Preliminaries to Prosecution Flashcards

(46 cards)

1
Q

What are the grounds for arrest without a warrant ?

A
  • About to commit an offence
  • In the act of committing an offence
  • Reasonable grounds to suspect about to commit / committing
  • Offence has been committed and:

person is guilty or

there are reasonable grounds to suspect guilt

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2
Q

What are the necessity conditions for arrest?

A
  • To ascertain name or address
  • To prevent injury, damage, obstruction or offence
  • To protect vulnerable people
  • To allow prompt/effective investigation
  • To prevent disappearance
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3
Q

What makes an arrest lawful in procedural terms?

A
  • Inform the person they are under arrest
  • State the grounds for arrest
  • Caution them as soon as practicable
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4
Q

What are the caution words?

A

“You do not have to say anything…” etc.

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5
Q

When is arrest with a warrant available?

A
  • On information under oath
  • For indictable or imprisonable offences or where address is uncertain
  • Bench warrants can be backed/not backed for bail
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6
Q

Can force be used during arrest?

A
  • Yes, if reasonable
  • Force must be proportionate and necessary
  • Serious injury does not automatically make force unreasonable
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7
Q

What happens after arrest?

A
  • D taken to police station ‘as soon as practicable’
  • Custody officer authorises detention
  • Custody record opened
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8
Q

What is the custody officer’s role?

A
  • Must be a sergeant or above
  • Must not be involved in investigation
  • Authorises detention, reviews necessity
  • Records all details in custody record
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9
Q

What are the detention time limits under PACE?

A

Normal maximum: 24 hours

Extend to 36 hours– by superintendent, indictable offence

Extend to 96 hours – by magistrates’ court

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10
Q

What are the review intervals?

A
  • First review: within 6 hours of authorisation
  • Then every 9 hours
  • Done by an inspector or above
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11
Q

What are a detainee’s key rights under PACE?

A
  • Consult a solicitor
  • Have someone informed of arrest
  • Consult the Codes of Practice
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12
Q

When can access to a solicitor be delayed?

A
  • Indictable offence
  • Superintendent authorises delay in writing
  • Must believe legal advice will risk:

Harm to evidence

Harm to others

Alert other suspects

Hinder recovery of property

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13
Q

When can right to inform someone of arrest be delayed?

A
  • Indictable offence
  • Inspector authorises delay
  • Same risk conditions as above
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14
Q

Who is entitled to an appropriate adult?

A
  • Anyone under 18
  • Anyone suspected to be mentally disordered or vulnerable
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15
Q

What is the role of an appropriate adult?

A
  • Ensure understanding of process
  • Support and assist detainee
  • Observe and intervene if necessary
  • Facilitate communication
  • Protect suspect’s rights
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16
Q

What is the definition of an interview?

A

Questioning a person about their involvement or suspected involvement in an offence

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17
Q

What are key requirements for a lawful interview?

A
  • Must be under caution
  • Recorded contemporaneously
  • Must give sufficient pre-interview disclosure
  • Must avoid inappropriate questioning
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18
Q

What are ‘significant statements’ and when must they be disclosed?

A
  • Direct admissions of guilt
  • Must be put to the suspect at the start of the interview
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19
Q

Can interviews proceed if the suspect is unfit?

A

Only with Superintendent’s authority

20
Q

When can confession evidence be excluded?

A
  • Oppression: threat, violence, inhuman treatment
  • Unreliability: something said/done making the confession unreliable
21
Q

When can evidence be excluded?

A
  • If admitting it would have an adverse effect on the fairness of proceedings
  • Can apply to any prosecution evidence
22
Q

What is the solicitor’s role at the police station?

A

The solicitor’s only role at the police station is to protect and advance the legal rights of their client. This may include giving advice that has the effect of the client avoiding giving evidence that would strengthen the prosecution’s case. The solicitor may intervene to:

  • Seek clarification
  • Challenge improper questions or their manner
  • Advise the client not to reply to particular questions
  • Give further legal advice
23
Q

What does the concept of “active defence” entail for solicitors at the police station?

A

Active defence means the solicitor should actively defend and promote the client’s interests by:

  • Obtaining as much information from the police as possible
  • Fully advising the client in accordance with professional obligations
  • Advising on investigation issues (e.g. samples, detention extensions, searches, bail)
  • Attending and advising during interview

A solicitor must not adopt a passive role or simply sit and take notes.

24
Q

Why is it essential for a solicitor to take contemporaneous notes at the police station?

A
  • Notes may be needed as evidence at trial concerning disclosure, police conduct or advice given
  • They add credibility if the solicitor must testify
  • Taking accurate notes is a vital part of police station practice despite being difficult in real time
25
How should a solicitor adapt their role when representing a vulnerable suspect?
- Be especially aware of responsibilities - Ensure an appropriate adult is appointed - Confirm the custody officer has requested a medical assessment where necessary - Take time to gather the client’s account and clearly advise them - Ensure the client understands the solicitor’s role, what’s happening, and what to expect in interview
26
Who is generally not considered a ‘vulnerable’ suspect?
A person under the influence of drink or drugs is not generally treated as vulnerable.
27
Who qualifies as ‘vulnerable’?
A person is vulnerable if, due to a mental health condition or disorder, they: - May have difficulty understanding or communicating effectively about the implications of arrest, detention, or voluntary attendance - Do not appear to understand what they are told or asked - Are prone to confusion, giving unreliable or incriminating answers unknowingly, or accepting suggestions without protest
28
What must the custody officer do when a suspect is identified as vulnerable?
- Provide access to an appropriate adult - Inform the adult of the detention grounds and location - Ensure the adult attends the police station as soon as possible
29
What does COP C Annex E say about a police officer who suspects vulnerability?
- The suspect must be treated as vulnerable unless there is clear evidence to the contrary - The officer must make reasonable enquiries to confirm the person’s status and record relevant information (e.g. behaviour, mental health, professional reports)
30
What is the role of the appropriate adult when a suspect is vulnerable?
- Ensure the suspect understands what is happening and why - Support, advise and assist the suspect - Observe police conduct and intervene if needed - Help communication between suspect and police - Ensure the suspect understands their rights and that those rights are respected
31
Who cannot act as an appropriate adult for a vulnerable suspect?
- A solicitor attending for the suspect - Anyone under 18 - A police officer or employee - A person suspected of the offence, the victim, or a witness - A person involved in the investigation or who received prior admissions - A person with low IQ who can't grasp the situation - An estranged parent objected to by the youth
32
Who can act as an appropriate adult for a vulnerable suspect?
- A parent, guardian or relative - Someone with experience dealing with vulnerable persons - They must be at least 18 years old
33
When can a vulnerable person be interviewed without an appropriate adult?
Only in urgent circumstances where a superintendent (or above) is satisfied that delay would result in: - Interference with or harm to evidence - Harm to others - Serious property damage or loss - Alerting other suspects - Hindering recovery of evidence The interview must stop once the immediate risk has been addressed, and the reasons for the decision must be recorded
34
What interview safeguards should a solicitor ensure for a vulnerable client?
- Confirm an appropriate adult is appointed - Request a medical assessment if appropriate - Explain their role clearly to the client - Take time to advise the client properly - Ensure the client understands the interview process and implications of ‘no comment’ - In interview: request breaks, monitor officer conduct and language
35
What are the three options available to a suspect in a police interview?
- Answer questions - Remain silent (‘go no comment’) - Hand in a prepared written statement and go no comment
36
What is the consequence of remaining silent in a police interview?
A suspect has the right to silence, but adverse inferences may later be drawn at trial if: - They fail to mention something now which is later relied on in defence (s.34 CJPOA 1994) - They fail to account for a mark/object/substance (s.36) - They fail to explain their presence at the scene (s.37)
37
What is the purpose of handing in a prepared written statement in interview?
To present the defence without engaging in questioning, aiming to avoid adverse inferences. ⚠️ However: - It does not guarantee protection from inferences - It is difficult to ensure all facts are included - It is not a “best of both worlds” approach
38
Why should 'mixed interviews' (answering some questions but not others) be avoided?
- The interview transcript will be read in court - It looks inconsistent or evasive to a jury - Police may use tactics to elicit more answers - The suspect may become confused Advisors should strongly discourage this approach.
39
What factors must be considered when advising whether a client should answer questions?
- Amount of disclosure - Admissibility and strength of the evidence - The client’s account and instructions - The client’s condition (e.g. mental health, sobriety) - Whether any significant statements were made - Potential adverse inferences
40
What is the significance of the client's physical or mental condition when advising on interview strategy?
Under Argent principles, adverse inferences should not be drawn where silence results from: - Mental illness - Intoxication - Confusion - Shock The solicitor should check the custody record and any FME certification of fitness to interview.
41
What is a ‘significant statement’ and how is it handled in interview?
A statement made by the suspect, capable of being used in evidence against them. The interviewing officer must put it to the suspect at the start of the interview, and ask them to confirm or deny it.
42
What does section 34 CJPOA allow the court to do if the defendant failed to mention something in interview?
Draw an inference if: - A fact later relied upon at trial - Was not mentioned in interview - And it would have been reasonable to mention it at the time But the suspect must have been cautioned using the standard PACE wording.
43
What are the conditions for drawing an inference under s.34?
- The fact was later relied upon at trial - It was reasonable to mention at interview - The defendant had been properly cautioned - The suspect had access to legal advice Guidance from R v Argent and the Law Society clarifies that reasonableness depends on: - Disclosure given - Suspect’s knowledge - Suspect’s condition - Legal advice received
44
What are the other adverse inference provisions?
- s.36: Failure to account for a mark, object, or substance - s.37: Failure to account for presence at a place - s.38: Safeguard – no conviction based solely on adverse inference Both s.36 and s.37 require a special warning to be given.
45
What are the requirements of a ‘special warning’ for s.36 and s.37?
The suspect must be told: - The offence being investigated - The fact they are being asked to account for - That it may indicate involvement - That a court may draw an inference - That a record is being made of the interview
46
When is an adverse inference irrelevant to case outcome?
- If the case never reaches trial - If the suspect pleads guilty Adverse inferences only matter at trial, and cannot be the sole basis for conviction