Preliminaries to prosecution - Suspect's rights

Question 1

The rights of a detained person - intro

Answer 1

An arrested person taken to the station or someone attending voluntarily must be told about their continuing rights which may be exercised at any stage during the period in custody (custody officer must make sure).

Question 2

What are these continuing rights?

Answer 2

• the right to consult privately with a solicitor & that free independent elgal advice is available
• the right to have someone informed of their arrest
• the right to consult the codes of practice
• if needed … right to appropriate adult/interpreter

Question 3

Will these rights be recorded on the custody record?

Answer 3

Yes, the custody record will record these rights have been given & any responses by the suspect
(for example- name of solicitor or person to be notified).

Question 4

Can a suspect be delayed from exercising these rights?

Answer 4

Yes - PACE allows for police to delay in certain limited circumstances

Question 5

The Right to Consult a Solicitor.

Question 6

What is the fundamental right to a solicitor under S58?

Answer 6

Right to free & independent legal advice (includes consulting with solicitor in person, on phone, or in writing).

Question 7

The person being detained must be told again of the right to free legal advice immediately before:

Answer 7

• the commencement of an interview
• being asked to provide an intimate sample
• intimate drug search
• identification parade or video identification procedure

Question 8

Does the option of legal advice need to be noted on the custody record?

Answer 8

Yes, if legal advice is declined it should be noted on the custody record.
If legal advice is sought, it must be given ASAP.

Question 9

Should police wait for the solicitor to arrive before begining the interview?

Answer 9

Yes

Question 10

What if a detained person declines legal advice but then changes their mind?

Answer 10

The interview should cease & can recommence once the detainee has exercised their right to seek legal advice.
(nothing should be done to dissuade a suspect from obtaining legal advice)

Question 11

Power to delay the right.

Question 12

Why must the decision to delay the right be justified by the police?

Answer 12

Because it can have major implications for any evidence obtained against the suspect.

Question 13

What is the authority for delaying the right?

Answer 13

Can only be delayed in accordance with S57 & COP C Annex B.

Question 14

How long can this right be delayed upto?

Answer 14

max 36 hours.

Question 15

If the grounds to delay are authorised, should they be recorded?

Answer 15

Yes - they should be recorded & suspect must be informed.

Question 16

What if the suspect is interviewed before consulting with solicitor because the right is delayed?

Answer 16

There are restrictions on the drawing of adverse inferences at court.

Question 17

Criteria to delay the right under S58 & COP C Annex B.

Question 18

What type of offence must the person be in detention for?

Answer 18

Indictable.

Question 19

How must the authority to delay the exercise of the right be granted?

Answer 19

In writing, by a police officer of at least the rank of superintendent.

Question 20

What must the superintendent have reasonable grounds to believe?

Answer 20

That the exercise of the right will lead to any or all of the following:

• 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
• Hinder the recovery of property obtained in consequence of the commission of such an offence.

Question 21

What if a person has been detained for an indictable offence & has benefitted from their criminal conduct?

Answer 21

The right may be delayed.

for example - they’ve obtained property which they might take steps to conceal, such as moving the property outside the jurisdiction
- this is property that upon conviction might be confiscated by virtue of Proceeds of Crime Act 2002 (POCA).

Question 22

On what grounds can authority to delay be given?

Answer 22

If there are grounds to believe that the solicitor might pass on a message or act in some other way that would lead to consequences mentioned.

Question 23

The Right to Have Someone Informed of the Arrest.

Question 24

What is the right to have someone informed under S56?

Answer 24

An arrested person has the right to have a friend, relative or other person told that they’re under arrest (at public expense)

• this right can be exercised every time the suspect is taken to a different police station

Question 25

Power to delay the right. What is the authority for delaying this right?

Answer 25

If the necessary criteria are met - S56 PACE.

Question 26

Criteria to delay the right to have someone informed of arrest. What type of offence must the person be in detention for?

Answer 26

Indictable - an offence that may be tried in the crown court (ie. indictable only & either way offences)

Question 27

How must the authority to delay the exercise of the right be granted?

Answer 27

In writing, by a police officer of at least the rank of inspector.

Question 28

What must the inspector have reasonable grounds to believe?

Answer 28

That the exercise of the right will lead to any or all of the following: - 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 - Hinder the recovery of property obtained in consequence of the commission of such an offence (right may be delayed if person has benefitted from criminal conduct - POCA)

Question 29

Is it easier to justify delay under S56 or S58?

Answer 29

Section 56 - police may want to search property & not want anyone 'tipping off' so that evidence can be disposed before they get there.

Question 30

How long should delay/denial of these rights last?

Answer 30

No longer than necessary - should be proportionate. - can only be delayed up to 36 hours max - as soon as search has been conducted or others arrested, appointed person should be notified

Question 31

The Right to an Appropriate Adult (if required).

Question 32

When MUST an appropriate adult be present at the police station?

Answer 32

If a person is, or appears to be, under 18.

Question 33

Apart from this, who else does the right to an appropriate adult apply?

Answer 33

To anyone who 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.

Question 34

In the case of a young detainee (under 18), who can act as an appropriate adult?

Answer 34

- a parent or guardian 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. Failing these - anyone over 18 who isn't a police officer/employee will suffice.

Question 35

In the case of a detainee who is mentally disordered, or otherwise mentally vulnerable, who can act as an appropriate adult?

Answer 35

- a parent - a guardian - a relative - someone who has experience in dealing with such persons

Question 36

What are the requirements for an appropriate adult?

Answer 36

- must be 18 or over - must not be a police officer/employee

Question 37

Should a solicitor/legal representative attending the police station for the suspect act as an appropriate adult?

Answer 37

No.

Question 38

Who cannot act as an appropriate adult?

Answer 38

A person cannot act as an appropriate adult if they're: - 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 & unable to appreciate the gravity of the situation - an estranged parent whom an arrested juvenile doesn't wish to attend and specifically objects to

Question 39

What is the role of the appropriate adult?

Answer 39

- ensure the detained person understands what's happening and why - support, advise & assist the detained person - observe whether the police are acting properly & fairly and to intervene if they aren't - assist with communication between detained person & police - ensure the detained person understands their rights & that those rights are respected & protected

Question 40

Can an appropriate adult request a solicitor/legal representative on behalf of the person detained?

Answer 40

Yes, but the person detained doesn't have to see the solicitor if they don't want to.

Question 41

Can a young or mentally disordered or vulnerable detainee be interviewed or asked to provide a written statement without the presence of an appropriate adult?

Answer 41

Yes, but only if delay of the interview/statement 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 - hindering the recovery of property obtained in consequence of commission of the offence.

Question 42

The Right to an Interpreter - where required

Question 43

Who determines whether a suspect requires an interpreter?

Answer 43

Custody Officer

Question 44

If an interpreter is required, can the suspect be interviewed without one?

Answer 44

No, unless authorisation is given by an officer of at least 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.

Question 45

Treatment of suspects in a police station - which COP gives details on conditions of detention?

Answer 45

COP C 8

Question 46

What are these conditions?

Answer 46

- so far as is practicable, no more than one detainee should be detained in each cell - cells must be adequately heated, cleaned & ventilated - bedding must be supplied - toilet & washing facilities made available - if a detainee's clothes have been removed .. replacement clothing of a reasonable standard shall be provided - two light meals & one main meal every 24 hours