Preliminaries to prosecution Flashcards
Police Rankings
Chief Superintendent
Superintendent
Chief Inspector
Inspector
Sergeant
Constable
What is the investigating officer?
Investigating Officer (IO):
- police officer of any rank
- usually the officer who is in charge of investigating that particular offence, also referred to as the ‘Officer in the Case’
- the officer the suspect’s legal representative would speak to at the police station to obtain pre-interview disclosure
- will most likely lead the interview
Role of solicitor at police station: COP C
“Solicitor’s only role is protect and advance the legal rights of their client. May require solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case.
Solicitor may intervene in order to seek clarification, challenge improper question to their client or the manner in which it is put, advise their client not to reply to particular questions or if they wish to give their client further legal advice.”
Active defence
A solicitor’s role is not passive, they should actively defend their client.
This includes:
- Obtaining as much information as possible
- Advising your client fully and in accordance with your professional obligations
- Advising on issues which arise during the police investigation, such as whether to provide samples, extensions of periods of detention, searches of premises and bail.
- Attending and advising during the interview
Taking notes
- Clear and detailed notes can be vital
- Note any breaches of PACE or COP
- If any reasonable request is refused speak to custody officer and make sure they note this
- Don’t rush take as much time as you need
Vulnerable person under COP C
- Difficulty understanding or communicating effectively about the full implications for them of any procedures connected with: arrest and detention, voluntary attendance, exercise of their rights and entitlements
- Does not appear to understand the significance of what they are told or questions they are asked
- Appears to prone to:
- becoming confused
- providing unreliable, misleading or incriminating information without meaning to
- accepting or acting on suggestions from others without consciously knowing or wishing to do so
- readily agreeing to suggestions or proposals without any protest or question
Role of appropriate adult
- ensure the detained person understands what is happening and why
- support, advise and assist the detained person
- observe whether or not the police are acting properly and fairly and to intervene is they are not
- assist with the communication between the detained person and the police
- ensure that the detained person understands their rights and that those rights are protected and respected
What happens if an officer suspects a suspect is vulnerable?
Anyone suspected of being vulnerable should be treated as being vulnerable.
Officer must make reasonable enquiries to ascertain whether the person falls within the definition
Representing vulnerable clients
Ensure:
- an appropriate adult has been appointed
- the custody officer has requested a medical assessment if necessary
- take as much time as necessary
Client understands:
- your role
- everything that is happening
- what will happen in the interview and how to approach a ‘no comment interview’
- what happens after
In interview:
- request regular breaks
- be especially mindful of the language and tone used by the officers (intervene if necessary)
What should a lawyer do when advising the client?
Should:
- Be supportive and explain their role
- Assess the client’s fitness to be interviewed
- Provide advice on the legal position
- Explain the options the client has in the interview and consider which option would be best
- Explain and advise on the consequences of those options
- If necessary, provide advice on samples
Be careful of professional conduct issues:
- taking advice from third party or relative
- two clients in relation to the same matter where they may have opposing interests.
Identification: safeguards at investigation stage
These are found in PACE, Code D,
Deals with the process to be adopted by the police where a witness purports to identify a suspect or expresses an ability to make a visual identification.
Two reasons:
- protect an innocent suspect from an incorrect identification
- make a successful identification as watertight and challenge-proof as possible.
What is the procedure where the suspect’s identity is not known?
Eye-witness:
- May be taken to a particular neighbourhood or place to see whether they can identify the person they saw on a previous occasion
- Shown photographs in accordance with Code D, Annex E
Cases where a suspect is known
There is a duty to hold and identification procedure.
Code D paragraph 3.12 states that an identification procedure shall be held where:
An offence has been witnessed and an eye-witness:
- has identified a suspect or purported to have identified them
- is available who expresses an ability to identify the suspect
- has a reasonable chance of being able to identify the suspect
The suspect disputes being the person the eye-witness claims to have seen.
An ID procedure does not need to be held if it is not practicable or it would serve no useful purpose in proving or disproving the suspect was involved in the offence
Types of video identification
If suspect’s identity is known and they are available the ID procedures that may be used are:
- video identification: the eye-witness is shown moving images of a known suspect together with similar images of others who resemble the suspect
- identification parade: the eye-witness sees suspect in a line of others who resemble the suspect
- group identification: the eye-witness sees the suspect in an informal group of people
Who arranges and conducts an ID procedure?
The identification officer.
They must be at least an inspector who is not involved with the investigation.
Covert ID procedures
Such as walking the suspect past the witness or organising a run-in.
These should only be used a last resort and only if all other procedures have been considered and refused.
What is the first ID procedure which should be offered?
In the first instance, the suspect shall be invited to participate in a video identification procedure unless:
- a video identification is not practicable; or
- an identification parade is more suitable.
If suspect refuses then another alternative can be considered.
Formalities pre-ID procedure
- A record shall be made of the description of the suspect as first given by the eye-witness
- Copy of record should be given to the suspect or their solicitor before any ID procedures are carried out.
- Note must be given to a suspect
- Must explain to suspect:
+ purpose
+ entitlement to free legal advice
+ procedures for holding ID procedure and right to have solicitor or friend present
+ they do not have to consent to or co-operate in the procedure
+ if they do not consent to and co-operate their refusal may be given in evidence in a trial and police may proceed covertly - the suspect should be invited to participate in a video ID procedure first
VIPER: how many individuals included
Video identification parade electronic recording
Produced with the suspect and at least 8 other individuals who should resemble suspect in age, general appearance and position in life
VIPER: unique features
- facial scar, tattoo, distinctive hairstyle or colour
Steps can be taken to:
- Conceal the location of the feature on the images of the suspect and the other people; or
- Replicate that feature on the images of the other people
VIPER: review
Suspect, their solicitor, friend or appropriate adult must be given a reasonable opportunity to see the complete set of images before it shown to any eye-witness
If suspect has an objection: should state the reasons for the objection.
VIPER; procedure
- Immediately before the images are shown the eye-witness shall be told that the person they saw on a specified earlier occasion may or may not appear in the images
- Video clip is shown
- Solicitor may only be present on request and with prior agreement of the identification officer
- Video id procedure must be recorded on video with sound. Recording must show:
- all persons present within sight or hearing of the eye-witness whilst images are being viewed
- what the eye-witness says; and
- what is said to the eye-witness by the id officer and by any other person present
- If multiple witnesses: should be shown separately and should not communicates with each other, overhear anything or see suspect before or after
ID parades
- at least 8 other people
- suspect can have friend or solicitor present
- video recording or colour photograph must be taken of the parade
- if any unusual features cannot be replicated on members, should take steps to conceal the location of that feature
- suspect may select their own position in the line
- witnesses can hear any id parade member speak or adopt any specified posture or move
Group identification
- Can be a covert method
Part of a group and walks by the witness (eg on an escalator, bus station)
colour photo should be taken of the scene
Confrontation
Eye-witness must be told that the person they saw may or may not be the person they are to confront and if they are not that person then the witness should say so.
Should normally take place in a police station - usually in a room with a one way screen so the suspect can’t see the eye-witness.
Breach of Code D
Can apply to exclude evidence obtained in breach of the code under s78 PACE 1984.
Up to the discretion of the judge to decide if there has been any prejudice to the accused.
Must decide if the admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
Will usually be excluded when important safeguards have been flouted such as the right to a formal id procedure.
Defendant has the right to have the correctness of the id tested under formal conditions.
ID evidence admitted despite breach
- defence advocates are still permitted to comment on the breach in their closing speech
- the trial judge ought to draw the jury’s attention to the breach and invite them to consider the reasons why the code has been drawn in the way it has
- the jury should assess whether the breaches may cause doubts about the safety of the identification
Three forms of commencing criminal proceedings
- arrest and charge
- written charge and requisition
- laying an information
Arrest and charge
The most common way of commencing criminal proceedings.
Charge may come:
- at the end of the period of detention at the police station after an arrest
- after a period of police bail when the suspect re-attends the police station
- after a period on police bail while the CPS decides what the appropriate charge is, if any
When is pre-charge police bail imposed?
- insufficient evidence to charge a suspect and they are released pending further investigation
- where police consider there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision
It is for the police to decide whether a suspect is released with or without bail and if released on bail whether any conditions of bail should be imposed.
Written charge and requisition
- Issues proceedings by issuing a written charge
- no need for the person to have been arrested
- will also issue a requisition which requires the person to attend MC
- charge and req will be served on both the person and the MC
Laying an information
- prosecutor serves an information alleging an offence on the MC
- MC then issues a summons or an arrest warrant requiring the accused to attend
- Only way for private prosecutions to commence
Content of written charge or information
- statement of the offence which describes the offence in ordinary language
- a reference to the statutory provision that creates the offence
- sufficient particulars of the conduct complained of for the accused to know what is alleged
Content of a summons or requisition
Must:
- contain a notice setting out when and where the accused is required to attend court; and
- specify each offence in respect of which it has been issued
Summons must identify the issuing court
Requisition must identify the person under whose authority it was issued.
Timing of charge
There is no statute of limitation requiring that a charge be brought within a specified period after the commission of the offence.
Exception: where summary only a magistrates court shall not try an information or hear a complaint unless made within 6 months of the date of the alleged offence.
Police station advice
All suspects are entitled to free legal advice at the police station regardless of their means.
If non-imprisonable offence: this is limited to telephone only advice for non-imprisonable offences
Note: some reps will be trainees, paralegals or ex-police officers - fine as long as accredited by the Legal Aid Agency
Funded legal representation at court
May be able to get funding for court through the legal aid agency
Need to obtain a representation order.
Must pass:
- merits test
- means test
Means Test: exceptions
Must demonstrate eligible unless minor or on certain welfare benefits (universal credit and job-seekers allowance)
Means test: Magistrates court
Initial assessment: weighted gross annual income
- Eligible for public funding: £12,475 or less
- Ineligible: £22,325 or more
In between: required to take a full means test. This establishes the applicant’s annual household disposable income
Can apply for review if failed means test or a hardship review if high outgoings or defence costs.
Means test: crown court
Assessed on income and capital
- combined capital and equity allowance of £30,000 - after which can be required to contribute to legal costs
Outcome may require defendant to pay: all, some, none
Annual disposable household income
ineligible: £37,000 or more
eligible: £3,398 or less
eligible with contribution: between - 90% of disposable income for a max of 6 months in instalments
Can apply for eligibility review
Merits test: automatic pass
Automatically pass merits test if:
- charged with an indictable only offence
- an either-way offence is later sent to the crown court
Otherwise must demonstrate it is in the interests of justice for them to be legally represented
Merits test: 10 propositions
- I will lose my liberty
- I already have a suspended or non-custodial sentence and the court may be able to deal with me for the original offence
- It is likely I will lose my livelihood
- It is likely I will suffer serious damage to my reputation
- A substantial question of law may be involved
- I may not be able to understand the court proceedings or present my own case
- Witnesses may need to be traced or interviewed on my behalf
- The proceedings may involve expert cross examination of a prosecution witness
- It is in the interests of another person that I am represented
- Any other reasons
Merit test: I will lose my liberty
Not enough that the offence is imprisonable - must look at the aggravating and mitigating factors in the sentencing guidelines
Merit test: I already have a suspended or non-custodial sentence and the court may be able to deal with me for the original offence
Provide all details of suspended or non-custodial sentence in this section.
Merits test: It is likely I will lose my livelihood
E.g. pleadings guilty but needs representation to convey mitigation that will avoid a penalty interfering with employment.
Merits test: It is likely I will suffer serious damage to my reputation
Serious nature.
A conviction to a person who is of good character is going to affect their reputation.
Is the defendant a profession?
What is the nature of the allegation?
Merits test: question of law
Need to identify issues of law rather than fact.
Question regarding admissibility? Are case authorities to be relied upon?
Merits test: unable to understand court proceedings
What language does the client normally speak?
Why is an interpreter not sufficient?
Are there legal phrases or technical areas of law the defendant would still not understand?
Is the defendant a youth?
Does the defendant suffer from learning or mental health difficulties?
Merits test: witnesses traced or interviewed
Why would a solicitor need to speak to the witnesses rather than the defendant?
Why does the witness need to be traced?
Is it a member of the public?
Consider providing the court with the kind of evidence the defendant is seeking to adduce.
Merits test: expert cross examination of prosecution witness
- Could the defendant satisfactorily conduct a trial without the solicitor?
- Are there any issues in the case that make it difficult for the defendant to cross examine the witness?
- Age of defendant?
- Legal argument?
- Complainants also witnesses?
- Experienced police officer require cross examination?
Merits test: interests of another person
- If complainant would feel uncomfortable if examined by defendant
- victim is young
- NOTE: must be someone in the court proceedings
Merits test: any other reasons
Pleading not guilty
Matter likely to be sent to the crown court
Child witnesses or vulnerable witnesses
