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FLK 2 CRIMINAL LAW > Preliminaries to prosecution - Suspect's rights > Flashcards

Preliminaries to prosecution - Suspect's rights Flashcards

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1
Q

The rights of a detained person - intro

A

An arrested person taken to the station or someone attending voluntarily must be told about their continuing rights which may be exercised at any stage during the period in custody (custody officer must make sure).

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2
Q

What are these continuing rights?

A
  • the right to consult privately with a solicitor & that free independent elgal advice is available
  • the right to have someone informed of their arrest
  • the right to consult the codes of practice
  • if needed … right to appropriate adult/interpreter
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3
Q

Will these rights be recorded on the custody record?

A

Yes, the custody record will record these rights have been given & any responses by the suspect
(for example- name of solicitor or person to be notified).

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4
Q

Can a suspect be delayed from exercising these rights?

A

Yes - PACE allows for police to delay in certain limited circumstances

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5
Q

The Right to Consult a Solicitor.

A
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6
Q

What is the fundamental right to a solicitor under S58?

A

Right to free & independent legal advice (includes consulting with solicitor in person, on phone, or in writing).

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7
Q

The person being detained must be told again of the right to free legal advice immediately before:

A
  • the commencement of an interview
  • being asked to provide an intimate sample
  • intimate drug search
  • identification parade or video identification procedure
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8
Q

Does the option of legal advice need to be noted on the custody record?

A

Yes, if legal advice is declined it should be noted on the custody record.
If legal advice is sought, it must be given ASAP.

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9
Q

Should police wait for the solicitor to arrive before begining the interview?

A

Yes

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10
Q

What if a detained person declines legal advice but then changes their mind?

A

The interview should cease & can recommence once the detainee has exercised their right to seek legal advice.
(nothing should be done to dissuade a suspect from obtaining legal advice)

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11
Q

Power to delay the right.

A
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12
Q

Why must the decision to delay the right be justified by the police?

A

Because it can have major implications for any evidence obtained against the suspect.

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13
Q

What is the authority for delaying the right?

A

Can only be delayed in accordance with S57 & COP C Annex B.

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14
Q

How long can this right be delayed upto?

A

max 36 hours.

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15
Q

If the grounds to delay are authorised, should they be recorded?

A

Yes - they should be recorded & suspect must be informed.

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16
Q

What if the suspect is interviewed before consulting with solicitor because the right is delayed?

A

There are restrictions on the drawing of adverse inferences at court.

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17
Q

Criteria to delay the right under S58 & COP C Annex B.

A
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18
Q

What type of offence must the person be in detention for?

A

Indictable.

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19
Q

How must the authority to delay the exercise of the right be granted?

A

In writing, by a police officer of at least the rank of superintendent.

20
Q

What must the superintendent have reasonable grounds to believe?

A

That the exercise of the right will lead to any or all of the following:

  • Interference with/harm to evidence connected with an indictable offence
  • Interference with/harm to others
  • Alerting of other people suspected of committing an indictable offence but not yet arrested for it
  • Hinder the recovery of property obtained in consequence of the commission of such an offence.
21
Q

What if a person has been detained for an indictable offence & has benefitted from their criminal conduct?

A

The right may be delayed.

for example - they’ve obtained property which they might take steps to conceal, such as moving the property outside the jurisdiction
- this is property that upon conviction might be confiscated by virtue of Proceeds of Crime Act 2002 (POCA).

22
Q

On what grounds can authority to delay be given?

A

If there are grounds to believe that the solicitor might pass on a message or act in some other way that would lead to consequences mentioned.

23
Q

The Right to Have Someone Informed of the Arrest.

A
24
Q

What is the right to have someone informed under S56?

A

An arrested person has the right to have a friend, relative or other person told that they’re under arrest (at public expense)

  • this right can be exercised every time the suspect is taken to a different police station
25
Q

Power to delay the right.
What is the authority for delaying this right?

A

If the necessary criteria are met - S56 PACE.

26
Q

Criteria to delay the right to have someone informed of arrest.
What type of offence must the person be in detention for?

A

Indictable - an offence that may be tried in the crown court (ie. indictable only & either way offences)

27
Q

How must the authority to delay the exercise of the right be granted?

A

In writing, by a police officer of at least the rank of inspector.

28
Q

What must the inspector have reasonable grounds to believe?

A

That the exercise of the right will lead to any or all of the following:
- Interference with/harm to evidence connected with an indictable offence

  • Interference with/harm to others
  • Alerting of other people suspected of committing an indictable offence but not yet arrested for it
  • Hinder the recovery of property obtained in consequence of the commission of such an offence

(right may be delayed if person has benefitted from criminal conduct - POCA)

29
Q

Is it easier to justify delay under S56 or S58?

A

Section 56 - police may want to search property & not want anyone ‘tipping off’ so that evidence can be disposed before they get there.

30
Q

How long should delay/denial of these rights last?

A

No longer than necessary - should be proportionate.

  • can only be delayed up to 36 hours max
  • as soon as search has been conducted or others arrested, appointed person should be notified
31
Q

The Right to an Appropriate Adult (if required).

A
32
Q

When MUST an appropriate adult be present at the police station?

A

If a person is, or appears to be, under 18.

33
Q

Apart from this, who else does the right to an appropriate adult apply?

A

To anyone who a police officer suspects may be:
- mentally disordered or otherwise mentally vulnerable
- anyone whom an officer has been told in good faith may be mentally disordered or otherwise mentally vulnerable.

34
Q

In the case of a young detainee (under 18), who can act as an appropriate adult?

A
  • a parent or guardian

In the case of a young person looked after under the Children Act 1989:
- a representative of the care authority or voluntary organisation or a social worker.

Failing these - anyone over 18 who isn’t a police officer/employee will suffice.

35
Q

In the case of a detainee who is mentally disordered, or otherwise mentally vulnerable, who can act as an appropriate adult?

A
  • a parent
  • a guardian
  • a relative
  • someone who has experience in dealing with such persons
36
Q

What are the requirements for an appropriate adult?

A
  • must be 18 or over
  • must not be a police officer/employee
37
Q

Should a solicitor/legal representative attending the police station for the suspect act as an appropriate adult?

A

No.

38
Q

Who cannot act as an appropriate adult?

A

A person cannot act as an appropriate adult if they’re:
- suspected of involvement in the offence
- the victim of, or a witness to, the offence
- involved in the investigation
- a person who has received admissions from the person detained before acting as appropriate adult
- of low IQ & unable to appreciate the gravity of the situation
- an estranged parent whom an arrested juvenile doesn’t wish to attend and specifically objects to

39
Q

What is the role of the appropriate adult?

A
  • ensure the detained person understands what’s happening and why
  • support, advise & assist the detained person
  • observe whether the police are acting properly & fairly and to intervene if they aren’t
  • assist with communication between detained person & police
  • ensure the detained person understands their rights & that those rights are respected & protected
40
Q

Can an appropriate adult request a solicitor/legal representative on behalf of the person detained?

A

Yes, but the person detained doesn’t have to see the solicitor if they don’t want to.

41
Q

Can a young or mentally disordered or vulnerable detainee be interviewed or asked to provide a written statement without the presence of an appropriate adult?

A

Yes, but only if delay of the interview/statement would be likely to lead to:
- interference with or harm to evidence connected with an offence

  • interference with or physical harm to other people
  • serious loss of or damage to property
  • alerting other suspects not yet arrested
  • hindering the recovery of property obtained in consequence of commission of the offence.
42
Q

The Right to an Interpreter - where required

A
43
Q

Who determines whether a suspect requires an interpreter?

A

Custody Officer

44
Q

If an interpreter is required, can the suspect be interviewed without one?

A

No, unless authorisation is given by an officer of at least the rank of superintendent or above who is satisfied that delaying the interview will lead to:

  • interference with, or harm to evidence; or
  • interference with or physical harm to other people; or
  • serious loss of, or damage to, property.
45
Q

Treatment of suspects in a police station - which COP gives details on conditions of detention?

A

COP C 8

46
Q

What are these conditions?

A
  • so far as is practicable, no more than one detainee should be detained in each cell
  • cells must be adequately heated, cleaned & ventilated
  • bedding must be supplied
  • toilet & washing facilities made available
  • if a detainee’s clothes have been removed .. replacement clothing of a reasonable standard shall be provided
  • two light meals & one main meal every 24 hours

FLK 2 CRIMINAL LAW (10 decks)

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