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Crim > 2. Preliminaries to Prosecution > Flashcards

2. Preliminaries to Prosecution Flashcards

1
Q

What do police powers of investigation include?

A

arrest
Detention
interrogation
entry & search of premises
personal search
ID procedures
sample taking

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2
Q

What statute governs the police investigative powers?

A

PACE 1984 & PACE Codes of Practice

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3
Q

are the codes admissible as evidence?

A

yes in both criminal and civil proceedings under s.67(11) PACE

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4
Q

Does the failure of an officer to have regard to the provisions of the code render them liable to criminal/civil proceedings?

A

No it does not, of itself, render them liable s.67(10) PACE

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5
Q

definition of interview

A

questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences, which, MUST be carried out under caution.

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6
Q

when must a suspect be cautioned

A

must be cautioned before any questions about the offence
OR
Further questions if the answers provide grounds for suspicion are put to them
IF
either the answers or silence may be given in evidence to a court in prosecution

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7
Q

when is a caution not necessary?

A
  • to establish identity
  • to establish ownership of a vehicle
  • to obtain info in accord with a stat requirement
  • in furtherance of a proper & effective search
  • to seek verification of a written record of comments made by P outside interview
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8
Q

is it an interview if no caution is needed?

A

no, it does not amount to an interview if no caution is needed

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9
Q

does questioning about an offence with grounds to suspect party being questioned amount to an interview even if they have not been arrested?

A

Yes, questioning of a person about an offence of which there are grounds to suspect him or her will amount to an interview even if the person has not been arrested and no decision to arrest has been made

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10
Q

what does the reference to “an offence” mean?

A

means a caution must be given if the person is questioned about an offence other than that for which they have been arrested IF there are grounds to suspect the person of it.

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11
Q

Where should a person usually be interviewed?

A

police station or other authorised place of detention.

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12
Q

What does decision to arrest mean and how does this relate to questioning?

A

if a police officer has decided to arrest a person, then the arrest must not be delayed in order to question the suspect before arresting them

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13
Q

what are the exceptions to interviewing at a police station?

A

interviews are to be conducted at a police station unless delay would be likely to:

  • lead to interference with or harm to evidence connected to offence, physical harm to others, serious/loss damage to property or
  • lead to alerting of other persons suspected of offence (who have not yet been arrested)
  • hinder recovery of property obtained in commission of an offence.
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14
Q

when does the exception to interview in police station cease?

A

as soon as the risk has been averted or relevant questions have been put to avert risk

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15
Q

does the officer have to be at the police station?

A

no they can be via live link but their duties remain the same as if they were in person

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16
Q

what is the role of the custody officer in a live link interview situation?

A

they can transfer, or permit the transfer of the detained person to a police officer for the purpose of a live link interview conducted by another officer

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17
Q

when must a caution be administered?

A

upon arrest

AND

at the commencement of the interview regardless of whether it is at a police station or not

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18
Q

when must the suspect be reminded of the caution?

A

at recommencement of interview after any break.

If there is any doubt, the full caution must be given again.

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19
Q

what are the words of the caution ?

A

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.

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20
Q

does the caution have to be exactly worded?

A

minor deviation is allowed, sense of caution to be preserved.

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21
Q

what should be done if a suspect does not understand the caution

A

the person giving it should explain it in his or her own words

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22
Q

when are the caution words “‘You do not have to say anything, but anything you do say may be given in evidence’.”

A

when a suspect is interviewed after charge OR where they have requested a solicitor but have not been able to consult with one.

(this is because inferences cannot be drawn under s.34,36 or 37 in these circs)

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23
Q

caution if a statement is taken after charge?

A

not required but should be given

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24
Q

what does “grounds to suspect” mean?

A

some reasonable, objective grounds for the suspicion based on known facts or information

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25
Q

how is it determined whether there are sufficient grounds for administering a caution?

A

objectively

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26
Q

failure to caution is classed as what?

A

failure to caution where it is required is a significant and substantial breach of Code C

does not necessarily result in the exclusion of evidence of the interview.

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27
Q

what information should a person being interviewed and their solicitor (if present) be given before the interview

A

must be given, before the interview, sufficient information to make it possible to understand the nature of the suspected offence and why the person is suspected of committing it.

does not include disclosure of something to prejudice the investigation.

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28
Q

when should a special warning be given?

A

where :

  • suspect is interview at police station or other authorised place of detention;
  • Following arrest

and suspect is asked to account for:

  • object, mark or substance, or mark on such objects found on his or her person, in or on his or her clothing or footwear OR
  • his or her presence at the place where the arrest took place
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29
Q

what happens if a special warning is not given?

A

Inferences cannot be drawn

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30
Q

when is a special warning not required

A

where suspect has requested to consult solicitor and has not had opp to consult - since again inferences cannot be drawn

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31
Q

when must info about legal advice be given?

A

Interviewing officer must remind suspect of entitlement to free legal advice AND that the interview can be delayed for legal advice to be obtained

UNLESS
- access to a solicitor has been delayed or
- one of the exceptions applies.

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32
Q

violation of information about legal advice?

A

may lead to exclusion of evidence

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33
Q

what is a significant statement?

A

one which appears to be capable of being used in evidence, and in particular a direct admission of guilt

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34
Q

what is a significant silence?

A

failure / refusal to answer a Q OR
Answer satisfactorily when under caution
WHICH
might give rise to adverse inference

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35
Q

how must interviewing officer deal with significant statements or silences?

A

the interviewing officer must, after cautioning the suspect, put to the suspect any significant statement or silence which occurred in the presence and hearing of a police officer or other police staff (and which has not been put in the course of a previous interview)

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36
Q

what should police officers / other interviewers not do in interview?

A
  • try to obtain answers/elicit statement by using oppression
  • indicate what action they will take if suspect refuses to answer question / make a statement
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37
Q

when can an officer indicate what action they will take if suspect refuses to answer question / make a statement?

A

in response to a direct question they may inform suspect of proposed action (e.g. keeping them in detention).

Any answer must be proper and warranted.

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37
Q

can police still pursue interrogation if suspect is denying / refusing to answer questions?

A

yes, police officers to pursue their interrogation of a suspect with a view to eliciting admissions even where the suspect denies involvement in the offence or declines to answer specific questions

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37
Q

will every trick used in interview result in the exclusion of evidence?

A

no, but there is a positive duty on the police to not actively mislead a suspect.

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38
Q

Examples of oppressive interviewing…

A
  • questioning carried on after repeated denials or refusals
  • hectoring & bullying throughout interview
  • tricking Suspect into believing incriminating fingerprints had been found
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39
Q

examples given of when questioning was not oppressive

A

NOT OPPRESSIVE = questioning that was rude and discourteous, with raised voices and some bad language

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40
Q

When should the interview cease?

A

if the suspect is not charged nor informed that they may be prosecuted - Interview MUST cease when OIC is satisfied that:

  • questions relevant to getting accurate info have been put to suspect AND
  • officer has taken account of other available evidence AND
  • officer believes there is sufficient evidence to provide a realistic prospect of conviction
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41
Q

when can the police continue questioning beyond the point of being satisfied of sufficient evidence to charge?

A

if officer believes that further questions could or should be put to the suspect

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42
Q

who determines when there is sufficient evidence to charge (detained suspect)?

A

the custody officer has formal responsibility for making the decision as to whether there is sufficient evidence to charge but once OIC is satisfied they take them to custody officer without delay

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43
Q

how does the custody officer decide where there is sufficient evidence to charge ?

A

Full code test is applied

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44
Q

recording of interviews?

A

interviews must be recorded

comment relevant to suspected offence made outside interview (inc unsolicited comments) must be recorded and suspect must (where practicable) be given the opp to verify the record

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45
Q

failure to record interview …

A

can lead to exclusion of evidence

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46
Q

what are the special categories of persons

A

child/young person
mentally disordered persons
vulnerable persons
intoxicated person

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47
Q

what provision does a child, young person, mentally disordered or vulnerable person have to have in place for interview ?

A

these persons should not be interviewed or asked to provide / sign a WS UNLESS there is an appropriate adult present.

appropriate adult does not need to be present if:

  • conditions for conducting interview away from station are satisfied OR
  • interview is authorised by officer of rank superintendent.
48
Q

when can an interview in a school take place?

A

only exceptional circs AND
only if principal / principal nominees agree.

49
Q

who should be notified of an interview in a school?

A

efforts should be made to notify parents and App adult
(principal can act as an App adult)

50
Q

when should intoxicated persons not be interviewed?

A

Code C precludes interviewing of any person who is unable to appreciate the significance of questions and answers OR understand what is happening.

51
Q

interviews where interpreter needed?

A

must not interview without one unless authorised by superintendent or above

52
Q

when can an intoxicated person be interviewed?

A

when authorised by superintendent who is satisfied that:

  • delaying interview would lead to consequences AND
  • interview would not significantly harm persons physical / mental state.
53
Q

can interpreters be via live link?

A

yes if custody officer or interviewer are satisfied it would not adversely affect, undermine, limit the suspects ability to communicate confidently and effectively.

54
Q

what can be taken into account when forming reasonable suspicion ?

A

matters which are not admissible in evidence

facts that do not indicate guilt

matters which could not form part of a prima facie case

55
Q

can reasonable suspicion be based on hearsay?

A

yes if the officer believes it and it is reasonable

56
Q

can officers use force to exercise PACE powers?

A

if PACE confers a power on an officer and consent isn’t needed the officer may use reasonable force if necessary to exercise that power

57
Q

can civilians use force?

A

A civilian designated under the Police Reform Act 2002, s. 38, may, in exercising those powers, use reasonable force in the same circumstances as a constable

58
Q

how is reasonableness (of force) assessed ?

A
  • circs at the time
  • nature and degree of force used
  • gravity of offence
  • harm that would flow from use of force against suspect
  • possibility of using other means to effect arrest/prevent harm
59
Q

does excessive force render arrest unlawful?

A

no

60
Q

when can handcuffs be used?

A

Only where reasonably necessary to prevent an escape or violent breach of the peace by prisoner

61
Q

what section of pace governs arrests

A

s.24

62
Q

what are the characteristics of arrest?

A

whether or not someone has been arrested depends on whether they have been deprived of liberty to go where they please

63
Q

how is deprivation of liberty assessed?

A

Whether a situation amounts to a deprivation of liberty as opposed to a restriction of movement is a matter of degree and intensity and is highly fact-sensitive.

64
Q

who has to prove that an arrest was lawful?

A

the police

65
Q

if an arrest is lawful who has to prove that excessive force was used?

A

the complainant

66
Q

when does a person have to be told they are under arrest?

A

the arrest is unlawful unless the person is informed of being under arrest as soon as is practicable after the arrest

67
Q

when does the person have to be told of the grounds for their arrest?

A

as soon as reasonably practicable

68
Q

what is the test for deciding whether it is unlawful arrest?

A

test is whether the person arrested was told, in simple, non-technical language that the person could understand:
- the essential legal and factual grounds for the arrest
- that person must be informed of the nature of the suspected offence,
- and when and where it was allegedly committed.

69
Q

when must an arrested person be cautioned

A

Person who is arrested must be cautioned at time of arrest or as soon as is practicable afterwards

70
Q

when can a caution of an arrested person be delayed

A

where it is impracticable to do so as a result of the persons condition or behaviour at the time OR

person has already been cautioned immediately before the arrest

71
Q

do officers need to record the arrest?

A

nature and circs, all reasons, giving of caution and anything said by arrested person must be recorded in officers pocket book at time of arrest unless impracticable (in this case as soon as practicable afterwards).

72
Q

what action is required following arrest?

A

obliged to take the person to a designated police station as soon as practicable after arrest

73
Q

when can a person be taken to a non-designated police station following arrest?

A

exceptional circumstances

e.g - where the persons presence at a place other than a police station is necessary to carry out investigations

reasons must be recorded

74
Q

what are the alternatives to an arrested person being taken to a police station?

A
  • released with or without bail to attend police station on a future date
75
Q

when may a constable release an arrested person on bail (pre-charge bail)?

A

if it is necessary and proportionate in all circumstances

any bail decision must be authorised by a custody officer

76
Q

Factors to be taken into account when deciding whether to grant pre-charge bail?

A
  • need to secure that P surrenders to custody
  • need to prevent offending
  • need to safeguard wutnesses/victims
  • need to safeguard the person
  • need to manage risk to public
77
Q

for what offences can a police officer arrest without warrant?

A

for any offence.

discretionary power

78
Q

for what offences can a civilian arrest without a warrant?

A

for an indictable offence

79
Q

who may a police officer arrest without a warrant? (GROUNDS)

A

anyone who:
- is about to commit an offence
- is in act of committing an offence
- he has reasonable grounds for suspecting is about to commit an offence
- he has reasonable grounds for suspecting is committing an offence

where offence has been committed:
- anyone who he has reasonable grounds for suspecting to be guilty of it
- anyone who is guilty of it

80
Q

the power of arrest without warrant is only exercisable if what? (NECESSITY REASONS)

A

if officer has reasonable grounds for believing it is NECESSARY for one of following reasons:

  • 1) ascertain name
  • 2) ascertain address
  • 3) prevent person:
  • a) causing physical injury to him or someone else
  • b) suffering physical injury
  • c) causing loss/damage to property
  • d) committing an offence against public decency
  • e) causing unlawful obstruction of highway

4) protect child/vulnerable person
5) allow prompt and effective investigation
6) prevent pros being hindered by P disappearing

81
Q

when can a constable or civilian arrest for breach of the peace?

A

a) breach of peace is committed in their presence OR
b) the person effecting the arrest reasonably believes such a breach will be committed in immediate future OR
c) breach of peace has been committed and further breach is threatened.

82
Q

arrest for breach of peace must be for the purpose of….

A

bringing the person before a competent legal authority.

83
Q

preventative action for imminent breach of peace must be….

A

reasonable, necessary and proportionate.

84
Q

format of arrest warrants (mags court)

A

warrant may be endorsed for bail or not.

the person bailed will be obliged to appear before mags court at the time and place given.

85
Q

when does the power of a mags court to issue arrest warrant apply?

A

Person must be 18 or over
offence must be indictable or punishable with imprisonment or court intends to impose a disqualification.

86
Q

when may crown court issue a summons?

A

where indictment has been sent to crown court but person has not been sent for trial court may issue summons requiring them to appear before court.

87
Q

when is a person classed to be in police detention?

A

when they are taken to police station after arrest or they are arrested at a police station after attending voluntarily AND

they are detained there

88
Q

a person can be taken to any police station unless

A

it is anticipated that detention of 6 hrs or more will be necessary - in which case should be taken to designated police station.

89
Q

who authorises detention and release of a person

A

custody officer

90
Q

when is a custody record required?

A

for any person who has been arrested is brought to a police station or who is arrested at a police station

91
Q

time in police detention before release on bail counts towards….

A

calculating the max periods of detention

92
Q

who has right to notification of arrest

A

person who has been arrested and is held at police station or other premises

93
Q

what is the right to notification of arrest

A

right to have one relative, friend etc told of the arrest and the place of detention

94
Q

when should notification of arrest be given

A

as soon as practicable

95
Q

what if the chosen person for notification of arrest is not available

A

can choose 2 alternatives, if these fail, custody officer has discretion to allow as many further attempts as necessary.

96
Q

right of access to a solicitor?

A

Person arrested or held in custody at a police station has the right to consult a solicitor privately at any time.

97
Q

when is someone to be treated as having a mental disorder / vulnerabiltiy

A

if an officer has any reason to suspect a person of any age is vulnerable and there is no evidence to dispel the suspicion.

98
Q

what does the MHA 1983 say about detention of mentally disordered people

A

before deciding to detain constable MUST (if practicable) consult registered medical professional AND

Child cannot be detained in police cell as a place of safety AND

max detention period is 24 hours which can be extended for 12 hrs by authorisation of. medical practitioner.

99
Q

when may a police station be used as a place of safety for an adult?

A

behaviour of adult poses imminent risk of serious injury or death to themselves / another

and no other place of safety can be reasonably expected to detain that person.

100
Q

who can be appropriate adult ?

A

parent guardian local authority, volunteer, social worker or responsible person

101
Q

who cannot be an appropriate adult?

A

police officer
someone employed by police
anyone with anything to do with police
the solicitor
estranged parent (where child objects)
illiterate parent

102
Q

when can someone not be an appropriate adult

A

suspected of involvement in the offence
victim / witness to offence
involved in investigation
has received admissions from suspect before acting as AA.

103
Q

what is role of an App adult?

A
  • Support advise and assist detainees when given or asked to give info
  • observe whether police are acting properly / fairly
  • assist detainees to communicate with police while respecting right to say nothing
  • help them understand rights
  • ensure rights are protected and respected
104
Q

are appropriate adults entitled to legal advice?

A

yes

105
Q

what is the normal detention time limit

A

24 hours from relevant time.

Relevant time means
- time the arrested person first arrives at a police station OR
- 24 hours after their arrest (whichever is earlier)

when time limit expires - must either be charged or released

106
Q

when does Detention time limit run by when person is further arrested?

A

the relevant time will be that relating to subsequent arrest

107
Q

detention without charge for indictable offences can be extended up to ..

A

36 hours from relevant time (WITH permission from superint or above)

AND

can be up to 96 hours by mags court

108
Q

can a person released after the expiry of their detention time limit be re-arrested?

A

not without a warrant for the offence for which the person was previously arrested UNLESS
new evidence has come to light OR
examination of existing ev has been made which could not reasonably have been made before

109
Q

what are the duties of director of public prosecutions

A

taking over the conduct of all crim proceedings

110
Q

how can the first appearance of accused at mags court be secured?

A

1) arrested & charged
2) arrested and bailed and CPS then use written charge and requisition
3) arrested, bailed to return to station, on return police charge
4) accused may be served written charge and requisition without first having being arrested
5) can apply for mags to issue summons or arrest warrant (laying an information)

111
Q

what is the procedure for written charge or requisition

A

all prosecutors can use it

written charge must be issued along with requisition requiring them to attend mags to answer written charge

both charge and req must be served on accused and copy served on court named in req

method only available where prosecutor is the “relevant prosecutor”

112
Q

procedure for applying for issue of summons

A

pros must either:
- serve written app on court or
- present app orally with written record of allegations made by pros

application must:
- set out allegations
- demonstrate that application is made in time

113
Q

when information is laid before a justice of peace (that someone is suspected of having committed an offence) the justice may issue:

A
  • summons requiring them to appear before mags court to answer info or
  • warrant to arrest that person and bring before mags court.
114
Q

what should the application for summons or written charge contain?

A
  • statement of offence which describes offence and id’s legislation
  • particulars of conduct constituting commission of the offence to make clear what the prosecutor alleges against D (inc value of damage/theft)
  • must contain a notice setting out when and where the accused must attend the court and must specify each offence in respect of which it has been issued.
115
Q

what is the time limit for starting proceedings for summary only offences?

A

Mags cannot try accused on sum only offence unless app for summons was served on mags within 6 months of the time when the offence was allegedly committed.

116
Q

where there is uncertainty as to whether proceedings were issued in time……

A

question should be determined according to crim standard of proof

117
Q

is there a time limit for either way offences

A

no unless it is one of the exceptional offences where there is a statutory time limit

118
Q
A

Crim (27 decks)

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