Preliminaries to Prosecution Flashcards by Matthew Harriott

Which enactment contains and underpins police powers?

Policing, Crime and Evidence Act 1984

Including the PACE codes of practice

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What happens if an officer fails to follow PACE codes?

Evidence gathered can be inadmissible at trial.

The fact of the failure can be used as evidence in civil and criminal actions against the officer

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What is the test for ‘reasonable suspicion’ under PACE?

Two part test:

1) Subjective test - the arresting officer must have the suspicion.

2) Objective test - the suspicion the office holds must be one a reasonable person would hold in possession of the same facts

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What does the reasonable suspicion need to be of? A specific crime, or a set of facts which amount to a crime?

A set of facts which amount to a crime (a specific offence does not have to be suspected)

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Does the reasonable suspicion have to rely solely on admissible evidence?

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When can an officer use reasonable force?

When exercising powers which can be exercised without the permission of another body/person

This includes:
- Stop and search
- Search in a police station
- Finger printing without consent
- Arrest

Defined by s.117 PACE

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If excessive force is used when arresting someone lawfully, does this render the arrest unlawful?

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When should handcuffs be used

When reasonably necessary to prevent the escape or to prevent a violent breach of the peace

Handcuffing without arresting can be unlawful detention

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What four factors will the court look at when deciding if an officer’s use of force was reasonable?

Nature and degree of force used
The gravity of the offence for which the arrest was made
The harm that would flow from the use of force
The possibility of the arrest preventing harm to others

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Who bears the burden of proof for excessive force?

Claimant/person arrested

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What is the test for an arrest without warrant?

Necessity

s.24 PACE

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Do the police have to arrest anyone?

No - discretionary power.

This is unless someone is at a police station having been arrested and it appears to the police that if released the person would be liable for arrest for another offence, they must arrest for that offence.

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Can the police arrest with no intention to charge?

No - even if grounded in reasonable suspicion, this would be unlawful

Arresting must be used for a proper purpose

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Is an arrest unlawful if it is not followed by a charge?

Not necessarily - it must be done for a proper purpose and with reasonable suspicion, but does not have to be followed by a charge.

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Who bears the burden of proof for lawful arrest?

Police

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What is the procedure after someone is arrested?

They should be taken to a designated police station as soon as possible.

If they are taken elsewhere to help with investigations this must be recorded

They are then either;
Released if no cause to keep them
Bailed
Remanded in custody

If bailed, can be bailed before being taken to the station, but this must be approved by custody officer

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What should happen during (or as soon as possible after) the arrest?

Caution
Communication of fact and ground of arrest
Communication of why the arrest was believed necessary

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What is a breach of the peace?

Whenever harm is done or is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, affray, unlawful assembly or other disturbance

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Who can issue an arrest warrant?

Both Mags and Crown Court.

The Mags can do it if - - the offence is indictable or
- punishable by imprisonment or,
- if the offenders address is not sufficiently known to issue a summons or
- If the offender has failed to answer a summons

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What is the difference between police custody and police detention?

Detention = after arrest and before charge
Custody = after charge

Who technically has the power to detain someone?

The custody officer.
Must open a custody record and comply with PACE codes

What is the right to notification?

Everyone’s right for a friend, relative or other person to be told of their arrest and place of detention.

Must be done as soon as is practicable.

Custody office must tell someone of this right and ask if they wish to exercise it

What is the right to representation?

The right to consult a solicitor.

The person must be told of this right when:

brought to station
before detention is reviewed or extended
after formal charging
shown any statement or content of an interview
re-interviewed
providing a sample
drug search/x-ray/ultrasound
interviewed after charge
ID parade

What is the maximum time someone can be detained?

Normally 24 hours from relevant time (usually when they arrive at police station)

Can be extended to 36 hours if an indictable offence (but can only be done by someone with a rank of superintendent and above)

Can be extended to 96 hours by the mags for an indictable offence

If arrested and then moved to hospital, what is the effect on detention timelimits?

Time spent travelling to and from, and time spent in hospital does not count. Exception is if questioned there.

What should be in place for a vulnerable person who has been arrested?

An appropriate adult. Normally a parent Can be social worker in cases where parents are not appropriate through estrangement, care or incapacity.

What is an interview for the purposes of PACE?

Any activity which involves questioning someone about their involvement in a crime

When must a caution be given before an interview?

If there is reasonable suspicion If there is simply suspicion, there is no need. No need to caution if the interview is to: - Establish the identity or ownership of a vehicle - Obtain information under a statutory procedure - Further the effective conduct of a search - verify the written record of an interview

Where is an interview normally carried out?

Police Station

When can an interview be carried out elsewhere?

Where the delay caused by waiting to get to the police station would - Interfere with evidence - Interfere with or harm others - Lead to serious loss or damage to property - Lead to the alerting of persons not yet arrested - Hinder the recovery of property obtained in consequence of the commission of an offence

Can interviews be conducted by live link?

Yes

Can a child be interviewed at their school?

Not unless the principal gives consent

Along with a caution, what else must be given before an interview?

Enough information for the accused and the solicitor to understand the nature of the suspicion Does not require the disclosure of details which would prejudice the investigation

When is a special warning given before interview?

When the suspect is asked to account for: Any object, mark, or substance, or mark on an object, which was found on them, their clothes or footwear or where the arrest too place their presence in the place the offence took place

After caution at the beginning of the interview, what must the interviewing officer put to the interviewee?

Any significant statement or silence that happened in the presence or hearing of the officer or staff

What is a significant statement or silence for the purposes of an interview?

One which appears capable of being used in evidence, and in particular an admission of guilt A significant silence is one which is capable of giving rise to an inference

Can the police mislead a suspect?

No - have a positive duty not to mislead the suspect

When should an interview end?

When the interviewing officer is satisfied that there is sufficient evidence Or there are no further questions that should reasonably be put to the suspect

What happens if someone cannot understand the significance of the questions asked (through capacity or drug/alcohol use)?

Should not be interviewed unless permission given by superintendent or above

Which types of offences are not overseen by the CPS?

Low value shoplifting Criminal damage less than £5000 Traffic offences Public order offence

What are the ways in which a prosecution can be started?

Arrested, charged Arrested, police bail, return to police, charge Arrested, police bail, written charge and requisition Written charge and requisition (no arrest)

What is a written charge and requisition?

Produced by CPS (or other relevant prosecutor) to charge someone who has not been arrested, or who is on police bail. Must be served on person and court.

How can someone be charged if not done by a prosecutor?

Laying information - apply to the magistrates

How can someone be summoned?

Prosecutor must apply to the mags Must establish the allegation, time limit for prosecution and must demonstrate that the application is in time

When must the mags receive the application for summons for a summary offence?

Within 6 month of the offence

When must the mags receive the application for summons for an indictable only or E/W offence?

No time limit, unless specified by statute

Must the fact and reason for an arrest be given by the arresting officer?

No - it can be given by a colleague