Arrest and Rights Caution Flashcards
What are the Section 23 Rights/ Caution?
- You are under arrest for (state an offence)
- You have the right to remain silent
- Anything you do say will be recorded and may be given in evidence in court
- You have the right to speak to a lawyer without delay and in private before deciding whether to answer my questions
- Police have a list of lawyers you may speak to for free
- Do you understand?
When must you give the Rights/ Caution to a suspect/ offender?
Rights/ Caution must be given as soon as a person is detained under an enactment.
What is meant by the term ‘arbitrary detention’?
Arbitrary detention is the unlawful detention of a person.
What should you tell a suspect in order to avoid arbitrary detention?
When no legal power exists to detain that person, they MUST be told:
a) “You are free to leave at any time.”
b) “You do not have to remain to answer any questions.”
When must the section 23 Rights/ Caution be given when using a specific power of search?
You are still detaining the person UNDER AN ENACTMENT. This means that section 23 now applies and you should give the person their caution/ rights.
What is likely to happen if you fail to give a suspect their Rights/ Caution?
Failure to give a suspect their rights at the appropriate time may mean the evidence obtained, including any statement made, will be inadmissible in court.
When would a search of a person or property be unreasonable?
A search in breach of Section 21 is unreasonable. Searches are unreasonable when they are executed:
- Without, or in excess of, powers or authority
- In an unreasonable manner
- In bad faith
What is the key difference between section 23(5) [The right to be treated with humanity and respect] and Section 9 [the right not to be subjected to cruel, degrading or severe treatment or punishment]?
Section 9 is concerned with a different and more serious form of conduct than section 23(5).
In essence, Section 23(5) imposes a POSITIVE duty to treat prisoners humanely. Section 9 is concerned with preventing the inhuman treatment of individuals.
Describe what is meant by ‘Torture’ (Taunoa v Attorney General)?
The deliberate infliction of physical and mental suffering.
Who does the offence of torture apply to?
According to the Crimes of Torture Act 1989 Section 3, it is an offence for any LAW ENFORCEMENT OFFICER (OR JUDICIAL AND “PUBLIC OFFICER”) to Commit an act of torture; or do or omit an act for the purpose of aiding, abetting or to make, counsel or procure any person to commit an act of torture.
How and when should section 24 apply?
When deciding to CHARGE.
- Comply with section 24 by GIVING the person the opportunity to exercise their right to consult and instruct a lawyer without delay and in private
- Inform the person of the nature of the charge.
Where are a constable’s powers of arrest without a warrant found?
In either:
- Section 315 of the Crimes Act 1961; or
- Section 39 of the Summary Offences Act 1981
These two powers are the most often used by the police.
Define the Crimes Act 1961 Section 315(2)(a)
HE FINDS (MUST SEE)
- Disturbing the public peace, OR
- committing any offence
Punishable by imprisonment
Define the Crimes Act 1961 Section 315(2)(b)
HE HAS GOOD CAUSE TO SUSPECT
- Of having committed a breach of the peace, OR
- any offence
Punishable by imprisonment
Define the Summary Offences Act 1981 Section 39(1)
HE HAS GOOD CAUSE TO SUSPECT
- Of having committed and offence against this Act
Except Sections 17-20, 25, 32-38
