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Criminal Procedure NotesThe Police Station – Arrest, Detention & Questioning in the Police Station Most powers exercised by the police are granted by the Police andCriminal Evidence Act 1984, the act is supplemented into eight codes ofpractice (A-H). Provide the police with detailed guidance a...

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Criminal Procedure Notes The Police Station – Arrest, Detention & Questioning in the Police Station 

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Most powers exercised by the police are granted by the Police and Criminal Evidence Act 1984, the act is supplemented into eight codes of practice (A-H). Provide the police with detailed guidance as to how to exercise their powers and to regulate how they can be used. PACE – Police and Criminal Evidence Act 1984: The statute primarily governing police conduct Codes of Practice: o A – Stop and search o B – Powers to search premises o C – Detention and treatment and questioning of suspects o D – Identification procedures o E - Audio recording of interviews with suspects o F – visual recording of interviews with suspects o G – Powers of arrest under section 24 PACE o H – Detention treatment and questioning of suspect relating to terrorism

Arrest   

An Arrest is a restraint on a Liberty of the person under the due process of law or more simply Arrest is when someone is informed I no longer to free to go. Arrest can be made with or without warrant There must be a power of arrest and it must also be done properly

Arrest without warrant: Two criteria: 1. Commission of an offence: A constable may arrest without warrant: -

Anyone who is about to commit an offence

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Anyone in act of committing an offence

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Anyone who has committed an offence

(see s.24(1)-(3) PACE) Note: the officer must have reasonable grounds to suspect the commission of the offence . (subjective test/personal to the officer) 2. It must be necessary to arrest: The necessity grounds are listed in s.24(5) which include: ascertain his real name and address; prevent the person causing injury to himself or another; prevent the person causing criminal damage; committing an offence against public decency; to protect a child or vulnerable person;

But mainly it’s to allow the prompt investigation of offence or to question the person. Information on arrest 

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The suspect must be told the following at the time of his arrest: 1. that he is under arrest; and 2. the reason for his arrest (s.28 PACE). He must be told this even if circumstances make the reason for arrest obvious. He should also be cautioned on arrest or as soon as practicable afterwards. (Code C and G) Note however that a failure to caution will not invalidate the arrest (but may have evidential consequences) The caution is in relation to the defendants right to silence.

Caution on arrest – Code C 10.4/ G 3.5: “You do not have to say anything but it may harm your defense if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.” 

Has three distinct parts: o The first is that you do not have to say anything it is in respect to the defendant's right to silence, this is because the burden of Proof is upon the prosecution prove guilt and thus the defendant does not have to say anything. o The Second is in relation to the drawing of inferences, this is because if you stay silent when questioned magistrates or jury may be able to draw inference as to why you silent, for instance it may give time for the defendant to develop an alibi or actually that what the defendant is saying could not be true or real. o The component is in relation whether the defendant says anything incriminating which could be used against him in court or constitute a confession.

Non-constables – Lawful Arrest Persons other than the police can arrest without a warrant if: –

A person is committing an indictable offence (or they have reasonable grounds for believing that he is)

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An indictable offence has been committed and the person is guilty of it (or they have reasonable grounds for believing that he is).

One of the four necessity conditions must be made out: –

To prevent the person from causing physical injury to himself or another

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To prevent the person from suffering physical injury

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To prevent the person causing loss of or damage to property

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To prevent the person from making off before a constable can assume responsibility for him.

Lawful Arrests 

Lawful arrest is so important because the state is exercising right against you and your individual person and so therefore you have a right for that to be done properly/ Lawfully. For instance does not have the power to arbitrarily detain people or arbitrarily use Force against people.

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So therefore they give the police a power of arrest but regulate it by adding conditions like the fact that they must reasonably suspect someone to have committed a crime or be in the process of committing a crime or have actually committed the crime. s.117 PACE 1984 - Power of constable to use reasonable force – dependant on circumstances is it proportionate. The power to use reasonable Force stems from the lawful arrest, they are unable to use Force unless someone is under arrest.

Arrival at the Police Station The police are responsible for that person's welfare, is the custody custody officer is responsible for insuring that a person is treated properly while under the custody of the police station. Role of the Custody Officer:       

Sergeant or above Independent of the investigation Takes decisions on detention (necessary), are they ok for questioning, do they require treatment, bail etc. Duty to ensure detention in accordance with PACE Duty to inform the suspect of grounds of detention Opens and maintains a custody record Gives the suspect his rights

“Booking In”    

Open Custody Record – unique custody record number. Decide if detention should be authorised – only one necessity ground here c.f. arrest. Explain rights to detainee Risk assessment – check his mental and physical health

Suspects Rights On arrival, will be informed of:   

Right to a solicitor – s.58 PACE Right of intimation (the right to have someone informed that you are in custody) – s.56 PACE Right to consult the Codes of Practice

Other rights at the police station:   

Right to a copy of the Custody Record Right to remain silent Right to an appropriate adult (if required)

Risk Assessment 

The custody officers are responsible for carrying out the risk assessment

Code C3.6 - 3.10:   

Is detainee in need of medical treatment? Is detainee a risk to staff? Is detainee a risk to himself?

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Is detainee mentally vulnerable?

Health Care – Code C paragraph 9 If the risk assessment indicates a problem:      

Health care professional will advise on fitness to detain and fitness to interview May provide treatment May prescribe certain drugs Will record injuries etc. May recommend transfer to hospital May advise on how long it will take before T is fit for interview

Other Entitlements Code C Paragraph 5 & 8         

Clean, well-lit and ventilated cell Bedding; toilet facilities Adequate replacement clothing 2 main meals and 1 light meal plus drinks at meal times and upon reasonable request Exercise if practicable Visits at CO’s discretion Writing materials Telephone call Note this list is not exhaustive.

*They can amend or withhold certain entitlements if there are if they are able to justify why they have done so for instance they can withdraw or withhold a telephone call if they believe respect is going to tip off and accomplice. Types of offences Summary Only offences:   

Very minor offences that can only be dealt with in the Magistrates’ Court. Examples include - assault and battery, shoplifting (theft) of items valued less than £200, parking on a double yellow lines, no TV licence, drunk and disorderly etc. Maximum prison sentence the magistrates can give is 6 months for each offence

Either-way Offences:    

Middle of the road in severity Can be dealt with in either the Magistrates’ or Crown court hence the name. Examples include – assault occasioning ABH, grievous bodily harm/wounding without intent (s.20), criminal damage over £5000, theft, burglary, sexual assault. The sentence will depend upon the specific offence and court.

Indictable Offences:   

Very serious offences that can only be dealt with in the Crown Court. Includes – murder, manslaughter, rape, robbery, grievous bodily harm/wounding with intent (s.18). Sentence will include life imprisonment.

Detention Time Limits – ss.41-44 PACE 1984 Offence

Initial period

1st Extension

2nd Extension

3rd Extension

Summary only

24 hours

Not applicable

Not applicable

Not applicable

Either Way

24 hours

Up to 36 hours by police

Up to 72 hours by magistrates

Up to 96 hours by magistrates

Indictable only

24 hours

Up to 36 hours by police

Up to 72 hours by magistrates

Up to 96 hours by magistrates.

Detention Time Limits 

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Note the detention clock runs from the time of arrival at the police station and stops at the moment that they leave. For instances where they are released on police bail assuming that they come back on the later date then it will resume on re-arrest. Once the maximum detention time has been reached the suspect must be charged or released.

Contact with a solicitor        

Police cannot dissuade D from having a solicitor Police must remind D of right to a solicitor when detained, prior to interview, prior to ID procedure etc. – cautioned at every individual stage. If D changes his mind Custody Officer must ask for reasons and note on Custody Record Duty to contact solicitor as soon as practicable Advice can be in person or by telephone dependant on seriousness. PACE 1984 - Code C Note 6D - “The solicitor’s only role in the police station is to protect and advance the legal rights of his client...” This can be done in a number of ways e.g. getting disclosure from the police on evidence, how the interview will go, types of questions that could possibly be asked etc.. “... On occasions this may require the solicitor to give advice which has the effect of their client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification or to challenge an improper question to their client or the manner in which it is put, or to advise their client not to reply to particular questions, or if they wish to give further legal advice.”

The police Interview   

“An interview is the questioning of a person regarding their … suspected involvement in a criminal offence … which … must be carried out under caution” Code C 11.1A If there are grounds to suspect a person of an offence s/he must be cautioned before any questions are put to them: Code C 10.1 Does not include questions solely to establish identity or ownership of vehicle or questions relating to the carrying out of a search.

Taken to the Police Station  

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The location of an interview is immaterial to the definition. Questioning carried out anywhere is likely to be considered an interview. For most crimes s.30 PACE applies: o The suspect should be taken to a police station as soon as is practicable after arrest. o BUT If a decision has been made to arrest a person they must not be interviewed except at a police station unless delay might cause harm to evidence, people or property, alert other suspects or hinder recovery of property C11.1 The reason it is at police station is because that’s where all the rights, entitlements safeguards can be carried out, enforced and applied. Additionally all interviews are recorded in case of disputes.

Solicitors    

The solicitor can be D’s preferred choice; Or the duty solicitor. The solicitor should attend the police station for interview in most cases but in less serious cases may give advice over the telephone. On arrival at the police station the solicitor will speak with the custody sergeant, look at the custody record, speak to interviewing officers. Note the police do NOT have to disclose info to the solicitor BUT a failure to do so may have consequences re advice.

Role of the Solicitor Code C, Note ID (solicitor’s role continued) “... On occasions this may require the solicitor to give advice which has the effect of their client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification or to challenge an improper question to their client or the manner in which it is put, or to advise their client not to reply to particular questions, or if they wish to give further legal advice.” 

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Prior to interview o Advise client on whether to answer questions or not o Advise on interview procedure In interview: o Intervene where questioning inappropriate o Intervene to clarify a question o Give further legal advice

Seeing the suspect      

Private consultation with suspect before interview Tell suspect what police have told you Ask him for his account Test his account Explain the law Give advice as to course of action

Advice given to suspect 

Always suspects choice

Courses of action: 1. Remain silent    

No obligation to speak Will not implicate himself If guilty, police may not have enough evidence to charge May attract inferences (link to Evidence)

2. Answer questions     

Provides his coherent full account and establish defence May result in them not being charged May be able to accept other disposal option If admits guilt beneficial at court – earlier cooperation the sentence imposed may be less Avoids inferences (link to Evidence)

3. Written statement      

Gets account and defences on record Avoids being questioned by police Avoids giving silly answers that may incriminate somehow Can avoid attracting inferences (link to Evidence) Must be full and complete and answer all possible questions. Can add to the statement if needed.

Interview Room     

Usually 2 officers, suspect and solicitor (appropriate adult if necessary) Audio recorded, possibly visually recorded too. Solicitor sits next to suspect to communicate Solicitor can intercede if necessary, But cannot answer questions for the suspect.

Basic interview Rules continued 

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At the outset of the interview the police must give the suspect an opportunity to comment on any significant statements or silences that arose prior to interview C11.4 – if the client has allegedly said something incriminating they must ask the suspect about it and respond to it on record and so can be argued in court. There must be breaks in interviews at recognised meal times and at least every two hours.

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Remember the 8 hours period for sleep.

Misconduct in the Interview       

No officer may try to obtain answers by oppression or use any threats or inducements to get answers Code C para 11.5 Compare with the rules of evidence on the exclusion of confession evidence. Threats c/f exclusion of a confession on the basis of oppression. Oppression includes torture, inhuman or degrading treatment and threat or use of violence: s.76(8). R v Fulling: Use of power in a “burdensome, harsh or wrongful manner” Inducements include improper promises or statements made by the police during the interview. c/f exclusion of a confession on the basis of something said or done likely to render the confession unreliable. If a complaint is made during an interview the police should record it in the custody record and inform the Custody Officer

Interview Records   

An accurate record must be made of each interview (verbatim or accurate summary) C11.7 Interviews in police stations for indictable only and either way offences must be recorded Code E Police must also record any “unsolicited comments” outside the context of an interview and give the suspect an opportunity to confirm or deny the comment made C11.13

Vulnerable Suspects 

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These categories require extra help: o Juveniles (17 and under) o Mentally disordered (e.g. mental illness, or learning disability) o mentally vulnerable (may not understand the significance or what is said due to their mental state or capacity) They require the help of an Appropriate Adult (PACE Code C para 1G)

The Appropriate Adult    

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Must be called if the police suspect or are told in good faith that D may be a juvenile or mentally disordered or vulnerable – they are there to protect the welfare of the individual. Appropriate Adults can include relatives, guardian, someone with experience of dealing with MD/MV people or some other responsible person Must be independent of the police A person who is a suspect, victim, witness, investigator, received admissions prior to attending, under 18, the solicitor, lay visitor, police officer etc. cannot act as an appropriate adult. They can ask on behalf of the defendant to see a solicitor even if the defendant does not want to.

Bail or Custody Disposal options – when the suspect has been investigated      

Charge – decision usually by Crown Prosecution Service (see CPS “full code” test) NFA – No further action Informal Warning – for v. minor cases, not on crim record. Formal/Police Caution – will appear on record, avoids court Conditional Caution – as above but conditions can be attached Penalty Notice – used for minor offences, appear on record.

The decision to Prosecute Code for Crown Prosecutors Full Code test – 2 stage test: 1. Evidential test – is there a realistic prospect of conviction This is an objective test. It means that a [court] is more likely than not to convict the defendant.” 2. Interests of justice test – is it in the public interest to prosecute? https://www.cps.gov.uk/publication/full-code-test Alternative: - “Threshold test” (Code for Crown Prosecutors para 5.2)  

Applied in limited circumstances where “full code” test not met but circumstances / seriousness of case justify the making of an immediate charging decision. Intended to keep D in custody

“There is at least a reasonable suspicion that the suspect has committed an offence” even though evidence for full evidential test does not exist yet D must present a substantial bail risk Prosecutors must determine whether the following conditions are met:    

there is insufficient evidence currently available to apply the evidential stage of the Full Code Test; and there are reasonable grounds for believing that further evidence will become available within a reasonable period; and the seriousness or the circumstances of the case justifies the making of an immediate charging decision; and there are continuing substantial grounds to object to bail in accordance with the Bail Act 1976 and in all the circumstances of the case it is proper to do so.

What is bail? Everyone charged with an offence is deemed to be ‘on remand’. The will be remanded: 1. Remand in custody 2. Remand on conditional bail 3. Remand on unconditional bail

What is unconditional bail? Release from custody subject only to an obligation to return.

When will bail be considered?    

‘Pre-charge bail’ - (police bail) granted by a Custody Officer following arrest; custody time cloc...