Unit 3: Scots Criminal Law: Police Powers And Principles Of Evidence Flashcards
Key Principles of Taking a Description from a Witness
Age Build Clothing / Possessions Distinguishing Features / Tattoos Elevation Facial Features Gait Hair Colour / Style Identify Ethnicity Jewellery Sex
Essentials of a Crime Scene
Assess
Protect
Communicate
Conducting Warrant Checks
Accused person’s particulars Reason for arrest or charge Means enquiry - amount withstanding Remember to check DATE OF ISSUE Extent of police powers Signature of issuing authority The date and court where sentenced
Turnbull Rules for witness statements
Amount of time in total the witness observed the suspect
Distance between the witness and the suspect
Visibility at the locus
Observation in any way impeded
Known to the observer?
Any reason for remembering the suspect?
Time elapsed between observation and subsequent identification to the police
Error in description? Difference between description and reality?
Admissible Hearsay Evidence
Caution
Involuntary
Dying declaration
Essential to Prove Guilt
Crime has been committed Relevant charge has been brought Identify has been established Evidence is competent/ admissible Sufficiency
Types of Productions
Documents - Birth certificates, deeds, other paperwork
Article - things/objects
Connected with a crime
Any other thing
Essentials of a Scene Entry Log
Details of officer keeping the log Reason for entering the scene Movements / actions at the scene Arrival / departure time Names of all personnel attending the scene
Essentials of Notebooks
Erasure - none Loose leaves - none Blank lines - none Overwriting - none Writing between lines - none
Sufficiency of Evidence
Motive Ability to commit crime Guilty intent Identification Conduct after the crime Opportunity Preparation
Human Rights Key Considerations
Proportionate Legal Accountability Necessary Ethical
When to arrest
Refusing to desist Abode (no fixed) Interest of public safety Satisfaction of particulars - not achieved Evident intention to abscond \+ Interview Note statements Get samples
Advantages of Arrest
Search Photograph ID Parade Non-invasive samples Fingerprints / Palm prints Restraint and control Examine injuries Dental and invasive samples
Open Questions
Tell
Explain
Describe
Principles of Arrest
Inform the person they are under arrest Nature of the offence Reason for the arrest Administer Common Law Caution Note reply Solicitor access and intimation
13: Productions
What is a production?
An article, document, or anything else connected with a crime that is seized as evidence.
10.2: Direct Measures
What is a Recorded Police Warning?
Reserved for more serious offences where a verbal warning would not be appropriate.
Used as an alternative to reporting to the Procurator Fiscal.
Ticket is issued and the incident is recorded on Police Systems.
Live for 3 months, but held on CHS for 2 years.
Does not require corroboration for issue, but does for the offence itself.
8: Warrants
Types of Warrant
Apprehension Warrant Means Enquiry Warrant Convict Extraction Warrant Witness Warrant License Revocation Warrant Breach of Home Detention Warrant
8: Warrants
How to obtain an Apprehension Warrant
Needs to be the best course of action and all other routes to apprehending the individual have been exhausted
SPR submitted to Procurator Fiscal craving a warrant
PF applies to Sheriff or Justice of the Peace
In rare cases, approaching the PF directly may be required
8: Warrants
Police powers in relation to a Means Enquiry Warrant
No power to force entry
Must insist on immediate, and full payment
No partial payment
Should be processed at the station
Where not possible, it should be recorded in full detail in notebook, signed and corroborated
Can be executed anywhere police have a right to be
8: Warrants
What should be checked on a warrant prior to execution
Date of issue, and is it still live The particulars of the accused person The terms of the warrant and extent of police powers The date and court where sentenced That it has been signed
Definition of…
Evidence
Any legal means (exclusive of mere argument) which tends to prove or disprove the subject before a court
8: Warrants
Procedure to be followed prior to execution of warrant
Confirm local intelligence Liaise with other agencies or contractors (where appropriate) via force liaison officer PNC check Voter roll Check with housing authorities
8: Warrants
Categories of warrant
Category A (21 days)
- Petition
- Failure to appear
- Sexual crimes
- Local priority issues
- Substantial risk to the public
Category B (28 days)
- Weapons
- Racially aggravated
- Domestic violence
- Serious RTA
Category C (60 days) Anything else not covered
Uncategorised (by local agreement)
Unpaid financial penalties
7: Prisoner Rights, Care and Welfare
Risk factors to consider
Vulnerability Mental health issues Learning differences Religious and cultural differences Previous no compliance Violent behaviour Concealment of weapons, or history of same Allergies Injuries Other health / medical issues Self harm or suicidal thoughts/behaviour
7: Prisoner Rights, Care and Welfare
Importance of searching an arrested person
To protect them (self harm etc)
To protect us
To aid our investigation (evidence of drugs/weapons etc)
7: Prisoner Rights, Care and Welfare
Levels of search in custody
Standard search (custody and on location) Strip search (custody only) Initiate search (custody only)
7: Prisoner Rights, Care and Welfare
Risk Assessment procedures
21 vulnerability questions
9 suicide / self harm questions
Typically processed by custody officers
Definition of…
Production?
Productions are defined as an article, document, or anything (including animal) which is connected to a crime or offence, or other matter under review.
Definition of…
Warrant?
An authority in writing, which is issued by:
A magistrate, i.e. Justice of the Peace or Sheriff
Other Competent Person
Directing police officers to take a course of action which might not otherwise be lawful.
Definition of…
Hearsay Evidence?
Evidence at second hand given by a person who is merely repeating something said by another person.
1: Evidential Considerations
Explain the various types of evidence available at a crime scene and how to preserve them
Fingerprints - Leave in situ or move somewhere safe and dry. Pick up by edges.
DNA - Keep away from contamination sources. Always use gloves.
Shoe impressions - A box or similar to cover.
Hairs and fibres - Seize ASAP and place in separate bags. Don’t sit in vehicles.
Marks - Don’t try to match tools/instruments to marks by touching.
Paint and glass - Seize ASAP.
1: Evidential Considerations
Explain how contamination can impact upon a crime scene
Contamination can render any scientific examination worthless.
1: Evidential Considerations
State the phases of your initial actions at crime scenes
Assess - Render aid - Observe - Common approach path Protect - Cordon ASAP - Deal with other persons / pets Communicate - Victims - Witnesses - Members of the public - Police
1: Evidential Considerations
State the entries needed for the Scene Log
Details of officer keeping the log Reason for entering the scene Movements / actions at the scene Arrival / departure times Names of personnel in attendance`
1: Evidential Considerations
Examples of health and safety considerations at a crime scene
Electrical Structural Fire Chemical Gas Biological Bodily fluids Drugs Offensive weapons Violent individuals Dangerous animals Crowds Open water
2: Identification
Explain the guidance for obtaining descriptions from witnesses
Be patient, be prompt, and don’t lead the witness.
Age Build Clothing and possessions Distinguishing features Elevation (height) Facial features Gait Hair colour and style Identify ethnicity Jewellery Sex
2: Identification
State the principles regarding identification of a suspect by a witness
Identification by photo book
- 12 assorted images
- Shown to best witness
- Can only be used once and then lodged as a production
- Witness cannot be led, encouraged, or told whether or not the suspect’s photo is among the 12
Electronic Facial Identification
- E-fit can be created based on witness interview and circulated to stations and media
Video ID Parade
- 12 assorted video images
3: Meaning and Admissibility
Explain what is meant by onus of proof
Onus of proof is the burden upon prosecution to gather and present sufficient evidence to put the guilt of the accused beyond all reasonable doubt.
3: Meaning and Admissibility
Explain the principle of corroboration
Scots Law requires evidence from at least two separate sources to convict an accused.
3: Meaning and Admissibility
State the rule of best evidence
The best evidence available must always be led. The courts will not allow any evidence which by its nature implies that better evidence is available.
3: Meaning and Admissibility
Explain what a credible and competent witness is
A credible witness is one whose evidence is held by the court to be trustworthy.
It is the prerogative of the PF and court to decide on the credibility of the witness.
A competent witness is one who the court decides to permit to give evidence.
3: Meaning and Admissibility
State the common law caution and when it should be used
You are not obliged to say anything, but anything you do say will be noted and may be used in evidence.
It must be administered to any person:
Prior to a search
Identified as a suspect
Who is arrested
Prior to questioning by police
4: Sufficiency
Explain the term sufficiency of evidence
There must be sufficient, competent evidence to prove beyond all reasonable doubt the guilt of the accused.
This means that one piece of evidence must be back up by other evidence.
An accused can be found guilty on the basis of two eyewitness accounts, but the more evidence the better.
4: Sufficiency
Explain what is meant by best evidence in respect of two or more eyewitnesses
Eyewitness accounts are generally seen as the best evidence and as such will be led first.
4: Sufficiency
Identify the corroborative evidence required to support a single eyewitness account
Other facts and circumstances which jointly amount to the evidence equivalent of a second eye witness.
4: Sufficiency
Explain what is meant by circumstantial evidence
Circumstantial evidence is evidence afforded by facts or circumstances which have an apparent relation to the crime.
4: Sufficiency
Outline the principle of the Moorov Doctrine
Evidence of separate witnesses to sufficiently similar crimes can be corroborative (i.e. cases of flashing where there are multiple single victims).
4: Sufficiency
Outline the Howden Principle
Used where identification isn’t possible for each crime where multiple similar offences have been committed, but the MO and circumstances are such that an accused person who is convicted one crime may be convicted of them all (i.e. in cases of multiple housebreakings in a single street).
5.1: Arrest
Explain the concept of ‘presumption of liberty’ and the specific duty under Section 50 Criminal Justice (Scotland) 2016
A constable must take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody.
5.1: Arrest
Explain the advantages and procedures of making an arrest
When to Arrest: Refusing to Desist Abode (no fixed) Interest of Public Safety Satisfaction of Name and Address Evident Intention to Abscond \+ Interview Note Witness Statements/Further Enquiry Get Samples
Advantages: Search Photograph ID parade Non-invasive samples Fingerprints/Palm prints Restraint and Control Examination of Injuries Dental Impressions and Invasive Samples
Info Provided Upon Arrest: Nature of the Offence Reason for the Arrest Administer Common Law Caution Note Replies Solicitor - Intimation and Access
5.1: Arrest
Recognise the difference between ‘Officially Accused’ and ‘Not Officially Accused’
Officially Accused
Person has been arrested, and sufficient admissible evidence exists in order to caution and charge them.
Not Officially Accused
Person has been arrested but has not been cautioned and charged.
12 hour arrest timer starts, and enquiries and interviews etc must be conducted within this time. Person can be released and rearrested if need be, but the 12 hour clock does not reset. It can be extended by a further 12 hours by an Inspector or above.
5.1: Arrest
When does an arrest cease?
When the grounds no longer exist, i.e. released, issue FPN, released on undertaking/summons etc
A court decides they should be released after their appearance in court.
They are imprisoned following conviction.
5.1: Arrest
Explain the procedure regarding Voluntary Attendance at a Police Station
Voluntary Attendance Form to be completed
Voluntary attendees can leave at any time (prior to arrest)
Child should attend in the presence of a parent or guardian
Will be subject to a strip search if they are being held in custody
5.1: Arrest
Identify the offences covered under Police and Fire Reform (Scotland) Act 2012
Section 90
Creates an offence to assault, resist, obstruct or hinder a Constable acting in the course of their duties
Section 91
Creates an offence to remove a person from custody, or assist in the escape of a person from custody
5.2: Charge
Identify when to charge a suspect
A person may be charged where sufficient admissible evidence exists to prove guilt, beyond all reasonable doubt, and all lines of investigation have been exhausted.
5.2: Charge
Explain the importance of proving the contents of a charge
You must be able to prove the key elements of the charge. Failure to do so may mean the PF not continuing with a case.
5.2: Charge
Describe how to formulate charges
When, where, who, what, how, value, statute
On June 21st 2022, at Tulliallan Police College, Kincardine, you, Matt Brown, did assault Joe Bloggs (care of Police Service of Scotland) by striking him about the head and face, contrary to the common law of assault.
On June 21st 2022, at Tulliallan Police College, Kincardine, you, Matt Brown, did play music loudly enough to cause annoyance to others, despite receiving an earlier Police warning to the contrary, in contravention to Section 54 of the Civic Government (Scotland) Act 1982.
6: Requiring Person’s Particulars
Explain police powers under Section 13 Criminal Procedure (Scotland) Act 1995 in relation to the identity of witnesses and suspects
Witnesses
Where reasonable grounds exist, a Constable may require a witness to provide their name, address, DOB, POB, and nationality.
Can be exercised at the scene of crime or any place you are entitled to be.
No power to hold the witness while details are being checked.
Statement must be read from Aide Memoire.
Failure to provide details is an offence.
Suspects
Where reasonable grounds exist, a Constable may require a suspect to provide their name, address, DOB, POB and nationality.
Can be exercised at the scene of crime or any place you are entitled to be.
Power to hold the suspect using reasonable force while details are checked (provided this can be checked quickly).
Failure to provide details is an offence.
6: Requiring Person’s Particulars
Explain police powers under Section 13 Criminal Procedure (Scotland) Act 1995 should a witness or suspect fail to comply with requirements
Anyone who contravenes Section 13 can be arrested under Section 1 Criminal Justice (Scotland) Act 2016.
7: Prisoner Rights, Care and Welfare
Explain police procedures in relation to the legal rights of all persons when arrested
Right to consultation with solicitor at any time
Adults over 18
May have notice sent to a named adult of the arrest, except where this conflicts with the interests of the investigation, the prevention of crime, or apprehension of offenders. Rights can be waived.
Vulnerable persons
Over 16 and presenting with a mental disorder - must request an Appropriate Adult. Cannot waive their rights to a solicitor.
Children
Younger children - parents must be notified (even if child specifically requests otherwise), or social work. Parent must be given access - can only be denied due to suspicion that the parent is involved, or in the interest of the wellbeing of the child. Right to solicitor cannot be waived.
Older children - May have notice sent to a named adult and may request a visit from said adult (which must be accommodated). Can only delay notice in the interests of the investigation, prevention of crime, or apprehension of offenders. Can waive right to solicitor with agreement of named adult.
7: Prisoner Rights, Care and Welfare
What is a PIRoS form and the Pre-Interview review of rights?
Police Interview - Rights of Suspect
A simple form that must be completed prior to interview setting out the suspect’s rights to solicitor access.
No more than an hour prior to interview, investigating officers must formally reiterate the suspect’s rights and entitlements as Not Officially accused as per Aide Memoire. Best practice is to complete this immediately prior to commencing the interview.
7: Prisoner Rights, Care and Welfare
State the various custody disposal options
Pre-charge
- Released without charge (no evidence, grounds no longer exist etc)
- Released pending further investigation (enquiries are ongoing)
- Released on investigative liberation, with conditions (if reasonable grounds exist to suspect the person has committed an offence. Can only be set by a Sergeant, and must be appropriate (no interfering with an investigation/witness)
Post-charge
- Release for Report (summons to court)
- Release on Undertaking (a signed agreement, with terms stating that the accused will appear at court at specified place/date, and comply with conditions (no committing further offences, interfere with investigation, bad behaviour etc).)
- Hold in custody pending court appearance on next lawful day
10.1: Standard Prosecution Report (SPR)
What are the categories of SPR?
Common Law (used when all charges relate to Common Law offences) Statutory (used when all charges relate to statutory offences, or a mix of statutory and Common Law) Road Traffic (used when any charges relate to Road Traffic offences)
10.2: Direct Measures
Explain criteria for issuance of a Recorded Police Warning
16+ and not subject to CSO
Minor offence
Sufficient evidence to report to the PF
Offender is suitable and able to understand
Identify of the offender can be established
No persistent/alarming conduct
No aggravation (I.e. hate crime)
Not subject to bail
Previous conviction within 3 years for analogous offence
10.2: Direct Measures
Explain criteria for issuing ASBO FPN
16+ and not subject to CSO Has committed a Fixed Penalty Offence Sufficient evidence to charge Subject is suitable and compliant No persistent or alarming conduct No aggravations Been recently issued with more than one FPN for the same offence or analogous offences
