SA2 Preliminaries to Prosecution

Question 1

What are the three methods of commencing criminal proceedings?

Answer 1

1) A written charge and requisition (requiring D to appear before mags) issued by prosecutor. The court has no involvement until D makes their first appearance.

2) Private prosecutions – prosecutor applies to mags for issue of a summons requiring D to appear before it.

3) Arrest followed by charge (by police or CPS).

Question 2

What two things must be contained within a written charge/summons application?

Answer 2

1) A statement of the offence that describes it in ordinary language and identifies any legislation that creates it.

2) Such particulars of the conduct constituting the commission of the offence as to make clear what the prosecution alleges against the D.

Question 3

What is the time limit for commencing criminal proceedings for a summary offence?

Answer 3

Within 6 months of commission of offence (unless statute says otherwise).

Question 4

What is the time limit for commencing criminal proceedings for an indictable offence?

Answer 4

No time limit (unless statute says otherwise).

Question 5

Under what conditions may a police officer make an arrest without warrant?

Answer 5

1) Anyone who is/who the officer has reasonable grounds for suspecting to be about to commit an offence, is committing an offence or is guilty of committing an offence.

2) The arrest must be necessary:
a. To ascertain suspect’s real name and/or address.
b. To prevent the suspect injuring themselves/someone else.
c. To prevent the suspect suffering injury.
d. To prevent the suspect causing loss of/damage to property.
e. To protect a child or vulnerable person for the suspect.
f. To allow a prompt and effective investigation.
g. To prevent a prosecution being hindered by the suspect’s disappearance.

Question 6

What kind of force can be used when making an arrest?

Answer 6

Reasonable force. Handcuffs should be used only where reasonably necessary to prevent escape or violence.

Question 7

Under what conditions can a custody officer authorise detention prior to charge?

Answer 7

If that detention is necessary to:
a) Secure/preserve evidence relating to an offence for which the suspect is under arrest, or
b) To obtain such evidence by questioning the suspect.

Question 8

How long can a person be detained without charge for a summary offence?

Answer 8

Max 24h from arrival at police station.

Question 9

How long can a person be detained without charge for an indictable offence?

Answer 9

Detention up to 36h may be authorised by an officer ranked superintendent or above.

Detention up to 96h may be authorised by a magistrate’s court.

(relevant time from arrival at police station).

Question 10

Where a suspect has been detailed without charge, what are their rights?

Answer 10

a) Custody record must be maintained.
b) Suspect entitled to have someone informed of their arrest and where they are being detailed.
c) Suspect is entitled to consult a solicitor privately.
d) A child/young person/mentally disordered person is entitled to be accompanied by an ‘appropriate adult’ to provide assistance and support (separate to legal advice).

Question 11

What is the ‘charging’ of a suspect?

Answer 11

Formal allegation put to the suspect.

Question 12

Who may ‘charge’ a suspect?

Answer 12

Usually the police, but advice from the CPS on the appropriate charge(s) and whether there is sufficient evidence must be sought first, except for minor offences.

Or, the suspect may be released on police bail while the CPS decide whether to charge. If CPS decide its appropriate, they may use the written charge & requisition procedure, otherwise the suspect may be charged by the police and return to the station.

Question 13

If a suspect is charged and is in custody, where will they do their first appearance?

What happens if they plead guilty?

Answer 13

In the mags via live link.

If D pleads guilty at a preliminary hearing, the court can sentence via live link if it is not contrary to the interests of justice to do so.

Question 14

What happens to a police officer/other person required to have regard to provisions of the PACE code who fails to?

Answer 14

Failure does not, of itself, render that officer liable to criminal or civil proceedings but the codes are admissible in evidence in criminal or civil proceedings.

Question 15

PACE Code C: how is ‘interview’ defined?

Answer 15

Widely – 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’.

Caution must be given if suspect’s answers/silence are to be given to a court in a prosecution.

Question 16

In what conditions is a caution at interview not necessary?

Answer 16

a) Solely to establish the ownership of a vehicle.
b) To obtain info in accordance with a statutory requirement.
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 17

Interviews should be conducted at a police station, subject to what exception?

Answer 17

Where the delay would be likely to:
a) Lead to interference with/harm evidence connected with an offence, interference with or physical harm to other persons, or serious loss of/damage to property; or
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/the necessary qs have been put to avert the risk.

Question 18

At what point must a suspect be cautioned?

Answer 18

At the commencement of an interview. Should be reminded that he/she is under caution at the recommencement of an interview after a break.

Question 19

How is whether there are sufficient grounds for a caution to be administered assessed?

Answer 19

Objectively – does not simply depend on how the police officer regarded the matter.

Case – the police deliberately didn’t caution an applicant when, on being interviewed as a witness, he started to incriminate himself. UK govt accepted that he should have been cautioned at this point.

Case – no obligation to caution when the police officers were unaware of the existence of a bylaw which could have given rise to a reasonable suspicion.

Question 20

Will failure to caution/giving the wrong caution lead to an exclusion of evidence of the interview?

Answer 20

Not necessarily.

Question 21

What info should a person being interviewed/their solicitor if represented be given before the interview?

Answer 21

Sufficient into to make it possible to understand the nature of the suspected offence and why the person is suspected of committing it.

This does not require the disclosure of details which might prejudice the investigation.

Question 22

In case, D was arrested for theft and not told that V had died.

Believing himself to be facing a charge of theft only, he made admissions.

What was decided re those admissions?

Answer 22

They should have been excluded.

Question 23

In addition to a caution, where a suspect is interviewed at a police station/other authorised place of detention following arrest, in what conditions must a special warning be given?

What happens if that special warning isn’t given?

Under what condition is the special warning not required?

Answer 23

If the suspect is asked to account for:

a) Any object/mark/substance found on their possession/in the place where the arrest took place.
b) His presence at the place where the arrest took place.

Inferences cannot be drawn where the person who has requested a solicitor is interviewed without having been given an opportunity to consult the solicitor – inferences cannot be drawn as a result of other legislation.

Question 24

What must a suspect be reminded of before the (re)commencement of an interview at a police station/authorised place of detention?

What is the consequence if this doesn’t happen?

Answer 24

The entitlement to free legal advice and that the interview can be delayed for legal advice to be obtained.

Violation of a suspect’s entitlement to legal advice may lead to the exclusion of evidence.

Question 25

At the beginning of an interview, the interviewing officer must, after caution, put to the suspect any significant statement or silence which occurred in the presence and hearing of the police.

What is a significant statement?

What is a significant silence?

Answer 25

a) One which appears to be capable of being used in evidence, and in particular a direct admission of guilt. Doesn’t include what the suspect is alleged to have said as part of the conduct constituting the offence.

b) Failure/refusal to answer a question/answer a q satisfactorily when under caution which might, allowing for the restrictions on drawing inferences from silence, give ruse to an adverse inference.

Question 26

Is a police officer/other interviewer allowed to indicate what action the police will take if a suspect answers/refuses to answer questions or make a statement?

Answer 26

No, except in answer to a direct question.

Question 27

Should the police seek a confession by offering a caution?

Answer 27

No

Question 28

Which of the following have been held to be oppressive in the context of interviews?
a) The asking of hypothetical questions.
b) Questioning which is carried on after repeated denials/refusals.
c) Hectoring and bullying throughout an interview.
d) Questioning that was rude and discourteous, with raised voices and some bad language.

Answer 28

a) Permissible but need to be approached with care.
b) May become oppressive.
c) Yes.
d) No.

Question 29

When must the interviewing of a person who has not been charged or informed that he may be prosecuted cease?

Answer 29

When the officer in charge of the investigation is satisfied that all the questions the officer considers relevant to obtaining accurate and reliable info about the offence have been put to the suspect and the officer reasonably believes there is sufficient evidence to provide a realistic prospect of conviction.

Question 30

Interview of suspects must normally be contemporaneously recorded.

What about comments outside of the interview?

Answer 30

Yes and where practicable, the suspect must be given the opportunity to verify the record. This includes relevant comments made by way of a reply to the issuing of a fixed penalty notice.

Question 31

What is the consequence of failing to comply with recording requirements for interview?

Answer 31

Has led to the exclusion of evidence, but not always so.

Question 32

Under what circumstances can a child/mentally disordered/vulnerable person be interviewed/asked to provide or sign a written statement in the absence of the appropriate adult?

Answer 32

a) the conditions for conducting an interview away from a police station under code C are satisfied

b) the interview is authorised by an officer of the rank of superintendent or above.

Question 33

Under what circumstances should a person who requires an interpreter be interviewed without an interpreter?

Answer 33

a) If authorised by an officer of the rank of superintendent or above, being satisfied that delaying the interview will lead to consequences in Code C and that the interview would not significantly harm the person’s physical/mental state.

Question 34

What is the rule regarding the interview of intoxicated persons?

Answer 34

Not to interview any person who is unable to appreciate the significance of qs and as because of the effect of intoxication unless authorised by an officer ranking superintendent.

Question 35

Does reasonable suspicion in relation to arrest relate to the existence of facts of the state of the law?

Answer 35

The existence of facts.

An officer who reasonably but mistakenly proceeds on a particular view of the law and thus exercises his power of arrest does not have reasonable suspicion.

Question 36

What is the rule regarding the use of force for arrests?

Answer 36

Reasonable force, if necessary. Includes reasonable force to prevent a crime.

In determining what force is reasonable, the court may take into account all the circumstances.

The fact that the force used results in serious injury doesn’t necessarily make it unreasonable.

Doesn’t relate to the conduct of a visual ID procedure or taking of an intimate sample, which require consent.

Does allow for fingerprinting/taking of a non-intimate sample without consent.

Question 37

What is the consequence of the use of excessive force during arrests?

Answer 37

Will not render the arrest unlawful.

Question 38

Is taking hold of a person’s arm for the purpose of simply drawing attention to what is being said, without an intention to detain or arrest, an arrest or actionable trespass to the person?

Answer 38

No, unless it goes beyond what is acceptable by the ordinary standards of everyday life.

However, if an officer takes hold of a person’s arm to detain that person while the officer decides whether to arrest, this does amount to a trespass.

Question 39

Is there a necessary assumption that an arrest will be followed by a charge?

Answer 39

No.

However, an arrest for an offence will be unlawful, even though made on the basis of reasonable suspicion, where the officer knows at the time of the arrest that there is no possibility of a charge being made.

Question 40

On whom rests the burden of proof to demonstrate:
a) An arrest was lawful/unlawful.
b) Excessive force was used.

Answer 40

a) The police.
b) The complainant.

Question 41

What is the consequence if a person arrested is not informed of being under arrests and the ground for the arrest during/as soon as is practicable after the arrest.

Answer 41

The arrest is unlawful.

Question 42

Under what circumstances can a constable release on bail a person who is arrested/taken into custody?

Answer 42

If the constable is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances.

Must have regard to all the circumstances.

Question 43

Under what circumstances may a civilian arrest be made?

Answer 43

Confined to indictable offences, subject to the test of necessity.

Question 44

Under what circumstances can a person (whether constable of civilian) make an arrest for breach of the peace?

Answer 44

a) Where 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, or
c) The breach of the peace has been committed or the person effecting the arrest reasonably believes that a breach of the peace has occurred and that a further breach is threatened.

Question 45

When does a breach of the peace occur?

Answer 45

Whenever harm is actually done or is likely to be done to a person/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.

Question 46

Under what circumstances can the magistrates issue a warrant for the arrest of a person over 18?

Answer 46

Offence must be indictable/punishable with imprisonment, or the person’s address must be not sufficiently established for a summons to be served.

Question 47

What is the right to notification?

Answer 47

A person who has been arrested (whether or not for an offence) and who is being held in custody has a right, at the person’s request, to have someone told of the arrest and the place of detention.

If that person cannot be contacted, the detainee may choose up to two alternatives (and further at custody officers discretion).

Has to be done as soon as practicable and the custody officer must inform the suspect of this right.

Question 48

At what point does a person have the right to consult a solicitor?

Answer 48

‘Held in custody’ includes a situ where a custody officer has made a decision that the person should be detained therefore can be prior to formal arrest.

Question 49

When may a suspect be treated as ‘vulnerable’/to have a mental disorder for the purposes of the codes of practice?

Answer 49

If an officer has any reason to suspect they might be so, in the absence of clear evidence to dispel that suspicion, the person must be treated as such.

Question 50

In what circumstances will a parent not be considered an ‘appropriate adult’ in the case of a young suspect?

Answer 50

a) An estranged parent whom an arrested child doesn’t wish to attend and to whom the child specifically objects.

b) An illiterate parent with a low IQ who cannot appreciate the gravity of the situation.

Question 51

Can a police officer serve as an ‘appropriate adult’ for a person who is mentally disordered/vulnerable.

Answer 51

No.

Question 52

What are the responsibilities of ‘appropriate adults’?

Answer 52

(a) support, advise and assist detainees when they are given or asked to provide information or participate in any procedure;

(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 that they are not;

(c) assist detainees to communicate with the police while respecting their right to say nothing unless they want to; and

(d) help them to understand their rights and ensure that those rights are protected and respected (Code C, para. 1.7A).

Question 53

Detention time limits: where a detainee is removed to hospital, does time spent at the hospital/travelling to or from hospital count as relevant time?

Answer 53

No, except for any time spent questioning the person for the purpose of obtaining evidence in respect of an offence.

Question 54

Is the CPS instructed by the police?

Answer 54

No – the CPS acts on behalf of the DPP and takes over prosecutions begun by the police.

It therefore exercises an independent judgment in deciding any legal qs which arise.

Question 55

If a person is in receipt of state benefits, what does this mean in relation to the court’s decision to grant a representation order?

Answer 55

Automatically meets the financial test.