2. Preliminaries to prosecution Flashcards
What are the PACE Codes of practice?
PACE codes of practice regulate the investigatory powers of the police.
What is PACE?
Pace is the Police and Criminal Evidence Act 1984 which largely regulates powers of the police.
What will happen if the codes are not complied with?
- Fail to comply will not straight away result in liability to civil/criminal proceedings.
- Codes are admissible in evidence, however.
- Therefore, there may be consequences such as to evidence admissibility gathered during the investigation.
Definition of an interview
Questioning of a person regarding their involvement or suspected involvement in a criminal offence(s) which, under para 10.1 of CODE C, must be carried out under caution.
Where no caution is required, it will not be an interview.
Even if the person has not been arrested, it will count as an interview.
Furthermore, a caution must be given if the person is questioned about an offence other than which they have been arrested if there are grounds to suspect a person of it.
Where should an interview take place?
Generally, a police station.
This is not so where delay would likely:
a. lead to interference with or harm to evidence connected with an offence, interference with or harm to other persons, or serious loss of or damage to property.
b. lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it.
c. hinder the recovery of of property obtained in consequence of the commission of an offence
Interviewing in these circumstances must cease if the risk has been averted.
Can suspects be interviewed via live link?
Yes, but that officer has the same duties under PACE as an officer who is there.
When does a caution need to be administered?
When there are grounds for suspecting a person to have committed a criminal offence.
- At arrest.
- At commencement of interview.
- At recommencement of interview.
When are there grounds for suspecting a person to have committed a criminal offence?
There must be some reasonable, objective grounds for the suspicion, based on known facts or information.
This is an objective question.
Where officers are unaware of a law that may give rise to a suspicion, they are taken to not have one.
When does a caution not have to be administered?
Questioning:
- Solely to establish identity/ownership of a vehicle
- To obtain information in accordance with a statutory requirement
- In furtherance of the proper and effective conduct of a search
- To seek verification of a written record of comments made by a person outside of interview.
What are the words of the caution?
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.
Does the caution need to be perfect?
No, so long as the essence of the caution is kept. The officer can explain in their own words.
What is the consequence of a breach of the requirement to caution?
Evidence might be excluded.
What are the words of the alternaltive caution, and why would this be issued?
You do not have to say anything, but anythign you do say may be given in evidence.
This is for where:
- A suspect is interviewed after charge.
- The suspect has requested a solicitor but has not been permitted to see one.
This is because there will be no ability to draw an inference.
What must happen before an interview?
- Suspect is cautioned.
- Them and their legal advisor should be given sufficient information to allow them to understand the nature of the suspected offence and why they are suspected.
- The suspect must be told before an interview, and at recommencement, about their right to legal advice (except where solicitor is delayed or one of the exceptions apply).
Who decides what to disclose to the suspect and their advisor?
The investigating officer.
Must a record be kept about what and when it was disclosed for an interview?
Yes, the investigating officer must keep this record of what and when disclosures were made.
When must a suspect be told about their right to legal advice?
The suspect must be told before an interview, and at recommencement, about their right to legal advice (except where solicitor is delayed or one of the exceptions apply).
What is a consequence of the failure to inform the suspect of their right to legal advice?
Potentially exclusion of evidence.
When should a suspect be given a special warning?
- They are asked to account for an object, mark, substance, or mark on objects found on their person/clothing, in their possession, or in the place of arrest.
- They are asked to account for their presence at the place of arrest.
This does not apply to situations where no inference can be drawn.
Suspects interviewed at station/authorised detention place post arrest
What is a significant statement?
A statement which is capable of being used in evidence.
What is a significant silence?
Silences which give rise to inferences.
What must the interviewing officer do in relation to significant statements/silences?
He must put to the suspect any of these.
What restrictions on the conduct of interviewers are there?
- Oppressive tactics are not allowed.
- No indication can be made, except in answer to a direct question, the proposed action an officer may take with/without an answer.
- No confession should be sought by offering a caution.
Hypothetical questions are acceptable, though care should be taken.
There is also a positive duty on the police to not actively mislead the suspect.
When must interviews cease?
In respect of a person not charged/informed they may be prosecuted when the officer is satisfied that all relevant questions have been put, account has been made of other available evidence, and the officer reasonably believes there is sufficient evidence to obtain a conviction.
Furthermore, subject to the length of the time detained and restrictions on breaks.
These provisions being met does not preclude a formal question and answer document for POCA proceedings.