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Criminal Law & Practice > Preliminaries to prosecution - Detention > Flashcards

Preliminaries to prosecution - Detention Flashcards

1
Q

What does a Police Officer have to demonstrate?

A
  1. legal authority to exercise the power
  2. that they have exercised the power lawfully
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2
Q

What is one of the powers a police officer can exercise?

A

detention without charge - PACE 1984

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3
Q

How can PACE be used as a mnemonic?

A

P - identify the power

A - what’s the legal authority granting the power?

C - what criteria need to be met & are they met on the facts?

E - how should the power be exercised & has it been exercised correctly on the facts?

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4
Q

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

A

as soon as practicable

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5
Q

Is there an exception to this?

A

Yes - where their presence at a place other than the police station is necessary to carry out such investigations as it’s reasonable to carry out immediately

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6
Q

What kind of investigations does this include?

A
  • being searched
  • being taken to premises being searched
  • being taken to a place to check their alibi
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7
Q

Can a person be taken to any police station?

A

Yes - unless it’s anticipated that they will be detained for more than 6 hours (in which case they must be taken to a designated police station)

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8
Q

What is street bail?

A

instead of being taken to a police station, the person arrested can be granted bail to attend a police station at a later date - conditions can be attached

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9
Q

What happens when the arrested person arrives at the police station?

A
  • the detainee will see the custody officer who must authorise continued detention
  • detainee will be informed of their rights
  • they will have certain non-intimate samples taken
  • if necessary, they may see the appropriate healthcare professional
  • if they request, they may speak to a solicitor
  • may be interviewed, often with solicitor present
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10
Q

What happens after the interview?

A

The detainee may be:
- released under investigation or on police bail
- charged & released on police bail to appear at magistrates court at later date
- charged & remanded on police custody to appear at magistrates court on following day

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11
Q

Who will the arrested person be presented to on arrival at the police station?

A

The custody officer

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12
Q

What is the role of the custody officer?

A
  • responsible for the handling & welfare of suspects in detention at the police station
  • must be a police officer of the rank of at least sergeant
  • must be unrelated to the process of the investigation of the offence
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13
Q

What is the procedure that should be followed by the custody officer governed by?

A

S37 PACE & Code of Practice (COP) C 2, 3 & 4

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14
Q

What must be explained to the custody officer?

A

Reason for arrest - they can then authorise detention of arrested person

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15
Q

What if the grounds for detaining the the person have ceased to exist?

A

The custody officer must order the release of the person detained

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16
Q

Upon whose authority can a person be detained/released?

A

Custody officer

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17
Q

What if a custody officer isn’t available?

A

Their role may be performed by another officer - that officer must not normally be involved in the investigation of an offence for which the person is in detention

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18
Q

What if there isn’t sufficient evidence to proceed to charge the detainee?

A

The arrested person must be released unless there are reasonable grounds for believing that detention is necessary to:
- secure or preserve evidence, or
- obtain such evidence by questioning

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19
Q

What will the custody officer do if there are grounds to detain?

A
  • authorise detention of the suspect
  • open a custody record
  • inform the detainee of the reason for arrest
  • inform detainee of reason for detention
  • advise detainee of their rights
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20
Q

Who is responsible for the welfare of each detainee?

A

The custody officer.

Some additional duties:
- conducting a risk assessment procedure for each detainee
- making special arrangements for detainees who may be physically/mentally incapacitated
- arranging for interpreters to be present
- dealing with detainees properly
- contacting healthcare professionals if needed

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21
Q

What if there are procedural flaws in the detention process?

A

The custody officer is responsible for ensuring that a detained person is treated in accordance with the provisions of COP

  • if there are flaws, the result might be the subsequent exclusion of evidence (they can be held accountable)
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22
Q

The Custody Record

A
  • separate custody record must be opened ASAP for each detainee
  • all info required to be recorded under COL C must be recorded on custody record
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23
Q

What information must be recorded on the custody record?

A
  • requirement to inform person of reason for arrest
  • circumstance of arrest
  • why arrest was necessary
  • any comments made by arrested person
24
Q

Why is it essential for a solicitor to view the record?

A

Because it should contain everything that’s happened to, been said to or said by the detainee

  • A solicitor has the right to consult their clients custody record ASAP after arrival at the station & at any time while their client is still detained.
25
Q

Where can you find the definition of a solicitor?

A

COP C

26
Q

What is a ‘solicitor’ under COP C?

A

A solicitor who holds a current practicing certificate or an accredited/probationary representative included on the register of representatives maintained by the Legal Aid Agency.

27
Q

Reviews of Detention

A
28
Q

When must reviews of detention be carried out?

A

During the detention of a suspect - S40 PACE

29
Q

What must the review officer be satisfied about?

A

That the detention is still necessary.

30
Q

What must the review officer consider?

A

Whether the grounds for detention, as authorised by the custody officer under S37, still exist.

31
Q

What rank should the review officer be?

A

At least the rank of inspector who isn’t connected to the investigation of offence & isn’t the custody officer.

32
Q

What does S40 PACE set out?

A

That the first review of the suspect’s detention will take place not more than six hours after the suspects detention was first authorised by the custody officer & then periodically ever nine hours.

33
Q

What rights does the detained person have at the time of the review?

A
  • must be reminded of their right to free legal advice
  • the right to make representations unless they’re unfit to make such representations or asleep at the time of review
34
Q

Detention time limits

A
35
Q

What is the max period a person can be kept in custody before being charged?

A

24 hours from the ‘relevant time’ - S41 PACE.

36
Q

When is the ‘relevant time’?

A

Mostly, where the arrest has taken place within the particular police area.

Relevant time begins at the moment the suspect arrives at the police station.

37
Q

Where is the relevant time indicated?

A

On the custody record.

(NOTE: relevant time is different to when the detention is authorised - generally they’re different)

38
Q

What must be done before the 24 hour limit on detention has expired?

A

The suspect must wither be charged or released.

39
Q

Power to extend beyond 24 hours.

A
40
Q

(Authority)
What does S42 PACE set out?

A

It allows for detention to be extended for a further 12 hours - taking the max period of detention in the police station to 36 hours from the relevant time.

41
Q

(Exercise)
When must authorisation to extend be given?

A

Before the expiry of the initial 24 hours but after the second review has occurred - S42.

42
Q

What must be explained to the suspect & noted in the custody record?

A

Grounds for extension.

43
Q

Should there be an opportunity to make represnetations?

A

Yes, the suspect and/or their solicitor should be allowed an opportunity to make representations.

44
Q

(Criteria - S42 sets out the criteria for a detention to be extended)

Who must authorise the continued detention?

A

An officer of at least the rank of superintendent.

45
Q

What must the superintendent )or above) have reasonable grounds to believe?

A

That detention is necessary to secure or preserve evidence or obtain evidence by questioning.

46
Q

What category must the offence be?

A

Indictable.

47
Q

How must the investigation be conducted?

A

Diligently & expeditiously.

48
Q

Power to detain beyond 36 hours.

A
49
Q

What must be done by the police if they want to detain beyond 36 hours?

A

They must apply to the court for a warrant of further detention under ss 34 & 44 PACE.

50
Q

What may the warrant authorise?

A

Continued detention for a further 36 hours on a first application & 36 hours (max of 96) on a second application.

51
Q

What must the magistrates court have reasonable grounds to believe?

A

That further detention is necessary to secure/preserve evidence or obtain evidence by questioning.

52
Q

What category must the offence be?

A

Indictable.

53
Q

How must the investigation be conducted?

A

Diligently & expeditiously.

54
Q

What is the max period of detention without charge?

A

24 hours from the relevant time.

55
Q

When is the relevant time?

A

The time the arrested person first arrives at the station or 24 hours after arrest - whichever is sooner.

56
Q

When can the time limit not be extended?

A

Where the offence being investigated is summary only.

Criminal Law & Practice (8 decks)

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