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sqe1 - criminal practice > 1. Preliminaries to prosecution > Flashcards

1. Preliminaries to prosecution Flashcards

1
Q

What are the four categories of offences/cases dealt with by the Crown Court?

A
  1. Indictable only
  2. Either way, where Magistrates has declined Jx or D elects for Crown Court
  3. Either way or summary, if related to another offence heard by Crown Court and is punishable by imprisonment or disqualification from driving
  4. Appeals against conviction and sentence from Magistrates
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2
Q

What are the two summary only offences?

A
  1. Assault
  2. Battery
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3
Q

What six offences are triable either way?

A
  1. ABH
  2. Section 20 GBH
  3. Arson
  4. All three frauds
  5. Burglary, subject to an exception
  6. Theft, subject to an exception
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4
Q

What will make burglary indictable only?

A

If it is of a domestic dwelling and:

  1. Includes commission or intent to commit an indictable only offence
  2. Victim subject to violence or threat of violence, or
  3. It is D’s third charge for domestic burglary
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5
Q

Theft equal to or below what value is considered summary only, and regarding which Magistrates Court does not have the power to decline jurisdiction?

A

£200, but D can elect for Crown Court if he wishes

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6
Q

What are a suspect’s seven rights at the police station under Police and Criminal Evidence Act 1984?

A
  1. Free legal advice, medical help, interpreter
  2. Notify someone of their arrest
  3. Inspect Codes of Practice
  4. Right to silence
  5. Informed of reason for arrest
  6. Inspect documents relating to their arrest and detention
  7. Information on detention time limits
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7
Q

When must an arrested person be taken to the police station?

A

As soon as practicable

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8
Q

What are the exceptions to taking an arrested person to the police station as soon as practicable?

A

It may be necessary to:
* Be searched;
* Be taken to premises being searched; or
* Be taken to a place to check their alibi.

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9
Q

When must a person be taken to a designated police station?

A

If it is anticipated that they will be detained for
more than 6 hours - in which it will need to be a designated police station

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10
Q

What is street bail?

A

The person arrested can be granted bail to attend a
police station at a later date

Conditions are attached!

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11
Q

What actually happens on arrival at the police station?

A

The detainee may/will:

  • See the custody officer who must authorise continued detention.
  • Be informed of their rights.
  • Certain non-intimate samples taken.
  • Healthcare professional if necessary.
  • Speak to a solicitor if requested.
  • Interviewed, often with their solicitor present.
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12
Q

what is pre-interview disclosure?

A
  1. nature of the offence
  2. reasons that the offence is suspected

a lack of disclosure could be a reason why your client says ‘no comment’ and could avoid adverse inferences

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13
Q

What are the safeguards in an interview?

A
  • carried out under caution
  • accurate record should be made
  • prior to commencement or re-commencement of an interview at the police station or other authorised place of detention, the suspect should be reminded of their right to legal advice
  • at the beginning of an interview, but after caution, any significant statement made by the person in the presence of a police officer/staff must be put to them (significant statement = capable of being used in evidence, in particular any direct admission of guilt ie a confession)
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14
Q

what are the three options at interview?

A
  1. answer questions
  2. don’t answer questions (go no comment)
  3. provide a written statement and go no comment
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15
Q

What happens after the first interview?

A
  • Released under investigation or on police bail;
  • Charged and released on police bail to appear at the magistrates’ court at a later date; or
  • Charged and remanded in police custody to appear at the magistrates’ court on the
    following day.
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16
Q

What are the nine ranks of police officer, from high to low?

A
  1. Chief constable
  2. Deputy chief constable
  3. Assistant chief constable
  4. Chief Superintendent
  5. Superintendent
  6. Chief Inspector
  7. Inspector
  8. Sergeant
  9. Constable
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17
Q

What does an investigating officer / officer in the case (OIC) do?

A
  • gives solicitor pre-interview disclosure
  • leads the investigation
  • normally leads the interview
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18
Q

What rank is a investigating officer / officer in the case (OIC) ?

A

any rank

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19
Q

What rank is a custody officer?

A

at least sergeant (and usually sergeant)

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20
Q

What is the custody officer’s role?

A
  • responsible for the handling and welfare of suspects in detention at the police station
  • must be unrelated to the investigation process
  • Conducting a risk assessment procedure for each detainee.
  • Making special arrangements, if necessary, for detainees who may be physically or mentally
    incapacitated.
  • Arranging for interpreters to be present, where appropriate.
  • Dealing with a detainee’s property.
  • Contacting healthcare professionals, if needed.
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21
Q

Who is the only person that can authorise detention and release of a suspect?

A

Custody officer

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22
Q

When might it be acceptable for an officer connected with the investigation to also act as custody officer?

A

If the custody officer is not available, their role may performed by another officer.

However that officer should normally not be involved in the investigation.

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23
Q

What does the custody officer look for when assessing grounds to detain?

A

sufficient evidence.

if not, the arrested person must be released unless there are reasonable grounds for believing that detention is necessary to:
- secure or preserve evidence;
- obtain such evidence by questioning.

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24
Q

If there are grounds to detain, what will the custody officer then do?

A
  • Authorise detention of the suspect;
  • Open a custody record;
  • Inform the detainee of the reason for their arrest;
  • Inform the detainee of the reason for their detention; and
  • Advise the detainee of their rights.
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25
Q

Types of info found on custody record include

A
  • The requirement to inform the person of the reason for his arrest;
  • The circumstances of the arrest;
  • Why the arrest was necessary; and
  • Any comments made by the arrested person.
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26
Q

Definition of ‘solicitor’ in COP C

A

holds a current practising certificate or an accredited
or probationary representative included on the register of representatives maintained by the Legal
Aid Agency.

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27
Q

who is the review officer?

A
  • The review officer must be satisfied that the detention is still necessary.
  • Must consider whether the grounds for the detention (as authorised by the custody officer under s.37) still exist.
  • at least the rank of inspector
  • not connected with
    the investigation
  • not the custody officer
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28
Q

when should first review be carried out?

A

not more than
six hours after the suspect’s detention was first authorised by the custody officer

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29
Q

when should subsequent review be carried out?

A

every nine hours after the first review

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30
Q

what does the detainee need to be reminded of at each review?

A

right to free legal advice,
and be given the right to make representations

unless they are unfit to make such representations
or asleep

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31
Q

What is the right to consult a solicitor (s58 PACE)?

A

right to free and independent legal advice:
- in person
- on the phone; or
- in writing

could ask for:
- a specific person
- a specific firm; or
- duty solicitor (on call 24h/day)

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32
Q

What does COP C, Annex B says about the circumstances in which legal advice can be delayed?

A
  • cannot be delayed just because no comment interview
  • can delay a specific solicitor, but must give duty solicitor
  • should be a rare occurrence
  • maximum of 26 hours
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33
Q

What are the three criteria for delaying a suspect’s access to legal advice (s58 PACE), and what is the maximum amount of time it can be delayed?

A

Access to legal advice can be delayed for 36 hours at most, if:

  1. Suspect is arrested for indictable only or either way offence (i.e. on the exam, something other than assault, battery, or theft under £200)
  2. Superintendent or above has authorised, and
  3. Officer has reasonable grounds to believe that exercise of the right will lead to interference with evidence or others, alerting other suspects, or hindering recovery of property
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34
Q

What are the three criteria for delaying a suspect informing someone of their arrest (s56 PACE), and what is the maximum amount of time it can be delayed?

A

Can be delayed for up to 36 hours with the same criteria used as when delaying access to legal advice, except an inspector (officer two ranks below a superintendent) is able to make the decision for this

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35
Q

What is the relevant time, and what is the general rule for how after this time a suspect can be kept in custody without being charged?

A

The relevant time is when the suspect arrived at the police station (TAP) or 24 hours after arrest, whichever is the sooner

The general rule is 24 hours

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36
Q

For which offences can the time limit not be extended beyond 24h?

A

summary-only offences

37
Q

Where extensions apply, what is the maximum time a suspect can be kept in custody without being charged?

A

96 hours

38
Q

What are the four criteria for the first 12 hour custody extension (s42 PACE)?

A
  1. Suspect is arrested for indictable only offence
  2. Superintendent or above has authorised
  3. Reasonable grounds to believe that further detention is necessary to secure/preserve/obtain evidence
  4. Investigation must be being conducted diligently and expeditiously
39
Q

What are the three rules concerning exercise of the first 12 hour custody extension?

A
  • Authorisation to extend must be given before the expiry of the initial 24 hours but after the
    second review has occurred;
  • The grounds for the extension must be explained to the suspect and noted in the custody
    record; and
  • The suspect and/or the suspect’s solicitor should be allowed an opportunity to make
    representations.
40
Q

What is required for the remaining 60 hours of extensions, and how are they broken up?

A

Application to Magistrates Court for a warrant of further detention is needed.

  1. Further 36 hours granted on the first application (72 hours total)
  2. Final 24 hours granted on second application
41
Q

What three criteria must be met to obtain a warrant of further detention from the magistrates for the remaining 60 hours of extensions?

A
  1. The magistrates’ court is satisfied that there are reasonable grounds for believing further
    detention is necessary to secure or preserve evidence or obtain evidence by questioning;
  2. The offence must be an indictable offence; and
  3. The investigation is being conducted diligently and expeditiously.
42
Q

why was PACE, Code D introduced?

A
  • To protect an innocent suspect from an incorrect identification; and
  • To make a successful identification as watertight and ‘challenge-proof’ as possible
43
Q

what is PACE, Code D?

A
  • taking of fingerprints and samples
  • process where a witness purports to identify a suspect or expresses an ability to make a visual ID
44
Q

what happens in cases where the suspect is not known to the police?

A

The eye-witness:
1. May be taken to a particular neighbourhood or place to see whether they can identify the
person they saw on a previous occasion.
2. Can be shown photographs in accordance with Code D, Annex E

45
Q

when does an ID procedure not need to be held?

A
  • if it is not practicable; or
  • it would serve no useful purpose in proving or disproving the suspect was involved in the offence (eg the suspect is already known to the eye-witness)
46
Q

which ID procedures can be used if the suspect is known to the police?

A
  1. Video identification- the eye-witness is shown moving images of a known suspect, together
    with similar images of others who resemble the suspect.
  2. Identification parade- the eye-witness sees the suspect in a line of others who resemble the
    suspect.
  3. Group identification- the eye-witness sees the suspect in an informal group of people.
47
Q

In what three situations must an identification procedure be held?

A
  1. Witness has identified or purported to identify a suspect who is not known to them
  2. Witness expresses ability to identify a suspect
  3. Reasonable chance of eyewitness being able to identify a suspect
48
Q

What are a suspect’s three rights in relation to the conduct of an identification procedure?

A
  1. To have the purpose explained
  2. Free legal advisor and solicitor/friend present
  3. Obligations and consequences of their decisions explained
49
Q

What two consequences must be explained to a suspect in relation to an identification procedure?

A
  1. Suspect does not have to cooperate, but the procedure can still be conducted covertly and if they fail to cooperate, an adverse inference may be drawn
  2. If between being notified of the procedure and the procedure itself, a suspect changes their appearance, that an adverse inference may be drawn
50
Q

With regard to video identification and identification parades, what conditions must be met?

A
  1. Other participants must resemble suspect in age, height, appearance, and position in life and distinguishing features must be concealed
  2. Suspect must have chance to raise reasonable objections
  3. Witness must be warned that the suspect may not even feature
51
Q

What could four possible objections to the conduct of a video identification or identification procedure be?

A
  1. Failure to take into account reasonable objections regarding appearance of others
  2. Failure to keep witness away from suspect before or during
  3. Failure to keep witnesses apart before or during
  4. Failure to warn witness that suspect might not be present
52
Q

what happens if there is a breach of Code D?

A
  1. judge must determine facts; and when evidence around the alleged breach is disputed, a voir dire will be required and the judge will need to hear evidence under oath
  2. defendant applies to exclude evidence obtained in breach of the Code, under s78 PACE
  3. however, a breach of the code does not automatically lead to exclusive of the evidence. the judge must decide if there has been any significant prejudice to the accused and, if so, whether the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.
53
Q

what are the rules when ID evidence is admitted despite a breach of Code D?

A
  • 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.
54
Q

What is a custody record which a solicitor will review when advising a suspect?

A

A log of the suspect’s time in detention maintained by the custody officer

55
Q

Do the police have a duty to provide the solicitor with any evidence?

A

No, but they must provide enough detail for the solicitor to understand the nature of the offence and the reasons why the suspect is under suspicion

56
Q

In what situation should a suspect not be interviewed?

A

When they seem unable to appreciate the significance of the questions or answers or understand what is happening, due to intoxication or any other incapacity

57
Q

when will there be no issue of adverse inferences?

A

when your client is pleading guilty (no trial; straight to sentence)

58
Q

What is the warning that must be given when being advised of the right to remain silent?

A

That if a suspect fails to mention in an interview something that they could reasonably have been expected to mention, an adverse inference may be drawn by the court

“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.”

59
Q

What is a special caution, and what will trigger the requirement for one?

A
  1. If suspect was at the scene of the offence (s37 CJPOA)
  2. If the suspect had an object, substance, or mark on their person at the time of arrest (s36 CJPOA)

they must be cautioned regarding:
- what offence is being investigated; and
- that an adverse inference may be drawn if they fail to give an explanation for their presence or the object, mark, or substance

60
Q

what is s34 CJPOA silence?

A

When the suspect later relies on a fact at trial and it would have been reasonable to have mentioned it at interview

61
Q

what are the Argent factors that would have been reasonable to mention at interview (s34 CJPOA)?

A

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 circumstance of the suspect; and
- any legal advice that the suspect received.

62
Q

what is s38 CJPOA?

A

a defendant cannot be convicted (or committed or sent) solely on the basis of an adverse inference drawn from a silence

63
Q

In addition to answering questions and declining to answer, a suspect can give a handwritten statement. What is the benefit of this?

A

It allows them to give account of the things they need to in order for an adverse inference not to be drawn, but it doesn’t allow further police questioning on the issues such that the suspect may reveal more than they wish to

64
Q

Who is a vulnerable suspect under PACE?

A
  • Minors
  • Those with mental disorders or other vulnerabilities
65
Q

What safeguard is absolutely required when a suspect is deemed vulnerable?

A

Access to an appropriate adult who is not affiliated with the police, taking into account the wishes of the suspect

66
Q

Who cannot be an appropriate adult?

A
  • suspected of involvement in the offence;
  • victim of the offence;
  • witness to the offence;
  • involved in the investigation (police officer?);
  • a person who has received admissions from the detainee before acting as an appropriate aduly;
  • of low IQ and unable to appreciate the gravity of the situation; or
  • an estranged parent whom an arrested juvenile does wish to attend and specifically objects to.
67
Q

What things will be considered oppression or inducement?

A

Oppression: Too many officers in the room, room with improper heat, light, and ventilation
Inducement: Promises of anything, including just a warning, if they confess

68
Q

When should a solicitor consider intervening in an interview?

A
  • information or evidence is referred to or produced that was no disclosed before the interview;
  • clarification on any matter is required at any time;
  • there is inappropriate questioning;
  • there is inappropriate behaviour;
  • further advice to the client is needed’
  • a break is required; or
  • the circumstances require
69
Q

What could a solicitor be removed from an interview for doing, and who must authorise this?

A

A superintendent and above can authorise a solicitor be removed from an interview if they obstruct the interview

70
Q

should certain procedures take place in breach of PACE, a court may subsequently take the view that the interview was conducted unlawfully and tat any evidence obtained as a result may be excluded. what are the two possible ways of doing this?

A
  • s76 (confessions only)
  • s78 (confessions and other evidence - oppression and unreliability)
71
Q

who makes charging decisions for indictable-only offences?

A

a crown prosecutor (in the name of the DPP)

72
Q

who makes charging decisions for summary-only offences?

A

the custody officer (the police)

e.g., for:
- 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

73
Q

who can represent the CPS on bail applications and other pre-trial applications?

A

associate prosecutors (non-lawyer CPS employees)

74
Q

who can the DPP delegate powers to?

A

agents who are lawyers with rights of audience

agents must act subject to instructions given by a Crown Prosecutor

75
Q

how is uniformity between Crown Prosecutors maintained?

A

Code for Crown Prosecutors, issued by the DPP

76
Q

what are the three ways of commencing criminal proceedings?

A
  1. Arrest and charge;
  2. Written charge and requisition; and
  3. Laying an information.
77
Q

which is the most common way of commencing criminal proceedings?

A

arrest and charge

78
Q

when might a suspect be charged?

A
  1. At the end of the period of detention at the police station after an arrest;
  2. After a period of police bail when the suspect re-attends the police station; or
  3. After a period on police bail while the CPS decides what the appropriate charge, if any, is.
79
Q

what are two of the circumstances in which pre-charge police bail may be imposed?

A

(a) Where there is insufficient evidence to charge a suspect and they are released pending
further investigation
(b) Where police consider there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision

80
Q

who decides whether a suspect is released with or without bail and, if released on bail, whether any conditions of bail should be imposed?

A

police, where possible with regard to the wishes of victims re bail and bail conditions

81
Q

what is it called when a suspect is not released on police bail but the police are still looking into the matter?

A

‘released under investigation’

82
Q

what is written charge and requisition?

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.
  • 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.
83
Q

who is written charge and requisition available to?

A

‘relevant prosecutors’, broadly speaking, those
who prosecute on behalf of the state ie Crown Prosecution Service, Health and Safety Executive,
Driver and Vehicle Standards Agency and the Environment Agency.

84
Q

what is laying an information?

A
  • 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
85
Q

what is the limitation period for charges being brought after a commission of an offence?

A

none, except for:
- ‘summary only’: a magistrates’ court shall not try an information or hear a complaint unless the information was laid or the complaint made within 6 months of the date of the alleged offence.

86
Q

are there any time limits for charging the accused with an indictable offence?

A

no time limit

87
Q

who has the burden to satisfy whether a charge has been correctly brought within a specified period?

A

the prosecution

88
Q

summary of the three ways of commencing proceedings

A

sqe1 - criminal practice (8 decks)

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