Unit 2 Preliminaries to prosecution

Question 1

What are the PACE Codes? What is the consequence of a breach of these codes?

Answer 1

• The police’s powers of investigation and procedure are governed by them.
• A failure to follow the codes does not render the police officer who breached them criminally or civilly liable.
• However, the Codes may be admitted in evidence.
• E.g. can be relevant when the judge tries to decide whether a confession should not be admitted bc it is unreliable (under s. 76)(2)(a) PACE)

Question 2

Definition of an Interview under C.11 PACE

Answer 2

An interview is 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

When is it not necessary to give a caution if you want to ask questions?

Answer 3

(a) Solely to establish identity or ownership of a vehicle

(b) In furtherance of the proper and effective conduct of a search

(c) To seek verification of a written record of comments made by the person outside an interview.

(d) To obtain information in accordance with a statutory requirement

It follows that questioning of a person in circumstances where a caution does not have to be administered does not amount to an interview for the purposes of Code C.

Question 4

Where do interviews take place?

Answer 4

General rule = should take place following the decision to arrest and shouldn’t be delayed, at a police station or other authorised place of detention

Exception = can be conducted elsewhere if the delay that would be caused by bringing them to a relevant place is likely to:

• lead to interference/harm re: evidence, other persons, serious loss of property
• lead to alert other suspects not yet arrested
• hinder recovery of property obtained by committing offence

Once relevant risk has been averted, or necessary Qs have been put to aver the risk, interviewing must cease

Question 5

What has to happen before the start of an interview?

Answer 5

(1) The suspect must be given sufficient info to understand (1) the nature of the offence and (2) why they are suspected of committing it. This info must also be given to their legal adviser.

(2) The suspect must be reminded of. their right to free legal advice before the commencement or recommencement of any interview

(3) They must be cautioned

Question 6

What is the consequence of failing to inform a suspect of their right to free legal advice before an interview?

Answer 6

The evidence may be excluded

I think this is just an application of s 78 PACE

Question 7

When does a caution have to be given?

Answer 7

(1) Interview commencement (whether or not it is conducted at a police station)

(2) Reminder at recommencement of interview after any break

(3) Arrest

Overarching point: code C, para. 10.1, requires a caution to be given to a person ‘whom there are grounds to suspect’ of an offence’. Whether there are sufficient grounds for a caution to be administered is an objective question, and does not simply depend on how the police officer regarded the matter. This statement really covers the three instances when a caution has to be given. It also clarifies that it’s not about whether the police officer thought (in his own mind) that this was an interview, but rather whether the relevant suspicion objectively existed.

Question 8

What are the words of a normal caution and how are they different when an interview is (exceptionally) conducted without a legal adviser despite requesting one?

Answer 8

Normal words: “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.”

Where no legal adviser despite request: “You do not have to say anything, but anything you do say may be given in evidence”

Reason for difference: no inferences can be drawn from silence where there was no legal adviser despite a request for one.

Question 9

When will the requirement of cautioning a suspect be breached (and when will it not) and what is the consequence of a breach?

Answer 9

Although PACE sets out standard words, what matters is that the substance is retained. So minor deviations and imperfect translations are irrelevant. The important thing is that the suspect understands. This also means that if they don’t understand, the PO needs to explain it in simple language.

Consequence of breach: violation will not necessarily result in exclusion of interview evidence

Question 10

Under what circumstances must a Special Warning be given?

Answer 10

In addition to the caution, 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 person, in or on his clothing or footwear, otherwise in his possession, or in the place where he was arrested; or
b. to account for his presence at the place where he was arrested,

a special warning must be given in the terms set out in Code C, para. 10.11.

Inferences cannot be drawn if the warning is not given

Question 11

What is the consequence of failing to give a special warning?

Answer 11

No inferences can be drawn from silence if the warning is not given

Question 12

What does the interviewer have to do in relation to significant statements or silences?

Answer 12

Put them to the suspect during the interview.

Obviously this makes sense -> we know from the reading on inferences to draw from silences that if the suspect had no opportunity to explain themselves, then the evidence will not be particularly useful at trial

Question 13

What is a ‘significant statement’? What is a ‘significant silence’?

Answer 13

Statement: appears to be capable of being used in evidence, and in particular a direct admission of guilt

Silence: failure/refusal to answer a Q or answer satisfactorily when under caution which might give rise to an adverse inference

Question 14

What rules govern the conduct of the interview?

Answer 14

The PO may not:

(1) Use oppression to obtain answers or elicit a statement
(2) Indicate (except in answer to direct Q from S) what action the P shall take if S answers or refuses to answer Qs or make a statement
(3) Seek a confession by offering a caution

The PO also has a duty not to actively mislead a suspect

Question 15

When should an interview cease?

Answer 15

When the PO is satisfied that all relevant Qs have been put to the suspect, account has been taken of all available evidence, and there is sufficient evidence to charge (realistic prospect of conviction).

This, of course, is subject to the limits imposed by the PACE 1984 on the maximum periods of detention without charge, and the provisions regarding breaks in interviews and rest periods.

PACE gives the police a large degree of latitude in determining when interviewing should cease.

Question 16

What rules govern the interviewing of children/YP and mentally disordered individuals?

Answer 16

C/YP, mentally disordered or vulnerable person must not be interviewed or asked to sign w/o an appropriate adult, unless:

• (1) conditions for conducting interview away from PS are satisfied, or
• (2) interview authorised by a PO superintendent or above in rank

The appropriate adult for a U18 S can be: a parent or guardian, or rep from local authority if in care, or some other responsible person but not an estranged parent or illiterate w/ low IQ who cannot understand gravity of situation

The appropriate adult for a mentally disordered individual can be: relative, guardian or other person responsible for care/custody of person w/ experience handling such persons

In all cases, the appropriate adult cannot be a police officer or police employee, solicitor, anyone involved in the case in any way, someone S has made admissions to

Question 17

What rules govern the interviewing of individuals who require an interpreter?

Answer 17

Must not be interviewed without an interpreter unless

• (1) conditions for conducting interview away from PS are satisfied,
• (2) interview authorised by a PO superintendent or above in rank, or
• (3) interview would not significantly harm S’s physical/mental state

Interpretation can be via live link if it won’t adversely affect S’s ability to communicate effectively

Where suspect cannot read and interview is recorded in writing, record must be read over to the suspect who must be asked to verify it

Question 18

When can a PO use handcuffs during an arrest? What is the consequence of using them unlawfully?

Answer 18

Only where reasonably necessary to prevent escape/violence

If unjustifiable, will be trespass even if arrest lawful

Question 19

What rules govern the interviewing of someone who is intoxicated or can’t understand what us happening bc of illness, ailment or some other condition?

Answer 19

No interview of someone who is unable to appreciate the significance of questions and their answers, or to understand what is happening because of the effects of drink, drugs or any illness, ailment or condition unless authorised by superintendent or higher

Question 20

If the lawfulness of an arrest is challenged, who bears the burden of proof?

Answer 20

The police have to prove that it was lawful

Question 21

If it is alleged that excessive force was used during an arrest, who bears the burden of proof?

Answer 21

The complainant has to prove the excessive force

Question 22

What will render an arrest unlawful?

Answer 22

(1) Failure to inform them that they are under arrest as soon as is practicable after the arrest

(2) Failure to inform them of the ground for the arrest at the time of the arrest, or as soon as is practicable after the arrest

Test for whether the words used were sufficient = whether, having regard to all the circumstances of the case, the person arrested was told, in simple, non-technical language that the person could understand, the essential legal and factual grounds for the arrest.

N.B. although S also has to be cautioned, failure to caution does not render the arrest unlawful, but it may provide grounds for the exclusion of evidence

Question 23

What are the three powers of arrest on our syllabus?

Answer 23

(1) Police power to arrest without a warrant

(2) Arrest for Breach of the Peace

(3) Police power to arrest under warrants issued by Mags or CC

Question 24

Who do the police have the power to arrest without a warrant?

Answer 24

(1) May arrest anyone:

• (a) about to commit an offence;
• (b) in act of committing an offence;
• (c) reasonable grounds for suspecting to be about to commit an offence;
• (d) reasonable grounds for suspecting to be committing an offence.
• (e) reasonable grounds for suspecting has committed an offence

(2) But only if the police officer has reasonable grounds for believing the arrest to be necessary for one of the following reasons:

• (a) allow prompt and effective investigation of the offence
• (b) ascertain person’s name or address
• (c) prevent person from causing/suffering injury, causing loss/damage to property etc.
• (d) protect a child or vulnerable person;
• (e) prevent P from being hindered by disappearance of person

Question 25

Where reasonable suspicion is required to have a power of arrest what does that mean?

Answer 25

• Not defined
• But it has been held that reasonable suspicion requires (1) that the constable carrying out the arrest actually suspects (a subjective test) and (2) that a reasonable person in possession of the same facts as the constable would also suspect (an objective test)

Question 26

When does the power to arrest for breach of the peace arise?

Answer 26

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

• (a) a breach of the peace is committed in the arresting 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) 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.

An arrest must be for the purpose of bringing the person before a competent legal authority, but an arrest is lawful notwithstanding that the person is released before he could practically be brought before a court.

Question 27

What constitutes a breach of the peace?

Answer 27

A breach of the peace occurs whenever harm is actually done or is likely to be done to a person or, in his presence, to his property, or where a person is in fear of being harmed through an assault, affray, riot, unlawful assembly or other disturbance.

Question 28

When do the Mags have the power to issue an arrest warrant?

Answer 28

(1) Person must have committed a crime or be suspected of committing a crime.

(2) One of 3 circumstances must apply:

• (i) Offence must be indictable or punishable with imprisonment
• (ii) Address is not sufficiently established for a summons to be served
• (iii) Person failed to appear to answer a summons (but only if the offence is also indictable or punishable with imprisonment or where the court proposes to impose a disqualification)

Question 29

When can the CC issue an arrest warrant?

Answer 29

Where 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 (i.e. it’s an alternative to a summons).

Can also be issued for failure to appear in the CC.

Main difference to mags seems to be that there is no limit on the kinds of offences for which the CC can do this (but that is presumably bc the CC deals with more severe offences anyway).

Question 30

Under what circumstances can a police officer release an arrested person on bail (i.e. this is pre-charge bail)?

Answer 30

• In general, the police must release people if there are no grounds for keeping them under arrest.
• They can be released on bail if the constable is satisfied that this would be necessary and proportionate
• The factors which the constable must have regard to in deciding this question are:

(a) the need to secure that the person surrenders to custody,

(b) the need to prevent offending by the person,

(c) the need to safeguard victims of crime and witnesses, taking into account any vulnerabilities of any alleged victim of, or alleged witness to, the offence for which the person was arrested where these vulnerabilities have been identified by the constable

(d) the need to safeguard the person, taking into account any vulnerabilities of the person where these vulnerabilities have been identified by the constable, and

(e) the need to manage risks to the public

• N.B. pre-charge bail can be conditional and in determining whether bail would be ‘necessary and proportionate’ the conditions that would be imposed must be taken into account. It is possible to apply for a variation of these conditions.
• Any decision to release on bail must be authorised by a custody officer.

Question 31

What is the role of the custody officer? What is the minimum rank of a custody officer?

Answer 31

Role

• S can only be detained at a police station on the authority of the custody officer and may not be released except on the custody officer’s authority.
• It is the responsibility of the custody officer to ensure that a person in police detention is treated in accordance with the PACE 1984.
• Must open a custody record. The custody officer is responsible for recording in the custody record all matters that are required by the PACE 1984 or the codes of practice to be recorded.
• Must inform S of their right to notification of arrest + ask whether they wish to exercise it

Min rank = Sergeant

Question 32

What is the ‘right to notification of arrest’?

Answer 32

A person who has been arrested (whether or not for an offence) and who is being held in custody at a police station or other premises has a right, at the person’s request, to have one friend, or relative or other person who is known to him or her or who is likely to take an interest in his or her welfare, told of the arrest and the place of detention.

Question 33

When does a person have to be told of their right to free legal advice?

Answer 33

When:

(1) brought to PS under arrest, or arrested at PS

(2) before recommencing any interview at PS or APD

(3) before a review of detention is conducted or before a decision is made whether to extend the period of detention

(4) after charge or being informed that he may be prosecuted, where PO wishes to bring to his attention any statement or the content of any interview, or where he is re-interviewed;

(5) before being asked to provide an intimate sample;

(6) before an intimate drug search is conducted, or an x-ray or ultrasound scan is taken;

(7) before he is (exceptionally) interviewed after charge; and

(8) before an ID parade or group or video identification is conducted

Question 34

How do the rules on detention of suspects apply to children/YP and how does the law deal with the fact that sometimes the police can’t know S’s age for certain when detaining someone?

Answer 34

• Anyone who appears to be under 18 is to be treated as a juvenile (this is how we deal with the fact that we might not know exactly how old someone is at that point)
• No special rules apply - only ‘extra’ requirement is that the police must take into account the need to safeguard and promote the welfare of children in discharging their functions

Question 35

What rules apply where mentally disordered individuals or vulnerable people are detained?

Answer 35

• Often the PO can’t really tell if someone actually falls into this group, so the rule is that 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 for the purposes of the codes of practice.
• The individual must be assessed as soon as possible by a qualified medical practitioner.
• My reading of Blackstone’s is that such people must be removed to a place of safety, but only after consultation with a medical practitioner
• A child cannot be detained in a police cell as a place of safety
• An adult can be detained in a police cell as a place of safety if the relevant decision-maker is satisfied that: (a) the behaviour of the person poses an imminent risk of serious injury or death to him or herself or another; (b) because of that risk, no place of safety other than a police station can reasonably be expected to detain the person; and (c) the requirement in reg. 4(1)(b) (so far as reasonably practicable, a healthcare professional is present and available to the detained person throughout the period of detention at the police station) will be met. Detention in such circumstances must be authorised by an officer of the rank of inspector or above.

Question 36

What are the detention time limits?

Answer 36

• Normally 24h from the ‘relevant time’, i.e.: (i) when the person arrives at the police station or (ii) 24h after arrest, whichever is earlier.
• Time limits can be extended for indictable offences:
• (i) For a total of 36h from the relevant time by a PO of rank of superintendant or above
• (ii) for total of 96h from the relevant time by mags court
• Time runs continuously from relevant time, unless a detainee is removed to hospital for medical treatment, time spent at the hospital or travelling to or from hospital does not count (unless the person was questioned there)

Question 37

What happens upon the expiry of a detention time limit? Can the suspect be rearrested?

Answer 37

• If they are not charged -> must be released
• If person is released without charge, he or she may not be re-arrested without warrant for the offence for which the person was previously arrested (subject to the power to arrest for failure to answer to police bail under s. 46A) unless, since the release, new evidence has come to light or an examination or analysis of existing evidence has been made which could not reasonably have been made before.

Question 38

What are the DPP, the Crown Prosecution Service (CPS), Crown Prosecutors and associate prosecutors?

Answer 38

• The CPS takes over prosecutions begun by the police.
• The DPP is the head of the CPS (a barrister of at least 10 years call).
• The Crown Prosecutors are CPS personnel that exercise the DPP’s powers even without express instructions from the DPP (i.e. they’re basically barristers employed by the CPS).
• Associate prosecutors are non-legally qualified CPS staff. They can represent the CPS on bail applications and on other pre-trial applications, e.g. adjournments. Can conduct trials but only where the offence in question is a non-imprisonable summary offence.

Question 39

What are the ways in which criminal proceedings can be commenced that we are meant to know about?

Answer 39

(1) A person can be charged if they have been arrested and are - at the time of charge - at the police station

(2) Written Charge and Requisition

(3) Issue of a summons or arrest warrant (i.e. ‘laying an information’)

Question 40

What is the written charge and requisition procedure?

Answer 40

• A ‘relevant prosecutor’ (for our purposes that realistically means the CPS) can institute criminal proceedings by issuing a ‘written charge’.
• Where the prosecutor does so, they must issue a ‘requisition’ at the same time - this requires the accused to appear before a magistrates’ court to answer the written charge
• Both docs must be served on the court and the accused

Question 41

When would proceedings be commenced by issuing a summons/an arrest warrant and what rules govern this procedure?

Answer 41

• Applies mostly (from my understanding) to private prosecutions, because the ‘written charge and requisition’ procedure is only available to ‘relevant prosecutors’
• This has also historically been called ‘laying an information’

(1) The application

• A prosecutor who wants the court to issue a summons must either serve a written application on the court, or present an application orally to the court (but with a written record of the allegation(s) made by the prosecutor)
• Content: (a) set out the allegation(s) made by the applicant in ordinary language (needs to give all important info, e.g. relevant legislation, damage caused by alleged offence), and (b) if there is a time-limit for prosecution of the offence(s), demonstrate that the application is made in time.

(2) The Summons/Warrant

• Court can either issue a summons or an arrest warrant
• Summons must set out when and where the accused has to attend court and must also specify each offence in respect of which it has been issued

(3) Time Limit

• Mags can only try an accused for a summary offence if the application for a summons was served on the magistrates’ court within six months of the time when the offence was allegedly committed

Question 42

Is there a time limit for commencing proceedings in respect of indictable or either way offences?

Answer 42

No

Question 43

What is the time-limit for commencing proceedings in respect of summary offences by the written charge and requisition procedure? When is the written charge regarded as issued?

Answer 43

• 6 months from commission of the alleged offence
• The written charge can be regarded as issued only when the document comprising the written charge is completed, with all relevant details and in the form needed for service. Provided that is done within six months of the relevant offence, the written charge will have been issued in time.

Question 44

Summarise the time limits for commencing proceedings

Answer 44

There are only time limits if it’s a summary offence (6 months from commission). For all other offences, there are no time limits.