The law, procedure and processes involved in advising a client at the police station

Question 1

When should a person be taken to the police station after their arrest?

Answer 1

As soon as reasonably practicable - s30(1A).

Question 2

What initial steps should a custody officer note in the custody record when a person is arested?

Answer 2

o Suspect’s name, address, telephone number date of birth and occupation
o Offence they are arrested for and why necessary to arrest.
o Time of arrest and arrival at police station
o Reason why ongoing detention authorised.
o Time detention was authorised.
o Confirmation suspect given retains of rights.
o Details of property and medical conditions.

Question 3

What is the detention log?
Attached to the custody record.

Answer 3

Record of significant events occurred whilst the suspect is in custody.

Question 4

What objects can be detailed on a search of a person under PACE?

Answer 4

Items the custody offer believes may cause physical injury, damage to property, interfere with evidence or assist them to escape.

Question 5

What are the two grounds for detention?

Answer 5

Suspect should be released on bail unless:

custody officer has reasonable grounds for believing that detaining the suspect without charge to secure or preserve evidence; or

it is necessary to obtain such evidence by questioning.

If the custody officer is at any time aware these grounds cease to apply the suspect must be released immediately - s39.

Question 6

What are the minimum conditions under which a suspect is required to be detained?

Answer 6

• Cell must be heated, cleaned and ventilated and lit
• Bedding must be reasonable standard and clean and sanitary
• Access to toilet and washing facility.
• Two light meals and one main meal in 24 hours
• Drinks with meals and at reasonable request within meals
• Brief exercise daily
• Be visited in cell every house.
• Suspect injured, ill or mental disorder must receive appropriate clinical attention as soon as possible.

Question 7

What three ongoing rights must the suspect be informed of before the custody officer decides whether or not the suspect will be detained?

Answer 7

1. Right to have someone informed about their arrest
2. Right to consult privately with a solicitor
3. Right to consult Codes of Practice

Question 8

When is the suspect entitled to the right to receive legal advice?

Answer 8

At any time when a person has been arrested and is held in police custody.

If a suspect makes a request they must be allowed to consult a solicitor as soon as practicable.

Question 9

What is the Defence Solicitor Call Centre

Answer 9

Organisation the police contact if a suspect has asked for free legal advice. the DSCC will determine whether telephone advice will suffice or if a solicitor should attend

Question 10

What does the Code say about police officers dissuading suspects from receiving legal advice?

Answer 10

Code C - at no time should a police officer do or say anything with the intention of dissuading a person from obtaining legal advice.
- must not indicate to a suspect that the period they are liable to be detained for will be reduced if they don’t ask for legal advice.

Question 11

What rank of police officer can delay the right to legal advice?

Answer 11

Not below superintendent.

Question 12

On what grounds can the right to legal advice be delayed? How long is the permitted delay?

Answer 12

If the officer believes it will

Lead to interference with or harm to evidence connected to an indictable offence.

Lead to altering of other persons suspected of having committed an offence not yet arrested.

Hinder the recovery of any property obtained.

For a max of 36 hours.

Question 13

What is the right to have someone informed if your arrest?

Answer 13

If the suspect requests they are entitled to have one friend, relative or other person known to them informed of their arrest as soon as reasonable practicable.

Question 14

When can the right to have someone informed if your arrest be delayed?

Answer 14

If an inspector believes it will:

Lead to interference with or harm to evidence connected to an indictable offence.

Lead to altering of other persons suspected of having committed an offence not yet arrested.

Hinder the recovery of any property obtained.

For a max of 36 hours.

Question 15

What is the general rule in relation to how long a suspect may be detained for? When does this detention clock start running.

Answer 15

For 24 hours.

For a person attending the police station voluntarily it is at the time of their arrest.

Person there to answer street bail - at the time of their arrival.

Person who is arrested away from the police station - the time they arrive at the police station.

Question 16

Can the maximum detention time be increased?

Answer 16

Under s42 can. be extended up to 36 hours if:

• detention is to secure or preserve evidence.
• offence is indictable offence
• investigation being carried out diligently and expeditiously.

Question 17

What rank of officer can authorise an extended detention in police custody without charge?

Answer 17

Officer of superintendent or above.

Question 18

When are further extensions to the time a person can be detained without charge authorised?

Answer 18

The police can apply to the magistrates for an additional 36 hours on the grounds outlined above.

Question 19

What is the absolute maximum time a person can spend in police custody without charge?

Answer 19

96 hours or 4 days (must be granted by magistrates court).

Question 20

What rank of officer undertakes detention reviews?

Answer 20

Not below inspector - person must not be directly involved in the investigation.

Question 21

When must the first detention review occur?

Answer 21

Within 6 hours after the custody officer first authorised detention.

Question 22

When must the second and further detention reviews occur?

Answer 22

9 hours after the first detention review and then at 9 hour intervals.

Question 23

When is the solicitor entitled to review the custody log at the police station?

Answer 23

When they arrive they are allowed to inspect the log but note they are not permitted to have a copy of the log at this point. This will be provided when the suspect is either charged and detained/ bailed.

Question 24

What details should the solicitor obtain from the custody officer / log when they arrive at the police station?

Answer 24

o Alleged offence
o Time CO authorised client’s detention
o Significant comments made by client
o Samples of fingerprints or impressions of footwear
o Identification procedure
o Interview already taken palce
o Client under form of physical or mental disability
o Illness, client is vulnerable or under influence of drink / drugs
o Significant items found during search
o If client been at station for 6 hours, detention reviews.

Question 25

What duty of disclosure does the investigating officer owe the solicitor?

Answer 25

Sufficient information to enable them to understand the nature of such offence and why they are suspected of committing it.

Question 26

What information should a solicitor obtain from their client on first meeting?

Answer 26

• details of the offence
• client’s instructions
• prepare them for interview and advise on next steps.

Question 27

What four options does a suspect have on how to approach a police interview?

Answer 27

1. answer all questions
2. no comment interview
3. selective silence
4. no comment interview and give a written statement to the police

(no.4 most likely to be advised).

Question 28

A suspect decides to produce a written statement, when should this be given to the police

Answer 28

During interview or just prior to charge. Or can be kept on file but not yet disclosed.

Question 29

What parts of the code are relevant for interview proceedure?

Answer 29

Parts C and D.
Interview will be recorded on two or three tapes. Master tape sealed and revealed in court only if there is dispute about the transcript.

Question 30

When should a suspect not be interviewed?

Answer 30

When they are unable to understand the significance of questions.

Unable to understand what is happening due to effect or drink. drugs or ailment.

Question 31

Can a suspect be interviewed before they have received legal advice?

Answer 31

General position - no.

Exceptions

• Under s58 can delay receiving advice for up to 36 hours.
• solicitor has agreed to attend but waiting will cause unreasonable delay in process of investigation.
• solicitor cannot be contacted and suspect declined to consult duty solicitor

Question 32

If a suspect asks for legal advice and then changes their mind when can they be interviewed without legal advice?

Answer 32

o Officer of inspector or above speaks to suspect to enquire about change of mind.
o Reasons for change of mind and outcome of efforts to contact solicitor recorded in custody record.
o Suspect confirms in writing they wish to continue.
o Officer of inspector or above is satisfied it is proper for interview to continue and gives authority in writing. Notes in custody record.
o When interview starts suspect informed of right to legal advice. Interview record notes:
§ Confirmation suspect changed their mind
§ Authority to proceed was given
§ If solicitor arrives at station before interview completed detainee informed and break taken to speak to solicitor (but note at any time suspect can ask for a break).

Question 33

What caution is given at the start of a police interview?

Answer 33

Para 10.2 Code C - ‘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.

The officer should then also remind the suspect they are entitled to free independent legal advice.

Question 34

What is a significant statement, when should a suspect be questioned of any significant statements?

Answer 34

Statement which is key evidence such as admission of guilt which is capable of being used against the suspect at trial.

In the police interview the suspect should be asked if they confirm or deny the earlier statement or silent.

Question 35

What are the different officer ranks:

Answer 35

• Constable
• Sergeant
• Inspector
• Chief Inspector
• Superintendent
• Chief Superintendent

There are also detectives in the Criminal Investigation Department (‘CID’) who follow the same ranking system e.g. Detective Chief Superintendent or Detective Sergeant.

Question 36

What is the rule of detention reviews?

Answer 36

Reviews of detention must be carried out during the detention of a suspect (s.40 PACE). The review officer must be satisfied that the detention is still necessary.

They must therefore consider whether the grounds for the detention, as authorised by the custody officer under s.37, still exist.

The review officer must be an officer of at least the rank of inspector who is not connected with the investigation of the offence and is not the custody officer.

s 40 stipulates that the first review of the suspect’s detention will take place not more than six hours after the suspect’s detention was first authorised by the custody officer and then periodically every nine hours thereafter.

At the time of the review, the detained person must be reminded of their right to free legal advice, and be given the right to make representations unless they are unfit to make such representations or asleep at the time of the review.

Question 37

What are the 3 main rights of a detained person?

Answer 37

the custody officer must make sure that a person is told clearly about the following continuing rights which may be exercised at any stage during the period in custody:

• The right to consult privately with a solicitor and that free independent legal advice is
  available;
• The right to have someone informed of their arrest; and
• The right to consult the Codes of Practice (COP).

The custody record will record that these rights have been given and any response made by the suspect

Question 38

Right to consult a solicitor

Answer 38

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

• The commencement or recommencement of an interview
• Being asked to provide an intimate sample
• An intimate drug search
• An identification parade or video identification procedure
• If legal advice is declined, that should be noted on the custody record
• Where legal advice is sought, it must be provided as soon as is practicable
• Police should usually await the arrival of a solicitor before beginning an interview
• Nothing should be done to dissuade the suspect from obtaining legal advice
• If a detained person initially declined legal advice but subsequently changes their mind then the interview should cease and can recommence once the detainee has exercised their right to seek legal advice

Question 39

How is the power to delay a right exercised?

Answer 39

This right can only be delayed up to a maximum of 36 hours.

Where the grounds are authorised they must be recorded and the suspect must be informed.

If the suspect is interviewed before he has been able to consult with a solicitor because this right has been delayed, then there are restrictions on the drawing of adverse inferences at court.

Adverse inferences will be dealt with in other sections.

Question 40

Power to delay a right criteria

Answer 40

• The person must be in detention for an indictable offence; and
• The authority to delay the exercise of the right is granted in writing by a police officer of at least the rank of superintendent; and
• The superintendent has reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:
• 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; and/or
• Hinder the recovery of property obtained in consequence of the commission of such an
  offence.

Question 41

Right to have someone informed of arrest, power to delay criteria

Answer 41

• The person must be in detention for an indictable offence (an offence that may be tried in the Crown Court ie indictable only and either way offences); and
• The authority to delay the exercise of the right is granted in writing by a police officer of at least the rank of inspector; and

*The inspector has reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:
- 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; and /or
- Hinder the recovery of property obtained in consequence of the commission of such an
offence.

Question 42

Right to an appropriate adult

Answer 42

If a person is, or appears to be, under 18, they must have an appropriate adult present at the police station.
The right to an appropriate adult also applies to anyone whom 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.

Question 43

Who can act as an appropriate adult?

Answer 43

In the case of a young detainee, the appropriate adult is defined as:
* A parent; or
* A guardian; or
* 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, any person aged 18 or over who is not a police officer or police employee suffices.

In the case of a detainee who is mentally disordered or otherwise mentally vulnerable, the appropriate adult can be:
* A parent; or
* A guardian; or
* A relative; or
* Someone who has experience in dealing with such persons.

The appropriate adult must be 18 or over and must not be a police officer or police employee.

Question 44

Who cannot act as an appropriate adult?

Answer 44

A solicitor/ legal representative attending the police station for the suspect should not act as the appropriate adult.

A person cannot act as an appropriate adult if they are:
* 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 and unable to appreciate the gravity of the situation; or
* An estranged parent whom an arrested juvenile does not wish to attend and specifically objects to.

Question 45

What are situations when it is practical to proceed without an appropriate adult

Answer 45

Unless delay 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; or
* Hindering the recovery of property obtained in consequence of commission of the offence.

Question 46

treatment of suspects in the police station

Answer 46

COP C 8 gives details on conditions of detention which include:
* So far as practicable, not more than one detainee should be detained in each cell;
* Cells must be adequately heated, cleaned and ventilated;
* Bedding must be supplied;
* Toilet and washing facilities made available;
* If a detainee’s clothes have been removed, replacement clothing of a reasonable standard shall be provided; and
* Two light meals and one main meal should be provided every twenty-four hours.

Question 47

Police station processes (will happen, may happen)

Answer 47

The detainee:
* Will see the custody officer who must authorise their continued detention.
* Will be informed of their rights.
* Will have certain non-intimate samples taken.
* May see the appropriate healthcare professional, if necessary.
* Will speak to a legal representative, if the detainee requests.
* Will be interviewed.

May be:
- Released under investigation or on police bail, after the interview; or
- Charged and released on police bail to appear at the magistrates’ court at a later date; or
- Charged and remanded in police custody to appear at the magistrates’ court the following day.

Question 48

Disclosure: significant statements

Answer 48

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.

A significant statement is one that is appears to be capable of being used in evidence, and in particular any direct admission of guilt (ie a confession).

Question 49

Solicitor practicalities: Before the interview

Answer 49

The solicitor should:
* Obtain pre-interview disclosure; and
* Have an opportunity for a private consultation with their client to:
- Discuss the case; and
- Advise the client on their options for the interview.

Question 50

Solicitor practicalities: the interview

Answer 50

A properly conducted interview:
* Takes place in an interview room in a designated police station;
* Is recorded;
* Is in the presence of a lawyer, if the suspect has exercised their right under s 58 Police and
Criminal Evidence Act 1984;
* Gives the client the option to suspend the interview and have further consultations with their solicitor.

Question 51

Role as a solicitor in the interview

Answer 51

As such a solicitor should consider intervening in a number of circumstances:
* Information or evidence is referred to or produced that was not disclosed before the interview;
* Clarification on any matter is required at any time;
* There is inappropriate questioning (see next section);
* There is inappropriate behaviour;
* Further advice to the client is needed;
* A break is required; or
* The circumstances require.

Question 52

PACE rules for inadmissible confessons

Answer 52

Section 76(2) PACE 1984 sets out circumstances when a confession can be excluded from evidence as a result of oppression’ or ‘unreliability’.

Section 78 PACE 1984 gives the court the discretion to exclude evidence that ‘would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’.

Question 53

Oppression / unreliability rules - s76(2) PACE

Answer 53

Oppression is ‘torture, inhuman or degrading treatment, or the use or threat of violence’ (s
76(8)). The oppression must have caused the confession.
* Unreliability means the confession was obtained as the result of something said or done which renders it unreliable. This might include breaches of PACE including how the interview was conducted. Again, the thing said of done must have caused the confessions unreliability.
* The existence of either oppression or unreliability does not automatically exclude such evidence, instead the court must grant the defence’s application.

Question 54

Section 78 PACE 1984 gives the court the discretion to exclude evidence that ‘would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’. - general rules

Answer 54

• Section 78 may be used to exclude any evidence upon which the prosecution seeks to rely (in contrast to section 76 which can only be used in relation to confessions).
• Section 78 can also be used to exclude confessions where there is no suggestion that either limb of section 76(2) has been breached.

Question 55

what does active defence look like

Answer 55

Active defence should include:
* Obtaining as much information from the police as is possible.
* Advising your client fully and in accordance with your professional obligations.
* Advising on issues which arise during the police investigation, such as whether to provide samples, extensions of periods of detention, searches of premises and bail.
* Attending and advising during the interview.

Question 56

When should a suspect be treated as vulnerable?

Answer 56

At the beginning of the suspect’s detention, the custody officer will undertake a risk
assessment and identify whether the suspect is or might be ‘vulnerable’.
* If so, the vulnerable suspect will be provided with access to an appropriate adult.
* The custody officer must inform the appropriate adult of the grounds for detention, where the suspect is being detained and ensure the appropriate adult attends the police station as soon as possible

Question 57

Handing in a prepared statement

Answer 57

• used to try avoid later adverse inferences
• handed in at the beginning of interview which sets out defence
  It is often used where there are facts which will be later relied on at trial but the lawyer thinks the client should not participate in answering questions.
  It can be difficult to ensure that sufficient information is contained in the statement as any fact relied on later that is not mentioned could still attract an adverse inference.

A prepared statement should not be thought of as a ‘best of both worlds’ option between
answering questions and not answering any questions as:
* Avoiding adverse inferences using a statement is very difficult.
* The client will still have to answer ‘no comment’ to questions put in the interview

Question 58

mixed interview (no comment and answering others)

Answer 58

is not a valid option in the interview, and you should advise your client in the strongest terms to avoid this approach because:
* The transcript of the interview will be read in court. A ‘no comment’ interview is not read as
evidence. Imagine a jury hearing a suspect apparently avoiding some questions.
* The interviewing officers will use tactics and techniques to push the suspect into talking about matters they had intended not to speak about.
* The suspect is likely to become confused as to what they have already said.

Question 59

Should the client answer questions?

Answer 59

There are numerous factors to consider:
* Amount of disclosure
* Admissibility and strength of evidence- that you are aware of or that might become in the future.
* Your client’s account/ instructions
* The state of your client
* Significant statements
* Possible adverse inferences

Question 60

What is the basic principle on right to silence

Answer 60

The basic principle is that every suspect has a right to silence. This means that there is no
obligation to answer questions in a police interview.
However, if a suspect exercises their right to silence at interview then, provided certain statutory conditions are met, a court is allowed to draw inferences at a later trial.

Question 61

What is an adverse inference

Answer 61

An adverse inference is a common sense conclusion that is adverse to the
interests of a party in proceedings.

If a man with a gun in his hand is found standing next to a body with gunshot wounds, an ‘inference’ can be drawn that he has just shot the person on the ground.

Question 62

What are the three inferences that can be drawn under the Criminal Justice and Public Order Act 1994

Answer 62

Section 34 – if a fact is later relied on at trial and it would have been reasonable to have
mentioned it now.
* Section 36 – if there is a failure to account for a mark, object or substance. This is why careful consideration of the custody record is important so that you are not ambushed in interview.
* Section 37 – if there is a failure to account for presence at the scene. Where was the suspect
arrested? Can this be linked to their involvement?