Preliminaries to Prosecution Flashcards
What is the purpose of PACE 1984?
governs police powers of investigation, arrest, detention, interrogation, entry and search of premises and people, taking of samples and various identification procedures.
PACE 1984, s. 67(10)?
Failure by a police officer (or similar) to comply with PACE does not automatically render them liable.
PACE 1984, s. 67(11)?
PACE codes are admissible in evidence for criminal and civil proceedings.
Where can you find the definition of “interview”?
PACE Code C, para. 11.1A.
What is an interview?
The ‘questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under para. 10.1, must be carried out under caution.
PACE Code C para 10.1?
A suspect ‘must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect’s answers or their silence may be given in evidence to a court in a prosecution’.
What are the 4 circumstances in which a caution is not necessary before questioning a suspect?
identifying a vehicle, obtaining information in accordance with statute, in furtherance of a proper and effective search, or to seek verification of a written record.
What cannot amount to an interview?
Questioning of a person in circumstances where a caution does not have to be administered.
What is important to note about police cautions?
Cautions must be given to suspects being questioned about another offence to the one they have been arrested for if they are a suspect.
Where can you find the general rules for the conduct of interviews?
Code C section 11
Code C para. 11.1
Following arrest, a suspect must be interviewed at a police station or other authorised place of detention.
What is meant by decision to arrest?
If an officer has decided to arrest someone, the arrest should not be delayed to question the suspect first.
What are the 3 exceptions to the requirement of interviews being conducted at the station?
Where the delay could lead to harm of others or property or evidence, where it could allow tip offs, where it could hinder recovery of property.
In exceptional circumstances for how long may interviews that are outside a station last?
The interview must cease as soon as the relevant risk has been averted.
PACE 1984, s. 39 as amended PCA 2017, s. 75?
suspects in detention can be interviewed by live link to officers not at the station. This remains within code.
When must a caution be issued?
A caution must be given at arrest, commencement and recommencement of any interview, and where there is any expression of doubt of understanding.
Code C, para. 10.7?
Minor deviation from the words of the police caution (10.5) is okay so long as the sense of the caution is preserved.
How is a person suspected of an offence defined?
a person is a suspect if there is some reasonable objective grounds for the suspicion based on known facts or information.
What must a suspect be provided for at interview?
A suspect and their solicitor must be given information to sufficiently understand the nature of the suspected offence.
(Code C para 11.1A)
Williams (Michael) [2012]?
Whether there are sufficient grounds for a caution to be administered is an objective question not based on the police officer’s opinion.
What are the 2 circumstances in which a suspect must be given a special warning following arrest?
A suspect should get a special warning if asked to account for any object mark or substance on them or at the scene, and when asked to account for their presence at the scene.
What must the interviewing officer always remind the suspect?
Upon commencement and recommencement the IO must remind the suspect that they are entitled to free legal advice and that the interview can be delayed to obtain some.
Code C para 11.4?
At the beginning of an interview the IO must, after caution, put any significant statement or silence heard by police staff to the suspect.
Define ‘significant statement’
A significant statement is one which appears to be capable of being used in evidence and in particular a direct admission of guilt.
What is NOT a significant statement that police must immediately raise in interview?
Anything a suspect is alleged to have said as part of the conduct constituting the offence is not a significant statement.
Define ‘significant silence’
A significant silence is a failure or refusal to answer a question or answer or answer satisfactorily when under caution which may give rise to inferences.
Code C para. 11.5?
No officer may use oppression nor indicate how the police will act unless directly responding to a question from the suspect about what would happen next.
Imran and Hussain [1997]?
There is a positive duty on the police not to actively mislead a suspect
Emmerson [1991]?
Rude and loud questioning by police is not oppressive.
Stringer [2008]?
Asking hypothetical questions in police interview is not oppressive
Paris [1993]?
Police questioning continuing after repeated denials or refusals may become oppressive.
Beales [1991]?
Hectoring and bullying during an interview is oppressive.
When must a police interview cease?
When all questions the officer considers relevant to obtaining accurate and reliable information about the offence have been put to the suspect, other evidence has been accounted for and there is a reasonable prospect of conviction.
PACE 1984, s.37(7)?
Once the custody officer determines that there is sufficient evidence to charge suspect they must do so.
Usually precludes further interviewing.
Code C para. 11.6?
Gives police latitude in determining when interviewing should cease. They MAY continue after sufficient evidence has been adduced.
Code C para. 11.7?
Interviews must always be contemporaneously recorded. So must any unsolicited comment.
Code C, para. 11.13?
Suspects must (when appropriate) be given opportunity to verify the record of their interview and comments.
What are the consequences of not recording interviews?
Not recording interviews can lead to the exclusion of evidence.
Code E, para. 2.1?
Interviews must normally be recorded using an authorised recording device.
Code C, para. 11.18
A special category person can’t be interviewed or asked to sign without an appropriate adult unless 1 of 2 exceptions are met.
What are the 2 exceptions to the interview of special category persons without appropriate adults.
Special category persons may be interviewed alone where the rules for emergency on-site interviews applies or where a Superintendent or above authorises it.
What is a special category person?
A child/young person, or mentally disordered, or vulnerable person.
Code C, para. 11.17?
An appropriate adult must be reminded of their functions as advisers and observers as well as facilitating communication.
Re A Ward of Court [2017]?
Judicial consent is not required before the police interview a ward of court.
Code C para 11.18?
A person who needs an interpreter mustn’t be interviewed without one unless there’s no risk of harm to the person and delay will lead to consequences.
Code C, paras. 13.1ZA and 13.12?
Interpreters CAN attend via live link where it will not undermine or limit the suspects ability to communicate.
Code C, para. 11.18 (intoxicated persons)?
Intoxicated people who can’t appreciate or understand the significance of questioning cannot be interviewed unless authorised by a Superintendent or above.
How is ECHR Article 5(1)(c) incorporated into PACE?
Police must almost always have reasonable grounds for suspicion.
ECHR Art. 5(1)(c)?
A person may be deprived of liberty on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent committing an offence or fleeing from one.
What is the difference between the ECHR reasonability test for police powers vs the domestic one?
The ECHR test is reasonable suspicion. The PACE test is reasonable grounds of believing which is a stricter test.
Code A, para 2.2?
Reasonable suspicion [for stop and search] requires both a genuine suspicion by the officer concerned and an objective basis for the suspicion.
Roberts v Chief Constable of Kent [2008]?
The use of force does not necessarily mean it was unreasonable.
Simpson v Chief Constable of South Yorkshire Police [1991]?
The use of excessive force does not render an arrest unlawful.
Lockley (1864)?
Handcuffs should only be used when reasonably necessary to prevent an escape or to prevent a violent breach of the peace.
Taylor (1895)?
When handcuffs are unjustifiably used it is a trespass against the person even if the arrest itself is lawful.
What is the definition of arrest?
There is no statutory definition. It is an ordinary word meaning “to be deprived of liberty to go where you please”. It is supported with contextual factors.
Iqbal [2011]?
A person who has been handcuffed and told they will later be arrested by others is not under arrest.
What condition must be met to allow arrest?
An officer must at the least perceive a possibility of a charge being made. (although following with a charge is not necessary).
Who has the burden of proof for proving un/lawful arrest?
The police must prove their arrest to be lawful
Who has the burden of proof for dis/proving excessive force?
The complainant must prove that a lawful arrest used excessive force.
PACE s.117 and CLA 1967 s.3?
Reasonable force may be used to effect an arrest.
PACE s. 28(1)?
When a person is arrested without knowledge the arrest is unlawful unless informed of being under arrest as soon as practicable afterwards.
PACE s.28(2)?
PACE s.28(1) applies even if the fact of arrest is obvious.
PACE s.28(3)?
An arrest is unlawful if suspect is not informed of the grounds of their arrest immediately or as soon as practicable - even if it is obvious (s. 28(4))
What legal things must somebody under arrest be told?
why the arrest was deemed necessary, that they are under arrest and on what grounds.
What factual things must someone under arrest be told?
They must be informed of the nature of the suspected offence and when and where it took place.
Christie v Leachinsky [1947]?
Arresting officers may not lead a person to think they are being arrested for one offence when in truth the officer wishes to arrest them for another.
Miller [2007]?
Failure to administer a caution at point of arrest notification doesn’t render the arrest unlawful but can lead to exclusion of evidence.
Code G para 4.1?
Nature and circumstances of the offence, why it was necessary, caution and any comments must be recorded by arresting officer.
PACE s. 30(1-2)?
When a person is arrested outside a station the constable must usually take them to a station as soon as practicable.
PACE s.30(1) and (10A)?
An arrested person’s bail or transport to a station may be delayed when their presence is required to carry out immediate investigations.
PACE s.30(7-7A)?
A constable who is satisfied that there are no grounds to keep someone arrested must release that person.
What is an exception to the obligation to take the suspect to a station after their arrest?
An arrested person MAY be released with or without bail to attend a station at a later date.
PACE s.30A(3B)?
If someone is released on bail, conditions may be imposed to secure surrender, prevent further offences or interference with witnesses or obstruction of justice or person’s protection.
When may a constable release a person on bail after arrest?
If they’re satisfied that releasing the person is necessary and proportionate in the circumstances.
PACE s.24?
Contains police powers of arrest without warrant (subject to necessity)
PACE s.24A?
Civilian powers of arrest. These are confined to indictable offences and are subject to necessity.
PACE s.24(1)(a)?
A constable may arrest without a warrant anyone who is about to commit an offence.
PACE 1984, s. 24(1)(b)?
A constable may arrest without warrant anyone who is in the act of committing an offence.
PACE 1984, s. 24(1)(c)?
A constable may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be about to commit an offence.
PACE 1984, s. 24(1)(d)?
A constable may arrest without a warrant anyone whom he has reasonable grounds for suspecting to be committing an offence.
PACE 1984, s. 24(2)?
If a constable has reasonable grounds for suspecting that an offence has been committed he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
PACE 1984, s. 24(3)(a-b)
If an offence has been committed a constable may arrest without warrant (a) anyone who is guilty (b) anyone he has reasonable grounds to suspect as guilty.
PACE 1984, s. 24(4)?
All of the arrest without warrant powers are exercisable only where there are reasonable grounds that a necessity listed in s.24(5) applies.
Where can you find a list of the necessities that may trigger an arrest without warrant to prevent or cease an offence?
PACE 1984, s.24(5)(a-f).
PACE 1984, s.24(5)(a)
Arrest without warrant may be necessary ascertain the name of the person.
PACE 1984, s.24(5)(b)
Arrest without warrant may be necessary ascertain the address of the person.
PACE 1984, s.24(5)(c)
Arrest without warrant may be necessary to prevent the person (i) causing or (ii) suffering injury to themselves or others; (iii) causing loss or damage of property; (iv) public indecency; (v) obstruction of highway.
PACE 1984, s.24(5)(d)
Arrest without warrant may be necessary to protect a child or other vulnerable person.
PACE 1984, s.24(5)(e)
Arrest without warrant may be necessary to allow prompt and effective investigation of the offence or the conduct of the person.
PACE 1984, s.24(5)(f)
Arrest without warrant may be necessary to prevent any prosecution from being hindered by the disappearance of the person.
How many conditions must be met for a common-law arrest by a civilian or otherwise to be lawful?
3
What are the three conditions in which there may be a common law arrest?
where there is a breach of the peace, or one reasonably believed to occur in the immediate future, or where a breach has occurred and there is likely to be a breach again.
Define breach of peace?
Whenever harm is actually done or is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance.
What is the threshold for reasonability for civilian arrests?
Reasonable belief must be present i.e. reasonable in circumstances to arrest, with reasonable necessary and proportionate preventative action.
MCA 1980 s.1?
A justice can issue warrants based on written information that someone is suspected of committing an offence.
MCA 1980 s. 117?
Once any sureties are paid the bailee must appear in mags at the time and place named in the recognizance.
What are the conditions for magistrates issuing a warrant to an under-18?
The offence must be indictable; or punishable with imprisonment; or the person’s address mustn’t be sufficiently established for a summons to be served.
When can a magistrates court issue a warrant for non-appearance?
A warrant for non-appearance may only be issued if the offence to which it relates is punishable with imprisonment or where a disqualification may be imposed.
MCA s.13?
Magistrates power to issue a warrant for the arrest of a person who has failed to appear to answer a summons.
BA s.7?
Magistrates can issue warrants for someone granted bail who fails to surrender or surrenders and goes absent before trial.
SCA 1981, s. 80(2)?
Where an indictment has been signed but the chargee has not been sent for trial, Crown Court may issue a summons or an arrest warrant.
Define police detention?
Someone in the station after being arrested for an offence under TA 2000, s. 41, or is arrested after voluntary attendance. Or if in designated civilian detention.
PACE 1984, s.30(3-6)?
A person may be taken to any police station after arrest unless detention is anticipated to exceed 6 hours then it must be a designated station.
What rank must a custody officer be?
A custody officer must be at least a sergeant.
PACE 1984, s.37(1)
A person may only be detained at a police station on the custody officer’s authority.
PACE s.34(2-3)?
A detainee may only be released on the custody officer’s authority.
What is the practice with regard to custody records?
A custody record must be opened as soon as practicable for someone under arrest.
It must follow the detainee with any transfers and show time and reason for it.
What is the Right to Notification?
A person who has been arrested and is in custody has a right upon request to have someone interested in their welfare told of the arrest and place of detention.
What is the Right to Notification?
A person who has been arrested and is in custody has a right upon request to have someone interested in their welfare told of the arrest and place of detention.
PACE Code C, para. 3.1(i)
Custody officers have a duty to inform detainees of their right to notification and ask if they wish to use it.
PACE 1984, s. 56(1)?
Someone arrested in custody must be told of their right to notify a next of kin ASAP. For every transfer too.
What happens if a detainee’s nominated notification person cannot be informed of their detention?
The detainee may choose up to two alternatives. Discretion for more attempts on head of investigation.
PACE 1984, s. 58?
An arrested person held in custody has a right upon request to consult a solicitor privately at any time.
Ambrose v Harris [2011]?
Any person who suffers a significant curtailment of freedom of action is entitled to legal assistance - even if prior to formal arrest or detainment.
ex Parte Merrick [1994]?
There is a common law right to consult a solicitor as soon as practicable even if outside customary hours.
Code C, paras. 3.19 and 6.5A?
Appropriate adults have independent right to legal advice but can’t force their charge to meet with one.
When must a person be informed of their right to free legal advice?
Upon arrest, arrival at the police station, before re/commencement of interview, before detention reviews, after being charged, before a search of any kind, before identification proceedings.
Children Act 2004 s.11?
Police must safeguard and promote welfare of children while doing their job.
Code C para 1.4?
If an officer suspects that someone might be vulnerable they must treat them as such.
Define ‘appropriate adult’ for young suspects?
parent, guardian, local authority or voluntary organisation representative, social worker, or someone not related to the police.
Who should not act as an appropriate adult for a juvenile?
Estranged or illiterate (low IQ) parents.
Define ‘appropriate adult’ in relation to vulnerable or disordered people.
a relative, guardian or other person responsible for the person’s care or custody or someone with experience of such persons not related to the police.
Lewis [1996]?
Solicitors attending as legal advisers cannot be appropriate adults.
4 reasons someone shouldn’t be an appropriate adult?
if suspected of involvement; if the victim or witness; if involved in the investigation; if they’ve received admissions from the suspect prior to being the AA.
What is the role of an appropriate adult?
AAs safeguard the rights, entitlements and welfare of juvenile and vulnerable suspects.
PACE s.65(1)?
For identification and evidential procedures requiring appropriate consent, 14-18s must give their consent + parental; under-14s only parental. An AA cannot give parental consent unless a parent or guardian.
PACE s.41(1)?
The normal maximum period of detention without charge is 24 hours from the relevant time. (normally upon arrival in station or from moment of arrest).
PACE s.41(7)?
If not appropriate to extend detention without charge, after 24 hours suspect must be released either with or without bail.
What is the maximum period of detention without charge for indictable offences?
Extension to 36 hours by superintendents and 96 hours by magistrates.
What happens if re-arrest after the expiry of detention without charge is required?
Re-arrest requires a warrant for OG offence unless new evidence has come to light.
PACE s.41(2)(a)?
start counting detention hours at point of arrival at a station or 24 hours after arrest, whichever is earliest.
What governs the DPP?
Prosecution of Offences Act 1985
POA s.2?
DPP is a lawyer of at least 10 years appointed by the AG.
Where can you find the DPP’s duties listed?
POA s.3(2)
How many core duties does the DPP have?
10
What is the DPP’s 1st core duty?
To conduct (most) criminal proceedings instituted by or for the police.
What are some offences the DPP does not conduct proceedings for?
Some RTA and public order offences, criminal damage below £5K.
What is the DPP’s 2nd core duty?
To institute and conduct proceedings where appropriate due to importance or difficulty of a case.
What is the DPP’s 3rd core duty?
Conduct all binding-over proceedings.
What is the DPP’s 4th core duty?
Conduct any proceedings instituted by the NCA.
What is the DPP’s 5th core duty?
To conduct extradition proceedings.
What is the DPP’s 6th core duty?
To advise police forces where appropriate.
What is the DPP’s 7th core duty?
Appear for the prosecution when needed in appeals.
What is the DPP’s 8th core duty?
To manage administration of criminal behaviour orders and their discharge.
What is the DPP’s 9th core duty?
duty to manage civil recovery of unlawful conduct and disclosure orders for confiscation.
What is the DPP’s 10th core duty?
Discharge any other functions the AG might assign.
POA s.1(1)(a)
Establishes the CPS, which is headed by the DPP.
What is the relationship between police and CPS?
CPS isn’t instructed by police, they take over police cases on behalf of the DPP.
What are the 3 things DPP gives guidance to CPS on?
(1) determining whether to start or continue proceedings
(2) determining what charge to go with
(3) consider what mode of trial should be advocated for.
POA s.5(1)?
DPP can at any time appoint someone not CPS to conduct proceedings. They remain bound by CPS rules.
What are associate prosecutors?
People appointed by DPP without legal qualifications.
What can associate prosecutors do?
Represent CPS in pre-trial applications and preventative civil orders.
How many ways can first appearance of accused in magistrates be secured?
5
What is the 1st way to secure an accused’s appearance at a magistrates court?
Arrest by police + charge by CPS
What is the 2nd way to secure an accused’s appearance at a magistrates court?
Arrest + bail while CPS decide whether there’s evidence to charge. Issue written charge.
What is the 3rd way to secure an accused’s appearance at a magistrates court?
Arrest + bail subject to return on a specific date.
What is the 4th way to secure an accused’s appearance at a magistrates court?
Served with a written charge and requisition without first being arrested.
What is the 5th way to secure an accused’s appearance at a magistrates court?
Apply to magistrates to issue a summons or arrest warrant requiring attendance.
CJA 2003, s.29?
Creates written charge and requisition procedure which can commence proceedings.
Who can use written charge and requisition?
Secretaries of state, DVLA, TfL, local authorities, rail, TV licensing, environment agency.
What is a requisition?
a summons to court.
What is a private prosecution?
When there’s no ‘relevant prosecutor’ for written charge and requisition.
How are private prosecutions commenced?
Making an application to magistrates court for the issue of a summons.
CrimPR 7.2(3)?
Applications for summons must set out allegations and any time limits for the offence.
What does laying information mean?
Applying to the magistrates court for the issue of a summons.
Who can issue a summons but not a warrant?
A justice Clerk at a magistrates.
What can a magistrates court issue after application for summons?
summons to appear or an arrest warrant.
What is in a summons or written charge?
A statement of offence, relevant legislation, sufficient particulars, when and where you should attend court.
CrimPR 7.2(9)?
A singe summons or written charge may contain more than one charge.
MCA s.127(1)?
A magistrates court may not try summary offences unless application for a summons was served within six months of alleged committal. this does not apply to indictable offences.
MCA s.127(2) and (4)?
No time limit on when either way proceedings must start (excluding statutory limitation).
MCA s.10(1)?
Magistrates can adjourn at any time with only one justice.
MCA ss.10 and 18?
magistrates can adjourn proceedings before sending to CC or commencing summary trial.
How can adjournments be challenged?
By judicial review
MCA s.10(2)?
When adjourning a time and place of resumption can be chosen or left to determine later.
MCA s.10(4)(a-b)?
Once adjourned, accused may be remanded (custody or bail). If either way MUST be if already remanded.
MCA s.128(1)?
Magistrates may remand in custody or on bail.
What 2 situations can magistrates adjourn without remand?
All appearances for summary offences up until conviction and appearances for either way offences up until allocation decision.
How does procedure differ between an adjourned case or an adjourned case with remand?
Where a case is only adjourned you need not fix the date for next hearing, but you must if the accused is remanded.
How long can magistrates remand into custody?
Accused can be remanded into custody for a maximum of eight clear days (subject to exceptions).
How many exceptions are there to the 8 clear days rule?
5
What is the 1st exception to the eight clear days rule?
following summary conviction there may be a remand in custody up to 3 weeks, 4 if remand on bail.
What is the 2nd exception to the eight clear days rule
after establishing guilt, there may be remand in custody for 3 weeks, on bail for 4, for medical exams
What is the 3rd exception to the eight clear days rule
Where mode of trial is determined as summary but not proceeding immediately, remand in custody until a date when there’s multiple justices sitting.
What is the 4th exception to the eight clear days rule
A second or subsequent remand in custody may be made for up to 28 clear days
What is the 5th exception to the eight clear days rule
An accused already detained in custody may be remanded up to 28 clear days or up to anticipated release date, whichever’s shorter
What is the rule for further remands of the accused?
A person can be remanded again until sending or commencement of trial unless against the interests of justice.
MCA s.128(6)(a)?
Accused may be remanded for a period greater than eight clear days if on bail and agreed to by prosecution and accused.
POA s.22?
Gives power to SoS to fix a maximum time for pre-trial proceedings and custody in such period.
What is the custody time limit between first appearance and committal?
Accused charged with an indictable offence may be held in MC custody for 70 days.
What is the custody time limit between first appearance and summary trial?
Either way that’s summarily done has maximum period of 70 days in custody unless decision to go summary is taken within 56 days of first appearance - in which case the custody limit is reduced to that.
What is the custody time limit between committal and trial on indictment?
Maximum custody period between committal and start of indictment trial is 112 days.
What is the custody time limit for multiple committals?
A 112 day limit applies separately in relation to each offence on an indictment.
What is the custody time limit for s.51 sending?
Maximum custody for 182 days between sending and commencement with any time in magistrates custody deducted.
What is a CDA s.51 sending?
When an adult is sent to Crown Court for indictment or an either way offence.
What is the custody time limit for retrial directed by CoA?
Where indictment is preferred and following order of retrial, 112 days.
What is the custody time limit for voluntary bills?
112 days custody time limit applies from the date of the bill.
What happens if the custody time limit expires?
Accused must be granted bail in relation to the offence the limit relates to.
What is the procedure for extending custody time limits?
Courts may extend if (1) prosecution has acted with due diligence and expedition (2) there is good and sufficient cause to extend.
Can an already extended custody time limit be extended?
Yes as long as the 2 stage test is met.
