Preliminaries to Prosecution

Question 1

What is the role of the custody officer and what rank must they have?

Answer 1

Responsible for the handling and welfare of suspects in detention. They must be a police officer of the rank of at least sergeant.

Question 2

What will a custody officer do on a detainee’s arrival at the police station?

Answer 2

They will open a custody record and determine whether there is sufficient evidence to charge the detainee.

Question 3

What information must be recorded on the custody record?

Answer 3

Basic information to be recorded must include:

-the requirement to inform the person of the reason for their arrest

-circumstances of the arrest

-why the arrest was necessary

-any comments made by the arrested person

It is essential that the solicitor attending the police station view this record as it should contain everything that has happened with the detainee.

Question 4

When will the first review of a suspect’s detention take place and who by?

Answer 4

The review officer must be an officer of at least the rank of inspector who is not connected with the investigation of the offence and is not the custody officer.

S40 PACE states that the first review of the suspect’s detention will take place not more than six hours after the detention was first authorised and then periodically every nine hours thereafter.

Question 5

What is the maximum period a suspect can be kept in custody before being charged and when does the relevant time begin?

Answer 5

Under S41 PACE, the maximum period that a suspect can be kept in custody before being charged is 24 hours from the relevant time.

The relevant time begins at the moment the suspect arrives at the police station and is indicated on the custody record.

Question 6

Can the detention time limit be extended for summary-only offences?

Answer 6

No, this is not possible.

Question 7

Can the detention time limit be extended for indictable only offences and who by?

Answer 7

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 (S42 PACE).

Question 8

What is the maximum period of detention without charge?

Answer 8

The maximum period of detention without charge can be extended by the magistrates’ court up to a maximum of 96 hours from the relevant time under ss.43 and 44 PACE.

Question 9

What conditions must be satisfied for detention to be extended?

Answer 9

-an officer of at least the rank of superintendent must authorise the continued detention;

-the superintendent or above has reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning;

-the offence must be an indictable offence; &

-the investigation must be being conducted diligently & expeditious

Question 10

What rights must a custody officer tell the detainee that they have?

Answer 10

-the right to consult privately with a solicitor and the availability of free independent legal advice;

-the right to have someone informed of their arrest; and

-the right to consult the Codes of Practice (COP)

Question 11

How long can the right to consult a solicitor be delayed for?

Answer 11

A maximum of 36 hours.

Question 12

What is the criteria to delay the right to consult a solicitor?

Answer 12

The criteria to delay the right is as follows:

-the person must be in detention for an indictable offence; and

-the authority to delay is granted by a superintendent rank at least

-the superintendent has reasonable grounds to believe that exercise of the right will:

o interfere with/harm evidence connected with the offence
o interfere with/harm others
o alert others suspected of committing an offence
o hinder the recovery of property obtained in consequence of the commission of such an offence

Question 13

What is the criteria to delay the right to have someone informed of the arrest?

Answer 13

This right can only be delayed if the necessary criteria is met:

-the person must be in detention for an indictable offence

-the authority to delay is granted by an inspection rank at least

-the inspector must have reasonable grounds to believe that the exercise of the right will:

o interfere with/harm evidence connected with the offence
o interfere with/harm others
o alert others suspected of committing an offence
o hinder the recovery of property obtained in consequence of the commission of such an offence

Question 14

When is an appropriate adult required and what is their role?

Answer 14

If a person is or appears to be under 18, they must have an appropriate adult present at the police station. This also applies to the mentally disordered and vulnerable.

The role of the appropriate adult is to ensure that the detained person understands what is happening and why and to support, advise and assist the detained person.

Question 15

When can a person not act as the appropriate adult?

Answer 15

A solicitor/legal representative cannot act as the appropriate adult. A person cannot act as the appropriate adult if they are:

a) suspected of involvement in the offence
b) the victim of or a witness to the offence
c) involved in the investigation
d) of low IQ and unable to appreciate the gravity of the situation
e) estranged parent
f) a person who has received admissions from the person detained
g) solicitor/legal representative

Question 16

What is an interview defined as?

Answer 16

An interview is widely defined by Code C, para 11.1A as “the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences”.

Question 17

What is the caution and when must it be used?

Answer 17

Interviews must be carried out under caution therefore a person must be cautioned before they are interviewed and once again after every break.

“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”.

Question 18

What is the purpose of an interview and when should a solicitor intervene?

Answer 18

The purpose is to gather evidence. The solicitor should intervene if:

-undisclosed evidence is referred to

-clarification is required

-inappropriate questioning

-further client consultation is needed

-a break is required

Question 19

What is the role of the solicitor at a police station?

Answer 19

The solicitor’s only role is to protect and advance the legal rights of their client. On occasions this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification, challenge an 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.

Question 20

What are the three options in the police interview for the client?

Answer 20

-Answer questions

-Don’t answer questions (no comment)

-Provide a written statement and go ‘no comment’

Question 21

When should solicitors advise their client to remain silent?

Answer 21

In cases of little police disclosure and weak evidence.

Question 22

When should solicitors advise their client to answer questions?

Answer 22

Putting a defence forward at an early stage is a good option if there is an alibi or self-defence.

Waiting to trial to put forward a defence can lead to adverse inferences and loss of credibility.

Question 23

What is a significant statement?

Answer 23

A significant statement is one capable of being used in evidence against the suspect. At the beginning of the interview, the interviewing officer will put to the suspect any significant statement and the suspect will be asked whether they confirm or deny.

Question 24

What is an adverse inference and what is its effect?

Answer 24

A common sense conclusion that is adverse to the interests of a party in proceedings.

The ultimate effect of an adverse inference is that it undermines the defence, as the jury or magistrates are effectively saying that the explanation given at trial has been fabricated.

Question 25

When can an adverse inferences be drawn under S34 Criminal Justice and Public Order Act 1994?

Answer 25

When the D later relies on a fact in their defence that was not offered at the time of questioning. Any inference that is drawn must be ‘proper’ and it must have been reasonable to have mentioned the fact at the time, bearing in mind the circumstances existing at the time.

Question 26

When can adverse inferences be drawn under S36 Criminal Justice and Public Order Act 1994?

Answer 26

When the suspect fails to account for an object, substance or mark found on them at the time of arrest. This might include a failure to account for bruising or a hammer in the suspect’s rucksack.

Question 27

When can adverse inferences be drawn under S37 Criminal Justice and Public Order Act 1994?

Answer 27

When the suspect fails to account for their presence on arrest at a particular place. This might include failing to explain why they were found on a burglary victim’s driveway.

Question 28

Can a D be convicted solely based on an adverse inference?

Answer 28

No, S38 S38 Criminal Justice and Public Order Act 1994 states that no D may be convicted solely based on an adverse inference.

Question 29

If a suspect's identity is not known to the police, how can the eye-witness assist with visual identification?

Answer 29

-May be taken to a particular neighbourhood or place to see whether they can identify the person they saw on a previous occasion. -Can be shown photographs in accordance with Code D, Annex E

Question 30

When should an identification procedure be held?

Answer 30

When: -An offence has been witnessed and an eye-witness: -has identified a suspect or purported to have; -is available who expresses an ability to identify the suspect -has a reasonable chance of identifying the suspect -The suspect disputes being the person the eye-witness has identified

Question 31

What are the three types of identification procedure?

Answer 31

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

Question 32

Who is responsible for identification procedures?

Answer 32

These procedures shall be the responsibility of an officer not below inspector rank who is not involved with the investigation (the identification officer).

Question 33

What is the procedure for a video identification?

Answer 33

It takes the form of VIPER. -A video clip is produced with the suspect placed amongst at least eight other individuals who resemble the suspect. -If the suspect has an unusual physical feature, steps may be taken to conceal this or replicate it on the images of other people. -The suspect and their solicitor must be given a reasonable opportunity to see the complete set of images before it is shown to any eye-witness. -Immediately before they 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. -The video clip is then shown-the suspect’s solicitor may only be present on request and with prior agreement of the identification officer. -The procedure must be recorded on video with sound so all persons present can be seen and heard.

Question 34

What is the procedure for an identification parade?

Answer 34

A suspect must be given a reasonable opportunity to have a solicitor or friend present. -A video recording or colour photograph must normally be taken of the identification parade and supplied, on request, to the suspect or their solicitor within a reasonable time. -The parade shall consist of at least eight other individuals who resemble the suspect. -Steps can be taken to conceal the location of any unusual physical features. -The suspect may select their own position in the line. -Witnesses must not be able to communicate with each other or overhear each other. Shall be brought in one at a time. -Immediately before the parade takes place, the witness shall be told that the person they saw on a specified earlier occasion may, or may not, appear in the images. -The witness can ask to hear any identification parade member speak.

Question 35

When should group identifications take place?

Answer 35

Group identifications may take place either: -with the suspect’s consent and co-operation; or -covertly without their consent

Question 36

What is the procedure for a group identification?

Answer 36

The location should be one where other people are either passing by or waiting around informally. Examples include people leaving escalators, pedestrians walking in a shopping centre or passengers on railway and bus stations. A colour photograph should be taken to give a general impression of the scene. As in other procedures the witnesses should not be able to communicate with each other.

Question 37

What is the remedy for breach of PACE 1984, Code D?

Answer 37

If there has been a breach, the remedy for the D is to apply to exclude evidence obtained in breach of the code under s78 PACE 1984. A breach does not automatically lead to the exclusion of the evidence. They key issue for the trial judge to decide is whether there has been any significant prejudice to the accused.

Question 38

What tests must be passed to secure public funding for criminal defence?

Answer 38

-the means test; and -the merits test (the ‘interests of justice’ test)

Question 39

What type of Ds are passported meaning they automatically pass the means test?

Answer 39

-defendants under 18 years of age -those on specified welfare benefits such as Universal Credit

Question 40

Outline the means test in the magistrates' court.

Answer 40

An initial assessment works out their weighted gross annual income. Once this figure is calculated, the applicant will: -be eligible for public funding-if below the lower threshold (£12,475 or less) -be ineligible for public funding-if above the upper threshold (£22,235 or more) -be required to undertake a full means test (form CR15) if between the threshold. The full means test will establish the applicant’s annual household disposable income (if it is £3,398 or less they will be funded)

Question 41

Outline the means test in the Crown Court.

Answer 41

The applicant is assessed on their income and capital, including any equity. After a combined allowance of £30,000, applicants can be required to contribute any balance towards their defence costs. In relation to the applicant’s annual household disposable income, the applicant will be: -ineligible for public funding-if above the threshold (£37,500 or more) -eligible for public funding without any contribution-if the below the threshold (£3,398 or less) -eligible for public funding with a contribution-if between the thresholds.

Question 42

What type of Ds automatically pass the merits test?

Answer 42

You automatically pass the interests of justice test if: -charged with an indictable-only offence -an either-way offence is later sent to the Crown Court

Question 43

What is the most common way of commencing criminal proceedings?

Answer 43

Arrest and charge.

Question 44

What is written charge and requisition?

Answer 44

This is a method of commencement created by s29 CJA 2003. A public prosecutor may commence proceedings by issuing a written charge charging a person with an offence. There is no requirement that the person charged has been arrested. At the same time, a requisition is issued which requires the charged person to attend a magistrates’ court.

Question 45

What is laying an information?

Answer 45

Another way to commence proceedings is for the prosecutor to serve an information alleging an offence on a magistrates’ court. The court will then issue a summons or an arrest warrant requiring the accused to attend.