Preliminaries to prosecution - syllabus area 2 Flashcards
when a person is arrested without being informed of the reason is the arrest lawful?
No. the arrest is unlawful unless the person is also informed of the grounds of being under arrest as soon as practicable after the arrest - D1.17
what else makes an arrest unlawful?
an arrest is unlawful unless the person is informed of the ground of the arrest at the time of the arrest, or as soon as practicable after the arrest
if a constable arrests without reason is it lawful?
it is unlawful
would failure to inform why the arrest is necessary be unlawful?
no
what is the test for the words if the arrest was sufficient?
if the person arrested was told in simple, non technical language that the person could understand the essential legal and factual grounds for the arrest
does failure to administer a caution render the arrest unlawful?
no. though it may provide grounds for exclusion of evidence under PACE 1984, s.76 or 78
what must the arresting officer note in his pocket book while arresting?
the nature and circumstances of the offence leading to the arrest, the reasons why the arrest was necessary, the giving of caution and anything said by the arrested person at the time of the arrest. if impracticable to make the record at the time of the arrest, the record must be completed as soon as possible thereafter
what should occur when a person is arrested at a place other than a police station? or is taken to custody by a constable
The person should be taken to a designated police station as soon as practicable thereafter.
In exceptional circumstances they may be taken to a non designated station
When may a constable delay taking the accused into the station or releasing them on bail?
This may occur if the persons presence at a place other than the station is necessary to carry out investigations as it is reasonable to carry out immediately, but reasons must be recorded
what must a constable satisfied that there are no grounds to keep the arrested person under arrest or releasing them on bail do?
release the person and record the facts
Can an arrested person be released wither without bail or on bail to attend the station at a later date?
yes, it may occur.
the release may be on bail if the officer is satisfied it Is necessary and proportionate in the circumstances, and it is authorised by an inspector.
conditions may be imposed to secure surrender, prevent offences and interference with witness or obstructing the administration of justice or for the person’s own protection.
an application to vary conditions may be made to the police and magistrates after
what happens when a person is arrested for an offence and is at the station and it appears to the police that if released they would be liable to arrest for some other offence?
the person must be arrested for that offence
when may a constable arrest without a warrant?
anyone:
- about to commit an offence
- in the act of committing an offence
- whom he has reasonable grounds for suspecting to be about to commit an offence
- whom he has reasonable grounds for suspecting to be committing an offence
what happens if a constable has reasonable grounds for suspecting an offence has been committed?
He may arrest without a warrant anyone he suspects of being guilty of it
where an offence is committed, who may a constable arrest without a warrant?
anyone who is guilty of the offence
anyone whom he has reasonable grounds for suspecting to be guilty of it
what statute governs arrest under warrant for a criminal offence?
the MCA 1980
the offence for which a Mags court may issue an arrest for warrant must be:
indictable or punishable with imprisonment, or the persons address must not be sufficiently established for a summons to be served
what circumstances must a warrant me issued?
offence is punishable by imprisonment or after the conviction, the court proposes to impose disqualification
in case of private prosecution for certain offences:
a warrant must not be issued without the consent of the DPP -D1.35
What happens when an indictment has been signed but the person charged has not been sent for trial
- the Crown Court may issue a summons requiring that person to appear before it or may issue an arrest warrant
- a similar power applies where a person charged with or convicted of an offence has entered into a recognisance to appear at the Crown Court and fails to do so
when is a person in police detention?
a person is in police detention if they have been taken to a police station after being arrested for an offence under the TA 2000,S 41 or has been arrested at the police station after attending voluntarily or accompanying a constable to it, and is detained there or elsewhere in the charge of a constable
when a person is in detention again?
a person is in detention if in custody of a designated civilian detention, investigating or escort officer by virtue of the police reform act.
is a person who is at court after being charged in police detention?
no , neither is a person who attends a police station to answer to live link bail in accordance with a direction under the CDA
A person must be taken to the station unless:
it is anticipated that detention of more than six hours will be necessary, in which case the person should be taken to a police station designated under s.35
one or more police officers must be appointed for each designated station
what rank should a custody officer be?
at least the rank of a sergeant
what happens if a custody officer is not available?
another officer may perform the duties but must not be involved in the investigation for which the person is in detention
where must a person arrested be kept?
in police detention in accordance with PACE 1984
Such a person may be detained only on the authority of a custody officer and may not be released except on the custody officer’s authority
what is the responsibility of the custody officer?
to ensure a person is treated in accordance with the PACE 1984 codes of practice.
when must a custody record be opened?
as soon as practicable in respect of each person who is brought to a police station under arrest, or who is arrested at the station after voluntarily attending. Or who attends police station in accordance with bail granted under PACE
does a custody record have to be made in respect of a volunteer who is arrested?
no, it doesn’t
who is responsible for the custody records?
the custody officer
what happens to the custody record when the detained person is transferred to another police station
the custody record or a copy of the record must accompany the person and must show the time and reason of the transfer
what right does a person arrested and held in custody have?
they have a right (at their request) to have one friend, or relative or other person who is known to him or her or is likely to take an interest in their welfare told of the arrest and place of detention
when must a friend or relative be called while in detention?
as soon as practicable
what happens when a friend or family cannot be contacted?
the detainee may choose up to two alternatives. if they cannot be contacted, the person in charge if the investigation has a discretion to allow further attempts till the information has been conveyed
when can an arrested person contact a solicitor?
at any time
when should mentally vulnerable or disordered people be assessed?
as soon as practicable
what is the maximum period a person can be detained at a police station?
24 hours, which may be extended by 12 hours where authorised by the responsible medical practitioner
under the mental health act, before deciding to move a person to a place safety what must a constable do?
a constable must if practicable, consult a registered medical practitioner, registered nurse, approved mental health practitioner or a person of description specified in regulations
who is an appropriate adult?
a parent or guardian, or if the child is in care of local authority or voluntary organisation, a person representing that authority or organisation, a social worker of a local authority
who is an appropriate adult in the case of a mentally disordered or vulnerable child?
a parent or guardian or other person responsible for care or custody of the person, someone who has experience of dealing with such persons (not a police officer). failing those people, some other responsible adult aged 18 or older and is not a police employee
can a solicitor be an appropriate adult?
no
who should not be an appropriate adult?
- someone suspected of involvement in the suspected offence
- a victim or witness
- someone involved in the investigation
someone who has received admissions from the suspect before acting as the appropriate adult
what is the role of an appropriate adult?
- to safeguard the rights, entitlements and welfare of children and vulnerable persons.
ALSO: to support, advise and assist detainees when they are given or asked to provide information or participate in any procedure - to observe whether police are acting properly and fairly, and if not, to inform an officer rank of inspector or above
- assist detainees to communicate with police while respecting their right to say nothing unless they want to
- to help them understand their rights and ensure they are protected and respected
where appropriate consent is required what age must only the guardian give consent?
if they are less than 14. however if they are 14 but under 18, both the person and guardian must consent.
if the appropriate adult is not a parent or guardian, consent cannot be given
normal maximum period of detention?
24 hours from the relevant time .
if on expiry the person is not charged, they must be released on bail.
it may be extended for an indictable offence up to a total of 36 hours from the relevant time by a superintendent or above.
and for up to 96 hours from the relevant time by a magistrates court
does hospital treatment count as relevant time?
no . if questioned at hospital, entitled to a solicitor
when is the relevant time?
the time an arrested person arrives at the first police station , or 24 hours after arrest, whichever is earlier
or when a person released on bail is detained when attending the station to surrender to custody or is arrested for failure to surrender to custody
when will proceedings for an offence to which a penalty notice is concerned be brought?
it may not be brought until the end of the 21 day period beginning with the date the notice was given
is a penalty notice a conviction?
no it is not, and does not amount to an admission of guilt not proof that a crime was committed
examples of fixed penalty offences:
depositing waste or litter
failure to provide specified receptacles for household or commercial waste
failure to comply with a community protection notice
failure to comply with consumption of alcohol prohibition
exceeding permitted noise levels in a dwelling
abandoning a vehicle
exposing two or more vehicles for sale on a road or repairing vehicles on a road for profit
failure to nominate a key-holder where an audible intruder alarm is installed on premises
in which ways can an accused’s first appearance occur?
1) they may be arrested and after police advice from CPS, charged by the police
2) may be arrested, granted bail while CPS decide if evidence is sufficient and CPS may charge
3) the accused may be arrested, granted police bail and subject to return at a later date, during which cps will determine evidence then charge
4) the accused may be served a written charge
5) application may be made to the magistrates court for the issue of a summons
references to summons = requisition
references to information = written charge
prosecutions may be brought by
- police
- director of the sfo
- DPP= CPS
- director general of the NCA
- A-G
- a person specified by the Secretary of State
who may institute a criminal proceedings and how?
relevant prosecutors by a written charge which charges the person of the offence
who may institute a criminal proceedings and how?
relevant prosecutors by a written charge which charges the person of the offence
what follows after a written charge?
requisition
who must the written charge and requisition be served on?
the accused and a copy must be served on the court named in the requisition
this method only applies to relevant prosecutor
where is the written charge and requisition procedure not available?
in private proceedings
how are private proceedings commenced?
by making an application to the magistrates court for the issue of a summons
what must a prosecutor who wants the court to issue a summons do?
either serve a written application on the court or present an application orally to the court (with a written record of the allegation) made by the prosecutor
what must the prosecutor include in an allegation
- set out the allegations made by the applicant
- and if there is a time limit for prosecution of the offence(s), demonstrate that the application is made in time
to satisfy the latter requirement, there must be reference to the applicable time limit, otherwise it is not demonstrated that the application is made in time. it must be specifically referred to (time-limit). it is not enough to just set out the date of offence and application
what may a magistrate judge do when a person has committed an offence or is suspected to have committed it?
- issue a summons for the accused to appear before them to answer the information “written charge”
- issue a warrant to arrest the person and bring him before the court
a justices’ clerk specifically authorised by the justices’ clerk may issue a summons but not warrant
what must the summons contain?
a notice setting out where the accused must attend court and specify each offence in respect in which it has been issued
- a summons must identify the issuing court and a requisition must identify the person under whose authority it is issued
when may a magistrates court not try an accused for a summary offence
they may not try an accused for a summary offence unless the application for a summons was served on the magistrates’ court within six months of the time when the offence was allegedly committed.
when must a written charge be issued?
within six months. A written charge is issued only when the document has all relevant details and is in the form needed for service
magistrates may decline to hear a matter if not satisfied that they are sure that proceedings were commenced within the statutory limit. True or false?
True
