Please enable JavaScript.
Coggle requires JavaScript to display documents.
PRELIMINARIES TO PROSECUTION - Coggle Diagram
PRELIMINARIES TO PROSECUTION
POWERS OF DETENTION
Police and Criminal Evidence Act (PACE) 1984: detention without charge
A police officer will have to be able to demonstrate:
- legal authority to exercise the power
- the police officer has exercised the power lawfully
P: Identify the power
A: What is the legal authority granting the power?
C: What criteria need to be met and are they met on the facts?
E: How should the power be exercised and has it been exercised correctly on the facts?
Action following arrest
Person
arrested must be taken to a police station as soon as practicable UNLESS they are
:
- being searched
- being taken to premises being searched
- being taken to a place to check their alibi
IF they will be
detained for more than 6 hours = person must be taken to a designated police station
HOWEVER street bail can be granted > to attend a police station at a later date
Police station procedure
1. Detainee will see custody officer who must authorise continued detention
2. Detainee will be informed of their rights + have certain non-intimate samples taken
3. Detainee may see appropriate healthcare professional if necessary
4. If detainee requests, they will speak to a solicitor
5. Detainee may be interviewed, often with their solicitor present
After interview, detainee may be:
released under investigation or on police bail / charged + released on police bail to appear at the magistrates’ court at a later date / charged + remanded in police custody to appear at the magistrates’ court following day
Police rankings
Constable
Sergeant
Inspector
Chief Inspector
Superintendent
Chief Superintendent
The investigating officer
can be a
police officer of any rank
is usually
officer in charge of investigating particular offence ‘Officer In the Case’
is officer
suspect's legal representative would speak to at police station to obtain pre-interview disclosure
will most
likely lead the interview
The role of the custody officer
- Responsible for handling + welfare of suspects in detention
Must be of the rank of at least
sergeant
Must be
unrelated
to the process of the investigation
Procedure
followed by them is governed by PACE and Code of Practice C
Will open a custody record as soon as practicable for each detainee + determine whether there is sufficient evidence to proceed to charge the detainee
IF NO =
released unless there are reasonable grounds for believing that detention is necessary to: secure or preserve evidence / obtain such evidence by questioning
IF YES =
authorise detention / inform detainee of reason for their arrest / their detention / their rights
Reviews of detention
1st review will take place not more
than 6 hours after suspect's detention was authorised by custody officer + every 9 hours thereafter
Review officer must be
officer of at least rank of inspector + not connected with investigation
Detention time limits
Suspect can be kept in
custody, before being charged for MAX 24 hours from ‘relevant time’
Relevant time
= moment
suspect arrives at the police station + indicated on the custody record
Before 24 hour limit has expired > must be charged / released.
Power to extend beyond 24 hours
Detention can be extended for a further 12 hours
, (MAX = 36 hours) IF:
- officer of at least rank of superintendent authorises it
- superintendent or above has reasonable grounds to believe detention is necessary to secure / preserve / obtain evidence by questioning
- offence is indictable offence
- investigation is conducted diligently + expeditiously
Authorisation to
extend must be given before expiry of initial 24 hours + after 2nd review + grounds for extension must be explained to suspect / custody record + suspect and/or solicitor allowed to make representations
Power to detain beyond 36 hours
Detention can be
extended further by applying to magistrates’ court for a warrant of further detention
Warrant
may authorise continued detention for a further 36 hours on 1st application + 36 hours (MAX = 96 hours) on 2nd application
Same criteria as above
SUSPECT’S RIGHTS
1. The right to consult a solicitor
- Right to free + independent legal advice in person / on telephone / in writing
The person detained must be told again of it immediately before:
- commencement or recommencement of an interview
- being asked to provide an intimate sample;
- intimate drug search
- identification parade or video identification procedure
Power to delay the right
Person must be
detained for indictable offence
authority to delay
granted in writing by police officer of at least rank of superintendent
superintendent must have
reasonable grounds to believe exercise of right will lead to any / all of:
- interference with/harm to evidence connected with indictable offence
- interference with/harm to others
- alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or
- hinder recovery of property obtained in consequence of the commission of such an offence
ONLY delayed up to a maximum of 36 hours
If delayed
suspect must be informed
IF suspect interviewed
before consulting with a solicitor > restrictions on adverse inferences at court
2. The right to have someone informed of the arrest
To have one person known informed of their whereabouts as soon as practicable, at public expense.
Can be exercised
every time suspect is taken to different police station.
Power to delay the right
Person
must be detained for indictable offence
Authority to
delay granted in writing by police officer of at least rank of inspector
Inspector
must have reasonable grounds to believe exercise of right will lead to any / all of
:
- interference with/harm to evidence connected with indictable offence
- interference with/harm to others
- alerting of other people suspected of committing an indictable offence but not yet arrested for it; and /or
- hinder recovery of property obtained in consequence of the commission of such an offence
ONLY delayed up to a maximum of 36 hours
Should be
proportionate and last no longer than necessary
3. The right to an appropriate adult (where required)
Applies to:
- Person under 18
- mentally disordered / mentally vulnerable
- anyone whom officer has been told in good faith may be mentally disordered / mentally vulnerable
Appropriate adult for
child
can be:
parent
guardian
representative of care authority / voluntary organisation
social worker
IF none of above >
any person aged 18 or over who is not a police officer or police employee
Appropriate adult for
mentally disordered
can be:
parent
guardian
relative
someone who has
experience in dealing with such persons
IF none of above > any
person aged 18 or over who is not a police officer or police employee
Appropriate adult
CANNOT
be:
- solicitor/ legal representative attending the police station
- suspected of involvement in offence
- victim of, or a witness to, offence
- involved in investigation
- person who has received admissions from person detained before acting as appropriate adult
of
low IQ
- estranged parent that juvenile specifically objects to.
The role of the appropriate adult
- Ensure detained person understands what is happening + why
support, advise and assist
observe
whether the police are acting properly and fairly
ensure that the
detained person understands their rights
request a
solicitor/ legal representative
Proceeding without an appropriate adult
A young / mentally disordered detainee should not be interviewed without appropriate adult unless delay would be likely to lead to:
- interference with / harm to evidence connected with an offence
- interference with / physical harm to other people
- serious loss of / damage to property
- alerting other suspects not yet arrested
- hindering the recovery of property obtained in consequence of commission of the offence
4. The right to an interpreter (where required)
IF custody officer determines that suspect requires interpreter, they must not be interviewed without one unless authorisation is given by an officer of rank of superintendent or above satisfied that delaying interview will lead to:
- interference with / harm to, evidence
- interference with / physical harm to other people
- serious loss / damage to, property
INTERVIEWS
Caution = must be carried out under caution > person must be cautioned before they are asked questions + cautioned again at recommencement
IF officer has arrested them, they should be interviewed at police station / authorised place of detention UNLESS delay would lead to:
- interference with / harm to evidence connected with an offence
- interference with / physical harm to other people
- serious loss of / damage to property
- alerting other suspects not yet arrested
- hindering the recovery of property obtained in consequence of commission of the offence
Disclosure to solicitor
There is
no general 'right to disclosure' with the exception of:
significant statement
(appears capable of being used in evidence + any direct admission of guilt )
AND custody record
HOWEVER
solicitor must be given sufficient information to understand nature of any offence
Recording
All
interviews must be contemporaneously recorded + ones under caution for indictable offence must be audio recorded
UNLESS - will be recorded in writing if:
- it relates to some minor offences
- person has not been arrested AND
- takes place other than at a police station
Fitness for interview
no person should be interviewed if they are unable to:
- appreciate significance of questions asked and their answers OR
- understand what is happening because of drink, drugs or any illness, ailment or condition
Procedure
Before the interview
The solicitor should:
- Obtain pre-interview disclosure AND
- Have private consultation with their client to: Discuss + Advise
The interview
Takes place in an interview room + recorded + in the presence of a lawyer + client has option to suspend interview and have further consultations with solicitor
Inappropriate questioning:
Misrepresenting
information
Hypothetical
questions
Repetitive
questioning
Disruptive
listening
ROLE OF THE SOLICITOR
Actively defend + promote client’s interests
Obtaining as
much information from the police as is possible
Advising
your client fully
Advising on
issues which arise during the police investigation
Attending and advising during the
interview
CANNOT obstruct questions being asked
Vulnerable client
Anyone who because of a mental health condition or mental disorder:
- may have difficulty understanding: arrest and detention / voluntary attendance at a police station; / exercise of their rights and entitlements
- does not appear to understand significance
- becoming confused and unclear
- providing unreliable, misleading, or incriminating information
- accepting suggestions from others without consciously knowing
Vulnerable clients are
identified by custody officer at beginning of the suspect’s detention + provided with access to an appropriate adult
Representing vulnerable clients
Ensure that:
- appropriate adult has been appointed + custody officer has requested a medical assessment where appropriate
Advising the client
Consultation with client should be private and confidential
Lawyer should be: supportive / provide advice / Assess the client’s fitness / explain options client has in interview / advise of the consequences of those options
Options in the interview
1. Answer questions
2. Don’t answer questions (‘go no comment’) > if silent court can draw adverse inferences
3. Provide a written statement and ‘go no comment’
Statement handed
at beginning of interview setting out defence
Used where
there are facts later relied on at trial but lawyer thinks that there are reasons why client should not answer questions BUT inference can be draw
NOT SUITABLE to do mixed interview = stating ‘no comment’ to some questions and answering others
Factors to consider when advising client to answer questions
Amount of disclosure
= prior to interview solicitor given sufficient information to understand nature of offence + their client is suspected of committing it (less disclosure = better to not answer)
Admissibility of evidence
Strength of evidence
= if there is little evidence to suggest client is involved = unlikely to go to trial
Your client’s account/ instructions
= if client has defence risks of not putting it forward > adverse inferences + losing credibility
The state of your client
= would be able to handle the interview
Significant statements
= one capable of being used in evidence against the suspect
Adverse inferences
INFERENCES
Adverse inferences can be drawn if if a suspect exercises their right to silence at interview
Section 34 Criminal Justice and Public Order Act 1994
Allows inference to be drawn by
jury / magistrates if defendant later relies on a fact in their defence that was not offered at the time of questioning
A court does
not have to draw inference but, if it does, must be ‘proper - can range
:
acceptance that defence in court is true but defendant chose not to reveal it in their interview TO defendant’s account in court is untrue + are guilty
CANNOT be drawn is suspect is not cautioned
Reasonable to have mentioned
It must have been
reasonable to have mentioned fact at the time, bearing in mind the circumstances existing at the time
Effect of an adverse inference = undermines their defence
Sections 36 & 37 Criminal Justice and Public Order Act 1994
Section 36
Allows inference to be drawn if suspect fails to account for an object, substance or mark found on them at time of arrest
Section 37
Allows inference to be drawn if suspect fails to account for their presence on arrest at particular place at / about time offence was allegedly committed
Inferences under sections 36 & 37 arise as soon as there is a failure by defendant to account for their possession of object in question or presence
They require defendant to be given special warning stating:
- what offence is being investigated
- what fact they are being asked to account for;
- this fact may be due to them taking part in the commission
- court may draw a proper inference if they fail or refuse to account
- record is being made of the interview and it may be given in evidence
Section 38 Criminal Justice and Public Order Act 1994
Safeguard
=
no defendant may be convicted solely based on an adverse inference + no adverse inference can be drawn where suspect has not been allowed access to legal advice
No trial – no inferences
- Adverse inference under any section ONLY relevant if defendant has a trial
VISUAL IDENTIFICATION - INVESTIGATIVE STAGE
IF identification is disputed, prosecution can establish defendant committed the crime by:
DNA evidence
telephone evidence
fingerprint evidence
testimony from witnesses
Visual identification from an eye-witness
Eye-witness
might recognise the suspect as someone they have seen before OR may never have seen the suspect before the crime was committed but were able to give police a description
Visual identification evidence NOT include:
Mere description
of clothing/vehicle
suspect has a
connection
to a particular place or others at the scene
description
of the suspect
Governed by:
1. Investigation stage: Police and Criminal Evidence Act 1984 (PACE) Code of Practice D states:
Identification procedure shall be held (unless an exception exists) where:
offence has been witnessed + eye-witness has identified a suspect or purported to have identified them / is available who expresses an ability to identify the suspect / has a reasonable chance of being able to identify the suspect AND suspect disputes being the person the eye-witness claims to have seen
If the suspect’s identity is known to police + are available > 3 identification procedures available:
arrangements responsibility of
officer not below inspector rank + not involved with investigation
NO need to be held if not
practicable / no useful purpose in proving suspect was involved
Before confrontation **takes place, eye-witness must be told person they saw on specified earlier occasion may / not be the
person they are to confront + if they are not > witness should say so**
Held in
police station
IF BREACHED
- Remedy for defendant is to apply to exclude evidence under s 78 PACE 1984.
BUT breach does not
automatically lead to exclusion of the evidence > key issue for trial judge is whether there has been any significant prejudice to the accused
2. Trial: Turnbull guidelines
1. Video identification
Eye-witness shown moving images of known suspect, together with similar images of others who resemble the suspect
First instance suspect is invited to participate in a video identification procedure unless:
- not practicable OR identification parade is more suitable
- If suspect refuses, an alternative can be considered BUT can proceed without consent
Formalities
- Record made of description of suspect given by eye-witness + copy of record given to suspect before any identification procedures
- Notice given to suspect explaining: purpose / entitlement to free legal / procedures for holding it / do not have to consent to or co-operate / if they do not consent to > refusal may be given in evidence
Procedure
Form = VIPER
(Video Identification Parade Electronic Recording)
Officers
film the suspect + identification officer + suspect + legal representative select lookalikes from over 10,000 video clips on the VIPER system
Video clip
produced with suspect placed amongst at least 8 other individuals resembling them
If the suspect has an
unusual physical feature: conceal / replicate on other people
Suspect, solicitor, friend / appropriate adult given
opportunity to see complete set of images before shown to eye-witness
If suspect has
reasonable objection > state reasons
Video clip shown to
witnesses + suspect’s solicitor may be present at procedure on request + with prior agreement of identification officer
video identification procedure
recorded on video with sound showing all persons present within the sight or hearing of the eye-witness / what eye-witness says / what is said to eye-witness by identification officer
Eye-witnesses
cannot communicate with each other
2. Identification parades
Eye-witness sees the suspect in a line of others who resemble the suspect
Formalities
May take place either: in a
normal room OR one with a screen permitting witnesses to see members of the identification parade without being seen
Video recording / colour photograph must be taken of identification parade + supplied, on request, to suspect / their solicitor
suspect given
opportunity to have solicitor / friend present
Procedure
- Consist of at least eight people resembling defendant
If the suspect has an
unusual physical feature: conceal
Suspect may
select their own position in the line
Witnesses must not be
able to communicate / overhear a witness who has already seen / see any member of the identification / see suspect before or after the identification
3. Group identification
Eye-witness sees the suspect in an informal group of people
Formalities
May take place either: with the
suspect’s consent and co-operation OR covertly without their consent
Video / colour photograph must be taken of general scene
Procedure
Location
where other people are passing / waiting around so suspect can join + be seen by witness
Witnesses must
not be able to communicate
FUNDING
All suspects are entitled to free legal advice at police station regardless of their means
At court > if not paying privately, cost of defence may be covered by public funding through the Legal Aid Agency
Public funding = To obtain it > both means and merits test must be passed
1. The means test
Some defendants are ‘
passported’ > automatically pass means test + not have to complete Financial Statement for Legal Aid in Criminal Proceedings (CRM 15) form
: if under
18 years of age and/or those on specified welfare benefits such as Universal Credit and income-based jobseeker’s allowance
Procedure - magistrates’ court
1. Initial assessment works out their weighted gross annual income (generally added to any partner’s UNLESS partner id complainant / prosecution witness / co-defendant in conflict with applicant
2. Once this figure is calculated the applicant will:
- Be eligible = if below lower threshold > £12,475 or less
- Be ineligible = if above upper threshold > £22,325 or more
- Be required to undertake a full means test (form CRM15) = if in between lower and upper thresholds > more than £12,475 and less than £22, 325.
3. Applicant can apply for eligibility review if they have failed the means test
Procedure - Crown Court
1. Applicant is assessed on income + capital, including any equity in properties owned by them
2. Once this figure is calculated the applicant will:
- Be eligible without any contribution= if below threshold > £3, 398 or less
- Be ineligible = if above threshold > £37,500 or more
- Be eligible with any contribution= if in between thresholds > more than £3, 398 and less than £37,500
The income based-contribution is 90% of disposable income for a maximum of 6 months in instalments
3. Applicant can apply for eligibility review if they have failed the means test
2. The merits test
- To pass it defendant must complete a form (CRM14- Application for Legal Aid in Criminal proceedings) demonstrating it is in interests of justice for them to be legally represented.
Defendant will
automatically pass the interests of justice test if: charged with an indictable-only offence OR either-way offence is later sent to the Crown Court
Interests of justice
Test requires
defendant to provide information in support all / some of 10 propositions in application form
I will lose my liberty
I have been given a sentence that is suspended or non-custodial. If I break this, the court may be able to deal with me for the original offence
It is likely I will lose my livelihood = based on employment
It is likely I will suffer serious damage to my reputation = based on job
A substantial question of law may be involved
I may not be able to understand the court proceedings or present my own case = langauge
Witnesses may need to be traced or interviewed on my behalf
The proceedings may involve expert cross examination of a prosecution witness
It is in the interests of another person that I am represented
Any other reasons
Consequences
IF PASSED
Once representation order is
granted, a solicitor can start preparing case in magistrates’ court + claim for: Preparation / Advocacy / Routine letters and telephone calls
IF
FAILED
- Fails means test = no right of appeal but can submit another form if circumstances changed.
- Fails merits test in magistrates’ court = can submit another application + if unsuccessful, can appeal to the magistrates’ court.
- If defendant fails either / both tests = may consult with duty solicitor, if charged with imprisonable offence BUT duty solicitor can only represent them on one occasion – 1st hearing at court.
Defendants can instruct a
solicitor privately / represent themselves with assistance of court
COMMECING PROCEEDINGS
Charge
Decision to charge is taken by a Crown Prosecutor exercising powers of Director of Public Prosecutions (DPP) + required to take over conduct of all prosecutions commenced by the police
DPP may delegate
powers to agents who are lawyers with rights of audience + must act subject to the instructions given by a Crown Prosecutor
EXCEPT
for road traffic offences / criminal damage > £5,000 / low-value shoplifting > decision is for police + made by custody officer
NO TIMING requirement for charge to be brought w/in specified period after the commission of the offence
EXCEPT for
summary only offences where magistrates' court shall not try information / hear a complaint unless information was laid / complaint made within 6 months of date of alleged offence
Burden on proof on prosecution to show it was on time
Forms of commencing criminal proceedings
1. Arrest and charge (most common)
The charge may come:
- at end of period of detention at police station after arrest;
- after period of police bail when suspect re-attends police station; or
- after period on police bail while CPS decides what appropriate charge is
Pre-charge police bail can be imposed:
- if there is insufficient evidence to charge a suspect + released pending further investigation
- if police consider there is sufficient evidence to charge, but matter must be referred to the CPS for a charging decision
Police decides bail conditions
2. Written charge and requisition
Public prosecutor (those who prosecute on behalf of CPS etc) may commence proceedings by issuing written charge charging a person with an offence
NO
requirement for person charged to be arrested + public prosecutor issues a requisition, requiring person charged to attend magistrates' court
The
charge and+requisition must be served on person charged + magistrates' court where person is to attend
3. Laying an information
Prosecutor serves information alleging offence on magistrates' court + court issues summons / arrest warrant requiring accused to attend
Private
prosecutions may only be commenced by summons as they are not brought by ‘relevant prosecutors
Content of the written charge/information or summons/requisition
The written charge or information must contain:
- statement of the offence
- reference to the statutory provision that creates the offence
- sufficient particulars of the conduct complained
A summons or requisition must:
- contain a notice setting out when and where the accused is required to attend court
- specify each offence in respect of which it has been issued
- summons must identify the issuing court
- requisition must identify the person under whose authority it was issued