Preliminaries to Prosecution (W3)

Question 1

D1.1 - Failure to follow PACE 1984 and PACE Codes of Practice

Answer 1

• Does not, of itself, render that officer liable to criminal or civil proceedings (PACE 1984, s 67(10))
• To the extent they are relevant, however, the codes are admissible as evidence in criminal or civil proceedings (PACE 1984, s 67(11))

Question 2

D1.81 - Definition of ‘interview’

Answer 2

Code C, Para 11.1A - the ‘questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under para 10.1, must be carried out under caution.’

Question 3

D1.81 - When is a caution required?

Answer 3

Code C, Para 10.1 - a person whom there are grounds to suspect of an offence ‘must be cautioned before any questions about an offence, or further questions if the answers provide the grounds for suspicion, are put to them if either the suspect’s answers or their silence…may be given in evidence to a court in a prosecution.’

Question 4

D1.81 - When is a caution not required?

Answer 4

Code C, Para 10.1
If questions are for other purposes, e.g.:
(a) solely to establish identity or ownership of a vehicle;
(b) to obtain information in accordance with a statutory requirement, e.g. the statutory drink driving procedure is not an interview
(c) in furtherance of the proper and effective conduct of a search (although if questioning goes further, e.g. to establish whether drugs found were intended to be supplied to another, a caution will be necessary)
(d) to seek verification of a written record of comments made by the person outside an interview

Question 5

D1.82 - Where an interview may be conducted

Answer 5

Code C, Section 11

- Must normally be interviewed only at a police station or other authorised place of detention (Para 11.1)

Question 6

D1.82 - Exceptions to requirement that a suspect is interviewed at a police station

Answer 6

Code C Para 11. 1: Where delay would be likely to:

(a) lead to interference with or harm to evidence connected with an offence, interference with or physical harm to any other persons, or serious loss of, or damage to, property
(b) lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it; or
(c) hinder the recovery of property obtained in consequence of the commission of an offence

Interviewing in any of these circumstances must cease once the relevant risk has been averted or the necessary questions have been put.

Question 7

D1.82 - Police interviews by live link

Answer 7

PACE 1984 s.39 as amended by PCA 2017 s 75 - a person in police detention can be interviewed by an officer who is not at the police station, using live link. The officer who is not at the police station has the same duty as the officer to whom custody of the person has been entrusted to ensure that the person is treated in accordance with the provisions of PACE.

Question 8

D1.83 - When must a caution be given?

Answer 8

• At the commencement of interview, whether or not it is conducted at a police station
• At the recommencement of interview after any break
• On arrest

Question 9

D1.83 - Usual caution (Code C, para 10.5)

Answer 9

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 10

D1.83 - Wording of the caution

Answer 10

• Minor deviation from the usual words is permissible provided the sense of the caution is preserved (Code C para 10.7)
• Where an interpreter is used, the fact the caution is not perfectly translated will not render it invalid provided the essential features are communicated (Koc)
• If it appears the suspect does not understand the caution, the person giving it should explain in their own words (Code C, Note for Guidance 10D)

Question 11

D1.83 - Exception where the caution is different

Answer 11

Where the suspect is interviewed after charge, or interviewed in circumstances where the suspect has requested a solicitor but has not been permitted to consult with one, the caution is (Code C, annex C, para 2):
‘You do not have to say anything, but anything you do say may be given in evidence.’
- This is because in these circumstances inference cannot be drawn under CJPO 1994
- Although Code C does not require a caution to be given if a statement is taken after charge, it should be given (Pall)

Question 12

D1.84 - Requirements to be fulfilled for a caution to be given

Answer 12

Code C, para 10.1 requires a caution to be given to a person ‘whom there are grounds to suspect’ of an offence.
- Note for Guidance 10A: there must be ‘some reasonable, objective grounds for the suspicion, based on known facts or information.’

Question 13

D1.84 - Consequences of failure to give a caution in circumstances where it is required

Answer 13

• Significant and substantial breach of Code C
• Will not necessarily result in exclusion of evidence of the interview but may do
• Giving the wrong caution will also not necessarily lead to exclusion

Question 14

D1.84 - Information that suspect and solicitor should be given when interviewed

Answer 14

• Sufficient information to make it possible to understand the nature of the suspected offence and why the person is suspected of committing it (Code C, para 11.1A)
• This does not require disclosure of details at a time which might prejudice the investigation. The decision on what should be disclosed rests with the investigating officer.

Question 15

D1.85 - Special warning

Answer 15

Where a suspect is interviewed at a police station or other authorised place of detention following arrest, and:
(a) is asked to account for any object, mark or substance, or mark on such objects found on his or her person, in or on his/her clothing/footwear, otherwise in his/her possession, or in the place where the arrest took place; or
(b) to account for his/her presence at the place where the arrest took place,
a special warning must be given in the terms set out in Code C, para 10.11. Inferences cannot be drawn if the special warning is not given. (CJPO 1994, ss. 36(4) and 37(3))
- This is not necessary if the suspect has requested a solicitor and not been given one, since inferences cannot be drawn in that circumstance anyway.

Question 16

D1.86 - Information about legal advice

Answer 16

• Prior to the commencement or recommencement of an interview at a police station or other authorised place of detention, the interviewing officer must, unless access to a solicitor has been delayed or one of the exceptions applies, remind the suspect of the entitlement to free legal advice and that the interview can be delayed for legal advice to be obtained (Code C, para 11.2)
• Violation of a suspect’s entitlement to free legal advice may lead to exclusion of evidence.

Question 17

D1.87 - Significant statement or silence

Answer 17

• At the beginning of an interview, the interviewing officer must, after cautioning the suspect, put to the suspect any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff (Code C, para 11.4)
• Significant statement = one which appears to be capable of being used in evidence, and in particular a direct admission of guilt. Does not include what the suspect is alleged to have said whilst committing the offence (DPP v Lawrence)
• Significant silence = failure or refusal to answer a question, or answer satisfactorily under caution which might give rise to an adverse inference under the CJPO 1994 (para 11.4A)

Question 18

D1.88 - Police conduct in interview

Answer 18

• No police officer or other interviewer may try to obtain answers to questions or to elicit a statement by the use of oppression, nor indicate, except in answers to a direct question, what action the police will take if the suspect answers or refuses to answer questions or make a statement.
• If the suspect asks the officer directly what action will be taken, the officer may inform the suspect of the proposed action. The proposed action must be proper and warranted (Code C, para 11.5)

Question 19

D1.88 - Guidance from case law on conduct in interview

Answer 19

• Held to be legitimate for police officers to pursue interrogation of a suspect with a view to eliciting admissions (Holgate-Mohammed)
• Held that a confession should be excluded where the police falsely informed D that incriminating fingerprints had been found, although the fact the solicitor was also deceived was an important factor (Mason)
• Not every trick will result in exclusion of evidence (Maclean) but there is a duty on the police not to actively mislead a suspect (Imran and Hussain)
• Police questioning with is carried on after repeated denials/refusals may become oppressive (Paris)
• Hectoring and bullying is oppressive (Beales)
• Questioning that is rude/discourteous, with raised voices and bad language, is not (Emmerson)

Question 20

D1.88 - Asking hypothetical questions in interview

Answer 20

Permissible, although may need to be approached with care (Stringer)

Question 21

D1.89 - When interviews should cease

Answer 21

Interview of a person who has not been charged must cease when the officer in charge is satisfied that all relevant questions have been put to the suspect, account of all available evidence has been taken and the officer reasonably believes there is sufficient evidence to provide a reasonable prospect of conviction (Code C, para 11.6)
- Subject to the limits imposed by PACE 1984 on maximum periods of detention and the provisions regarding breaks and rest periods in Code C, section 12

Question 22

D1.90 - Recording of interviews

Answer 22

• Interviews, whether or not conducted at a police station, must normally be contemporaneously recorded (Code C, para 11.7)
• Any comment that might be relevant outside the context of an interview must be recorded and where practicable, the suspect must be given opportunity to verify the record (para 11.13)
• Failure to comply with recording requirements has led to exclusion of evidence but this is not always the case
• Interviews conducted under caution must normally be recorded using an authorised audio recording device (Code E, para 2.1)

Question 23

D1.91 - Special categories of persons

Answer 23

A child/young person or a mentally disordered/vulnerable person must not be interviewed or asked to provide/sign a written statement in the absence of the appropriate adult unless conditions for conducting an interview away from a police station are satisfied or the interview is authorised by an officer of the rank superintendent or above.

Question 24

D1.91 - Specific rules for children

Answer 24

• A child/young person should be interviewed at his/her place of education only in exceptional circumstances and even then, only if the principal or principal’s nominee agrees.
• Efforts should be made to notify parents and the appropriate adult.
• In cases of necessity, and provided the school was not the victim of the offence, the principal may act as the appropriate adult (Code C, para 11.16)
• The appropriate adult should be reminded of his/her functions as adviser and observer, and facilitator of communication (para 11.17)

Question 25

D1.91 - Interpreters

Answer 25

• A person whom the custody officer has determined requires an interpreter must not be interviewed without an interpreter unless authorised by an officer of the rank of superintendent or above and they are satisfied that delaying the interview would lead to the consequences in Code C, para 11.1(a) to (c), and that the interview would not harm the person’s mental/physical state.
• Interpreter should usually be physically present but may appear by live link if the custody officer/interviewer is satisfied this would not undermine or limit the suspect’s ability to communicate
• Where a suspect cannot read and an interview is recorded in writing, it must be read over to the suspect who then must be asked to verify it (Code C, para 11.11)

Question 26

D1.4 - Meaning of ‘reasonable grounds for suspicion’

Answer 26

• Used for a number of police powers, e.g. stop and search (PACE 1984, Part I)
• Different from ‘reasonable grounds for believing’ which is for arrest, detention without charge, bail etc
• Requires (a) a genuine suspicion on behalf of the officer concerned and (b) an objective basis for that suspicion
• there ‘must be some reasonable, objective grounds for the suspicion, based on known facts and information’ (Code G)
• Requires both that the constable carrying out the arrest actually suspects (subjective) and a reasonable person in possession of the same facts would suspect (objective)

Question 27

D1.7 - Use of force

Answer 27

• Where any provision of PACE confers a power on a constable and does not provide that the power may be exercised only with the consent of a person other than a police officer, the officer may use reasonable force, if necessary, in the exercise of the power (PACE 1984, s.117)
• CLA 1987, s 3 empowers any person (incl. civilians) to use such force as is reasonable in the circumstances in the prevention of crime, or in effecting/assisting in the lawful arrest of an offender or suspected offender or of persons unlawfully at large

Question 28

D1.7 - Determining if use of force is reasonable

Answer 28

Court may take into account all the circumstances including:

• Nature and degree of force used
• Gravity of the offence for which arrest is to be made
• Harm which would flow from the use of force
• Possibility of effecting the arrest by other means
• The fact that it results in serious injury does not necessarily make it unreasonable (Roberts v CC of Kent)

Question 29

D1.7 - Consequence of use of excessive force

Answer 29

Use of excessive force will not render the arrest unlawful (Simpson v CC of South Yorkshire Police)

Question 30

D1.8 - Use of handcuffs

Answer 30

• Handcuffs should be used only when they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace (Lockley)
• Where handcuffs are used unjustifiably, their use will constitute a trespass (Taylor)

Question 31

D1.15 - Definition of ‘arrest’

Answer 31

• Not defined by PACE 1984
• Depends on whether the person has been deprived of liberty to go where he or she pleases (Lewis v CC of South Wales)
• Context: there is a difference between deprivation of liberty and restriction of movement (Austin v MPC)
• Taking hold of a person’s arm for the purpose of drawing attention to what is being said or for the person’s safety is neither an arrest nor a trespass unless it goes beyond what is acceptable in ordinary life (Mepstead v DPP)
• However, taking hold of a person’s arm whilst they decide whether to arrest is a trespass (Wood v DPP)
• Detaining someone in a confined space with no intention to arrest is unlawful imprisonment (Walker v MPC)

Question 32

D1.16 - When arrest will be unlawful and burdens in respect of that

Answer 32

• If the officer knows at the time of the arrest that there is no possibility of a charge being made.
• Burden of proof for lawful arrest is on the police
• If an arrest is lawful, the burden of proving excessive force is on the complainant

Question 33

D1.17 - Communication of facts and grounds for arrest

Answer 33

• Arrest is unlawful unless the person is informed of being under arrest as soon as is practicable (PACE 1984, s 28(1))
• If arrest is by a constable, this applies even if it is obvious (PACE 1984, s.28(2))
• Arrest is unlawful unless the arrested person is informed of the grounds for the arrest at the time of the arrest, or as soon as is practicable (s.28(3))
• If arrest is by a constable, this applies even if the grounds are obvious (s.28(4))
• The person must also be informed why the arrest is necessary, although failure to do so will not make the arrest unlawful (Code G, para 2.2)

Question 34

D1.17 - Information that must be communicated with regard to grounds for arrest

Answer 34

• The person arrested should be told, in simple, non-technical language, the essential legal and factual grounds for the arrest (Taylor v CC of Thames Valley Police)
• Must be informed of the nature of the suspected offence and when and where it was allegedly committed (PACE Code C, Note for Guidance 10B)

Question 35

D1.18 - Failure to administer caution on arrest

Answer 35

• Does not render the arrest unlawful

- May provide grounds for exclusion of evidence under PACE 1984, s.76 or s.78

Question 36

D1.20 - Where the suspect is taken following arrest

Answer 36

• Constable is normally obliged to take the person to a designated police station as soon as is practicable (PACE 1984, s.30(1))
• In exceptional circumstances, they may be taken to a non-designated station (s.30(3) to (6))
• May delay taking them to a police station or releasing on bail if the person’s presence at a place other than the police station is necessary to carry out reasonable investigations (s.30(10) and (10A)) but the reasons must be recorded (s.30(11))
• e.g. checking alibi, search of the person or a premises
• A constable who is satisfied there are no grounds for keeping the person under arrest or releasing on bail must release the person (s 30(7) and (7A)) and the facts must be recorded (s 30(8) and (9))

Question 37

D1.21 - Release on police bail

Answer 37

• Suspect can be released on bail to attend a police station at a future date (s.30A(1) to (3))
• This may only be if the officer is satisfied it is necessary and proportionate in all the circumstances
• Must be authorised by an officer of the rank of inspector or above
• Conditions may be imposed for the purpose of securing surrender, preventing further offences, preventing interference with witnesses or obstruction of justice, or for the person’s own protection
• Application to vary conditions can be made to the police and thereafter, to a magistrates’ court

Question 38

D1.21 - What the person on release on bail must be informed of

Answer 38

Must be given a notice informing them of the offence to which the arrest relates, the grounds of the arrest, that the person is required to attend a police station, and any conditions imposed, as well as opportunities for seeking variation of those conditions

Question 39

D1.21 - Time limit for police bail

Answer 39

Limited to 28 days commencing on the day after the day on which the person was arrested for the offence (PACE 1984, s.30B(8))

Question 40

D1.21 - When someone released (on bail or not) can be re-arrested without warrant

Answer 40

• If new evidence has come to light or an examination/analysis of existing evidence has been made which could not reasonably have been made before the release (s 30C(4))
• If they fail to attend police station as required or if there is reasonable grounds for suspecting they have broken a condition of bail

Question 41

D1.22 - Arrest without warrant

Answer 41

• A police officer may arrest for any offence
• Civilian powers of arrest are confined to indictable offences
  (s 24 PACE 1984)

Question 42

D1.23 - s 24 PACE 1984

Answer 42

(1) A constable may arrest without warrant–
(a) anyone who is about to commit an offence;
(b) anyone who is in the act of committing an offence;
(c) anyone whom he has reasonable grounds for suspecting to be about to commit an offence;
(d) anyone who he has reasonable grounds for suspecting to be committing an offence.
(2) If a constable has reasonable grounds for suspecting an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it.
(3) If an offence has been committed, a constable may arrest without warrant–
(a) anyone who is guilty of the offence;
(b) anyone whom he has reasonable grounds for suspecting to be guilty of it.
(4) But the power of summary rest (above)…is exercisable only if the constable has reasonable grounds for believing that for any of the reasons in subsection (5) it is necessary to arrest the person in question.

Question 43

D1.23 - Reasons for believing it is necessary to arrest without warrant (PACE 1984 s.24(5))

Answer 43

(a) to enable the name of the person…to be ascertained
(b) their address to be ascertained
(c) to prevent the person in question–
(i) causing physical injury to himself or any other person;
(ii) suffering physical injury;
(iii) causing loss or damage to property;
(iv) committing an offence against public decency; or
(v) causing an unlawful obstruction of the highway
(d) to protect a child or other vulnerable person from the person in question;
(e) to allow the prompt and effective investigation of the offence or of the conduct of the person in question;
(f) to prevent any prosecution for the offence from being hindered by the disappearance of the person in question

Question 44

D1.33 - Common law arrest for breach of the peace

Answer 44

Any person, whether a constable or civilian, has a common law power of arrest where:

(a) a breach of the peace is committed in the person’s presence
(b) the person effecting the arrest reasonably believes that such a breach will be committed in the immediate future by the person arrested
(c) a breach of the peace has been committed or the person effecting the arrest reasonably believes that a breach of the peace has occurred

Question 45

D1.33 - Definition of a breach of the peace

Answer 45

Whenever harm is actually done is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance (Howell)

Question 46

D1.35 - Arrest under warrant by Magistrates Courts

Answer 46

• s 1 MCA 1980: A justice can issue a warrant on the basis of a written information substantiated on oath that a person has, or is suspected of having, committed an offence.
• Warrant may or may not be endorsed for bail
• If bailed, the person is obliged to appear before a magistrates court at the time and place specified (s 117)
• Offence concerned must be indictable, or punishable with imprisonment or the person’s address must not be sufficiently established for a summons to be served.
• A warrant to arrest anyone for non-appearance before a magistrates court must also be for an offence punishable with imprisonment, or where the court, having convicted the defendant, proposes to impose a disqualification.
• For private prosecutions, a warrant must not be issued without the consent of the DPP.
• s 13 MCA 1980: power to issue a warrant for the arrest of a person who has failed to appear to answer a summons
• s 7 BA 1976: power to issue a warrant for the arrest of a person who has been granted bail and fails to surrender to custody

Question 47

D1.36 - Arrest under warrant by Crown Court

Answer 47

Section 80(2) Senior Courts Act 1981

• Where an indictment has been signed but the person charged has not been sent for trial, the Crown Court may issue a summons or an arrest warrant
• A similar power applies where a person charged with or convicted of an offence has entered into a recognizance on bail but has failed to appear at the Crown Court

Question 48

D1.40 - Detention

Answer 48

A person is in police detention if:

• They have been taken to a police station after being arrested for an offence or under the TA 2000 s.41 or have been arrested at a police station after attending voluntarily
• A person who is at court after being charged is not in police detention
• A person who attends a police station to answer to live link bail is not in detention
• Some of the rights in relation to police powers in PACE 1984 apply to persons arrested and held in custody, irrespective of whether or not they have been arrested for a defence: s 56 the right to intimation and s 58 the right to legal advice

Question 49

D1.44 - Where a person should be taken after arrest

Answer 49

Once a person is arrested, they should normally be taken to a police station. They may be taken to any police station, unless it is anticipated that detention of more than 6 hours will be necessary in which case they should be taken to a designated police station under s.35

Question 50

D1.44 - The custody officer

Answer 50

• One or more custody officers must be appointed for each designated police station (s.36(1))
• A custody officer must be of at least the rank of sergeant (s.36(3))
• If a custody officer is not readily available, or if a person is taken to a non-designated police station, another officer may perform the role although that officer must not normally be involved in the investigation of the offence (s.36(4) to (7))
• A person can only be detained at a police station on the authority of the custody officer (s.37(1)) and may not be released unless on their authority (s 34(2) and (3))
• It is the responsibility of the custody officer to ensure that a person in police detention is treated in accordance with PACE 1984 and the Codes of Practice (s 39)

Question 51

D1.45 - Custody records

Answer 51

• Must be opened as soon as is practicable
• Custody officer is responsible for recording in the record all matters that are required by PACE 1984 or the Codes of Practice (s 39(1)(b) and Code C para 2.3)
• If the detained person is transferred to another station, the custody record or a copy of it must accompany the person and must show the time and reason for transfer (Code C, para 2.3)

Question 52

D1.52 - Right to notification

Answer 52

• A person who is arrested and held in custody at a police station has a right to have one friend, relative or other person who is known to him/her and is likely to take an interest in their welfare, told of the arrest and the place of detention.
• This must be done as soon as practicable (PACE 1984, s.56(1))
• The custody officer must inform the suspect of this right (Code C, para 3.1(i)) and ask whether the suspect wishes to exercise it (para 3.5(a)(iii)).
• The person chosen is to be informed of the detainee’s whereabouts at public expense and on each occasion that the detainee is taken to another police station (s. 56(8) and Code C para 5.3)
• If the person cannot be contacted, the detainee can choose up to 2 alternatives
• If they cannot be contacted, the custody officer or officer in charge has discretion to allow further attempts (para 5.1)
• If the detainee does not know of anyone to contact, the custody officer should bear in mind local voluntary bodies who may be able to help (Code C, Note for Guidance 5C)

Question 53

D1.55 - Right of access to a solicitor

Answer 53

• A person who is arrested (whether or not for an offence) and held in custody at a police station has a right, at his or her request, to consult a solicitor privately at any time (PACE 1984, s 58)
• Under ECHR Article 6, a person who suffers any significant curtailment of freedom is entitled to legal assistance - so right to legal assistance may apply even prior to the decision to detain at a police station, or even before a person is formally arrested
• An appropriate adult has an independent right to legal advice even if the child/young/vulnerable person does not want one, although the child/young/vulnerable person cannot be forced to see the solicitor
• The statutory right does not apply to a prisoner on remand in custody at the magistrates, but there is a common law right to consult a solicitor as soon as reasonably practicable and police cannot refuse simply because it falls outside of customary hours (ex parte Merrick)

Question 54

D1.55 - Being informed of the right to free legal advice

Answer 54

A person must be told of the right:

• when brought to the police station under arrest, or when arrested having attended voluntarily (Code C, paras 3.1 to 6.1),
• immediately before the commencement/recommencement of any interview (para 11.2)
• before a review of detention is conducted or before a decision is made whether to extend the period of detention (para 15.4)
• after charge or being informed the person may be prosecuted
• where a police officer wishes to bring to the person’s attention any content of any interview
• where they are re-interviewed
• before being asked to provide an intimate sample
• before an intimate drug search
• before an x-ray or ultrasound
• before an identification parade/video identification

Question 55

D1.63 - Key rules regarding children

Answer 55

• Anyone who appears to be under the age of 18
• The police must take into account the need to safeguard and promote the welfare of children in discharging their functions (R (C) v MPC)

Question 56

D1.63 - Key rules regarding mental disorder or vulnerability

Answer 56

• If an officer has any reason to suspect that a person of any age may be vulnerable, in the absence of clear evidence to dispel that suspicion, the person must be treated as such.
• Suspicion may be dispelled following examination by a forensic medical officer (FMO) (Beattie)
• A mentally disordered person detained under the Mental Health Act 1983, s 136 must be assessed as soon as possible.
• s 135 and 136: (a) before deciding to remove a person to, or keep a person at, a place of safety, a constable must if practicable consult a registered medical practitioner, nurse or mental health practitioner, (b) a child cannot be detained in a police cell as a place of safety, and (c) the max period that a person can be detained at a police station is reduced from 72 hours to 24 which may be extended by 12 hours when approved by the medical practitioner.

Question 57

D1.63 - Mental Health Act 1983 (Places of Safety) Regulations 2017

Answer 57

A police station may only be used as a place of safety in respect of an adult where the relevant decision maker is satisfied that:

(a) the behaviour of the person poses imminent risk of serious injury or death to himself or another;
(b) because of that risk, no place of safety other than a police station can reasonably be expected to detain that person;
(c) so far as is reasonably practicable, a healthcare professional should be present and available to the detained person throughout the detention.
- Detention in such circumstances must be approved by rank of inspector or above (reg.2)

Question 58

D1.64 - ‘Appropriate adult’ definition in the case of a child

Answer 58

• Parent or guardian
• If the child is in the care of a local authority or voluntary organisation, a representative of that authority/organisation
• a social worker of a local authority

Failing that:
- some other responsible person who is not a police officer, employed by the police or under contractual arrangements to assist the police

Question 59

D1.64 - Those who should not act as appropriate adult

Answer 59

• An estranged parent whom an arrested child or young person does not wish to attend
• An illiterate parent with a low IQ who cannot appreciate the gravity of the situation
• A solicitor attending a police station on a suspect’s behalf
• If they are (a) suspected of involvement in the offence, (b) the victim or a witness, (c) involved in the investigation, or (d) have received admissions from the suspect before acting as appropriate adult

Question 60

D1.64 - ‘Appropriate adult’ definition in the case of a person who is mentally disordered or vulnerable

Answer 60

• Relative, parent or guardian
• Person responsible for care or custody of the person
• Someone who has experience dealing with such persons

Failing that:
- some other responsible adult who is not a police officer or police employee

• It may be more satisfactory for the appropriate adult to be someone experienced or trained in the care of the mentally disordered or vulnerable, but the suspect’s wishes should be respected where practicable

Question 61

D1.66 - Role of the appropriate adult

Answer 61

To safeguard the rights, entitlements and welfare of children and vulnerable persons. They are expected to:

(a) support, advise and assist detainees
(b) observe whether the police are acting properly and fairly, and to inform an officer of the rank of inspector or above if they consider they are not
(c) assist detainees to communicate with the police
(d) help them to understand their rights and ensure that their rights are protected and respected

Question 62

D1.66 - Appropriate adult and legal privilege

Answer 62

The presence of an appropriate adult during a consultation between suspect and lawyer which would otherwise attract legal advice privilege does not destroy that privilege (A Local Authority v B)

Question 63

D1.66 - Absence of an appropriate adult

Answer 63

• Generally, a child or mentally disordered/vulnerable person must not be interviewed by the police or asked to provide a written statement in the absence of an appropriate adult
• Unless delay would be likely to lead to interference with or harm to evidence, interference with or physical harm to other people, or serious loss of or damage to property, to alerting other suspects not yet arrested, or to hindering the recovery of property obtained in consequence of commission of the offence.
• If an interview is necessary for any of these reasons, it must be authorised by a superintended or above

Question 64

D1.66 - Appropriate consent for identification and other evidential procedures

Answer 64

PACE 1984, s 65(1):

• In the case of a person who is over 14 but under 18, consent is required from the young person and his parent/guardian
• In a case of someone under 14, only the consent of parent/guardian is required
• If an appropriate adult is not a parent/guardian, they cannot give consent.

Question 65

D1.67 - Detention time limits

Answer 65

• Normal maximum period of detention without charge: 24 hours from the relevant time (PACE 1984, s 41(1))
• Extension in respect of a person under arrest for an indictable offence: up to a total of 36 hours from the relevant time by an officer of the rank superintendent or above
• Up to a total of 96 hours from the relevant time by a magistrates court
• When a detainee is moved to hospital for medical treatment, time spent at hospital or travelling to/from hospital does not count as time spent in detention, except for any time spent questioning them (note: a person in police detention at a hospital must not be questioned without the agreement of a responsible doctor)

Question 66

D1.68 - The relevant time (from which to calculate detention limits)

Answer 66

• Normally: the time an arrested person arrives at the police station, or 24 hours after the arrest, whichever is earlier (PACE 1984, s.41(2)(a))
• When a person is released on police bail, is detained when attending at the police station to surrender to custody, or is arrested under s.46A for failure to surrender, the relevant time is that which applies to the original detention, but time spent on bail does not count (PACE 1984, s.47(6))
• If a person is arrested other than under s.46A, e.g. because there is new evidence justifying arrest, the relevant time will be that relating to the subsequent arrest (s.47(7))

Question 67

D3.44 - Who is the DPP

Answer 67

• Governed by the Prosecution of Offences Act 1985
• A barrister/solicitor of at least 10 years standing
• Appointed by the A-G
• Duties discharged under the superintendence of the A-G

Question 68

D3.44 - DPP’s duties (s.3(2) POA 1985)

Answer 68

(a) Take over the conduct of all criminal proceedings instituted by or on behalf of a police force, other than specified proceedings e.g. road traffic offences, criminal damage that does not exceed £5,000, low value shoplifting
(b) Institute and conduct criminal proceedings in any case where it appears to the DPP to be appropriate to do so on account of the importance or difficulty of the case
(c) Take over conduct of all binding-over proceedings instituted on behalf of a police force
(d) Take over the conduct of any criminal proceedings instituted by the NCA
(e) To have the conduct of extradition proceedings
(f) To advise police forces on all matters relating to criminal offences
(g) To appear for the prosecution when directed by the court to do so on:
(i) appeals from High Court to Supreme Court
(ii) appeals from Crown Court to Court of Appeal (Criminal Division), and to the Supreme Court
(iii) appeals to the Crown Court against the exercise by a magistrates court of its powers under s 12 Contempt of Court Act 1981

Question 69

D3.46 - The CPS

Answer 69

• DPP is the head of the CPS
• Not instructed by the police; acting on the behalf of the DPP, it takes over prosecutions begun by the police and therefore exercises independent judgment in deciding any legal questions

Question 70

D3.49 and D3.50 - Further functions of the CPS

Answer 70

• DPP’s powers may be exercised by Crown Prosecutors acting within the general authority delegated to them and without express instruction from the DPP (ex parte Bray)
• DPP is required to issue a Code for Crown Prosecutors giving guidance on the general principles to be applied by them
• DPP is also empowered to appoint persons who are not members of the CPS to institute or take over the conduct of criminal proceedings. A person appointed has all the powers of a Crown Prosecutor in conducting proceedings, but has to exercise those powers subject to any instructions given by a Crown Prosecutor
• An agent in the magistrates court is expected to obtain authority from a CPS lawyer before taking steps in relation to a case such as offering no evidence on a charge or accepting a bind-over
• DPP can appoint staff who are not legally qualified, known as ‘associate prosecutors’, to represent the CPS on bail applications and other pre-trial applications. They may conduct trials but only where the offence is a non-imprisonable summary offence.

Question 71

D5.2 - Ways the first appearance of an accused before a magistrates court can be secured

Answer 71

(a) Accused arrested and after advice from the CPS, charged by the police
(b) Accused arrested and granted police bail while the CPS decide whether there is sufficient evidence to justify charge. CPS may then start a prosecution by using the written charge and requisition procedure (CJA 2004, s 29)
(c) Accused arrested and granted police bail subject to a requirement of returning to a police station on a specified date. Police may charge the accused with offence(s) specified by the CPS on their return
(d) Accused may be served with a written charge and requisition (CJA 2003, s 29) without first having been arrested
(e) Application may be made to the magistrates court for the issue of a summons or an arrest warrant requiring the accused to attend (‘Laying an information’). A prosecutor who is not a ‘relevant prosecutor’ cannot use the written charge and requisition process so must do this.

Question 72

D5.4 - Relevant prosecutor (s 29 CJA 2003)

Answer 72

• Only a relevant prosecutor can use the written charge and requisition procedure:
  (a) a police force
  (b) director of the SFO
  (c) DPP (and therefore CPS)
  (d) Director General of the NCA
  (e) the A-G
  (f) a person specified by the SoS in an order under the CJA 2003, s.29(5)(h)
• also include SoS for Work and Pensions, SoS for Health, SoS for Business, Energy and Industrial Strategy, Driver and Vehicle Standards Agency, Transport for London, the Environment Agency, specified local authorities, the Natural Resources Body for Wales, railway operators, certain tramway operators and the TV licensing authority

Question 73

D5.4 - Written charge and requisition procedure

Answer 73

• Prosecutor issues a ‘written charge’ which charges the person with an offence
• Where a prosecutor issues a ‘written charge’, a ‘requisition’ must be issued at the same time requiring the accused to appear before a magistrates court to answer the written charge. (s 29(2) CJA 2003)
• The written charge and requisition must be served on the accused and a copy of both must be served on the court (s 29(3))

Question 74

D5.5 - ‘Laying information’

Answer 74

• For those who are not a relevant prosecutor
• Must commence prosecution by making an application to the magistrates’ court for the issue of a summons
• Must either serve a written application or present an application orally in court
• The application must set out the allegation(s) made and, if there is a time limit for the prosecution of the offence, demonstrate that the application has been made in time (CrimPR 7.2(3))
• Must concisely set out the grounds for asserting that the accused has committed the alleged offence(s), and must disclose details of any previous such application by the same applicant in respect of the same allegation, and of any current/previous proceedings brought by another prosecutor in respect of the same allegation
• Must also include a statement that to the best of their knowledge, the applicant’s information is substantially true, that the evidence on which the applicant relies will be available at trial and that the application discloses all the material information (CrimPR 7.2(6))
• Where the statement is made orally, it must be made on oath or affirmation (r.7.2(7))

Question 75

D5.10 - ‘Laying information’: the summons

Answer 75

MCA 1980, s 1(1)
On an information being laid…the justice may issue–
(a) a summons directed to that person requiring him to appear before a magistrates court to answer the information, or
(b) a warrant to arrest that person and bring him before a magistrates court.

Question 76

D5.14 - Content of a written charge or application for a summons

Answer 76

An application for a summons/arrest warrant or a written charge must contain:
(a) a statement of the offence which describes the offence in ordinary language and identifies the legislation that creates it
(b) sufficient particulars of the conduct to make clear what the prosecutor alleges against the defendant (including the value of any damage or theft alleged where the value is known and affects the exercise of the court’s powers)
(CrimPR 7.3(1))

• A requisition or summons must contain a notice setting out when and where the accused must attend court, and specify each offence in respect of 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

Question 77

D21.17 - Time limit for starting proceedings for SUMMARY offences general rule

Answer 77

Application for summons must have been served on the magistrates court within 6 months of the time when the offence was allegedly committed (MCA 1980, s 127(1))
- This does not apply to indictable offences

Question 78

D21.17 - Uncertainty as to time limit

Answer 78

The question should be determined according to the criminal standard of proof and the magistrates should decline to hear the matter unless sure that the proceedings were commenced within the time limit

Question 79

D21.18 - Time limit for starting proceedings for INDICTABLE offences

Answer 79

No time limit unless it is one of the exceptional offences for which there is a statutory limitation for taking proceedings on indictment