Unit 3 - Scots Criminal Law: Police Powers and Principles of Evidence Flashcards
Name some types of evidence you could find at a crime scene.
Contact evidence - fingerprints, DNA, Show impressions, hair and fibres, marks e.g. from tools, paint, glass.
How can we preserve evidence at a crime scene?
- double glove
- don’t touch anything unless you have to
- if you do touch or move anything make sure it’s noted and communicated to Crime Scene Manager or equivalent.
- Adverse weather: cover evidence using a box or a tent.
- Bag up clothing with each item given it’s own bag.
- Do not sit in any vehicle that needs to be examined.
- Do not put anything into marks/footprints etc
How can contamination impact a crime scene?
- It can stall the investigation - e.g. looking for the footprint of a Police Officer instead of a suspect.
- The investigation can fall apart e.g. suspect can say that the evidence came from a police officer in a scenario where they were with the victim and then went to the suspects home.
- The findings of any scientific examination can be rendered valueless.
What are the 3 steps for managing any crime scene?
Assess - Protect - Communicate (APC)
Assess - identify the crime scene e.g. where it is and how big it is. Priority is always to preserve life so check for any casualties. Observe details of the scene, remove any victim with minimal disturbance, manage routes in/out known as the Common Approach Path. Record all facts and report them to supervisor or SIO.
Protect - protect the scene against people and the elements. Cordons - think big as can always make it smaller if need be. The cordon should include the scene of the crime but also surrounding areas like possible entries/exits.
Communicate - asking questions, establishing facts, giving advice and assistance. Report situation to the control room. This will ensure you have the appropriate assistance. Notebook entry!
What should you note in your notebook if you are the first officer attending a crime scene?
Time (called to the scene and arrival time)
Persons present on your arrival.
Weather conditions.
Exact position of key pieces of evidence e.g. a body, a weapon etc.
Exact position of objects in and around the scene.
Signs of a struggle.
Location of keys.
Were doors and window open or closed, locked or broken.
Foot impressions.
Marks left by a vehicle.
Rough sketch of the crime scene.
Odours (cigarette smoke, perfume or aftershave)
Lights on or off.
Details of other responders e.g. paramedics, doctors. This allows us to eliminate their DNA, fingerprints etc from the enquiry.
Time of arrival or departure of personnel at a scene.
What information must be included in a Scene Entry Log?
DRMAN
Details of the officer keeping the log. Reason for entering crime scene. Movements/actions at crime scene. Arrival and departure time. Names of personnel attending at scene.
Name some examples of Health and Safety considerations at a crime scene.
- Electrical, structural and fire risks within buildings particularly Cannabis cultivations being identified.
- Incidents involving Chemical, Gas or Bio hazards.
- Body fluids, drugs and offensive weapons when searching persons or property.
- Dealing with violent individuals.
- Controlling large crowds, such as planned/unplanned protests, sporting events etc.
- Attending incidents relating to natural hazards such as open water.
- Operational activities during periods of severe weather.
Explain the guidance for obtaining descriptions of suspects from witnesses.
- Ensure the witness is willing to provide a statement (consider gender of Officer for certain offences e.g. rape).
- Be patient
- Do not prompt!
- Allow the witness to describe in their own way or words but check you understand.
- Obtain as much detail as possible.
- Start at the head and work your way down.
Age Build Clothing & Possessions Distinguishing features Elevation (height) Facial features Gait (how they walk) Hair Identify ethnicity Jewelry \+ Sex (gender)
State the areas you should pay particular attention to when noting details of a suspect.
Time - how long were they observed for?
Distance - from what distance?
Light - in what conditions? How was the visibility?
Previously seen - Has the accused been seen before? How long between observation and ID? Was the accused remembered for any particular reason?
Observation - was the observation clear or impeded e.g. a tree. Any discrepancies between the description and the appearance of the accused once traced.
What are the principles regarding identification of suspect(s) by a witness?
- Witness should be shown a sheet of 12 photographs, including the suspect’s photograph.
- The other photos should be of people of a similar age and appearance e.g. bald.
- The witness should be shown the sheet outwith the presence of any other witness. For this reason, you should pick your main witness.
- The witness should be left to make a selection without help or consultation with any other person.
- The photos should bear no marks to assist the witness pick the suspect’s photograph.
- If ID is made, there should be no confirmation whether it was or wasn’t the suspect chosen.
- In notebook, note date and time shown to witness, number of photo selected, statement from the witness whether positive or negative.
- Lodge as a production!
- “The individual that you witnessed may or may not be within the album”.
- If a witness makes a positive ID, another witness should not be shown the photos unless directed to do so by Procurator Fiscal.
- Usually, other witnesses would have a ID parade.
- Record of photos shown should be kept for court.
Other methods
- Electronic Facial Identification. Witness is interviewed and trained operator will produce an image based on very detailed descriptions.
- VIPER (Video Identification Parade Electronic Recording) - suspect recorded moving face from side to side under controlled conditions. 12 images initially of the suspect and others with similar appearance. The suspect/accused/solicitor can removed any 4 images, leaving a final 9 (including the suspect). They can also decide which order to put the photos. If showing to multiple witnesses, can change the order for each one.
- Traditional Identification Parade - for serious offences. Only if authorised by PF or Defence Agent.
Explain the provisions that might be made for identification by child witnesses.
- Video identification parade (VIPER) should always be the preferred method of ID of child witnesses or vulnerable witnesses. This removes the confrontational aspect of physically viewing the suspect.
- Don’t need to make a ‘dock identification’ anymore. Something which can be distressing.
- Instead, the Crown can submit a report to the court naming the person identified by the witness from an ID parade, or other identification procedure. This will be accepted unless challenged by the accused or their solicitor.
Define Evidence.
Evidence includes all legal means (exclusive of mere argument) which tends to prove or disprove the truth of the subject before the court.
Examples: eye witness statements, CCTV, DNA, fingerprints, admissions, forensic material.
What is meant by Onus of Proof?
- The prosecution must prove the guilt of the accused, BEYOND REASONABLE DOUBT. The accused does not need to offer any explanation for their conduct.
- 3 types of verdict in Scots law = Guilty, Not Guilty and Not Proven (this is where they were unable to prove beyond reasonable doubt).
Explain the essentials required to prove the guilt of an accused.
CRIES:
Crime has been committed - before providing the accused has committed a crime, the prosecution has to prove a crime was committed.
Relevant charge to the crime - the charge made against the accused must relate to the criminal act committed.
Identification of the accused as the culprit - the accused must have been identified using corroborated evidence e.g. eye witness(s), forensic evidence, CCTV.
Evidence is competent/admissible - Police disclose all evidence to the court. The court decides what is competent and admissable.
Sufficient evidence to prove the case - there must be sufficient, admissible evidence to prove beyond reasonable doubt that the accused committed the crime libelled.
Explain the principle of corroboration.
- One piece of evidence is supported by another.
- Scots Law requires evidence from at least 2 separate sources to convict an accused.
- E.g. separate eye witness testimony, circumstantial evidence or physical articles of evidence (productions).
State the rule of best evidence.
The best evidence available must ALWAYS be led. The courts won’t allow evidence which by it’s very nature implies that better evidence is available. E.g. perishable evidence like fresh food - a printed receipt would be the best evidence as can’t bring in the perishable goods. Exception: authenticated copies of a document may be led even when the original exists.
What is documentary evidence?
- Documentary evidence - “Evidence of fact brought to the knowledge of the court by inspection of a document produced to the court” e.g. CCTV disc, notebook, screenshots of whatsapp, photos.
- Example: the court will normally accept that a substance is a certain drug if a certificate from 2 forensic scientists is produced.
What is hearsay evidence?
“Evidence at second hand given by a person who is merely repeating something said by another person”.
- Because of the rule of best evidence, hearsay is normally inadmissible.
- Exceptions:
Caution - statements made by the accused after caution.
Involuntary - exclamations made by person at the time of the incident e.g. “He’s got a knife”.
Death - statement made by a witness on their deathbed.
What is meant by a credible and competent witness?
Credible = “One whose evidence is held by the court to be trustworthy no matter how bad the character of the witness may be”. The PF will decide who is called as a witness but you can write in your Remarks section on the SPR if you have found them to be untrustworthy etc.
Competent = When the court decided to permit a person to give evidence this person is described as a competent witness. When a witness is cited they MUST attend to give evidence.
Police Officers are always Credible AND Competent witnesses.
What is the Common Law Caution and when should it be used?
“You are not obliged to say anything but anything you do say will be noted and may be used in evidence”.
This is said to a person:
- Prior to a search
- When someone is identified as a suspect
- Who is an arrested person or
- Prior to any questioning
Why? Advising them of their RIGHT to remain silent. Fairness. They must be asked if they understand. If not, try simpler terms, interpreter or appropriate adult. You must note any response to them understanding and thereafter. Check for understanding e.g. “What is your understanding of what I have said to you?” “What part did you not quite understand?”.
Only required when their is evidence to suggest that the person you are speaking with was involved. You might be speaking to someone that you had not initially suspected but then they say something incriminating. At that point, they should be cautioned straight away. Note what they said that led to the caution AND any further comments after.
Explain the term sufficiency of evidence.
To prove guilt of an accused, the evidence must be admissable (competent) BUT also there must be enough of it. There must be sufficient, admissible evidence to prove beyond all reasonable doubt that the accused committed the crime or offence libelled. This involves the principle of corroboration.
What is meant by best evidence in respect of two or more eye witnesses?
- An accused can be found guilty on the seperate testimony of two or more credible eye witnesses who saw the accused commit the crime.
- This kind of witness evidence is the BEST EVIDENCE and as such should be led first.
- The courts will not accept the testimony of a single eye witness, no matter how credible they are UNLESS there is further evidence by a second witness or enough circumstantial evidence.
- It is sufficient to convict based on 2 witnesses whom the court believes, regardless of how many other witnesses contradict them.
EXCEPTION: Road Traffic Offences. In some cases, only 1 witness is required.
Identify the corroborative evidence required to support the evidence of one eye witness.
Circumstantial evidence that amounts to another eye witness e.g. Man who murdered co-worker - umberella moved in his car, he had a motive (affair), tried to give himself an alibi, took way longer to get to his destination than should have etc, obsessive phone calls.
What is meant by circumstantial evidence?
Evidence provided by the facts or circumstances of the events which have an apparent relation to the crime and which can allow inference of guilt, or innocence, of the accused person.
Used for when there are none or only one witness.
What elements could provide sufficient circumstantial evidence to convict, in the absence of eye witnesses.
An accused can still be convicted if the prosecution can lay before the court sufficient circumstantial evidence which forms an UNBROKEN CABLE, the material facts and circumstances of which, point to the guilt of the accused.
The more strands contained in the cable, the more corroboration is secured and the stronger the cable becomes i.e. the stronger the prosecutions case.
MAGICOP
Motive
Ability
Guilty Intent
Identification - forensic evidence, DNA, fingerprints, fibres (always need this or the cable breaks)
Conduct after the Crime - e.g. evidence that the accused has disposed of incriminating evidence.
Opportunity - evidence that the accused was at or near the locus at the time, or had access.
Preparation - evidence of purchasing a weapon or tools for break in etc.
Note: Not all strands must be present but the fewer the strands, the weaker the case. The central strand must ALWAYS BE IDENTIFICATION.
Each strand must be proved by evidence from a witness e.g. fingerprint - officer who finds it must get corroboration as to its position from another officer.
What is the Moorov Doctrine?
The evidence of one witness alone is normally insufficient. However, in the right circumstances, the evidence of separate witnesses can be corroborative if there is sufficient similarity and connection between the incidents to reasinably and safely infer that the crimes are linked and committed by the same person.
In essence;
2 or more crimes or offences which are committed by the same offender, but
Only 1 witness is available for each crime (different eye witness for each crime).
Mostly used for cases of indecency.
What is the Howden Principle?
This relates to similar offences that have occurred but the identification strand is NOT AVAILABLE for every crime or offence. If there is ID of an accused for one offence and the circumstances of the other offences are deemed to be so similar then it is possible that the accused may be convicted e.g. theft by housebreaking.
Explain the underlying concept of the “Presumption of Liberty” under the Criminal Justice (Scotland) Act 2016 and the specific duty under Section 50 (not to detain unnecessarily or unreasonably).
Section 50 of the Criminal Justice Scotland Act 2016 states that; “A Constable must take every precaution to ensure that a person is not unreasonably or unnecessarily held in police custody”.
Someone’s liberty will only be taken away where it is necessary and only for as long as required.
Compliance with Section 50 will be the responsibility of all involved from the arresting and enquiry officers to the custody officers. All arrests must aways be:
PROPORTIONATE LEGAL ACCOUNTABLE NECESSARY ETHICAL
Explain the procedures of and advantages of making an arrest.
When to Arrest
Refusing to desist
Abode (not fixed)
Interest of public safety or safety of offender
Satisfaction of name and address - cannot verify
Evident intention to abscond
+
Interview
Note witness statements/further enquiry
Get samples e.g. DNA, from locus or suspect.
It will not always be necessary to arrest someone despite a crime or offence beng committed. E.g. urinating in public. Can use Direct Measures.
Advantages of Arrest
Search - to find articles that could cause injury, to seize evidence and to confirm identity.
Photograph
Identification parade
Non-invasive samples - e.g. saliva, hair sample, sample from nails, samples of blood, body fluid or body tissue.
Finger/palmprints
Restraint and control - to prevent an arrested person from disposing of evidence or communicating with others.
Examination of injuries
Dental impressions and other Invasive samples - invasive samples only take by consent or warrant.
DNA samples taken from suspects of certain sexual or violent offences (even if the person is not convicted) can be kept for up to 3 years (and sometimes longer if authority given). Other crimes, they will be destroyed if the accused is not convicted.
When arresting, the Officer should read from their Aide Memoire ASAP as per Section 3 of the Criminal Justice Act:
Inform the person that they are under arrest Nature of the offence Reason for the arrest Administer the common law caution Note any replies (verbatum) Solicitor - intimation and access
“I am arresting you under Section 1 of the Criminal Justice Scotland Act 2016 for Assualt. The reason for your arrest is that I suspect that you have committed an offence and I believe that keeping you in custody is necessary and proportionate for the purposes of bringing you before a court or otherwise dealing with you in accordance with the law. Do you understand? You are not obliged to say anything but anything that you do say will be noted and may be used in evidence. Do you understand? I require you to give me your name, date of birth, place of birth, nationality and address. You have the right to have a solicitor informed of your arrest and to have access to a solicitor. These rights will be explained to you further at a Police Station.”
Note: if you are unable to complete this procedure e.g. the arrested person is violent, then you must do it as soon as is practicable.
Information to be recorded:
Time & Place of arrest
General nature of the offence for which the person is arrested
Reason for the arrest
Time at which and by whom the person was advised of the info to be given on arrest
Name, date of birth, place of birth, nationality and address of arrested person
Any further reply by arrested person.
Where transported following arrest by Police, time & place of departure and time & place of arrival.
If release from custody before arrival at a Police Station, the details of the liberating officer and the release rationale.
Explain the difference between Officially Accused and Not Officially Accused.
Officially Accused - they have been arrested under the powers of Section 1 and where SUFFICIENT, ADMISSABLE evidence exists to caution and charge the suspect. You would need to fully justify that person’s arrest using the RAISE+ING mnemonic.
Not Officially Accused - they have been arrested under Section 1 but they have not been cautioned and charged as there is not a SUFFICIENCY of evidence at that time prior to charge AND further enquiry is required.
Decsribe the station arrest authorisation and review process.
Not Officially Accused Arrest Authorisation & Review Process
A person arrested under Section 1, Not Officially Accused, requires formal authorisation for the arrest (Section 7). This needs to be given ASAP at the custody centre by a Sergeant not connected to the case, usually a custody Sergeant. This is only provided where there are reasonable grounds for suspecting that the person has committed the offence and keeping the person in custody is NECESSARY & PROPORTIONATE. If no authority is given then they must either be charged as Officially Accused OR let go.
Explain the 12-hour investigatory arrest clock.
- Someone arrested as Not Officially Accused can be held for a max of 12 hours to allow further investigation. This commences at the time the arrest is FORMALLY AUTHORISED by the custody sergeant.
- After 6 hours the circumstances must be reviewed by an Inspector not connected to the enquiry.
- Key feature of Section 1 = suspect can be arrested for the same offence more than once. As long as the accumulative arrest time does not exceed 12 hours. The 12 hour clock will be paused if the accused needs to go to hospital.
- In exceptional circumstances the 12 hours can be extended. By an Inspector or above for those 18+. By a Chief Inspector if Under 18. This would not allow for release and re-arrest.
Explain the procedure regarding voluntary attendance at a police station.
Scenario: Suspect hands themselves in to a Police Station and wishes to give information regarding a crime or offence. In this scenario the following will happen:
- Declaration of Voluntary Attendance at a Police Station form to be filled in.
- Voluntary attendees can leave at any time. They must sign the voluntary attendance form or won’t be processed and may be asked to leave.
- If their attendance allows for sufficiency of evidence, then they can be arrested under Section 1.
- If a Child attends then they must be with a suitable parent or guardian. The adult must sign the form and the child will have the opportunity to.
- hose attending on a voluntary basis will have the same rights as those persons arrested.
Identify the offences covered under Police and Fire Reform (Scotland) Act 2012 (Sections 90 and 91).
Section 90 covers:
Assault
Resist
Obstruct and
Hinder
A Constable or member of police staff, acting in that capacity.
Section 91 cover:
Removing a person from custody
Assisting the escape of a person in Custody
State some examples of when Officers might not be able to caution and charge someone immediately?
- When they remain a suspect to allow enquiries to continue
- A person’s level of intoxication through drink or drugs
- Interpreter or Appropriate Adult required
- Level of violence
- Mental health issue
- Younger child (U16 or Under 18 subject of compulsory supervision order).
A person arrested ‘Not Officially Accused’ will require to have their arrest authorised in a formal process at the custody centre.
When would you charge a suspect?
- After arrest where sufficient evidence exists and all lines of enquiry have been exhausted.
- The arrest status would be/or change to “Officially Accused”
- A person may also be charged if there is a possibility that the facts may be reported to COPFS e.g. ASB FPN or Endorsable and Non-endorsable Conditional Offers.
Step 1 is investigating and collating evidence.
Step 2 is charging an offender. The evidence may pertain to common law or statute law.
Once there is sufficient evidence, you should caution and charge a suspect WITHOUT DELAY.
Explain the importance of proving the contents of a charge.
- If the information you supply in a charge is not accurate or you can’t prove the key elements of a charge, then the PF may throw the case out.
- It’s not up to us to decide whether the charge is correct and if the evidence is sufficient for criminal proceedings. However, it is based on the info in the SPR that WE submit.
- The more evidence and the more sufficient the evidence is - the more likely it is that the charge will stick.
Describe how to formulate common law charges (the Universal law of the country, the fundamental principles which have existed from time immemorial).
Regardless of whether the charge is common law OR statute law charge, the formula is as follows:
Date of offence (when) Locus (where) The accused (who) Nature of the crime or offence (what) Mode of preparation (how) Value of property (if relevant) Statute contravened (where appropriate)
Example
On 3rd July 2022 at Gamestation, 45 High Street, Brookbank, BB11 3A. You, David James did assault Steven Jones, care of Police Service of Scotland. And did punch and kick him on his body.
Describe how to formulate statute law charges.
The formula is the same except you add in the act that has been contravened.
Example: “On 22nd January 2022, at Brookbank Crescent, Brookbank, you Simon Ferguson did act in a threatening and abusive manner, and did shout and swear, contrary to Section 38 Criminal Justice and Licensing (Scotland) Act 2010”.
When there are multiple people being charged for the same crime, then all names should be included in the SPR with oldest suspect first.
Explain police powers under Section 13 of the Criminal Procedure (Scotland) Act 1995, in relation to the identity of witnesses and suspects.
In most cases, you shouldn’t need/should avoid having to resort to Police Powers if possible.
If a Constable has reasonable grounds for suspecting that an offence has been or is being committed and believe that a person has information regarding the offence i.e. is a possible witness then they may require that person give them their:
NAME
ADDRESS
D/O/B & place of birth
Nationality
Witnesses - Once this information has been provided, we have NO POWER to keep them. They are free to leave the scene if they so choose. They are also not required to remain while you verify the details they give you. Suspects - must remain until details verified.
You must tell them the nature of the crime you believe they have witnessed and the reason that you think they have information on that crime. Any person who fails to provide the above details, without reasonable excuse, commits and offence.
“In terms of Section 13 of the Criminal Procedure (Scotland) Act 1995, I suspect that an offence has been/is being committed, namely Assault and I believe you have information relating to that offence. I require you to give me your name, address, date of birth, place of birth, and nationality and failure to do so without reasonable excuse constitutes an offence for which you may be arrested under terms of Section 1 Criminal Justice Scotland Act 2016”
You should use your AIDE MEMOIRE when available EVERY TIME.
Explain police powers under Section 13 of the Criminal Procedure (Scotland) Act 1995, should a witness or suspect fail to comply with requirements.
Same as above except it’s for when you have reasonable grounds to suspect that a person has committed, or is committing an offence. The Constable may also ask them to give an explanation of the circumstances giving rise to their suspicion.
You CAN require them to remain with you until their details are verified and while you note any explanation. Any suspect who fails to comply, without reasonable excuse, commits and offence.
“In terms of Section 13 of the Criminal Procedure (Scotland) Act 1995, I suspect you of committing/having committed an offence namely Assault. I require you to give me your name, address, date of birth, place of birth and nationality. You are not obliged to say anything further by way of explanation but anything you do say will be recorded and may be given in evidence. I also require you to remain with me while I verify your name, address, date of birth, place of birth, and nationality and note any explanation given by you. Failure, without reasonable excuse either to give your name, address, date of birth, place of birth and nationality or to remain wth me when required to do so constitutes and offence for which you may be arrested under terms of Section 1 Criminal Justice Scotland Act 2016”.
Anyone who contravenes Section 13 Criminal Procedure Scotland Act 1995 can be arrested.
“I am arresting you under Section 1 of the Criminal Justice Scotland Act 2016 for failing to provide details as required under Section 13 Criminal Procedure (Scotland) Act 1995…”
Identify the risk factors officers must consider prior to arrest.
- Vulnerable, hostile or intoxicated persons
- Mental and medical health conditions
- Warning markers
- Head injuries and other injuries e.g. banging their head against the police car.
- Physical disabilities
- Alcohol/drug dependency or use of NPS
- Withdrawal symptoms
- Attempts/thoughts of Self-harm or suicide
- Medication
- Dental/medical implants
- Dietary requirements
- Difficulties in reading or writing
- Pregnant
- HM Armed Forces
- Compliance issues e.g. fighting or trying to escape.
Explain the importance of searching an arrested person.
- Officers and public safety
- To preserve and recover evidence
- To prevent self-harm by the prisoner
- To prevent escape e.g. tools to aid escape.
State the levels of search within a custody environment.
- Standard - can be used operationally and in custody.
- Strip searching - custody ONLY.
- Intimate search - custody ONLY.
