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Criminal Law and Practice > Preliminaries to prosecution I (arrest and detention) > Flashcards

Preliminaries to prosecution I (arrest and detention) Flashcards

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1
Q

Will a person who has been arrested always be taken to a police station ASAPracticable?

A

Yes unless presence at another place necessary to carry out investigations that must be reasonably carried out immediately e.g. taken back to premises being searched or to a place to check their alibi

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2
Q

Can an arrested person be taken to any police station?

A

Yes unless it is anticipated they will be detained for over 6 hours - in which case they must be taken to a designated police station

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3
Q

What is ‘street bail’?

A

Instead of being taken to police station, person can be granted (conditional) bail to attend police station at later date

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4
Q

What happens to a detainee once they arrive at the police station?

A
  • See custody officer who authorises detention
  • Informd of rights
  • Non-intimate samples taken
  • See appropriate healthcare professional
  • Speak to a solicitor at their request
  • Be interviewed
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5
Q

What 3 different things might happen after the police interview (and suspect is not fully innocent)?

A

Detainee is…

  • released under investigation or on police bail;
  • charged and released on police bail to appear at Mags at later date; or
  • charged and remanded in custody to appear at Mags following day
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6
Q

What is a custody officer (CO) responsible for and what must they (not) be?

A
  • Responsible for welfare of suspects in detention at police station
  • Must be unrelated to process of investigation
  • Must be at least rank of sergeant

If the CO is not available = role may be performed by another officer who is not normally involved in the investigation of an offence for which the person is in detention.

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7
Q

What are the rankings of an officer?

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

Can
Someone
If possible
Come In
Speedily
Cos Sick

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8
Q

When should a CO order the release of a detainee?

A

If they become aware that grounds for detaining have ceased to exist (are the only person who can detain or release someone)

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9
Q

What is the first thing a CO will determine?

A

Whether or not there is sufficient evidence to proceed to charge the detainee

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10
Q

If there is not sufficient evidence to charge detainee, when can the detainee nonetheless not be released?

A

Where there are reasonable grounds for believing detention is necessary to:

  • Secure or preserve evidence; or
  • Obtain such evidence by questioning
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11
Q

If there are grounds to detain, what must CO do re the detention and what must they inform detainee of?

A
  • Authorise detention of suspect and open custody record
  • Inform detainee of reason for arrest/detention and of rights

Additional duties include:
* Conducting a risk assessment procedure for each detainee.
* Making special arrangements, if necessary, for detainees who may be physically or mentally incapacitated.
* Arranging for interpreters to be present, where appropriate.
* Dealing with a detainee’s property.
* Contacting healthcare professionals, if needed.

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12
Q

If detainee is not treated in accordance with Codes of Practice, what does the CO risk?

A

The exclusion of evidence

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13
Q

What kind of detainee is a custody record opened for and what should it include?

A
  • Each detainee whether arrested or they surrender (to bail)
  • Includes reason for and circumstances of arrest

I.e. everything that has happened, been said to or been said by detainee

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14
Q

What right does the solicitor have on attending the police station re the custody record?

A

The right to consult it whenever after arrival

Solicitor = a solicitor who holds a current practising certificate or an accredited or probationary representative included on the register of representatives maintained by the Legal Aid Agency.

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15
Q

What does a review officer do, what rank must they be, what must they not be connected with and who must they not be the same person as?

A
  • Considers whether grounds for detention (as authorised by CO) still exist
  • Must be rank of at least inspector
  • Not connected with investigation
  • Not the CO
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16
Q

How often must reviews take place?

A
  • First = not more than 6 hours after detention first authorised
  • Every 9 hours thereafter
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17
Q

What must detainee be reminded of and given the opportunity to do at each review?

A
  • Reminded of right to free legal advice
  • Given opportunty to make representations (unless unfit/asleep)
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18
Q

What is the maximum period that suspect can be kept in custody without being charged and when does this start?

After expiry - suspect must be either charged or released

A
  • 24 hours from relevant time
  • Relevant time = moment suspect arrives at police station (not when authorised) where arrest takes place within particular police area (otherwise 24 hours after arrest)

Do not confuse the relevant time with the time detention is authorised as they will generally be different.

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19
Q

By how much can detention be extended by police?

I.e. by police; no court involvement

A

Extended by 12 hours (taking max period up to 36 hours)

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20
Q

What is the criteria for extending detention by 12 hours (to 36 hours)?

Rank…reasonable grounds…offence is…investigation conducted…

A
  • Authorised by at least superintendent
  • SI has reasonable grounds for believing detention necessary to secure/preserve evidence or obtain evidence by questioning
  • Offence is indictable offence
  • Investigation conducted diligently and expeditiously
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21
Q

What are the practicalities on exercising extension of detention by 12 hours?

Before…explained…representations

A
  • Authorisation given before expiry of initial 24 hours and after 2nd review
  • Grounds for extension explained to the suspect and noted in custody record
  • Suspect(‘s solicitor) allowed opportunity to make representations
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22
Q

How do police extend detention beyond 36 hours and what is the maximum?

A
  • Apply to magistrates’ for warrant of further detention
  • Maximum of 96 hours (36 on first app and 24 on second)

  • 24 hours originally (24)
  • Extend by 12 (36)
  • Extend by 36 on first application (72)
  • Extend by 24 on second application (96)
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23
Q

What is the criteria for an extension of time on application to mags?

A

Same as before - reasonable grounds further detention necessary, indictable offence, diligent and expeditious investigation…

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24
Q

How is time extended for a summary only offence?

A

It cannot be

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25
Q

What are the rights of a person who is arrested/attends police station voluntarily? When can they be excercised?

A
  • Consult privately with solicitor + availability of free independent legal advice (s58)
  • Have someone informed of arrest (s56)
  • Consult with Codes of Practice

Exercised at any stage during custody period - but can be delayed!

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26
Q

On what occasions must a detainee be told again of the right to free legal advice? What happens if it is declined or sought?

A

Immediately before…

  • Commencement/recommencement of interview
  • Being asked to provide intimate sample
  • Intimate drug search
  • Identification parade/video identification parade

If declined = noted on custody record

If sought = provided ASAPracticable

27
Q

Do the police have to await arrival of solicitor before interview?

A

They should usually - they should not dissuade suspect from obtaining legal advice

28
Q

If a detainee changes their mind about wanting legal advice halfway through interview, what should happen?

A

Interview should cease and recommence once detainee exercises right to seek legal advice

29
Q

What is the criteria for delaying the right to legal advice?

Rank…offence is…reasonable grounds..

A
  • Authorised in writing by at least superintendent
  • Offence is indictable offence
  • SI has reasonable grounds for believing that exercise of right will lead to one of the consequences
30
Q

What are the 4 consequences that a superintendent may have reasonable grounds for believing might occur if the right to legal advice is exercised?

A
  1. Interference/harm to connected evidence
  2. Interference/harm to others
  3. Alerting of people suspected of committing indictable offence but not yet arrested; and/or
  4. Hinder recovery of property obtained in consequence of commission of offence
31
Q

If the power to delay the right to legal advice is exercised, what should happen? What is the consequence of intervieiwing suspect without them obtaining legal advice before?

A
  • Authorised grounds recorded and suspect informed
  • Restrictions on drawing adverse inferences if suspect interviewed before able to consult with solicitor bc delayed
32
Q

Would the power to delay the right to legal advice provide justification to delay right to legal advice generally?

A

No - suspect must be allowed to choose alternative solicitor (rather than named)

As delay based on grounds to believe that solicitor might pass on message/act in some way that would lead to consequences

33
Q

Does the right to have someone (friend, relative) informed of arrest mean that detainee can call them themselves?

I.e. have someone held incommunicado

A

No

34
Q

What is the criteria for delaying the right to have someone informed?

A

Same as power to delay legal advice…

  • Authorised in writing by at least inspector
  • Offence is indictable offence
  • SI has reasonable grounds for believing that exercise of right will lead to one of the consequences

4 consequences are same

35
Q

If the power to delay the right to have someone informed is exercised, when should person be notified?

A

As soon as search conducted/other suspects arrested

36
Q

What is the maximum amount of time that legal advice/informing someone can be delayed for?

A

36 hours

37
Q

What are the other circumstances in which right to legal advice/have someone informed can be delayed?

A

If person has been detained for indictable offence and benefitted from criminal conduct i.e. have obtained property which they might take steps to try and conceal (e.g. move property out of jurisdiction)

38
Q

What two types of person will have the right to an appropriate adult?

A

Is/appears to be under 18 or if (it is suspected that) they are mentally vulnerable

39
Q

Who can act as an appropriate adult? Who cannot?

A
  • Can = parent, guardian, relative, rep of care authority/social worker, someone with experience of dealing with mentally disordered persons
  • Cannot be = police officer/employee, attending solicitor

Failing above - anyone over 18

40
Q

When can a person not act as an appropriate adult?

A
  • Suspected of involvement
  • Victim/witness to offence
  • Involved in investigation
  • Has received admissions from detainee before acting as AA
  • Of low IQ/unable to appreciate gravity of situation
  • An estranged parent and arrested juvenile specifically objects
41
Q

What is the role of an appropriate adult?

A
  • Ensure detainee understands what is happening and their rights - support/advise them
  • Observe if police are acting fairly and intervene if not
  • Assist with communication
42
Q

Can an appropriate adult force detainee to see solicitor?

A

Can request one, but detainee does not have to see them

43
Q

When can a young/mentally disordered/vulnerable detainee be interviewed or asked to provide written statement without presence of appropriate adult?

A

Where delay would lead to one of the consequences and authorised by superintendent in writing

Consequences = same as other delays

Also applies to interviewing someone without an interpreter who needs one

44
Q

What are the conditions of detention in a police station?

A
  • No more than one detainee per cell (as far as practicable)
  • Cells adequately heated, cleaned, and ventilated
  • Bedding supplied
  • Toilet and washing facilities available
  • Replacement clothign if removed
  • Two light meals and one main meal every 24 hours
45
Q

What is an interview and why are procedures followed for them?

A
  • The questioning of a person regarding their involvement or suspected involvement in a criminal offence(s)
  • To ensure suspect not coerced/misled into making incriminating statements
46
Q

What must a person be before they are asked any questions about their suspected involvement in commission of offence?

A

Cautioned; ‘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.’

47
Q

When must a person be cautioned? When is it not necessary?

A
  • Before they are asked any questions about suspected involvement and at recommencement of interview after break
  • Not necessary where questions asked for other purposes e.g. establish identity, seek verification of written record etc.
48
Q

Who will lead the interview?

A

Investigating officer (otherwise known as ‘officer in the case’ as they are in charge of investigating that particular offence)

49
Q

What rank must the investigating officer (IO) be and what do they do?

A
  • Any rank
  • In charge of investigating offence and will speak to suspect’s legal reps
50
Q

Must an arrested person be interviewed at a police station?

A

Either police station or other authorised place of detention

51
Q

In what situations can an interview take place not at a police station?

A

Where delay would lead to:

  • Interference/harm to connected evidence
  • Interference/harm to other persons
  • Loss/damage to property
  • Alerting of other suspects not arrested
  • Hinder recovery of property
52
Q

What right to disclosure does the suspect’s legal rep have?

A

No general right to disclosure with exception of:

  • Significant statements
  • Custody record
53
Q

What does PACE COP C11 state a solicitor must be given re information?

I.e. enough to what?

A

Sufficient information to enable them to understand nature of offence and why client is suspected of committing it

Defence solicitor and police have competing interests - IO will want to hold back as much info as possible and solicitor want as much as possible

54
Q

What is a significant statement?

A

One that appears to be capable of being used as evidence and in particular a direct admission of guilt (confession)

At the beginning of an interview, but after caution, any significant statement made by the person interviewed in the presence of a police officer or member of police staff must be put to them.

55
Q

Can an interviewing officer indicate what action police will take if suspect answers/refuses to answer questions or make statement?

A

No (except if directly asked)

56
Q

What is the rule on recording interviews?

A

All interviews must be contemporaneously recorded

57
Q

Must interviews always be audio recorded?

A

For any indictable offence yes - can be in writing if minor offence where person has not been arrested and is not at police station

58
Q

When should a person not be interviewed? Can a person still be interviewed in these circumstances?

A

Cannot…

  • Appreciate significance of questions asked and their answers; or
  • Understand what is happening because of drink, drugs, illness, condition

Rank of superintendent can authorise interview still

59
Q

What should a solicitor do pre-interview?

A
  • Obtain disclosure statement
  • Privately consult w client to discuss case and advise options
60
Q

When should a solicitor intervene in an interview?

A
  • Information/evidence referred to that was not disclosed
  • There is inappropriate questioning or behaviour
  • Further advice to client is needed
  • Break is required
61
Q

What are inappropriate questioning techniques?

A
  • Misrepresenting information e.g. inaccurate summarising
  • Hypothetical questions
  • Repetitive questioning
  • Disruptive listening e.g. not listening to suspect’s response
62
Q

Under what two pieces of legislation can a confession be excluded and why?

NB starting point is that confessions are admissible

A
  • S76 - as a result of oppression (which causes confession) or unreliability (something said/done which renders it unreliable)
  • S78 - if it would have such an adverse effect on fairness of proceedings that court ought not to admit it (more general))

Must apply; not automatic

63
Q

What is every right that can be delayed/modified if superintendent has reasonable grounds to believe that not delaying/modifying would lead to one of the consequences?

  • Interference/harm to connected evidence
  • Interference/harm to other persons
  • Loss/damage to property
  • Alerting of other suspects not arrested
  • Hinder recovery of property
A
  • Right to legal advice
  • Right to have someone informed
  • Right to an appropriate adult
  • Right to interperter
  • Right to be interviewed at a police station
64
Q

What are the similarities and differences in criteria between a) extending detnetion and b) delaying right to legal advice, have someone informed etc.

A

Similarities = indictable offence, authorised by superintendent

Differences

  • Extended = reasonable grounds to believe detention necessary to secure/preserve evidence or obtain further evidence by questioning + investigation conducted expeditiously
  • Delayed = reasonable grounds to believe exercising right will lead to one of the conseqeunces

Criminal Law and Practice (21 decks)

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