Chapter 1 Criminal Practice

1.2 Procedure on arrival at the Police Station - What happens first

• An arrested suspect must be taken to the police station ‘as soon as is practicable after arrest’, unless the arresting officer grants street bail

Custody Officer

• Upon arrival the suspect who has been arrested must be brought before the custody officer

• Custody Officer is responsible for authorising detention of suspect and for looking after the suspect’s welfare

• Custody Officer is usually a police officer of at least rank sergeant and who is not involved in the investigation

• Custody Officer is responsible for maintaining the custody record, a document which records:

  • Suspect’s name, address, telephone number, date of birth and occupation

  • Suspected Offence - and why arrest was considered necessary

  • Time of arrest and time of arrival at station

  • Why the detention has been authorised

  • Time detention was authorised

  • Confirmation the suspect has been read their rights

  • Details of the property suspect had on their person

  • Will also have attached the detention log (record of all significant events that have happened during suspect detention)

Search of Detainee

• s54(3) allows the custody officer to seize and retain any items the suspect has on their person

• Clothing and personal effects can only be seized if:

  • believed they are needed as evidence, or

  • suspect may use them to cause physical injury to themselves, others or property

  • suspect may use them to interfere with evidence or escape

1.2 Procedure on arrival at the Police Station - Decision to detain

• Custody officer must determine whether there is sufficient evidence to charge the suspect with the offence

  • To do so, custody officer will ask the investigating officer for details of evidence

  • Custody officer should not put any questions to the suspect

• If there is sufficient evidence, which usually isn’t at this stage - then suspect will be charged right away and either released on bail or appear before magistrates court, or remanded in police custody until they can be seen by magistrates court

• If there is NOT sufficient evidence, suspect should be released with or without bail unless:

  • Custody officer has reasonable grounds for believing that detaining the suspect without charge is necessary to secure or preserve evidence, or

  • It is necessary to obtain evidence via questioning

Conditions of Detention:

• The cell must be adequately:

  • Heated

  • Cleaned

  • Ventilated

  • Lit

• Bedding must be reasonable standard and clean

• Must be provided with access to toilet and washing facilities

• Suspect must be offered two light meals and one main meal in a 24 hour period

• Drinks should be provided at mealtimes and upon reasonable request

• Should be offered brief outdoor exercise if practicable

• Should be visited in their cells at least every hour

• If the custody officer considers a suspect is injured or suffering from a physical/mental illness they must make arrangements to ensure the suspect received appropriate clinical attention as soon as reasonably practicable

1.3 Rights of a suspect being detained by the police for questioning

• Suspect must be informed of their rights that can be exercised in custody:

  • Right to have someone informed of their arrest

  • Right for the suspect to consult privately with a solicitor - and the suspect must be told that their is free, independent legal advice available to them

  • Right to consult the Codes of Practice

Right to have someone informed of their arrest

• Sometimes a police officer, of at least rank inspector, can delay this right if the suspect has been arrested for an indictable offence

• Length of delay can be up to 36 hours

• Delay can be notified orally, but must be put into writing asap

• Can only be delayed if officer believes that telling the nominated person would:

  • Lead to interference with or harm to evidence or physical injury to other people

  • Lead to alerting another suspect who has not yet been arrested

  • Hinder the recovery of any property obtained as a result of offence

Right to Legal Advice

• Unless suspect asks for legal advice to be paid for privately, the police must contact the DSCC (even if suspect has asked for a named solicitor or firm)

• Suspect must be asked whether they want to see the solicitor, and their response recorded in the custody record

• Police officers should at no point say or do anything to dissuade the suspect from obtaining legal advice

• Right to legal advice can only be delayed by an officer of rank superintendent

• Can only be delayed if arrested for an indictable offence

• Delay can only be for a maximum of 36 hours

• Authorisation for delay can be given orally but must be put in writing asap

• Delay can only be authorised if officer believes that getting legal advice would:

  • Lead to interference with or harm to evidence or physical injury to other people

  • Lead to alerting another suspect who has not yet been arrested

  • Hinder the recovery of any property obtained as a result of offence

1.3 Rights of a suspect being detained by the police for questioning - Detention Time Limits and Reviews of Detention under PACE 1984 Code C

Initial maximum period of detention before charge

• s 41 — provides that a person shall not be kept in police detention for more than 24 hours without being charged

• 24 hour period begins from the relevant time, relevant time is determined as follows;

  • If a person attends the police station voluntarily and is then arrested, the relevant time is when they were arrested

  • If a person attends the police station to answer street bai, the relevant time is when they arrive at the police station

  • If a person is arrested outside the police station and then brought in the relevant time is when they first arrive at the police station

Police extending maximum detention period

• Police have the power to extend max detention by a period of up to 36 hours (so they can authorise an extra 12 hours on top of the initial 24)

• Authorisation for extension must be given by an officer of rank superintended or above

• This extension can only be authorised if the superintendent has reasonable grounds for believing that;

  • The detention of suspect without charge is necessary to secure or preserve evidence or to obtain evidence by questioning them

  • The offence is an indictable offence

  • The investigation is being carried out diligently and quickly

Further extensions?

• Police can get a warrant for further detention from a magistrates court if these conditions are satisfied:

  • Suspect’s detention without charge is necessary to secure or preserve evidence

  • The investigation is being carried out diligently and quickly

• Magistrate permitted extensions can be for a period up to 36 hours (on top of the earlier 36 hours)

• Unless a further application for extension is made at the magistrates court - then another extension can be awarded of length;

  • No longer than 36 hours,

  • End later than 96 hours (4days) after ‘relevant time’

Detention Reviews

• Also as well as abiding by these rules, officers must carry out periodic reviews to ensure the grounds for extended detention are still applicable

• Mandatory - if they do not do this, could be liable for tort of false imprisonment

• Detention reviews before charge are carried out by an officer at least rank of inspector

• 1st review must take place no later than 6 hours after authorisation of detention

• Following reviews must be within 9 hours from each other

1.4 Advising a client whether to answer police questions

• A suspect who has been detained at a police station is entitled to free legal advice and to be represented by a solicitor

• Solicitor is there to protect and advance legal rights of the detainee (their client)

1.4 Advising a client whether to answer police questions - Information Gathering on arrival at the police station

• 3 key sources available to a solicitor at the police station

  • Custody Officer — and custody record

  • Investigating Officer

  • Client

Custody Officer

• First person the solicitor is likely to speak to

• They supply the basic information about the client’s detention

• Custody officer should allow the solicitor to inspect the custody record and detention log (which has recorded all the significant events)

• Should find in this:

  • The alleged offence

  • Time at which the custody officer authorised the client’s detention

  • Any significant comments made by the client whilst at the police station

  • Any samples, fingerprints or impressions

  • Any identification procedures that have taken place

  • Any interview which may have already taken place at the station

  • Whether the client has a disability or requires an appropriate adult

  • Any illness or indication the client is vulnerable or on drink/drugs

  • Any significant items found on the client’s person

  • If the client has already been at the station for 6 hours+, and details of any detention reviews that has been done

Investigating Officer

• Solicitor should then speak to the officer leading the case (investigation officer) to get the following info:

  • Disclosure (of facts about offence/evidence)

    • Police are not required to provide solicitor with the info on case against the client, but most of the time they will

  • Significant Statements or Silence

  • Next steps on investigation

The Client

• Solicitor should point of they are there exclusively for the client

• Should say that anything between client and solicitor is confidential

• Should also say that the solicitor is still bound by professional conduct rules that may limit what they can do for the client

• Should tell the client what the alleged offence is

• Find out the clients instruction

• Prepare the client for interview

1.4 Advising a client whether to answer police questions - Clients options in interview

Different Interview Styles

• Answer all questions put to them

• Give a no comment interview

• Selective Silence

• Give a no comment interview with a written statement of fact

Answer all questions put to them

• Advantages

  • Allows the client to give their version asap

  • Helpful if client is using a specific defence which imposes evidential burden on them

  • Credibility of story is boosted if client says it at initial interview and then sticks with it

  • Will likely prevent adverse inferences from being drawn at trial

  • If client is admitting guilt, answering all questions alongside no previous convictions may mean the police let them go with a caution

  • Also sentence can be reduced if defendant enters an early guilty plea

• Disadvantages

  • May accidentally say something incriminating or make comments which undermine their credibility

  • If the suspect is not clear in their speech they may react inappropriately or make contradictory statements which impact their credibility in eyes of the jury or magistrates

  • Vulnerable clients should not be advised of this

  • Can cause issues if the police have not made a full disclosure of the case to the solicitor - so new info can be dumped on suspect last minute

No comment interview

• Advantages

  • No danger of incriminating yourself

  • If the police do not have enough evidence, giving them nothing in interview may mean you are released

• Disadvantages

  • If the client is charged and pleads not guilty the jury can draw adverse inferences from silence in interview

  • If the suspect tries to rely on a defence in court which could have reasonably been mentioned in interview - the jury can conclude the defence is a sham

Selective Silence

• Should never be advised, comes across very badly at trial

Prepared Statement + No Comment

• Advantages

  • Allows client to get their side of the story to police from the first instance

  • No chance of self-incriminating by saying something wrong

  • Statement does not have to be handed in straight away, so if police case is weak the suspect’s story is recorded by the solicitor but info is not given to police so the client may be released

• Disadvantages

  • Not really any

1.5 Procedure for interviewing a suspect under PACE 1984

• Investigating Officer takes steps in the station to secure, preserve or obtain evidence and doing so may involve one or more of the following:

  • Carrying out an audio recorded interview with suspect

  • Arranging an identification procedure to see if a witness can identify the suspect

  • Taking fingerprints from the suspect

  • Taking samples from the suspect

Recorded Interview

• Seal for recorded interview can only be broke at trial

• If a suspect appears unable to appreciate the significance of the questions or understand what is happening because of the effect of drugs, drink or another condition/ailment — then they should generally not be interviewed

• General rule is that suspects should not be interviewed before having received legal advice

  • Exceptions to this general rule:

  • Police can delay legal advice for up to 36 hours, and will interview them without legal advice in the meantime

  • If the solicitor the suspect has requested cannot be contacted or has declined to attend AND the client has declined to speak to the duty solicitor

  • If a suspect asks for legal advice then changes their mind, police can interview the suspect provided that:

    • Officer of rank inspector or above speaks to the suspect to enquire about why they have changed their mind

    • Suspects change of mind has been recorded in custody log

    • Suspect after this confirms they want the interview to proceed without legal advice

    • Officer of rank inspector or above is satisfied it is ‘proper’ for an interview to continue and give authority for this in writing

    • When the interview starts the interviewer reminds the suspect of their right to legal advice and then ensures the tape records confirmation the suspect does not want legal advice and that authority has been given for the interview to continue

  • (No adverse inferences can be drawn at trial from the suspect’s silence in interview if they had not been allowed to speak to a solicitor (only if not allowed, not just if they declined)

1.5 Procedure for interviewing a suspect under PACE 1984 - Start of the Interview

• There is a specific procedure for the start of the interview

• The Caution

  • Police officer first thing will caution the suspect with specific wording - ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence’

• Continuing right to legal advice

  • Then the police officer must also remind the suspect they are entitled to free and independent legal advice - even if a solicitor is present with them in the interview

• Significant statements and silence

  • Before the interview starts, the officer must put forward to the suspect any significant statements or silences they have performed in front of an officer

  • They will ask if they want to confirm or deny this

  • Significant Statement = a statement that appears capable of being used in evidence against the suspect in trial

  • Significant Silence = Failure or refusal to properly answer a question that may allow the court to draw adverse inferences

  • If the officers do not ask about these before the interviews, the evidence may be ruled as inadmissible

• Conduct of the interview

  • No interviewer must try to obtain answers or elicit a statement by use of oppression

  • Interviewer should also not try to induce a suspect to say a specific thing

• When must an interview end?

  • If an officer is satisfied all the questions they think are relevant have been put to the suspect

  • If interviews with a suspect take place over more than one day, in any 24 hours the suspect must be given a continuous period of 8 hours for rest

  • Breaks from interview should be taken at mealtimes and for refreshment breaks

  • If any of these rules are breached, any info obtained in the interview may be ruled inadmissible

1.5 Procedure for interviewing a suspect under PACE 1984 - Role and appropriate conduct by defence legal representative/solicitor

• Preparing the client for interview

  • Explain the procedure and typical police tactics to the suspect

  • Notably, need to remind the suspect that:

  • The interview can be stopped at any time if the client requires any further legal advice

  • The solicitor will be present in the interview to protect the client’s interests - and will intervene where necessary if the police are acting inappropriately

• The interview:

  • Solicitor should ensure they can sit beside their client - should make sure the police can never prevent them from making eye contact with their client

  • Solicitor can intervene in police questioning to:

    • Seek clarification,

    • Challenge an improper question put to their client

    • Advise their client when to stay silent, or when to ask for breaks

  • Solicitor can only be removed from the interview when they are deemed to be showing unacceptable conduct

• Opening statement by the solicitor

  • Standard practice for the solicitor to make an opening statement explaining the role they will play in the interview

  • Gives opportunity to state the advice they have given the suspect, and why

1.6 Conduct issues at the police station

The client who admits guilt

• If a client admits guilt to the solicitor but then wants to deny the claim to the police - then the solicitor must tell them they cannot represent them in an interview where they intend to do this

  • They could attend an interview where the client gives a no comment interview

• If the client insists on giving false information, solicitor should decline to act any further on their behalf - but they will still owe the suspect a duty of confidentiality

Conflict of Interest

• Often solicitors will be asked to advise two or more suspects at the police station who are jointly alleged to have committed the same offence

• Sometimes custody officer will suggest there is a conflict of interest - but the solicitor will usually have to determine this themselves

• To do so:

  • Solicitor should speak to the first suspect, to see if their account suggests a conflict of interest - if there is then they should inform the police that they cannot act for the second suspect

  • If the conflict of interest is clear only after the solicitor has spoken to both clients, then they should remove themselves completely and represent neither

Should a solicitor disclose to one client information they have been given by another client?

• Even if it is decided there is no conflict of interest - solicitor still should not tell one client anything they have been told by the other UNLESS

  • The solicitor has obtained the other clients consent (preferably in writing, but not necessary)

  • Both clients are giving consistent instructions,

  • The solicitor considers it in their client’s best interests for the information to be disclosed

Disclosing the client’s case to a third party

• If another solicitor representing the client’s co-accused asks about the client’s info, this should not be disclosed unless the solicitor considers it in their clients best interests to disclose this

• But even to disclose this, they need the clients consent to do so

Solicitor’s duty of disclosure to a client

• Solicitors are required to make the client aware of all material knowledge they have on the case

• This duty is limited where:

  • Disclosure is prohibited by national security or the prevention of crime;

  • Client gives informed consent (in writing) to the information not being disclosed

  • You have reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed

  • The information is in a privileged document that has been mistakenly disclosed to you