act (“CJPOA”) 1994 — s. 34.

40
Q

Should an Accused choose which Questions to Answer in Interview?

A

Never. A ‘No Comment’ Interview is not read as evidence, whereas a Mixed Interview is, and the Arrestee is exposing themselves to interview tactics.

41
Q

What should you consider when Advising whether the Arrestee should answer questions?

A
  • The Arrestee’s intentions;
  • The Arrestee’s present state;
  • The Arrestee’s account of events;
  • The presence of significant statements;
  • How much the Arrestee would be disclosing;
  • The amount of information you currently have;
  • The admissibility and strength of evidence on both sides; and
  • The possibility and severity of adverse inferences.
42
Q

What are the Four Types of Adverse Inferences?

A
  • S. 34: A previously unmentioned fact is relied upon at Trial without reasonable grounds for omission.
  • S. 35: Silence at Trial.
  • S. 36: A failure to account for a mark, object, or substance.
  • S. 37: A failure to account for presence at the Scene.

CJPOA 1994 — ss. 34-37.

Unlike s. 34, the Prosection can invite inferences under ss. 36-37 as soon as the Defendant fails to account for their presence or possession of the relevant object.

43
Q

Regarding S. 34 Adverse Inferences, what informs considerations of Reasonableness?

A
  • The Police disclosure provided to the Suspect or their Lawyer;
  • The Prosectuion’s evidence showing the Suspect’s knowledge at the time of questioning or charge;
  • The Suspect’s condition and circumstances;
  • The legal advice the Suspect received, if any.
44
Q

For either S. 36 or S. 37 to bite, what must the Defendant have been given?

A

A Special Warning, explaining:

  • The Offence is being investigated;
  • The fact they are being asked to account for;
  • That this fact may be due to their involvement in the Offence;
  • That a Court may draw a proper inference if they fail or refuse to account for this fact; and
  • That a record is being made of the Interview and it may be given in Evidence if they are brought to Trial.

COP C — 10.11.

45
Q

What is the Consequence of an Adverse Inference?

A

It undermines the Client’s defence at trial.

46
Q

Can a Defendant be Convicted solely on the grounds of Adverse Inferences?

A

No.

CJPOA 1994 — s. 38.

47
Q

When must an Identification Procedure (“IP”) be held?

A
  • An Eye-Witness:
    • Has, or purports to have, identified a Suspect;
    • Expresses an ability to identify the Suspect; or
    • Has a reasonable chance of being able to idenitfy the Suspect; and
  • The Suspect disputes the ID.

COP D — 3.12.

An IP need not be held if it is not practicable or it would serve no useful purpose in proving or disproving the Suspect’s involvement, e.g. the Suspect is already known to the Eye-Witness.

48
Q

What Types of Identification Procedures are there?

A
  • Video ID: The Eye-Witness is shown moving images of the Suspect, together with similar images of others who resemble the Suspect.
  • ID Parade: The Eye-Witness sees the Suspect in a line of others who resemble the Suspect.
  • Group ID: The Eye-Witness sees the Suspect in an informal group of people.
  • Confrontation: The Eye-Witness sees the Suspect by themselves.

Each of these assumes the Police knows the Suspect’s identity and that they are available to participate.

If the Suspect’s identity is unknown, the Eye-Witness can be shown photographs in accordance with Code D, Annex E.

49
Q

What are the Requisite Formalities prior to an Identification Procedure?

A
  • A Record must be made of the Suspect’s description as first given by the Eye-Witness.
  • The Record must be given to the Suspect or their Solicitor.
  • A Notice must be given to the Suspect explaining:
    • The Procedure’s purpose.
    • Their entitlement to free legal advice.
    • Their right to have a Solicitor or friend present.
    • How the Procedure will be carried out.
    • That they need not consent or cooperate.
    • That failure to comply to may be given in Evidence.
    • That Police may proceed covertly without their consent or make other arrangements.

Group Identification is what Police would resort to if the Suspect does not consent or cooperate.

50
Q

What are the Consequences of breaching COP D?

A

Corresponding evidence may be excluded, based on how adversely it would affect fairness if admitted.

PACE 1984 — s. 78.

Where evidence is not excluded:
* Advocates may still comment on the breach in their closing speech.
* The Judge should draw the jury’s attention to the breach and invite them to consider why the Code includes those provisions to begin with.
* The Jury should assess whether, in their estimation, the breaches are sufficient to cause doubt about the identification’s veracity.

51
Q

Who is responsible for Arranging the Identification Procedure?

A

The Identification Officer, who must:

  • Be an Inspector, at least; and
  • Be unconnected to the Case.

(FLK2) Criminal Litigation (9 decks)

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