Police Station Advice

Question 1

How does a solicitor actively defend the interests of their client?

Answer 1

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.

A solicitor’s role is not:

• a passive one; nor
• to sit by and take notes.

Practical aspects of active defence

• Be familiar with both PACE and the Codes of Practice.
• Avoid confrontation with officers, instead make notes of apparent breaches of PACE and/or the COP.
• Where interviewing officers have refused a reasonable request, speak to the custody officer and ask them to make a note in the custody record.
• Don’t be rushed. Take as much time as you need to properly advise your client.

Take notes

• It is vital that you maintain a comprehensive contemporaneous record.
• You may have to give evidence at a subsequent trial concerning disclosure, police conduct or your advice to your client. Clear and detailed notes are vital if you are to give evidence with credibility.
• Taking notes on the go is not always easy, but an important aspect of police station practice.

Question 2

When should a suspect be treated as vulnerable?

Answer 2

COP C 1.13(d) states that ‘”vulnerable” applies to any person who, because of a mental health condition or mental disorder:

may have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with:

• their arrest and detention; or (as the case may be)
• their voluntary attendance at a police station; or their presence elsewhere…for the purpose of a voluntary interview; and
• the exercise of their rights and entitlements.

does not appear to understand the significance of what they are told, ofquestions they are asked or of their replies;appears to be particularly prone to:

• becoming confused and unclear about their position;
• providing unreliable, misleading, or incriminating information without knowing or wishing to do so;
• accepting or acting on suggestions from others without consciously knowing or wishing to do so; or
• readily agreeing to suggestions or proposals without any protest or question’.

When a suspect should be treated as vulnerable

• 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 3

What are the three options for a police interview?

Answer 3

• Answer questions
• Don’t answer questions (‘go no comment’)
• Provide a written statement and ‘go no comment’

Question 4

Can a mixed interview take place?

Answer 4

A mixed interview (stating ‘no comment’ to some questions and answering others) 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 5

What is a significant statement?

Answer 5

A significant statement is one capable of being used in evidence against the suspect.

At the beginning of the interview the interviewing officer will put to the suspect any significant statement or silence which occurred in the presence and hearing of a police officer. The suspect will be asked whether they confirm or deny that earlier statement.

Question 6

What are the different kinds of adverse inferences?

Answer 6

• 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?

Question 7

Is there a right to silence?

Answer 7

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 8

What is an adverse inference?

Answer 8

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

The ultimate effect of an adverse inference being drawn at trial from a defendant’s silence at interview is that it undermines their defence. When the jury or magistrates draw an adverse inference, they are effectively saying that:

• the explanation given at trial has been fabricated since the time of the interview; or
• the defendant withheld their account at interview as they knew that it would not stand up to police questioning (the ambush defence); or
• at the time of the interview the defendant had no reasonable explanation which would refute the prosecution case.

Question 9

What is the criteria for a s 34 adverse inference?

Answer 9

Section 34 Criminal Justice and Public Order Act 1994 allows for an inference to be drawn by the jury or magistrates in circumstances when the defendant later relies on a fact in their defence that was not offered at the time of questioning.

A court does not have to draw any inference but, if it does, any inference that is drawn must be ‘proper’. As such an inference can range from:

• an acceptance that the defence as presented in court is true but the defendant chose not to reveal it in their interview; to
• an inference that the defendant’s account in court is untrue and they are in fact guilty.

The suspect must be cautioned

If the suspect is not cautioned then no inference can be drawn.

The words of the caution explain to the suspect the consequences of not mentioning a fact later relied upon.

The Police and Criminal Evidence Act 1984 (PACE) Code of Practice C paragraph 10.5 states the caution shall be in the following terms:

‘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.’

Reasonable to have mentioned

It must have been reasonable to have mentioned the fact at the time, bearing in mind all the circumstances existing at the time.

Court of Appeal guidance in R v Argent [1997]Crim LR 346 states ‘circumstances existing at the time’ should be widely interpreted.

Guidance from the Law Society states that ‘circumstances existing at the time’ can include:

• what disclosure had been made to the suspect, or their lawyer, by the police;
• what information the prosecution can demonstrate the suspect knew at the time of questioning or charge;
• the condition and circumstances of the suspect; and
• any legal advice that the suspect received.

Question 10

How do s 36 and s 37 inferences compare with s 34 ones?

Answer 10

In contrast with section 34 (failure to mention facts), the ability to draw inferences under sections 36 and37 arise as soon as there is a failure by the defendant to account for their possession of the object in question or presence.

It is not a requirement that there is a failure to mention something later relied upon.

Both sections 36 and37 are restrictively worded. They require the defendant to be given an ‘ordinary language caution’, known as a ‘special warning’. The requirements of the special warning can be found in PACE Code of Practice C paragraph 10.11. They must be told:

• what offence is being investigated;
• what fact they are being asked to account for;
• this fact may be due to them taking part in the commission of the offence;
• a court may draw a proper inference if they fail or refuse to account for this fact; and
• a record is being made of the interview and it may be given in evidence if they are brought to trial.

Question 11

Can a defendant be convicted on an adverse inference?

Answer 11

There is an important safeguard within section 38 Criminal Justice and Public Order Act 1994 which states that no defendant may be convicted solely based on an adverse inference.

Importantly, no adverse inference can be drawn where the suspect has not been allowed access to legal advice

It is important to understand that an adverse inference under any section will only be relevant if the defendant has a trial. If the case never gets to trial or your client pleads guilty then adverse inferences are irrelevant.

This is an important concept to grasp when advising clients prior to interview at the police station. The lawyer will have to balance the likelihood of a trial actually happening against the risk of an inference if it does.

Question 12

What kind of evidence DOES NOT constitute visual identification evidence?

Answer 12

• Mere description of clothing/vehicle (‘I couldn’t see his face but he was wearing a purple jumper’)
• The suspect has a connection to a particular place or others at the scene (e.g. ‘I thought it was Maria because I know she is always at the café on a Saturday morning’)
• A description of the suspect (‘He was 5’7’ with dark hair and blue eyes’)

Question 13

What cautions occur with visual identification evidence?

Answer 13

The reliability of eyewitness identification has attracted concern from legal professionals and academics for over a century as:

• experience has shown that it is easy for an honest and convincing witness to be mistaken even if the suspect is well known to them.
• a confident identification is no more likely to be reliable than a hesitant one.

A series of miscarriages of justice arising from inaccurate eyewitness testimony led to a wholesale review of investigatory and trial procedure in the latter part of the 20th century. As a result, safeguards were introduced at every stage of the process to ensure that identification evidence before a jury is reliable as possible:

• Investigation stage: Police and Criminal Evidence Act 1984 (PACE) Code of Practice D; and
• Trial: Turnbull guidelines.

Question 14

When is there a duty to hold an identification procedure?

Answer 14

• An offence has been witnessed and an eye-witness:

has identified a suspect or purported to have identified them; or

is available who expresses an ability to identify the suspect; or

has a reasonable chance of being able to identify the suspect.

• The suspect disputes being the person the eye-witness claims to have seen.

An identification procedure does not need to be held if it is not practicable or it would serve no useful purpose in proving or disproving the suspect was involved in the offence e.g. the suspect is already known to the eye-witness.

Question 15

What identification procedures may be used where the suspect’s identity is known and they are available?

Answer 15

• video identification- the eye-witness is shown moving images of a known suspect, together with similar images of others who resemble the suspect.
• identification parade- the eye-witness sees the suspect in a line of others who resemble the suspect.
• group identification- the eye-witness sees the suspect in an informal group of people.

Question 16

What identification procedure can take place if the suspect’s identity is not known?

Answer 16

If the suspect’s identity is not known to the police then the eye-witness can be shown photographs in accordance with Code D, Annex E.

The arrangements for, and conduct of, the eyewitness identification procedures shall be the responsibility of an officer not below inspector rank who is not involved with the investigation (‘the identification officer’).

Question 17

What are the formalities for video identification procedures?

Answer 17

• In the first instance the suspect shall be invited to participate in a video identification procedure unless:

a video identification procedure is not practicable; or

an identification parade is more suitable.

• If the suspect refuses, then an alternative can be considered.
• Covert procedures should be used as a last resort and only if all other procedures have been considered and refused.

Formalities

• A record shall be made of the description of the suspect as first given by the eye-witness.
• A copy of the record shall be given to the suspect or their solicitor before any identification procedures are carried out.
• A notice must be given to a suspect and the following must be explained:

the purpose of the procedure

their entitlement to free legal advice

the procedures for holding it, including their right to have a solicitor or friend present;

that they do not have to consent to or co-operate in the procedure;

that if they do not consent to, and co-operate in, a procedure, their refusal may be given in evidence in any subsequent trial and police may proceed covertly without their consent or make other arrangements.

· The suspect shall be invited to participate in a video identification procedure first.

Video identification

• The detailed arrangements for a video identification are contained in Code D Annex A.
• It takes the form of VIPER (Video Identification Parade Electronic Recording).
• Officers film the suspect asking them to face the camera and be filmed from the right, left and centre.
• The identification officer, suspect and legal representative select lookalikes from over 10,000 video clips on the VIPER system.
• A video clip is produced with the suspect placed amongst at least eight other individuals who, so far as possible, resemble the suspect in age, general appearance and position in life.
• If the suspect has an unusual physical feature e.g. a facial scar, tattoo, distinctive hairstyle or hair colour which does not appear on the images of the other people that are available to be used, steps may be taken to:
• conceal the location of the feature on the images of the suspect and the other people; or
• replicate that feature on the images of the other people.
• The suspect, their solicitor, friend or appropriate adult must be given a reasonable opportunity to see the complete set of images before it is shown to any eye-witness.
• If the suspect has a reasonable objection to the set of images or any of the participants, the suspect shall be asked to state the reasons for the objection.
• Immediately before the images are shown, the eye-witness shall be told that the person they saw on a specified earlier occasion may, or may not, appear in the images.
• The video clip is then shown to the witnesses.
• The suspect’s solicitor may only be present at the video identification procedure on request and with the prior agreement of the identification officer.
• The video identification procedure must be recorded on video with sound. The recording must show:
• all persons present within the sight or hearing of the eye-witness whilst the images are being viewed;
• what the eye-witness says; and
• what is said to the eye-witness by the identification officer and by any other person present.
• Care must be taken not to direct the eye-witness’ attention to any one individual image or give any indication of the suspect’s identity.
• A supervised viewing of the recording of the video identification procedure by the suspect and/or their solicitor may be arranged on request, at the discretion of the investigating officer.
• Eye-witnesses are not able to communicate with each other. One eye-witness may see the set of images at a time.

Question 18

What are the formalities for identification parades?

Answer 18

• A suspect must be given a reasonable opportunity to have a solicitor or friend present.
• An identification parade may take place either:

in a normal room; or

one equipped with a screen permitting witnesses to see members of the identification parade without being seen.

• Once the identification parade has been formed, everything afterwards, in respect of it, shall take place in the presence and hearing of the suspect and any interpreter, solicitor, friend or appropriate adult who is present.
• A video recording or colour photograph must normally be taken of the identification parade and supplied, on request, to the suspect or their solicitor within a reasonable time.
• The identification parade shall consist of at least eight people (in addition to the suspect) who, so far as possible, resemble the suspect in age, height, general appearance and position in life.
• If the suspect has an unusual physical feature e.g. a facial scar, tattoo, distinctive hairstyle or hair colour which cannot be replicated on other members of the identification parade, steps may be taken to conceal the location of that feature on the suspect and the other members. For example, by use of a plaster or a hat, so that all members of the identification parade resemble each other in general appearance.
• The suspect may select their own position in the line.
• Witnesses must not be able to:

communicate with each other;

overhear a witness who has already seen the identification parade;

see any member of the identification parade; or

see the suspect before or after the identification parade.

• Witnesses shall be brought in one at a time.
• Immediately before the witness inspects the identification parade, they shall be told the person they saw on a specified earlier occasion may, or may not, be present.
• The witness can ask to hear any identification parade member speak, adopt any specified posture or move.

Question 19

What are the formalities for group identification?

Answer 19

• Group identifications may take place either:

with the suspect’s consent and co-operation; or

covertly without their consent.

• The location should be one where other people are either passing by or waiting around informally, in groups such that the suspect is able to join them and be capable of being seen by the witness at the same time as others in the group. Examples given include people leaving escalators, pedestrians walking through a shopping centre, passengers on railway and bus stations.
• A colour photograph or video should be taken of the general scene, if practicable, to give a general impression of the scene and the number of people present.
• As in other procedures the witnesses should not be able to communicate with each other.

Question 20

What are the formalities for confrontation by an eye-witness?

Answer 20

• Before the confrontation takes place, the eye-witness must be told that the person they saw on a specified earlier occasion may, or may not, be the person they are to confront and that if they are not that person, then the witness should say so.
• The confrontation should normally take place in the police station, either in a normal room or one equipped with a screen permitting the eye-witness to see the suspect without being seen.

Question 21

What happens if identification formalities are not followed?

Answer 21

The first issue for a trial judge in these circumstances is to determine if a breach of Code D has in fact occurred. This can usually be achieved without a voir dire (trial within a trial). However, there may be circumstances when evidence around the alleged breach is disputed. In those circumstances, a v_oir dire_ may be required and the judge will have to hear evidence under oath.

If there has been a breach of Code D, the remedy for the defendant is to apply to exclude evidence obtained in breach of the code under s 78 PACE 1984.

A breach of the code does not automatically lead to the exclusion of the evidence.

The key issue for the trial judge to decide is whether there has been any significant prejudice to the accused. If the judge has determined that there is prejudice, they must then decide if the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.

Identification evidence will usually be excluded when important safeguards have been flouted, such as the right to a formal identification procedure.

The defendant has the right to have the correctness of the visual identification tested under formal conditions.

Where identification evidence is admitted into evidence despite a breach of Code D:

• defence advocates are still permitted to comment on the breach in their closing speech.
• the trial judge ought to draw the jury’s attention to the breach and invite them to consider the reasons why the code has been drawn in the way it has.
• the jury should assess whether in their estimation the breaches were such as to cause them to have doubts about the safety of the identification.

Question 22

Who makes charging decisions?

Answer 22

In general the decision to charge is taken by a Crown Prosecutor.

Crown Prosecutors exercise the powers of the Director of Public Prosecutions (DPP), who is required to take over the conduct of all prosecutions commenced by the police. The DPP also has a discretion to take over the conduct of prosecutions commenced privately. All charging decisions for indictable-only offences are taken by a Crown Prosecutor.

The police retain discretion as to whether to charge for a number of summary offences including various road traffic offences, offences contrary to s.5 Public Order Act 1986, criminal damage where the value of the damage does not exceed £5,000, and low-value shoplifting. Where the decision is one for the police, it is made by the custody officer.

The DPP may delegate powers to agents who are lawyers with rights of audience. Agents must act subject to the instructions given by a Crown Prosecutor. Crown Prosecutors exercise the powers of the DPP. Uniformity in the approach taken by different Crown Prosecutors in relation to charging decisions is sought through the Code for Crown Prosecutors, issued by the DPP.

The DPP may also appoint “associate prosecutors” who are CPS employees who are not lawyers to represent the CPS on bail applications and other pre-trial applications. They may conduct trials where the offence charged is a non-imprisonable summary offence.

Question 23

What are the three different forms of commencing criminal proceedings?

Answer 23

• arrest and charge;
• written charge and requisition; and
• laying an information.

Question 24

When may arrest and charge occur?

Answer 24

This is the most common way of commencing criminal proceedings.

The charge may come:

• at the end of the period of detention at the police station after an arrest;
• after a period of police bail when the suspect re-attends the police station; or
• after a period on police bail while the CPS decides what the appropriate charge, if any, is.

Pre-charge police bail can be imposed in a number of different circumstances including:

1.Where there is insufficient evidence to charge a suspect and they are released pending further investigation (ss 34(2), 34(5) and 37(2) of PACE2.Where police consider there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision (s.37(7)(a) PACE).

It is for the police to decide whether a suspect is released with or without bail and if released on bail, whether any conditions of bail should be imposed. Where it is practicable to do so investigators should seek the views of victims on bail and possible bail conditions.

If a suspect is not released on police bail but the police are still looking into the matter then they are referred to as having been ‘released under investigation’ (RUI).

Pre-charge bail was reformed by schedule 4 of Police, Crime, Sentencing and Courts (PCSC) Act 2022.

Question 25

When may written charge and requisition occur?

Answer 25

This is a method of commencement created by s.29 Criminal Justice Act (CJA) 2003. A public prosecutor may commence proceedings by issuing a written charge charging a person with an offence. There is no requirement that the person charged has been arrested when this method of commencement is used. At the same time the public prosecutor issues a requisition, which requires the person charged to attend a magistrates’ court. The charge and requisition must be served on the person charged and on the magistrates’ court at which that person is to attend. This method of commencement is available only to “relevant prosecutors”, broadly speaking, those who prosecute on behalf of the state i.e. Crown Prosecution Service, Health and Safety Executive, Driver and Vehicle Standards Agency and the Environment Agency.

Question 26

What is laying an information?

Answer 26

Another way to commence proceedings is for the prosecutor to serve an information alleging an offence on a magistrates’ court. The court will then issue a summons or an arrest warrant requiring the accused to attend. Private prosecutions may only be commenced by summons as they are not brought by ‘relevant prosecutors’ for the purposes of the written charge and requisition procedure under s.29 CJA 2003.

Question 27

The written charge or information must contain:

Answer 27

• a statement of the offence which describes the offence in ordinary language;
• a reference to the statutory provision that creates the offence (if it is a statutory offence); and
• sufficient particulars of the conduct complained of for the accused to know what is alleged.

Question 28

A summons or requisition must:

Answer 28

• contain a notice setting out when and where the accused is required to attend court; and
• specify each offence in respect of which it has been issued.

A summons must identify the issuing court.

A requisition must identify the person under whose authority it was issued.

Question 29

Are there timing constraints for a charge?

Answer 29

There is no ‘Statute of Limitation’ requiring that a charge be brought within a specified period after the commission of the offence.

The only exception is that s.127(1) Magistrates’ Courts Act 1980 provides that where the alleged offence is ‘summary only’, a magistrates’ court shall not try an information or hear a complaint unless the information was laid or the complaint made within six months of the date of the alleged offence.

There is no time limit for charging the accused with any indictable offence.

If there is any dispute as to whether a charge has been brought within the specified period then the prosecution have the burden to satisfy the court to the criminal standard that proceedings were correctly brought in time.