Preliminaries to Prosecution Flashcards
When will the first review of a suspect’s detention take place and who by?
The review officer must be an officer of at least the rank of inspector who is not connected with the investigation of the offence and is not the custody officer.
S40 PACE states that the first review of the suspect’s detention will take place not more than six hours after the detention was first authorised and then periodically every nine hours thereafter.
What is the maximum period a suspect can be kept in custody before being charged and when does the relevant time begin?
Under S41 PACE, the maximum period that a suspect can be kept in custody before being charged is 24 hours from the relevant time.
The relevant time begins at the moment the suspect arrives at the police station and is indicated on the custody record.
Can the detention time limit be extended for summary-only offences?
No, this is not possible.
Can the detention time limit be extended for indictable only offences and who by?
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 (S42 PACE).
What is the maximum period of detention without charge?
The maximum period of detention without charge can be extended by the magistrates’ court up to a maximum of 96 hours from the relevant time under ss.43 and 44 PACE.
What conditions must be satisfied for detention to be extended?
-an officer of at least the rank of superintendent must authorise the continued detention;
-the superintendent or above has reasonable grounds for believing detention is necessary to secure or preserve evidence or obtain evidence by questioning;
-the offence must be an indictable offence; &
-the investigation must be being conducted diligently & expeditious
What rights must a custody officer tell the detainee that they have?
-the right to consult privately with a solicitor and the availability of free independent legal advice;
-the right to have someone informed of their arrest; and
-the right to consult the Codes of Practice (COP)
How long can the right to consult a solicitor and the right to have someone informed of the arrest be delayed for?
A maximum of 36 hours.
What is the criteria to delay the right to consult a solicitor?
The criteria to delay the right is as follows:
-the person must be in detention for an indictable offence; and
-the authority to delay is granted by a superintendent rank at least
-the superintendent has reasonable grounds to believe that exercise of the right will:
-interfere with/harm evidence connected with the offence
-alert others suspected of committing an offence
-hinder the recovery of property obtained in consequence of the commission of such an offence
What is the criteria to delay the right to have someone informed of the arrest?
This right can only be delayed if the necessary criteria is met:
-the person must be in detention for an indictable offence
-the authority to delay is granted by an inspector rank at least
-the inspector must have reasonable grounds to believe that the exercise of the right will:
-interfere with/harm evidence connected with the offence
-alert others suspected of committing an offence
-hinder the recovery of property obtained in consequence of the commission of such an offence
When is an appropriate adult required and what is their role?
If a person is or appears to be under 18, they must have an appropriate adult present at the police station. This also applies to the mentally disordered and vulnerable.
The role of the appropriate adult is to ensure that the detained person understands what is happening and why and to support, advise and assist the detained person.
When can a person not act as the appropriate adult?
A solicitor/legal representative cannot act as the appropriate adult. A person cannot act as the appropriate adult if they are:
a) suspected of involvement in the offence
b) the victim of or a witness to the offence
c) involved in the investigation
d) of low IQ and unable to appreciate the gravity of the situation
e) estranged parent
f) a person who has received admissions from the person detained
What is an interview defined as?
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”.
What is the caution and when must it be used?
Interviews must be carried out under caution therefore a person must be cautioned before they are interviewed and once again after every break.
“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”.
What is the purpose of an interview and when should a solicitor intervene?
The purpose is to gather evidence. The solicitor should intervene if:
-undisclosed evidence is referred to
-clarification is required
-inappropriate questioning
-further client consultation is needed
-a break is required
What is the role of the solicitor at a police station?
The solicitor’s only role is to protect and advance the legal rights of their client. This may include:
-advising the client on an appropriate interview strategy
-intervening in the interview
-advising the client not to reply to particular questions
What are the three options in the police interview for the client?
-Answer questions
-Don’t answer questions (no comment)
-Provide a written statement and go ‘no comment’
When should solicitors advise their client to remain silent?
In cases of little police disclosure and weak evidence.
When should solicitors advise their client to answer questions?
Putting a defence forward at an early stage is a good option if there is an alibi or self-defence.
Waiting to trial to put forward a defence can lead to adverse inferences and loss of credibility.
What is an adverse inference and what is its effect?
A common sense conclusion that is adverse to the interests of a party in proceedings.
When can an adverse inferences be drawn under S34 Criminal Justice and Public Order Act 1994?
When the D later relies on a fact in their defence that was not offered at the time of questioning.
Any inference that is drawn must be ‘proper’ and it must have been reasonable to have mentioned the fact at the time, bearing in mind the circumstances existing at the time.
When can adverse inferences be drawn under S36 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. This might include a failure to account for bruising or a hammer in the suspect’s rucksack.
When can adverse inferences be drawn under S37 Criminal Justice and Public Order Act 1994?
When the suspect fails to account for their presence on arrest at a particular place. This might include failing to explain why they were found on a burglary victim’s driveway.
Can a D be convicted solely based on an adverse inference?
No, S38 Criminal Justice and Public Order Act 1994 states that no D may be convicted solely based on an adverse inference.
