Criminal Practice 1

Question 1

What happens straight after arrest?

Answer 1

Must be taken to the police station as soon as is practicable after the arrest unless the arresting officer grants street bail.

A suspect must be brought before the custody officer in the custody suite on their arrival at the police station, who is responsible for authorising the detention and supervising their welfare whilst in the police station. Usually at least the rank of sergeant and not involved in the investigation. Should be brought to the custody officer as soon as practicable.

Question 2

What is recorded on the custody record?

Answer 2

• Name, address, telephone number, DOB and occupation
• The offence they were arrested for and why the arresting officer considered it necessary to arrest
• Time of arrest and time of arrival at the police station
• Reason why the suspect’s ongoing detention at the police statin has been authorised by the custody officer
• Time detention was authorised
• Confirmation that the suspect has been given details of their rights and whether they have requested legal advice from a solicitor
• Details of the items of property the suspect has on their person and details of any medical conditions they have.

Custody record will have a detention log attached. Records all significant events that occur during custody. The custody officer must inform the suspect of their ongoing rights.

Question 3

Search of their person

Answer 3

The custody officer will authorise a search of their person to the extent they believe necessary to ascertain what items the suspect has on them.

S54(3) allows the custody officer to seize and retain items they have on their person. Items of clothing and personal effects may only be seized if custody officer has reasonable grounds for believing they may be evidence or that they may use them:
- to cause physical injury to themselves or others
- to cause damage to property
- to interfere with evidence, or
- to assist them to escape.

Question 4

The decision to detain

Answer 4

After opening a custody record and informing them of their rights, the custody officer must determine whether there is already sufficient evidence to charge the suspect with the offence they have been arrested for.
The custody officer will ask the investigating officer (in front of the suspect) for details of the evidence that already exists against the suspect. Custody officer should note the suspect’s comments to the investigating officer’s account, and the custody officer should not ask the suspect questions on their suspected involvement in any offence.
Unusual for there to be sufficient evidence to charge so early but if there is, the D is released on bail or remanded in custody to appear later at the Ms’ Court.

If not sufficient evidence to charge a suspect immediately the suspect should be released either with or without bail unless a) custody officer has reasonable grounds for believing that detaining a suspect without charge is necessary to secure or preserve evidence relating to an offence for which they are under arrest, or b) it is necessary to obtain such evidence by questioning.
Both grounds can apply.

If custody officer becomes aware that one of these grounds is no longer satisfied, the suspect must be released immediately.

Question 5

Conditions of detention

Answer 5

A suspect must be offered at least 2 light meals and one main meal in any 24 hour period, and drinks should be provided at mealtimes and upon reasonable request between meals.

Should be offered brief outdoor exercise daily if this is practicable.

Should be visited in their cells at least every hour.

If custody officer considers that a suspect is injured, suffering from physical illness or mental disorder or appears to need clinical attention, the custody officer must make arrangements to ensure that the suspect receives appropriate clinical attention as soon as reasonably practicable.

Question 6

Rights of a suspect being detained by the police for questioning

Answer 6

• the right to have someone informed of their arrest
• the right for the suspect to privately consult with a solicitor (suspect must be told that free independent legal advice is available), and
• the right to consult the Codes of Practice.

Must also be advised of their right to be informed about the offence and any further offences for which they are arrested whilst in custody, and why they have been arrested and detained.

Question 7

Right to legal advice

Answer 7

In s58 - if a suspect requests legal advice, they must be allowed to consult a solicitor as soon as practicable.
Reinforced by para 6.1 of Code C.

Unless they wish for a privately paid solicitor, the police must contact the Defence Solicitor Call Centre (DSCC) even if the solicitor has asked for a named solicitor or firm. The DSCC will decide if phone advice is sufficient or if they should attend.
Telephone advice is free through Criminal Defence Direct (CDD).

The suspect’s own solicitor or the duty solicitor will be notified if in-person attendance is necessary. The suspect must be notified when their solicitor arrives at the station (even if mid-interview).
The suspect must then be asked if they would like to see the solicitor even if they have previously declined legal advice.
Solicitor’s attendance and suspect’s decision must both be noted in the custody record.

Code C - a police officer should at no time attempt to dissuade a person from obtaining legal advice.

No police officer or staff shall indicate to any suspect, except to answer a direct question, that they may be detained for longer if they ask for legal advice.

Question 8

Limited right to delay the right to legal advice

Answer 8

Any delay must be authorised by a superintendent or above, and can only be authorised when a suspect is arrested for an indictable offence.
Length of any delay has a maximum of 36 hours.
Authorisation can be given orally but it must be confirmed in writing as soon as practicable.

Can only be given on the current grounds of which one must be present at the time the suspect wishes to exercise their right:
- lead to interference with or harm to evidence connected with an indictable offence, or interference with or physical injury to another person, or
- lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it, or
- hinder the recovery of any property obtained as a result of the offence.

Question 9

Right to inform someone of their arrest

Answer 9

Outlined in s56(1).

Police may delay this right if an inspector (at least) and an indictable offence.
Maximum delay 36 hours from relevant time.
Authorisation may be given orally but confirmed in writing as soon as practicable.

Officer can only delay if they have reasonable grounds for believing that the suspect will:
- lead to interference with or harm to evidence connected to the indictable offence, or interference with or physical injury to other persons, or
- lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it, or
- hinder the recovery of property obtained as a result of the offence.

Question 10

Detention time limits

Answer 10

S41 provides a person shall not be kept in police detention for more than 24 hours without being charged, from the relevant time.

Under s42, the police can extend suspect’s detention for an additional 12 hours (36 hours overall) if certain conditions met.
Must be superintendent or above, and can only be done if they have reasonable grounds for believing that:
- the detention of the suspect without charge is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest, or to obtain such evidence by questioning them, and
- the offence is an indictable offence, and
- the investigation is being carried out diligently and expeditiously.

Question 11

The relevant time for detention clock purposes

Answer 11

• a person attending the police station voluntarily but is then later arrested, the relevant time is the time of arrest.
• a person who attends the station to answer street bail, it is the time they arrive at the station.
• for someone arrested away from the police station, the relevant time is generally the time when they arrive at the first police station they are taken to following their arrest.

Question 12

When can the Magistrates’ Court extend the detention limits?

Answer 12

The Ms’ Court can provide a warrant allowing a suspect to be detained for a further 36 hours.
Such detention is justified if:
- the detention of the suspect without charge is necessary to secure or preserve the evidence relating to the offence for which the suspect has been arrested, or to obtain such evidence by questioning them, and
- the offence is indictable, and
- the investigation is being carried out diligently and expeditiously.

Question 13

Extension of the warrant for further detention

Answer 13

In exceptional cases, the police may make an additional application to the Ms’ Court under s44 for an extension of the warrant of further detention granted under s43.
Can be for any period the court thinks fit up to 36 hours but cannot end later than 96 hours (4 days) after the relevant time.

Therefore after 4 days a suspect must be either released or charged.

Question 14

Detention reviews

Answer 14

Periodic reviews are required to ensure that the grounds that detention was initially authorised on still apply.
Mandatory requirement - if not complied with, detention will be unlawful and amount to a tort of false imprisonment.

Carried out by at least an inspector, who is not involved in the investigation. Usually referred to as the review officer.

First review must be no longer than 6 hours after the custody officer first authorised the detention of the suspect.
Second review within 9 hours of the first. Subsequent reviews to take place of not more than 9 hours.

Question 15

Rights of volunteers at the police station

Answer 15

S29.
No obligation to attend as a volunteer. Volunteer can leave at any time unless formally arrested.

Volunteer can request that a friend or solicitor be present at their interview.

The police may later arrest a volunteer if when interviewed the volunteer makes admissions which they then give the police sufficient grounds to arrest them.

Question 16

What does the solicitor do as soon as they enter the police station?

Answer 16

First likely to speak to the custody officer and obtain client’s basic details as well as key information relevant to the detention.
Code C allows a legal representative or appropriate adult to request a copy of the custody record when a detainee leaves police detention or is taken before court.

They will then speak to the investigating officer to obtain:
- disclosure (facts of the offence and evidence supporting those facts)
- significant statements and/or silence, and
- the next steps the investigating officer proposes to take.

Then the solicitor should speak to the client once they have obtained as much information as they can about the case from the custody officer and the investigating officer.

Question 17

Disclosure

Answer 17

Police not obligated to provide solicitor with any evidence of the case against the client but normally provide some details they have.
Investigating officer will orally summarise witness statements or supply a typed disclosure statement summing up evidence they have.
Solicitor should push them to disclose as much as possible of their evidence against the client.

If the investigating officer provides little or no disclosure, the solicitor should point out that in these circumstances they cannot properly advise their client as to the nature of the case against them, affecting the advice they give them on whether or not to answer questions.
Code C assists the solicitor, saying they must be given sufficient information to enable them to understand the nature of the offence and why they are suspected of committing it although does not need to prejudice the criminal investigation.

Question 18

Significant statements

Answer 18

Whether any admissions made etc.
If admission made, police required to put this to the client at the start of the interview to ask if they confirm or deny saying it.

Question 19

Next steps

Answer 19

Solicitor needs to find out from the investigating officer what the next steps are.

Question 20

Matters the solicitor should discuss with the client

Answer 20

• The solicitor’s identity and role.
  Provide free independent legal advice with no connection to the police. Only role is to protect and advance the client’s rights. Inform them that they will be confidential (even after stopping to act for them) although they are bound by professional conduct which may limit what they can do or say on the client’s behalf.
• Details of the alleged offence.
  Tell the client the details the investigating officer has told them. Solicitor should then advise on substantive law - what do the police need to prove to get a conviction for this?
• The client’s instructions.
  Get the client’s version of events. Recommend making notes of client’s instructions and the advice given on essential issues.
• The next step in the police investigation.
  Usually for the client to participate in an audibly recorded interview.
• Prepare the client for interview.
  Includes:
  i. advising the client on whether or not to answer questions put to them in the interview (what is the safest option)
  ii. preparing a written statement on the client’s behalf if they are to give a ‘no comment interview’
  iii. advising the client how the interview will be conducted by the police
  iv. advising the client what role the solicitor

Question 21

Client’s interview options

Answer 21

4 options:
- to answer all the questions put to them
- to give a no comment interview
- selective silence, where the client answers some questions but not others
- to give a no comment interview but to hand a written statement to the police (setting out the facts the client will rely on at trial) either during the interview or before being charged.

Important that the solicitor notes the advice given and their reasons for giving such advice.

Question 22

When is a solicitor likely to advise a ‘no comment interview’?

Answer 22

If the client admits guilt to a solicitor, the solicitor may advise that they do a ‘no comment interview’ as does not involve them lying or misleading the police and police may be reliant on interview to get enough evidence to charge.

Other occasions:
- solicitor considers police have not provided adequate disclosure of the evidence they have obtained against the client (so unable to properly advise client on case against them)
- solicitor considers the police are attempting to ambush the client by revealing unrevealed evidence
- client denies involvement and police do not currently have sufficient evidence to charge
- client is physically or mentally unfit to be interviewed or solicitor believes they would be unable to provide a good account due to distress, emotion or fatigue
- client likely to perform bad at interview due to age, lack of maturity, psychological vulnerability or previous inexperience of police detention and questioning
- facts so complex or long ago that client cannot reasonably be expected to provide immediate responses or they will be inaccurate
- if solicitor does not believe client’s case, may be safest to do no comment interview if they do not believe they will stand up to police questioning
- where client has other good personal reasons for remaining silent (extreme embarrassment over what actually happened).

If advised so, solicitor must explain that a court may draw adverse inferences from silence.

Question 23

Prepared written statement

Answer 23

Good strategy when solicitor advises a no comment interview but does not want any adverse inferences to be drawn at trial. Likely if young, emotional or their first time.
Will be read out and then handed to the police either during the interview or after the interview prior to the client being charged.

Drafted by the solicitor. Should avoid risk of any adverse inferences being drawn at trial as long as it includes everything the client intends to later rely on. Should set out all the facts in the client’s own words.

Question 24

Steps investigating officer may do to further the investigation

Answer 24

• Carry out an audibly recorded interview
• Arrange for an identification procedure to be conducted with witnesses or victims to see if they can identify the suspect
• Take fingerprints from the suspect to see if these match fingerprints found at the crime scene or on relevant objects which the police have recovered
• Take samples from the suspect to see if these match any samples obtained during the course of the police investigation.

Question 25

Requirements of Code E

Answer 25

Interview will usually be recorded on 2-3 tapes or discs or as one digital recording. If recorded on tape/disc, the master tape/disc is sealed in the presence of the suspect at the end of the interview and not broken nor is the tape/disc opened until at trial if there is dispute over what was said. The prosecution use a working copy for the investigating officer to prepare a written summary or transcript of the interview.

Question 26

Should the suspect be interviewed at all?

Answer 26

Code C (para 11.18(b)) states a suspect who at the time of interview appears unable to appreciate the significance of questions or their answers, or understanding of what is happening because of the effect of drugs, drink, any illness, ailment or condition, should not generally be interviewed (there are exceptions).

Question 27

Can a suspect be interviewed before receiving legal advice?

Answer 27

General position is no, not until legal advice has been received (Code C para 6.6).

Question 28

Exceptions to the general position that you cannot interview a suspect before they have received legal advice

Answer 28

a. May be interviewed prior to receiving legal advice if superintendent has delayed access to legal advice under s58(8). b. If the solicitor the suspect has asked to speak to either cannot be contacted or has declined to attend, and then the suspect has then declined the opportunity to consult the duty solicitor. c. If a suspect asks for legal advice and changes their mind about this, the police may interview them provided: - an inspector or above speaks to them to enquire about reason they changed their mind and to ascertain the solicitor's ETA, and to inform solicitor about client's change of mind and reasoning - the reasoning for change of mind and outcome of efforts to contact solicitor recorded in custody record - suspect is told of these efforts and then confirms in writing they wish for the interview to proceed without a solicitor and does not want to wait for a solicitor, and signs an entry to this effect in the custody record - inspector or above is satisfied that it is proper for interview to continue in the circumstances and gives authority to proceed - when the interview starts, interviewer reminds them of their right to legal advice and the following is recorded: i. confirmation that the detainee changed their mind and reason given ii. the fact that authority to proceed has been given iii. that if the solicitor shows up, the detainee will be informed straight away and a break will be taken to allow them to speak to the solicitor if they wish or if they change their mind again. No adverse inferences may be drawn at trial from the suspect's silence in interview if the suspect had not at the time of interview been allowed access to legal advice.

Question 29

Start of the interview

Answer 29

Suspect cautioned with the same wording given at time of arrest - 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. After cautioning, must be reminded that they are entitled to free independent legal advice, even if solicitor present at the time. Interviewing officer must then put to the client any significant statements they have made in front of a police officer and ask them to confirm or deny them, or add to them. If not put to them at the start of the interview, may result in the contents being inadmissible at trial under s78 PACE 1984.

Question 30

Code C para 11.5 on oppression

Answer 30

No interviewer may try to obtain answers or elicit a statement by the use of oppression. Oppression may occur if they: - raise their voice or shout at the suspect - make threatening gestures towards the suspect - lean towards the suspect so they are in the suspect's face - stand over or behind the suspect - threaten to detain the suspect indefinitely unless they make a confession. Para 11.5 also states that no interviewer shall indicate what action will be taken by the police if the suspect answers questions, makes a statement or refuses to do either, except to answer a direct question.

Question 31

When must an interview cease?

Answer 31

When they consider all questions relevant to obtaining accurate and reliable information about the offence have been put to the suspect. Includes allowing them to provide an innocent explanation and asking questions to test its accuracy and reliability. Suspect must be given a continuous period of at least 8 hours rest in any period of 24 hours. Must be free from questioning or any other interruption in connection with the offence. Breaks from interviews should take place at recognised mealtimes and short refreshment breaks should be taken approximately at 2 hour intervals. Any admission made at interview may be ruled inadmissible if the conduct of an interview breaches any rules in Code C.

Question 32

What the solicitor needs to explain to the client about interview procedure

Answer 32

a. The interview will be audibly recorded and all parties asked to identify themselves at the start of each interview. b. Interview may be stopped at any time if client requires further legal advice. Client or solicitor can ask for this. c. Solicitor will be present throughout to protect client's interests and will intervene when necessary if solicitor believes line of questioning is inappropriate in any way or believes client would benefit from further legal advice in private. d. If advised to remain silent, to say no comment rather than actually stay silent. e. If advised to remain silent, should be advised that police may deploy tactics to get them to talk. In particular: - asking apparently innocuous questions that seem irrelevant - try to alienate the client from the solicitor by suggesting advice is incorrect - warn the client that certain adverse consequences may arise due to their silence. Client should be advised to ignore these tactics and stay silent. f. If advised to answer questions, should be advised to keep their cool. Likely to lose credibility if they act hostile or aggressive.

Question 33

Seating arrangements

Answer 33

Solicitor should ensure they sit beside their client. Must never allow the police to try to prevent them from being able to make eye contact with their client.

Question 34

Solicitor's role

Answer 34

Solicitor does not play a passive role in the interview. May be necessary for them to intervene to improper questioning or to give the client further advice. Para 6D states a solicitor must only be allowed to be excluded from interview if they are deemed to be engaging in unacceptable conduct (like answering on client's behalf or writing down answers for the client to read). Standard practice for solicitor to make an opening statement at the start about their role in the interview. They put the officers on notice that they intend to play an active role and may state the advice given to the client and if necessary the reasons for that advice. Para 6.9 states a solicitor will only be required to leave if their conduct is such that the interviewer is unable to properly put questions to the suspect. An officer of at least superintendent must be consulted before a solicitor is told to leave. In this scenario, a suspect must be given access to another solicitor if they wish.

Question 35

Conduct issues if the client admits guilt

Answer 35

Solicitor must advise the client that they cannot attend an interview to represent the client if the client intends to deny having committed the offence. Cannot be a party to the client giving information that the solicitor knows to be false since this would amount to misleading the court under para 1.4 Code of Conduct. Solicitor could attend if the client intends to give a no comment interview. If client insists on giving false information at interview, the solicitor should decline to act any further on the client's behalf. Standard to say they are withdrawing for professional reasons. Duty of confidentiality still stands. Solicitor should attempt to dissuade a client from lying in the interview if that is their intention.

Question 36

Conflict of interest

Answer 36

If the custody officer says there is a conflict of interest, solicitor should ask why that is and stress that that is a decision for the solicitor, not the police. Steps the solicitor should take: - once spoken to the investigating officer, speak to one of the suspects, if that suspect's account suggests a clear conflict of interest, the solicitor should decline to act for the second suspect and inform the police that the second suspect will need separate legal advice. - even if no obvious risk, should be alert to a potential conflict of interest arising later. Could occur if they both admit, but one uses the mitigation that they only played a minor role in the offence. - If a conflict of interest emerges only after seeing both suspects, appropriate course of action is for the solicitor to withdraw from the case completely. Only able to act for one if able to do so without putting their duty of confidentiality to the other at risk - unlikely to be the case as confidential information to one likely to assist the other's case.

Question 37

Can a solicitor disclose to one client information they have been given by another?

Answer 37

If they act for both, they cannot tell one client about what the other one disclosed to them unless: - solicitor has obtained the other's consent (preferably in writing) to disclose it - both clients are putting forward consistent instructions, and - the solicitor considers it in the clients' best interests for the information to be disclosed. Must consider their overriding duty not to mislead the court and the possibility that they are being used to pass information between the 2 suspects. If receives inconsistent stories from the 2 of them, must withdraw from the case.

Question 38

Disclosing their client's case to a third party

Answer 38

A solicitor acting for a co-accused may ask the solicitor for their client's defence - can only respond if they receive client's authority and consider it to be in the client's best interests. This is due to the duty of confidentiality. Rarely will be the case where they will be allowed to disclose.

Question 39

Solicitor's duty of disclosure to a client

Answer 39

Para 6.4 Code of Conduct. Requires a solicitor to make the client aware of all material information of which the solicitor has knowledge. Subject to exceptions such as where: - disclosure is prohibited by national security or the prevention of crime - client gives informed consent (in writing) to the information not being disclosed - you have reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed - the information is contained in a privileged document that has been mistakenly disclosed to you.

Question 40

Withdraw from acting

Answer 40

If needs to be done for professional reasons, solicitor needs to: - explain to the client why they are no longer able to represent them - tell the client they are entitled to free legal advice from another solicitor of their choice or the duty solicitor - tell the client, that their duty of confidentiality remains and therefore will not inform police why they are no longer acting - tell the custody officer that they are no longer able to act (for professional reasons) but not disclose the reason why.