Chapter 2: Preliminaries to Prosecution Flashcards

Question

1.9 Detention time limits: A summary

Answer 1

* Where the offence being investigated is indictable, the time limit can be extended up to a maximum of 36 hours after the relevant time by an officer of the rank of superintendent or above. Thereafter the maximum period of detention without charge can be extended by the magistrates’ court up to a maximum of 96 hours after the relevant time. * The relevant times to remember are therefore 24, 36 and 96.

Answer 2

This section considered detention: * At a police station as soon as practicable after arrest. * The role of the custody officer- must be a rank of sergeant or above and is responsible for the handling and welfare of suspects in detention at the police station. * The custody record- which the solicitor has a right to consult as soon as practicable after their arrival at the police station. It should contain everything that has happened to, been said to or been said by the detainee.

Answer 3

* Reviews of detention- the review officer who is at least the rank of inspector and not the custody officer, must be satisfied that detention is still necessary. * Time limits- the maximum period of detention without charge is 24 hours from ‘the relevant time’. Where the offence being investigated is indictable, the time limit can be extended up to a maximum of 36 hours after the relevant time by an officer of the rank of superintendent or above. Thereafter the maximum period of detention without charge can be extended by the magistrates’ court up to a maximum of 96 hours after the relevant time.

Answer 4

The custody officer must make sure that a person arrested and taken to a police station or attending a police station voluntarily is told clearly about the following continuing rights which may be exercised at any stage during the period in custody: * The right to consult privately with a solicitor and that free independent legal advice is available; * The right to have someone informed of their arrest; and * The right to consult the Codes of Practice (COP).

Answer 5

There are also circumstances where there is a right to an appropriate adult and/ or an interpreter. We will look at some of these rights in greater detail in this section. The custody record will record that these rights have been given and any response made by the suspect (eg the name of the solicitor or person to be notified). These rights are very important to the suspect but the Police and Criminal Evidence Act (PACE) 1984 allows for the police to delay a suspect from exercising these rights in certain limited circumstances which we shall examine in this section

Answer 6

The right under s.58 PACE is the fundamental right to free and independent legal advice. This includes consulting with a solicitor either in person, on the telephone, or in writing. The person detained must be told again of the right to free legal advice immediately before

Answer 7

* The commencement or recommencement of an interview * Being asked to provide an intimate sample * An intimate drug search * An identification parade or video identification procedure * If legal advice is declined, that should be noted on the custody record

Answer 8

* Where legal advice is sought, it must be provided as soon as is practicable * Police should usually await the arrival of a solicitor before beginning an interview * Nothing should be done to dissuade the suspect from obtaining legal advice * If a detained person initially declined legal advice but subsequently changes their mind then the interview should cease and can recommence once the detainee has exercised their right to seek legal advice ‘Solicitor’ in COP C means: a solicitor who holds a current practising certificate or an accredited or probationary representative included on the register of representatives maintained by the Legal Aid Agency.

Answer 9

The decision to delay a suspect’s right to legal advice is a serious step and must be justified by the police, as it can have major implications for any evidence obtained against the suspect as a result. A number of domestic and European cases have reinforced the position that the right to legal advice is a fundamental one.

Answer 10

It can only be delayed in accordance with s.58 and COP C Annex B.

Answer 11

This right can only be delayed up to a maximum of 36 hours. Where the grounds are authorised they must be recorded and the suspect must be informed. If the suspect is interviewed before he has been able to consult with a solicitor because this right has been delayed, then there are restrictions on the drawing of adverse inferences at court. Adverse inferences will be dealt with in other sections

Answer 12

In order to delay the right in accordance with s.58 (see also COP C Annex B): * The person must be in detention for an indictable offence; and * The authority to delay the exercise of the right is granted in writing by a police officer of at least the rank of superintendent; and * The superintendent has reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:

Answer 13

- Interference with/harm to evidence connected with an indictable offence; - Interference with/harm to others; - Alerting of other people suspected of committing an indictable offence but not yet arrested for it; and/or - Hinder the recovery of property obtained in consequence of the commission of such an offence.

Answer 14

The right might also be delayed if the person has been detained for an indictable offence and has benefited from their criminal conduct ie they have obtained property which they might take steps to try to conceal, such as moving the property outside the jurisdiction. This is property that upon conviction might be confiscated by virtue of the Proceeds of Crime Act 2002 (‘POCA’).

Answer 15

Provides helpful guidance regarding the power to delay this right. Authority to delay may only be given if there are grounds to believe that the solicitor might pass on a message or act in some other way that would lead to the consequences mentioned previously. But although this suggests that, on rare occasions, the police might be justified in delaying access to a named solicitor if the grounds can be made out, this would not usually provide justification to delay the right to legal advice generally and the suspect must be allowed to choose an alternative solicitor

Answer 16

Section 56 PACE provides that an arrested person has the right to have a friend, relative or other person told that they are under arrest. This right to have one person known to them or likely to take an interest in their welfare informed of their whereabouts as soon as is practicable, is at public expense. The right can be exercised every time the suspect is taken to a different police station.

Answer 17

In order to delay the right: * The person must be in detention for an indictable offence (an offence that may be tried in the Crown Court ie indictable only and either way offences); and * The authority to delay the exercise of the right is granted in writing by a police officer of at least the rank of inspector; and * The inspector has reasonable grounds to believe that the exercise of the right will lead to any or all of the following consequences:

Answer 18

Authority: This right can only be delayed if the necessary criteria are met under s.56 PACE.

Answer 19

Interference with/harm to evidence connected with an indictable offence; - Interference with/harm to others; - Alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or - Hinder the recovery of property obtained in consequence of the commission of such an offence. The right might also be delayed if the person has been detained for an indictable offence and has benefited from their criminal conduct, ie obtained property which the person might take steps to try to conceal, such as moving the property outside the jurisdiction. This is property that upon conviction might be confiscated by virtue of POCA

Answer 20

It is easier to justify the delay under s.56 than it is under s.58. Often the police may want to search a suspect’s property and will not want anyone ‘tipping off’ so that evidence can be disposed of before they get there.

Answer 21

However, any delay or denial of the rights in this section should be proportionate and should last no longer than necessary. In any event, the exercise of this right can only be delayed up to a maximum of 36 hours. Therefore, as soon as the search has been conducted or other suspects arrested the appointed person should be notified

Answer 22

If a person is, or appears to be, under 18, they must have an appropriate adult present at the police station. The right to an appropriate adult also applies to anyone whom a police officer suspects may be: * Mentally disordered or otherwise mentally vulnerable; * Anyone whom an officer has been told in good faith may be mentally disordered or otherwise mentally vulnerable.

Answer 23

In the case of a young detainee, the appropriate adult is defined as: * A parent; or * A guardian; or * In the case of a young person looked after under the Children Act 1989: - A representative of the care authority or voluntary organisation; or - A social worker.

Answer 24

Failing these, any person aged 18 or over who is not a police officer or police employee suffices. In the case of a detainee who is mentally disordered or otherwise mentally vulnerable, the appropriate adult can be: * A parent; or * A guardian; or * A relative; or * Someone who has experience in dealing with such persons. The appropriate adult must be 18 or over and must not be a police officer or police employee.

Answer 25

A solicitor/ legal representative attending the police station for the suspect should not act as the appropriate adult. A person cannot act as an appropriate adult if they are: * Suspected of involvement in the offence; * The victim of, or a witness to, the offence; * Involved in the investigation; * A person who has received admissions from the person detained before acting as appropriate adult; * Of low IQ and unable to appreciate the gravity of the situation; or * An estranged parent whom an arrested juvenile does not wish to attend and specifically objects to.

Answer 26

The role of the appropriate adult is to: * Ensure that the detained person understands what is happening and why; * Support, advise and assist the detained person; * Observe whether the police are acting properly and fairly and to intervene if they are not; * Assist with communication between the detained person and the police; and * Ensure that the detained person understands their rights and that those rights are protected and respected. An appropriate adult can request a solicitor/ legal representative on behalf of the person detained, though the person detained does not have to see the solicitor if they do not want to.

Answer 27

A young or mentally disordered or vulnerable detainee should not be interviewed or asked to provide a written statement without the presence of an appropriate adult unless delay would be likely to lead to: * Interference with or harm to evidence connected with an offence; * Interference with or physical harm to other people; * Serious loss of or damage to property; * Alerting other suspects not yet arrested; or * Hindering the recovery of property obtained in consequence of commission of the offence.

Answer 28

Where the custody officer has determined that a suspect requires an interpreter, that suspect must not be interviewed without an interpreter unless authorisation is given by an officer of the rank of superintendent or above who is satisfied that delaying the interview will lead to: * Interference with, or harm to, evidence; or * Interference with or physical harm to other people; or * Serious loss of, or damage to, property.

Answer 29

COP C 8 gives details on conditions of detention which include: * So far as practicable, not more than one detainee should be detained in each cell; * Cells must be adequately heated, cleaned and ventilated; * Bedding must be supplied; * Toilet and washing facilities made available; * If a detainee’s clothes have been removed, replacement clothing of a reasonable standard shall be provided; and * Two light meals and one main meal should be provided every twenty-four hours.

Answer 30

This section considered the rights of a suspect being detained by the police for questioning: * The right to consult privately with a solicitor and that free independent legal advice is available; * The right to have someone informed of their arrest; and * The right to consult the Codes of Practice. This section also considered the circumstances where there is a right to: * An appropriate adult- to support and assist the detained person when they are, or appear to be, under 18 or a police officer suspects, or has been told in good faith the detained person may be mentally disordered or otherwise mentally vulnerable. * An interpreter. Authorisation to delay these rights can be given in narrow circumstances.

Answer 31

This section also considered the circumstances where there is a right to: * An appropriate adult- to support and assist the detained person when they are, or appear to be, under 18 or a police officer suspects, or has been told in good faith the detained person may be mentally disordered or otherwise mentally vulnerable. * An interpreter. Authorisation to delay these rights can be given in narrow circumstances.

Answer 32

3.1 Introduction The police interview is an extremely important part of the police investigative process. In order to ensure that a suspect is not in any way coerced or misled into making statements which would incriminate themselves, Police and Criminal Evidence Act 1984 (PACE) Code of Practice (COP) C paragraphs 11 and 12 set out in detail the procedures which must be followed when an arrested person is being interviewed.

Answer 33

Interviews: An interview is widely defined by Code C, para 11.1A as: ’the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences …’.

Answer 34

Interviews must be carried out under caution, therefore a person must be cautioned before they are asked any questions about their suspected involvement in the commission of an offence. The person should be cautioned again at the recommencement of an interview after a break. The words of the caution are: ’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.’

Answer 35

It is important to see where the interview fits in to the police station process. The detainee: * Will see the custody officer who must authorise their continued detention. * Will be informed of their rights. * Will have certain non-intimate samples taken. * May see the appropriate healthcare professional, if necessary. * Will speak to a legal representative, if the detainee requests. * Will be interviewed.

Answer 36

- Released under investigation or on police bail, after the interview; or - 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 the following day.

Answer 37

Statutory powers often require authority from a particular police rank, so it is important to understand the rankings: * Constable * Sergeant * Inspector * Chief Inspector * Superintendent * Chief Superintendent There are also detectives in the Criminal Investigation Department (‘CID’) who follow the same ranking system eg Detective Chief Superintendent or Detective Sergeant.

Answer 38

The Investigating Officer (‘IO’): * Can be a police officer of any rank; * Is usually the officer who is in charge of investigating that particular offence, also referred to as the ‘Officer In the Case’ (‘OIC’); * Is the officer the suspect’s legal representative would speak to at the police station to obtain pre-interview disclosure; * Will most likely lead the interview

Answer 39

Where an officer has decided to arrest a person, that person should be interviewed at a police station or other authorised place of detention. The requirement that an interview be conducted at a police station is subject to exceptions, where delay would be likely to: * Lead to interference with or harm to evidence connected with an offence; * Lead to interference with or physical harm to other persons; or * Lead to serious loss of, or damage to, property; or * Lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it; or * Hinder the recovery of property obtained in consequence of the commission of an offence.

Answer 40

There is no general ‘right to disclosure’ with the exception of: * A significant statement (see next section); and * The custody record. However, PACE COP C 11.1A states that before interview a: ‘… solicitor must be given sufficient information to enable them to understand the nature of any such offence and why they [the client] are suspected of committing it.’

Answer 41

* The investigating officer will want to hold back as much information as possible so that they can obtain, so far as possible, an untainted account from the defendant. * The solicitor will want to have as much information as possible, to be able to give advice that is in the best interests of the client, and will do this by assessing the nature and the quality of the evidence against the client

Answer 42

At the beginning of an interview, but after caution, any significant statement made by the person interviewed in the presence of a police officer or member of police staff must be put to them. Significant statement: A significant statement is one that is appears to be capable of being used in evidence, and in particular any direct admission of guilt (ie a confession).

Answer 43

3.7.1 Recording The general rule is that all interviews must be contemporaneously recorded. Interviews under caution for any indictable offence must be audio recorded. An exception exists to the general rule. The interview can be recorded in writing where: * It relates to some minor offences; * The person has not been arrested; and * It takes place other than at a police station.

Answer 44

Generally, no person should be interviewed if they are unable to: * Appreciate the significance of the questions asked and their answers; or * Understand what is happening because of the effects of drink, drugs or any illness, ailment or condition. However, an officer of the rank of superintendent can authorise an interview in these circumstances.

Answer 45

3.8.1 Before the interview The solicitor should: * Obtain pre-interview disclosure; and * Have an opportunity for a private consultation with their client to: - Discuss the case; and - Advise the client on their options for the interview.

Answer 46

A properly conducted interview: * Takes place in an interview room in a designated police station; * Is recorded; * Is in the presence of a lawyer, if the suspect has exercised their right under s 58 Police and Criminal Evidence Act 1984; * Gives the client the option to suspend the interview and have further consultations with their solicitor.

Answer 47

Your role as a solicitor at the police station is to protect your client’s interests and advance their case. As such a solicitor should consider intervening in a number of circumstances: * Information or evidence is referred to or produced that was not disclosed before the interview; * Clarification on any matter is required at any time; * There is inappropriate questioning (see next section); * There is inappropriate behaviour; * Further advice to the client is needed; * A break is required; or * The circumstances require.

Answer 48

It is important to note that the purpose of an interview is to gather evidence. It is therefore necessary to step in where officers use inappropriate questioning techniques. Examples of inappropriate questioning include: * Misrepresenting information, such as upgrading responses, misrepresenting key items of information or inaccurate summarising; * Hypothetical questions; * Repetitive questioning; or * Disruptive listening, such as not listening to your client’s response, or assuming knowledge of your client’s response before your client answers or finishes their answer

Answer 49

Ideally, the investigating officer would like the suspect to admit the offence in the interview. The evidential starting point for confessions is that they are admissible. However: * Section 76(2) PACE 1984 sets out circumstances when a confession can be excluded from evidence as a result of ’oppression’ or ‘unreliability’. * Section 78 PACE 1984 gives the court the discretion to exclude evidence that ‘would have such an adverse effect on the fairness of proceedings that the court ought not to admit it’

Answer 50

* Oppression is ‘torture, inhuman or degrading treatment, or the use or threat of violence’ (s 76(8)). The oppression must have caused the confession. * Unreliability means the confession was obtained as the result of something said or done which renders it unreliable. This might include breaches of PACE including how the interview was conducted. Again, the thing said of done must have caused the confessions unreliability. * The existence of either oppression or unreliability does not automatically exclude such evidence, instead the court must grant the defence’s application.

Answer 51

* Section 78 may be used to exclude any evidence upon which the prosecution seeks to rely (in contrast to section 76 which can only be used in relation to confessions). * Section 78 can also be used to exclude confessions where there is no suggestion that either limb of section 76(2) has been breached.

Answer 52

This section considered what an interview is and the requirements the police must adhere to when interviewing a person suspected of an offence. * The definition of an interview can be found in the Police and Criminal Evidence Act (PACE) 1984 Code of Practice C, para 11.1A: ‘An interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence…’

Answer 53

* An interview must be carried out under caution and an accurate record made. * Before the interview the solicitor must be given sufficient information to allow them to understand the nature of the offence their client is suspected of committing and why their client is suspected of committing it. A ‘significant statement’ that appears to be capable of being used in evidence, and in particular any direct admission of guilt (ie a confession) must be disclosed at the start of the interview. * It is a solicitor’s duty to intervene in the interview in order to protect the suspect’s rights and advance their case. * Confession evidence can be excluded through applications under s 76 or s 78 PACE.

Answer 54

4.1 Code of Practice (COP) C The role of the solicitor is set out in the Police and Criminal Evidence Act (PACE) 1984 COP C Notes for Guidance paragraph 6D: ‘The solicitor’s only role in the police station is to protect and advance the legal rights of their client. On occasions this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification, challenge an improper question to their client or the manner in which it is put, advise their client not to reply to particular questions, or if they wish to give their client further legal advice’.

Answer 55

A solicitor should actively defend and promote their client’s interests. A solicitor’s role is not: * A passive one; nor * To sit by and take notes.

Answer 56

* Obtaining as much information from the police as is possible. * Advising your client fully and in accordance with your professional obligations. * Advising on issues which arise during the police investigation, such as whether to provide samples, extensions of periods of detention, searches of premises and bail. * Attending and advising during the interview.

Answer 57

* Be familiar with both PACE and the Codes of Practice. * Avoid confrontation with officers, instead make notes of apparent breaches of PACE and/ or the COP. * Where interviewing officers have refused a reasonable request, speak to the custody officer and ask them to make a note in the custody record. * Don’t be rushed. Take as much time as you need to properly advise your client.

Answer 58

* It is vital that you maintain a comprehensive contemporaneous record. * You may have to give evidence at a subsequent trial concerning disclosure, police conduct or your advice to your client. Clear and detailed notes are vital if you are to give evidence with credibility. * Taking notes on the go is not always easy, but an important aspect of police station practice.

Answer 59

In general terms, a solicitor should be even more conscious of their role and responsibilities when dealing with a vulnerable client.

Answer 60

Generally, a person under the influence of drink or drugs should not be treated as vulnerable.

Answer 61

Summarises provisions relating to vulnerable persons. Annex E sets out: * When a suspect should be treated as vulnerable * Appointment of an appropriate adult and their role * Duties of the custody officer with regard to a vulnerable suspect * When the vulnerable suspect can (and cannot) be interviewed

Answer 62

(a) May have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with: - Their arrest and detention; or (as the case may be) - Their voluntary attendance at a police station; or their presence elsewhere…for the purpose of a voluntary interview; and - The exercise of their rights and entitlements. (b) Does not appear to understand the significance of what they are told, of questions they are asked or of their replies;

Answer 63

- Becoming confused and unclear about their position; - Providing unreliable, misleading, or incriminating information without knowing or wishing to do so; - Accepting or acting on suggestions from others without consciously knowing or wishing to do so; or - Readily agreeing to suggestions or proposals without any protest or question’.

Answer 64

* At the beginning of the suspect’s detention, the custody officer will undertake a risk assessment and identify whether the suspect is or might be ‘vulnerable’. * If so, the vulnerable suspect will be provided with access to an appropriate adult. * The custody officer must inform the appropriate adult of the grounds for detention, where the suspect is being detained and ensure the appropriate adult attends the police station as soon as possible

Answer 65

COP C Annex E states that if at any time an officer (such as the investigating officer) suspects that a person is vulnerable then the person will be treated as vulnerable unless there is clear evidence to the contrary. The officer must then make reasonable enquiries to ascertain whether the person falls within the definition of vulnerable and record that information

Answer 66

* The behaviour of the person; * Their mental health and capacity; * What the person says about themselves; * Information from police officers, staff and records; * Information from health and social care and other professionals who know or have had previous contact with the person.

Answer 67

Generally, a vulnerable person must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult. However, an urgent interview can take place if a superintendent or above is satisfied it would not significantly harm the person’s physical or mental state

Answer 68

* Interference with or harm to evidence connected with an offence; * Interference with or physical harm to other persons; or * Serious loss of, or damage to, property; or * The alerting of other persons suspected of having committed an offence but not yet arrested for it; or * Hindering the recovery of property obtained in consequence of the commission of an offence.

Answer 69

These provisions are contained in COP C paragraphs 11.1, 11.18- 11.20. Questioning in these circumstances may not continue in the absence of the appropriate adult once sufficient information to avert the risk has been obtained. A record must be made of the grounds for any decision to begin an interview in these circumstances.

Answer 70

There are ways a solicitor can help protect the interests of a vulnerable client such as: * Ensure that: - An appropriate adult has been appointed. - The custody officer has requested a medical assessment where appropriate. * Take as much time as is necessary to take your client’s account and to clearly advise them.

Answer 71

* Your role. * Everything that is happening. * What will happen in the interview and how to approach the ‘no comment’ interview if that is the option taken. * What happens after interview.

Answer 72

* Request regular breaks. * Be especially mindful of the language and tone used by officers- intervene if necessary

Answer 73

This section considered the role of the solicitor at the police station including the concept of ‘active defence’ and the conduct of a solicitor when representing a vulnerable client. * The solicitor’s role in the police station is to actively protect and advance the legal rights and interests of their client through: - Advising their client, including on whether to answer police questions - Intervening to seek clarification of questions or to challenge improper questions asked

Answer 74

* Solicitors must take additional steps when representing vulnerable suspects at the police station including: - Slower and clearer explanations - Taking breaks during interview - Ensuring the tone of questions is appropriate

Answer 75

5.1 Advising the client The consultation with the client should take place in private and is confidential. The lawyer should not breach any professional conduct issues by, for example taking instructions from: * A relative or third party unless you are satisfied that the person giving instructions has authority to do so on behalf of your client; or * Two clients in relation to the same matter and one client blames, or might blame, the other.

Answer 76

* Be supportive and explain their role. * Assess the client’s fitness to be interviewed. * Provide advice on the legal position. * Explain the options the client has in the interview and consider which option would be best. * Explain and advise of the consequences of those options. * If necessary, provide advice on samples.

Answer 77

Once the lawyer has outlined the circumstances as provided by the police, the client should be asked for their version of events: * Do they accept involvement? * Do they have a legal defence eg self defence?

Answer 78

There are three options in the police interview for the client: * Answer questions * Don’t answer questions (‘go no comment’) * Provide a written statement and ‘go no comment’

Answer 79

Anything that the client says can be used in evidence, so it is important to undertake an assessment and balance the risks of answering questions or remaining silent. Whilst a client is entitled to remain silent in an interview the lawyer must explain the consequences of any silence.

Answer 80

Consequences might include a court drawing ‘adverse inferences’. Basically, an adverse inference is a common sense conclusion that is adverse to the interests of a party in proceedings. If a man with a gun in his hand is found standing next to a body with gunshot wounds, an ‘inference’ can be drawn that he has just shot the person on the ground.

Answer 81

Handing in a prepared written statement is a strategy sometimes used to try and avoid later adverse inferences. A statement is handed in at the beginning of the interview which sets out the defence. It is often used where there are facts which will be later relied on at trial but the lawyer thinks that there are reasons why the client should not participate in answering questions.

Answer 82

It can be difficult to ensure that sufficient information is contained in the statement as any fact relied on later that is not mentioned could still attract an adverse inference. A prepared statement should not be thought of as a ‘best of both worlds’ option between answering questions and not answering any questions as: * Avoiding adverse inferences using a statement is very difficult. * The client will still have to answer ‘no comment’ to questions put in the interview.

Answer 83

A mixed interview (stating ‘no comment’ to some questions and answering others) is not a valid option in the interview, and you should advise your client in the strongest terms to avoid this approach because: * The transcript of the interview will be read in court. A ‘no comment’ interview is not read as evidence. Imagine a jury hearing a suspect apparently avoiding some questions. * The interviewing officers will use tactics and techniques to push the suspect into talking about matters they had intended not to speak about. * The suspect is likely to become confused as to what they have already said.

Answer 84

Deciding whether to advise the client to answer questions is a careful balancing exercise . There are numerous factors to consider: * Amount of disclosure * Admissibility and strength of evidence- that you are aware of or that might become available in the future. * Your client’s account/ instructions * The state of your client * Significant statements * Possible adverse inferences

Answer 85

Prior to interview a solicitor must be given sufficient information to enable them to understand the nature of any offence and why their client is suspected of committing it (Code of Practice C paragraph 11.1A)

Answer 86

Case law has held that if the police disclose little or nothing of the case against the suspect so that a legal advisor cannot usefully provide advice to their client, then this may be a good reason for the solicitor to advise the suspect to remain silent.

Answer 87

Where an investigating officer has not provided sufficient disclosure to allow you to usefully advise your client it can be worth reminding the investigating officer that courts are reluctant to draw adverse inferences where disclosure was insufficient.

Answer 88

It might seem a little early in the criminal justice process to be considering admissibility of evidence, but this must be considered when weighing up the strength of the evidence. * Have witnesses provided written statements? * Are witnesses compellable? You will learn in other sections that some witnesses cannot be compelled to give evidence. Most can, but some cannot. * Were any significant statements (eg confessions) unlawfully obtained? * Will any s 78 Police and Criminal Evidence Act (PACE) 1984 applications have to be made at court (for breach of PACE Codes of Practice for example)?

Answer 89

If there is little evidence to suggest that the client is involved then the matter is unlikelyto get to trial. Remaining silent can be a good option as there is: * No risk of the client providing incriminating information; and * Little risk of an inference being drawn from silence as the matter is unlikely to proceed

Answer 90

However, further evidence could become available and if so, silence in this interview could then be relevant. What evidence has yet to be obtained? If the client has admitted their guilt to you then remaining silent can still be an option, especially if the evidence is weak.

Answer 91

If the client has a defence then the risks of not putting that forward in the interview must be considered carefully. There are two possible consequences of waiting until trial to put forward a defence: * Adverse inferences; and * Losing credibility. There are therefore advantages in putting forward the defence at this early stage especially if the defence might be one of alibi or where the defence has the evidential burden of raising the defence (eg self-defence).

Answer 92

Remember that a police interview can be a frightening experience and you should prepare your client for what to expect. For example, if your client is going to go ‘no comment’ then you will have to prepare them for attempts by officers to engage them in what seems like only friendly conversation

Answer 93

The lawyer needs to assess whether, irrespective of the client’s instructions in relation to the offence, they would be able to handle the interview. A number of cases have confirmed that the court should not draw inferences from silence where the suspect’s condition, such as ill-health (especially mental), confusion, intoxication or shock gives the lawyer cause for concern.Such factors are referred to as ‘Argent factors’, from the case of R v Argent [1997] 2 Cr App R 27. The lawyer should check on the custody record to see whether the forensic medical examiner has certified the suspect fit for interview.

Answer 94

This section considered how to formulate advice to a suspect prior to police interview and the options available to the suspect during that interview. * The options available to the suspect: answer questions, go no comment, or hand in a prepared written statement. * ‘Mixed interviews’ - answering some questions but not others should be avoided.

Answer 95

Factors the solicitor should consider when formulating their advice: - Amount of disclosure - Admissibility and strength of evidence- that you are aware of or that might become available in the future - Your client’s account/ instructions - The state of your client- prepare them for the interview - Significant statements - Possible adverse inferences

Answer 96

The basic principle is that every suspect has a right to silence. This means that there is no obligation to answer questions in a police interview. However, if a suspect exercises their right to silence at interview then, provided certain statutory conditions are met, a court is allowed to draw inferences at a later trial.

Answer 97

An adverse inference is a common sense conclusion that is adverse to the interests of a party in proceedings. If a man with a gun in his hand is found standing next to a body with gunshot wounds, an ‘inference’ can be drawn that he has just shot the person on the ground.

Answer 98

We will look at three inferences that can be drawn under the Criminal Justice and Public Order Act 1994 in this section: * Section 34 – if a fact is later relied on at trial and it would have been reasonable to have mentioned it now. * Section 36 – if there is a failure to account for a mark, object or substance. This is why careful consideration of the custody record is important so that you are not ambushed in interview.

Answer 99

* Section 37 – if there is a failure to account for presence at the scene. Where was the suspect arrested? Can this be linked to their involvement? Section 38- contains the safeguard that no defendant may be convicted solely based on an adverse inference. Section 35- if the accused is silent at trial, will be considered in a separate section

Answer 100

Section 34 Criminal Justice and Public Order Act 1994 allows for an inference to be drawn by the jury or magistrates in circumstances when the defendant later relies on a fact in their defence that was not offered at the time of questioning. A court does not have to draw any inference but, if it does, any inference that is drawn must be ‘proper’. As such an inference can range from * An acceptance that the defence as presented in court is true but the defendant chose not to reveal it in their interview; to * An inference that the defendant’s account in court is untrue and they are in fact guilty.

Answer 101

If the suspect is not cautioned then no inference can be drawn. The words of the caution explain to the suspect the consequences of not mentioning a fact later relied upon. The Police and Criminal Evidence Act 1984 (PACE) Code of Practice C paragraph 10.5 states the caution shall be in the following terms: ‘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.’

Answer 102

It must have been reasonable to have mentioned the fact at the time, bearing in mind all the circumstances existing at the time. Court of Appeal guidance in R v Argent [1997] Crim LR 346 states ‘circumstances existing at the time’ should be widely interpreted.

Answer 103

* 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 circumstances of the suspect; and * Any legal advice that the suspect received.

Answer 104

The ultimate effect of an adverse inference being drawn at trial from a defendant’s silence at interview is that it undermines their defence. When the jury or magistrates draw an adverse inference, they are effectively saying that: * The explanation given at trial has been fabricated since the time of the interview; or * The defendant withheld their account at interview as they knew that it would not stand up to police questioning (the ambush defence); or * At the time of the interview the defendant had no reasonable explanation which would refute the prosecution case.

Answer 105

Section 36 Criminal Justice and Public Order Act 1994- when the suspect fails to account for an object, substance or mark found on them at the time of arrest. Section 36 might include a failure to account for bruising or a hammer in the suspect’s rucksack. Section 37- when the suspect fails to account for their presence on arrest at a particular place at or about the time the offence was allegedly committed. Section 37 might include failing to explain why they were found on a burglary victim’s driveway.

Answer 106

In contrast with section 34 (failure to mention facts), the ability to draw inferences under sections 36 and 37 arise as soon as there is a failure by the defendant to account for their possession of the object in question or presence. It is not a requirement that there is a failure to mention something later relied upon. Both sections 36 and 37 are restrictively worded. They require the defendant to be given an ‘ordinary language caution’, known as a ‘special warning’. The requirements of the special warning can be found in PACE Code of Practice C paragraph 10.11.

Answer 107

* What offence is being investigated; * What fact they are being asked to account for; * This fact may be due to them taking part in the commission of the offence; * A court may draw a proper inference if they fail or refuse to account for this fact; and * A record is being made of the interview and it may be given in evidence if they are brought to trial

Answer 108

There is an important safeguard within s 38 Criminal Justice and Public Order Act 1994 which states that no defendant may be convicted solely based on an adverse inference. Importantly, no adverse inference can be drawn where the suspect has not been allowed access to legal advice (PACE Code C paragraph 6.6 and Annex C).

Answer 109

It is important to understand that an adverse inference under any section will only be relevant if the defendant has a trial. If the case never gets to trial or your client pleads guilty then adverse inferences are irrelevant. This is an important concept to grasp when advising clients prior to interview at the police station. The lawyer will have to balance the likelihood of a trial actually happening against the risk of an inference if it does.

Answer 110

This section considered the adverse inferences that can be drawn by a court under the Criminal Justice and Public Order Act 1994 sections 34, 36 and 37. * Right to silence- suspects are not obliged to answer police questions in interview. However, an inference can be drawn under the Criminal Justice and Public Order Act 1994: - Section 34 – if a fact is later relied on at trial and it would have been reasonable to have mentioned it in the interview. The suspect must have been cautioned. - Section 36 – if there is a failure to account for a mark, object or substance. The suspect must have been given a special warning.

Answer 111

- Section 37 – if there is a failure to account for presence at the scene. The suspect must have been given a special warning. * As the effect of an adverse inference is to undermine the defence case safeguards exist: - Section 38- no defendant may be convicted solely based on an adverse inference. - No adverse inference can be drawn where the suspect has not been allowed access to legal advice. * If the case never gets to trial or your client pleads guilty then adverse inferences are irrelevant.

Answer 112

In every criminal trial, the prosecution must prove beyond reasonable doubt that the person in the dock is responsible for committing the crime. When identification is disputed, the prosecution can establish that the defendant committed the crime in a number of ways, for example: * DNA evidence * Telephone evidence * Fingerprint evidence * Testimony from witnesses

Answer 113

* One of the most common methods of proving that the defendant committed the crime is through a visual identification from an eye-witness. * An eye-witness: - Might recognise the suspect as someone they have seen before, as a friend or acquaintance, family member or a stranger who travels on the same bus every day; or - May never have seen the suspect before the crime was committed but were able to give police a description. They may also express an ability to recognise the person if they saw them again.

Answer 114

It is important not to confuse visual identification evidence with other evidence that is capable of supporting the prosecution’s case. The following are examples of evidence that do not constitute visual identification evidence: * Mere description of clothing/vehicle (‘I couldn’t see his face but he was wearing a purple jumper’) * The suspect has a connection to a particular place or others at the scene (eg ‘I thought it was Maria because I know she is always at the café on a Saturday morning’) * A description of the suspect (‘He was 5’7’ with dark hair and blue eyes’.

Answer 115

The reliability of eyewitness identification has attracted concern from legal professionals and academics for over a century as: * Experience has shown that it is easy for an honest and convincing witness to be mistaken even if the suspect is well known to them. * A confident identification is no more likely to be reliable than a hesitant one

Answer 116

A series of miscarriages of justice arising from inaccurate eyewitness testimony led to a wholesale review of investigatory and trial procedure in the latter part of the 20th century. As a result, safeguards were introduced at every stage of the process to ensure that identification evidence before a jury is reliable as possible: * Investigation stage: Police and Criminal Evidence Act 1984 (PACE) Code of Practice D; and * Trial: Turnbull guidelines. This section focuses on the investigation stage

Answer 117

Following the codification of police powers in PACE, Code D Code of practice for the identification of persons by police officers was issued. Amongst other things such as the taking of fingerprints and samples, PACE Code D deals with the process to be adopted by the police where a witness purports to identify a suspect or expresses an ability to make a visual identification.

Answer 118

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

Answer 119

If the suspect’s identity is not known to the police, then the eye-witness: * May be taken to a particular neighbourhood or place to see whether they can identify the person they saw on a previous occasion. * Can be shown photographs in accordance with Code D, Annex E

Answer 120

Duty to hold identification procedures Code D paragraph 3.12 states that an identification procedure shall be held (unless an exception exists) where: * An offence has been witnessed and an eye-witness: - Has identified a suspect or purported to have identified them; or - Is available who expresses an ability to identify the suspect; or - Has a reasonable chance of being able to identify the suspect. * The suspect disputes being the person the eye-witness claims to have seen. An identification procedure does not need to be held 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.

Answer 121

If the suspect’s identity is known to the police and they are available, the identification procedures that may be used are: * Video identification- the eye-witness is shown moving images of a known suspect, together with similar images of others who resemble the suspect. * Identification parade- the eye-witness sees the suspect in a line of others who resemble the suspect. * Group identification- the eye-witness sees the suspect in an informal group of people.

Answer 122

The arrangements for, and conduct of, the identification procedures above shall be the responsibility of an officer not below inspector rank who is not involved with the investigation (‘the identification officer’)

Answer 123

* In the first instance the suspect shall be invited to participate in a video identification procedure unless: - A video identification procedure is not practicable; or - An identification parade is more suitable. * If the suspect refuses, then an alternative can be considered. * Covert procedures should be used as a last resort and only if all other procedures have been considered and refused.

Answer 124

* A record shall be made of the description of the suspect as first given by the eye-witness. * A copy of the record shall be given to the suspect or their solicitor before any identification procedures are carried out.

Answer 125

* A notice must be given to a suspect and the following must be explained: - The purpose of the procedure - Their entitlement to free legal advice - The procedures for holding it, including their right to have a solicitor or friend present; - That they do not have to consent to or co-operate in the procedure; - That if they do not consent to, and co-operate in, a procedure, their refusal may be given in evidence in any subsequent trial and police may proceed covertly without their consent or make other arrangements. * The suspect shall be invited to participate in a video identification procedure first.

Answer 126

* The detailed arrangements for a video identification are contained in Code D Annex A. * It takes the form of VIPER (Video Identification Parade Electronic Recording). * Officers film the suspect asking them to face the camera and be filmed from the right, left and centre.

Answer 127

* The identification officer, suspect and legal representative select lookalikes from over 10,000 video clips on the VIPER system. * A video clip is produced with the suspect placed amongst at least eight other individuals who, so far as possible, resemble the suspect in age, general appearance and position in life

Answer 128

* If the suspect has an unusual physical feature eg a facial scar, tattoo, distinctive hairstyle or hair colour which does not appear on the images of the other people that are available to be used, steps may be taken to: - Conceal the location of the feature on the images of the suspect and the other people; or - Replicate that feature on the images of the other people.

Answer 129

* The suspect, their solicitor, friend or appropriate adult must be given a reasonable opportunity to see the complete set of images before it is shown to any eye-witness. * If the suspect has a reasonable objection to the set of images or any of the participants, the suspect shall be asked to state the reasons for the objection. * Immediately before the images are shown, the eye-witness shall be told that the person they saw on a specified earlier occasion may, or may not, appear in the images.

Answer 130

* The video clip is then shown to the witnesses. * The suspect’s solicitor may only be present at the video identification procedure on request and with the prior agreement of the identification officer. * The video identification procedure must be recorded on video with sound. The recording must show: - All persons present within the sight or hearing of the eye-witness whilst the images are being viewed; - What the eye-witness says; and - What is said to the eye-witness by the identification officer and by any other person present

Answer 131

* Care must be taken not to direct the eye-witness’ attention to any one individual image or give any indication of the suspect’s identity. * A supervised viewing of the recording of the video identification procedure by the suspect and/or their solicitor may be arranged on request, at the discretion of the investigating officer. * Eye-witnesses are not able to communicate with each other. One eye-witness may see the set of images at a time.

Answer 132

* The detailed arrangements for identification parades are contained in Code D Annex B. * A suspect must be given a reasonable opportunity to have a solicitor or friend present. * An identification parade may take place either: - In a normal room; or - One equipped with a screen permitting witnesses to see members of the identification parade without being seen.

Answer 133

* Once the identification parade has been formed, everything afterwards, in respect of it, shall take place in the presence and hearing of the suspect and any interpreter, solicitor, friend or appropriate adult who is present. * A video recording or colour photograph must normally be taken of the identification parade and supplied, on request, to the suspect or their solicitor within a reasonable time.

Answer 134

* The identification parade shall consist of at least eight people (in addition to the suspect) who, so far as possible, resemble the suspect in age, height, general appearance and position in life. * If the suspect has an unusual physical feature eg a facial scar, tattoo, distinctive hairstyle or hair colour which cannot be replicated on other members of the identification parade, steps may be taken to conceal the location of that feature on the suspect and the other members. For example, by use of a plaster or a hat, so that all members of the identification parade resemble each other in general appearance.

Answer 135

* The suspect may select their own position in the line. * Witnesses must not be able to: - Communicate with each other; - Overhear a witness who has already seen the identification parade; - See any member of the identification parade; or - See the suspect before or after the identification parade.

Answer 136

* Witnesses shall be brought in one at a time. * Immediately before the witness inspects the identification parade, they shall be told the person they saw on a specified earlier occasion may, or may not, be present. * The witness can ask to hear any identification parade member speak, adopt any specified posture or move

Answer 137

The detailed arrangements for group identification are contained in Code D Annex C. * Group identifications may take place either: - With the suspect’s consent and co-operation; or - Covertly without their consent.

Answer 138

* The location should be one where other people are either passing by or waiting around informally, in groups such that the suspect is able to join them and be capable of being seen by the witness at the same time as others in the group. Examples given include people leaving escalators, pedestrians walking through a shopping centre, passengers on railway and bus stations

Answer 139

* A colour photograph or video should be taken of the general scene, if practicable, to give a general impression of the scene and the number of people present. * As in other procedures the witnesses should not be able to communicate with each other.

Answer 140

* Confrontation by an eye-witness is contained in Code D Annex D. * Before the confrontation takes place, the eye-witness must be told that the person they saw on a specified earlier occasion may, or may not, be the person they are to confront and that if they are not that person, then the witness should say so. * The confrontation should normally take place in the police station, either in a normal room or one equipped with a screen permitting the eye-witness to see the suspect without being seen

Answer 141

The first issue for a trial judge in these circumstances is to determine if a breach of Code D has in fact occurred. This can usually be achieved without a voir dire (trial within a trial). However, there may be circumstances when evidence around the alleged breach is disputed. In those circumstances, a voir dire may be required and the judge will have to hear evidence under oath.

Answer 142

If there has been a breach of Code D, the remedy for the defendant is to apply to exclude evidence obtained in breach of the code under s 78 PACE 1984. A breach of the code does not automatically lead to the exclusion of the evidence. The key issue for the trial judge to decide is whether there has been any significant prejudice to the accused. If the judge has determined that there is prejudice, they must then decide if the admission of the evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it.

Answer 143

Identification evidence will usually be excluded when important safeguards have been flouted, such as the right to a formal identification procedure. The defendant has the right to have the correctness of the visual identification tested under formal conditions.

Answer 144

* 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

Answer 145

This section considered visual identification evidence at the investigation stage. * An ID procedure must be held where: an offence has been witnessed and an eye-witness: - Has identified a suspect or purported to have identified them; or - Is available who expresses an ability to identify the suspect; or - Has a reasonable chance of being able to identify the suspect.

Answer 146

The suspect disputes being the person the eye-witness claims to have seen. * The types of visual identification procedure: video identification, identification parade, group identification and confrontation by an eye-witness. * Suspects are generally invited to participate in a video identification procedure and covert procedures should be used as a last resort. * The defendant can apply to exclude evidence obtained in breach of Code D under s 78 PACE 1984

Answer 147

In general the decision to charge is taken by a Crown Prosecutor. Crown Prosecutors exercise the powers of the Director of Public Prosecutions (DPP), who is required to take over the conduct of all prosecutions commenced by the police. The DPP also has a discretion to take over the conduct of prosecutions commenced privately. All charging decisions for indictable-only offences are taken by a crown prosecutor.

Answer 148

The police retain discretion as to whether to charge for a number of summary offences including 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. Where the decision is one for the police, it is made by the custody officer.

Answer 149

The DPP may delegate powers to agents who are lawyers with rights of audience. Agents must act subject to the instructions given by a Crown Prosecutor. Crown Prosecutors exercise the powers of the DPP. Uniformity in the approach taken by different Crown Prosecutors in relation to charging decisions is sought through the Code for Crown Prosecutors, issued by the DPP.

Answer 150

The DPP may also appoint “associate prosecutors” who are CPS employees who are not lawyers to represent the CPS on bail applications and other pre-trial applications. They may conduct trials where the offence charged is a non-imprisonable summary offence.

Answer 151

We will consider three different forms of commencing criminal proceedings: * Arrest and charge; * Written charge and requisition; and * Laying an information.

Answer 152

This is the most common way of commencing criminal proceedings. The charge may come: * At the end of the period of detention at the police station after an arrest; * After a period of police bail when the suspect re-attends the police station; or * After a period on police bail while the CPS decides what the appropriate charge, if any, is.

Answer 153

Pre-charge police bail can be imposed in a number of different circumstances including: (a) Where there is insufficient evidence to charge a suspect and they are released pending further investigation (ss 34(2), 34(5) and 37(2) of PACE . (b) Where police consider there is sufficient evidence to charge, but the matter must be referred to the CPS for a charging decision (s.37(7)(a) PACE).

Answer 154

It is for the police to decide whether a suspect is released with or without bail and if released on bail, whether any conditions of bail should be imposed. Where it is practicable to do so investigators should seek the views of victims on bail and possible bail conditions. If a suspect is not released on police bail but the police are still looking into the matter, then they are referred to as having been ‘released under investigation’ (RUI). Pre-charge bail was reformed by schedule 4 of Police, Crime, Sentencing and Courts (PCSC) Act 2022.

Answer 155

This is a method of commencement created by s.29 Criminal Justice Act (CJA) 2003. 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 when this method of commencement is used. At the same time the public prosecutor issues a requisition, which requires the person charged to attend a magistrates’ court.

Answer 156

The charge and requisition must be served on the person charged and on the magistrates’ court at which that person is to attend. This method of commencement is available only to ‘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.

Answer 157

Another way to commence proceedings is for the prosecutor to 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 as they are not brought by ‘relevant prosecutors’ for the purposes of the written charge and requisition procedure under s.29 CJA 2003.

Answer 158

The written charge or information must contain: * A statement of the offence which describes the offence in ordinary language; * A reference to the statutory provision that creates the offence (if it is a statutory offence); and * Sufficient particulars of the conduct complained of for the accused to know what is alleged.

Answer 159

A summons or requisition must: * Contain a notice setting out when and where the accused is required to attend court; and * Specify each offence in respect of which it has been issued. A summons must identify the issuing court. A requisition must identify the person under whose authority it was issued.

Answer 160

There is no ‘Statute of Limitation’ requiring that a charge be brought within a specified period after the commission of the offence. The only exception is that s.127(1) Magistrates’ Courts Act 1980 provides that where the alleged offence is ‘summary only’, a magistrates’ court shall not try an information or hear a complaint unless the information was laid or the complaint made within six months of the date of the alleged offence.

Answer 161

There is no time limit for charging the accused with any indictable offence. If there is any dispute as to whether a charge has been brought within the specified period then the prosecution have the burden to satisfy the court to the criminal standard that proceedings were correctly brought in time.

Answer 162

This section considered: * Who makes charging decisions: - Generally, Crown Prosecutors exercising the powers of the Director of Public Prosecutions. - The police retain discretion as to whether to charge for a number of summary offences, a power exercised by the custody officer

Answer 163

* Different ways of commencing criminal proceedings: - Arrest and charge- the most common way of commencing criminal proceedings. - Written charge and requisition- available only to “relevant prosecutors” such as the Crown Prosecution Service and the Environment Agency. - Laying an information- such as private prosecutions.