SQE 1 Criminal Practice (Advising Clients, Including Vulnerable Clients, About the Procedure and Processes at the Police Station)

What are the nine ranks of police officer (high to low)?

1. Chief constable

2. Deputy chief constable

3. Assistant chief constable

4. Chief Superintendent

5. Superintendent

6. Chief Inspector

7. Inspector

8. Sergeant

9. Constable

What is an indictable offence?

UPDATE FLASHCARD WITH CORRECT DEFINTION

A more serious offence tried by judge and jury.

Includes common-law offences and offences in the Crimes Act 1968 that are not summary offences (e.g. rape, theft over £100,000 and murder)

What happens when an individual is suspected of being involved in a criminal offence?

Where an individual is suspected of being involved in a criminal offence, they may be arrested and taken to an authorised place of detention (ie a police station).

At this stage, the suspect has not been accused of committing or being involved in the commission of the offence.

A suspect becomes an 'accused' when they are charged with an offence. Once charged, they are a 'defendant'.

What happens when a suspect has been arrested outside of a police station?

If a suspect is arrested outside of a police station, they must be taken to the police station 'as soon as practicable after the arrest' s30(1A) PACE.

Exception - if the arresting officer decides to grant street bail;

1. Arrival at the police station

2.Decision to charge, release or detain

3. If detained, they will remain in police custody for questioning

Arrival at the police station steps

1. On arrival at the police station following arrest, a suspect will be booked into custody (ie their details are recorded) by the custody officer. This must be done as soon as practicable. Para 2.1A Code C

What is a custody officer?

An officer, independent of the investigation, holding the rank of at least sergeant, who is responsible for the welfare of a suspect who is in police custody.

What must a custody officer do once a suspect is arrested and brought to the police station?

The custody officer is responsible for:

-opening a custody record as soon as practicable upon a suspect being arrested.

- Informing the suspect of their rights whilst in police detention and for the authorisation of detention.

What is a custody record?

An electronic document opened and kept by the custody officer which is used to record details of the suspect and their welfare whilst in police detention.

What details does a custody record contain?

The custody record will include details as to:

- suspect's name, adresss etc,

- the offence they have been arrested for,

- the time of arrest,

- arrival at the police station,

- time of interview,

- confirmation that the rights of suspect (e.g. legal advice) have been provided to them,

- any requests made by the suspect

- compliance with PACE Codes

Who can request inspection of the custody record whilst the suspect is still in custody?

A suspect's custody can be inspected at the request of a suspect, their solicitor or an appropriate adult at any time whilst the suspect is in custody.

When can a request of a copy of the custody record be made?

A copy of the custody record can be obtained when the suspect is released from custody, upon request.

What is a detention log?

The custody record will have a detention log attached to it.

The detention log is a record of all the significant events that occur whilst the suspect is in police custody.

Search of the detained person

PARA 1.2.1.2 ULAW

How long should a suspect be in detention for?

Para 1.1 Code C

What does the custody officer do after the booking in of the suspect?

Following the booking in of the suspect, the custody officer must decide whether based on the information provided by the investigation officer, whether there is sufficient evidence already to charge the suspect with an offence, or whether detention is required (s37(1)).

What action should the custody officer take when there is sufficient evidence to charge the suspect?

Custody officer should charge the suspect and either:

- release them on bail to appear before the magistrates' court at a later date; or

- place them into police custody

What action should the custody officer take when there is insufficient evidence to charge the suspect?

Custody officer should release the suspect on bail (with or without condition), or unconditionally unless detention can be justified.

What are grounds for detention?

The custody officer may detain a suspect in police custody if they have reasonable grounds for believing that the suspect's detention without being charged is necessary:

(a) to secure or preserve evidence to an offence for which the suspect is under arrest, or

(b) to obtain such evidence by questioning the person. (s37(2))

- Can either grounds or both

What is an example where the first ground for detention: to obtain evidence from the questioning person?

When the police need to search the suspect's premises (s18), are still searching for evidence of the offense, or need to obtain identification evidence that can only be acquired while the suspect is in the police station.

What is an example where the first ground for detention: to secure or preserve evidence would be useful?

This ground is the most common ground to authorise detention.

What must a custody officer do once they become aware that the grounds of detention cease to apply?

As soon as they become aware, and there are no other grounds to justify detention, the suspect must be released immediately (s39).

Conditions of detention - para 1.2.2.2 ULAw

What are the rights of a suspect being detained by the police for questioning?

Once a suspect's initial detention has been authorised, they will remain in police for questioning.

The suspect is entitled to rights under the PACE Codes:

1. Right to legal advice (s58)

2. Right to have someone informed of arrest (s56)

3. Reviews and detention time limits under Code C PACE

What are the PACE Codes?

Under PACE 1984, there are eight Codes of Conduct (Codes A-H) which regulate how the police or other investigative agencies (eg HM Revenue & Customs (HMRC)) should conduct themselves before and during criminal proceedings.

What PACE Code governs the treatment of suspects in police custody?

Code C of PACE 1984 provides, amongst other things, how suspects should be treated in police custody, their rights and how interviews are to be conducted.

What is 'Right to legal advice'?

-PACE Code C

When a suspect is detained in custody, they must have the right to consult legal advice, privately, at any time. (this can be free)

The suspect must be made informed of this right.

When must a suspect be informed of their right to seek free independent legal advice?

A suspect must be informed of their right:

- on arrival at a police station

- on arrest following voluntary attendance at the police station

- immediately before the commencement, or recommencement, of any interview.

What is the exception where a suspect is not entitled to free, in-personal legal advice?

A suspect will not entitled when the punishment for the offence for which the suspect is being held in police custody is non-inprisonable.

What happens once a suspect accepts or requests legal advice?

Once legal advice has been accepted or requested, subject to the power to delay, a suspect should be permitted to consult with a solicitor as soon as practicable. I

The custody officer should act with no delay in ensuring a solicitor is contacted.

What must the custody officer do once a suspect accepts/request legal advice?

In most cases, the custody officer will contact the *Defence Solicitor Call Centre (DSCC)*

What is the Defence Solicitor Call Centre?

The DSCC, once contacted by the Custody Officer, will determine whether telephone advice is sufficient, or whether a solicitor or police station representative should attend in person.

What happens if a suspects wishes to use a specific solicitor or firm?

In these cases, the suspect will be asked to identify the solicitor/firm.

The suspect must be informed of the solicitor's arrival at the police station and must be asked whether they wish to speak with the solicitor.

Custody officer must note the solicitor's arrival and suspects decision to see the solicitor in the custody record.

Can a suspects right to legal advice be delayed?

Yes, in limited cases, an officer of a rank of superintendent mat delay a suspect's access to a solicitor.

This is subject to conditions.

What are the conditions that allow an officer to delay a suspect's access to a solicitor?

The officer may do this if:

-the suspect has been arrested for an indictable offence (includes indictible only and either way offences)

AND

- the officer has reasonable grounds to believe that exercising the right to legal advice will for example:

- lead to interference with or harm to evidence connected with the offence, or interfering or physical injury to others

- lead to alerting others suspected of having committed such an offence who have not yet been arrested to it.

How long can the suspect's right to legal advice be delayed?

The length of any delay can be for a maximum of 36 hours from the relevant time (s 58(5)).

What happens if a suspect has been denied access to a particular solicitor?

They must be permitted to choose another solicitor.

What must happen when the right to consult a solicitor is delayed?

When the right to consult a solicitor is delayed, the suspect must be informed of the reason for the delay, and the reason shall be noted in the custody record.

What happens if a suspect declines legal advice?

If a suspect declines to speak to a solicitor, they must be informed that the right to legal advice also includes the right to speak to a solicitor on the phone. Suspect must be given this option.

If they decline, the custody officer must ask why the suspect has declined and record any answer in the custody record. Even if a suspect declines legal advice initially, they may request to consult a solicitor at any time. - SPLIT flashcard

What is 'Right to have someone informed of arrest'?

- PACE Code C

If a person has been arrested and held in custody, they have the right to have someone informed of their arrest *as soon as practicable* following their arrest.

The custody officer must inform the suspect of this right, and ask them if they wish to exercise it.

s56

Who are the individuals that may be informed of a suspect's arrest?

The individuals who may be informed are any:

1. Relative

2. Friend

3. Other person known to them, or who is likely to take an interest in the suspect's welfare.

What happens if a suspect exercises their right to have someone informed of their arrest?

The chosen person will be informed of the suspect's arrest, and the place of their detention.

What happens if the chosen person cannot be contacted?

If the person chosen cannot be contacted, the suspect can nominate a maximum of two alternatives.

If they cannot be contacted, the custody officer may allow further attempts.

Can a suspect request that their chosen person is informed of any moves to another authorised place of detention?

If the suspect is subsequently moved to another authorised place of detention, the suspect can request to have the person chosen informed of their new whereabouts.

Who can delay a suspect's right to informing someone of the suspect's arrest?

An officer of a rank of inspector and above.

What are the conditions that allow an officer to delay a suspect's right to inform an individual of their arrest?

A delay can only occur if:

- the suspect is detained for an indictable offence,

AND

-there are reasons to believe that notifying an individual will:

- lead to interference with or harm to evidence connected with the offence, or interference or physical injury to other persons

-lead to alerting others suspected of having committed such an offence who have not yet been arrested for it.

In addition, a delay may also be authorised where the officer has reasonable grounds to believe that: • the person detained has benefited from their criminal conduct • the recovery of the value of the property constituting the benefit will be hindered by telling the named person of their arrest.

At the scene of the alleged offence, Mark is arrested on suspicion of burglary, contrary to s 9 Theft Act 1968. Mark was the only suspect present at the scene when the police arrived. The police spoke to residents who claim to be witnesses. The witnesses said that they think there was another person involved; they saw another male and offered his description to the police. The custody officer informs Mark of his right to have someone informed of his arrest. Mark requested James to be informed and when the custody officer asked Mark for a brief description of James, the investigating officer matched this with the description provided by the eyewitnesses.

What actions may the custody officer take in relation to Mark exercising his right to have someone informed of his arrest?

It is likely that the custody office may seek to have this right delayed.

The custody officer may now have reasonable grounds to believe that James is the other male identified by the witnesses-a potential suspect linked to this offence but not been arrested for it.

Therefore, due to Mark's request, it is possible that contacting James may alert him to the fact that the police are investigating the offence.

What must an officer do if they exercise delay on the right to have someone informed of the suspect's arrest?

A suspect must be made informed of the reason for the delay, and the reasons should be noted in the custody record.

What is 'Reviews and detention time limits under PACE Code C?

The time periods

Period of detention: detention clock → prescribes how long a suspect may be kept in custody

Period of reviews of detention: review clock → prescribes how the time period when the detention of a suspect must be reviewed.

What is the general period of time a suspect can be held without charge?

Generally, a person suspected may only be held without charge for a maximum period of 24 hours from the *relevant time*.

What is relevant time?

- Period of detention

The relevant time is the time when the detention clock starts. Usually, the relevant time is the time when the arrested suspect arrives at the police station, or 24 hours after the arrest, whichever is earlier.

Mark is arrested on suspicion of robbery, contrary to s 8 Theft Act 1968. Mark was arrested at 11.05pm and is transported to his local police station, arriving at 11.20pm. Mark's detention is authorised by the custody officer at 11.30pm.

When will Mark's detention clock begin to run?

As Mark has been arrested away from the police station, the general rule is that the detention begins at the time of arrival at the police station.

Therefore, Mark can be detained for up to 24 hours, beginning at 11:20 pm. Mark must be released or charged before 11:20 pm the next day, or have his detention extended.

Once the initial detention period expires, what options do the police have?

-Period of detention

Once the initial detention period is due to expire, the police have two options:

- seek to extend the suspect's detention

- release the suspect

How common is it for the police to use the whole 24-hour period?

It is relatively uncommon for the police to use the full 24-hour period. In most cases, the police will charge the suspect with the offence or release them under investigation (referred to as RUI). Only rarely will the police require an extension to the suspect's detention.

What are the different ways to extend the detention of the suspect?

1. Extension from 24 to 36 hours

2. Extensions for more than 36 hours → warrants magistrates' courts

What is extensions from 24 to 36 hours?

Once the initial 24-hour period has passed, an officer of superintendent rank or above, who is responsible for the station the suspect is detained in, may authorise a 12-hour hour extension, taking them to a maximum of 36 hours in detention.

(ie 24 + 12 = 36 hours)

What are valid grounds of extension from 24 hours to 36 hours?

An officer can only extend detention if they have grounds to believe that the:

- detention of the person without charge is necessary to secure or preserve evidence or obtain evidence by questioning them

- offence is an indictable offence; and

- investigation is being conducted diligently and expeditiously.

What is extension for more than 36 hours?

If the police wish to extend detention beyond 36 hours of relative time, they must seek a warrant for further deletion from the magistrates' court.

Courts can authorise up to a maximum of 36 hour's detention.

What are the conditions for a magistrate's court extending detention for more than 36 hours?

- The court is made up of a minimum of two lay magistrates, or a district judge

-The application is made on oath by a warranted constable, supported by written information

-The suspect is present in court and being detained in connection with an indictable offence, and

-The court is satisfied that there are reasonable grounds for believing that the further detention of the suspect is justified.

Further detention is 'justified' if it is necessary to: - secure or preserve evidence relating to the offence - obtain such evidence through questioning the suspect, and - the investigation is being conducted diligently and expeditiously

What is the total maximum the magistrate's can extend a detention for?

The Magistrate's court may issue a warrant for further extensions, up to a maximum of 36 hours per extension.

HOWEVER, the extended detention period cannot go beyond 96 hours in total.

e.g.

If the magistrates extended by 36 hours on the first occasion, they would be restricted to 24 hours on the second (ie 24 + 12 + 36 + 24 = 96)

Can a magistrates' court make an extension if the 36-hour period has expired?

It is imperative that the police have an application listed and heard before the 36-hour period is up. A magistrates' court cannot authorise a warrant for further detention if the 36-hour period has already expired.

What are the options the police have when a detention has expired?

If the limit on detention has been reached and extension is neither authorised or sought after, the police have three options:

- charge the suspect

- release the suspect on bail

- release the suspect

What is charge the suspect?

- Options following expiration of detention

Depending on the nature of the offence, the police will usually need authorisation from the Crown Prosecution Service (CPS) to charge the suspect. If there is sufficient evidence, the suspect will be charged, and the case will progress to the next stage. If a suspect is charged, they may be granted police bail, or depending on the offence, the courts would need to determine the issue of bail.

What is release the suspect on bail?

- Options following expiration of detention

In some cases, the suspect will be released on police bail.

What is release the suspect?

- Options following expiration of detention

If the police do not have enough evidence to charge, and do not intend to prosecute, the suspect will be released without charge.

The custody officer will provide a written notice of the police's intention not to prosecute the suspect relating to the offence concerned, unless new evidence arises which supports a prosecution.

Detention reviews

What is detention reviews?

A detention review is where an officer, of at least *inspector* rank ('review officer'), determines whether a suspect's continued detention is justified. The review clock begins when the custody officer has authorised the initial detention of the suspect.

When should detention reviews occur?

The first review should happen no later than 6 hours.

Second reviews and subsequent reviews must be no later than 9 hours after the previous review.

i.e.

1. Original decision to detain

2. First detention review - at 6 hours

3. Second detention review - at 15 hours

4. Third detention review - at 24

- Seek extension or release on bail under investigation or release without charge

What is the difference between review clock and detention clock?

-The detention clock begins at the point of arrival at the police station.

-The review clock begins when the custody officer first authorises the detention of the suspect.

An MCQ may attempt to confuse the two points at which the clocks begin to run.

If a suspect is not charged, what must the review officer do?

REPHRASE QUESTION

The review officer must determine whether the police gave sufficient evidence to charge.

If there is not enough evidence, officer must decide if detention is necessary.

What does the review officer do when conducting a detention review?

The officer will:

- consult with the investigating officer to determine what documents and materials are essential for challenging the lawfulness of the arrest and detention, and these must be made available to the detained suspect

- allow the suspect, their solicitor, and if applicable, their appropriate adult, to make oral or written representations (ie submissions) about the detention.

What is the identification procedure?

Identification procedure are methods of attempting to have a suspect positively identified by a witness, or witnesses, to an alleged offence.

They are designed to test the witness' ability to identify the suspect as the person they saw on the previous occasion, and provide safeguards against mistaken identification.

Whether an identity procedure occurs is dependant on whether the suspect is known and unknown.

What PACE Code governs the identification process?

Code D of PACE governs, amongst other things, the identification procedures in a police station.

What are the conditions that if met, the identification procedure must occur?

If all of these conditions are met, identification must take place:

1. An eyewitness has identified or claims to have identified a suspect, or there is a witness who claims they can identify the suspect, or where there is a reasonable chance of the witness being able to do so.

AND

2. The eyewitness has not already been given an opportunity to identify the suspect in an approved identification procedure

AND

3. There is an issue of identity where the suspect disputes being the person the witness claims to have seen committing an offence.

What are the exceptions where identification procedures do not need to occur?

1. It is not practicable to hold the procedure, OR

2. The procedure would serve no useful purpose in proving or disproving whether the suspect was involved in committing the offence.

What are examples that Code C lists where the identification procedure serves no useful purpose?

- where the suspect admits being at the scene of the crime and gives an account of what took place and they eyewitness did not see anything which would contradict that

- when it is not disputed that the suspect is already known to the eyewitness who claims to have recognised them when seeing them commit the crime.

Other occasions where idenification procedure may be conducted

Identification procedure may also occur where the identification officer considers it would be useful

What is 'known and available'?

-Identification procedure

A suspect is considered 'known' when the police have sufficient information to justify a person's arrest due to their suspected involvement in committing an alleged offence.

A suspect is 'available' if they are immediately, or within a reasonably short period of time, willing to take part in an identification procedure.

What can the police do if the suspect's identity is unknown, and how can they assist eyewitnesses in identifying the alleged offender?

The police may take the eyewitness to a particular area in an attempt to identify the alleged offender.

Likewise, the eyewitness may, complying with relevant guidelines, also be shown photographs of potential suspects.

The suspect's identity is known, and they are available

The police will want to carry out one of the identification procedures when a suspect is both known and available.

The suspect's identity is known, but they are not available

The identification officer may proceed to conduct covert identification procedures, or identification procedures without the suspect's consent (such as group identification or confrontation).

What will a suspect be treated as if they refuse to participate in an identification procedure?

If a suspect refuses to participate in an identification procedure, they will be treated as 'known but not available'.

What are the consequences of a suspect refusing to participate

- Suspect's refusal may be used as evidence in any subsequent trial

- The police may conduct cover procedures without the suspect's consent

With some incriminating evidence, James is arrested on suspicion of theft, contrary to s 1 Theft Act 1968. He is taken to a police station, interviewed and detained further after telling the police that he was nowhere near the scene of the alleged theft, disputing his involvement. An eyewitness told police at the scene that they observed the alleged offence and provided the police with a description of the alleged offender which somewhat matches James. The eyewitness, who has not carried out an identification procedure, says that they could identify the alleged offender if given the opportunity and lives ten minutes from the police station. James was asked to consent to his participation but refuses.

What are the potential consequences relating to James' refusal to consent to an identification procedure?

Initially, James would have been considered as known and available: he would be 'known' due to the police having enough evidence to arrest him on suspicion of theft and detain him for questioning. As he was at the police station, he would have been considered 'available' for an identity procedure. As the eyewitness claims to be able to identify the suspect and has not previously been given an opportunity to do so at an identification procedure, and the issue of identity is disputed by James, an identification procedure must take place. However, as James has refused to consent to a procedure, he will now be considered as known but not available. The police may now carry out a covert identification procedure without James' consent, and James' refusal may be given in evidence at a subsequent trial.

What are the primary types of identification procedures when a suspect is known and available?

1. Video identification

2. Identification parade

3. Group identification

4. Confrontation

What is the order of choice when an identification officer makes a decision on which identification procedure to use?

The suspect shall initially be invited to take part in a video identification.

This is so unless:

- video identification is not practicable

- an identification parade is both practicable and more suitable than a video identification, or

- the officer in charge of the investigation considers group identification is more suitable than a video identification or an identification parade, and the identification officer considers it practicable to arrange.

What is video identification?

- Suspect is known and available

An eyewitness will be showed portrait images on a computer screen, including images of a suspect. The other portraits are individuals who visually resemble the suspect, and the witness indicates if and when they see the image of the person they believe they saw commit the offence.

Does video identification require the consent of the suspect?

The form of identification typically requires consent from the suspect.

When will the video identification procedure be available?

Video identification procedure is usually carried out when the suspect when:

- the suspect is known and available

- known but not available but photographs have been previously obtained.

What is Identification Parade?

- Suspect is known and available

The suspect is lined up with others who are visually similar to the suspect. The eyewitness will indicate which individual, if any, they believe they have seen.

What is Group Identification?

- Suspect is known and available

Group identification is when an eyewitness sees the suspect in an informal group of people. During the procedure, the identification officer must reasonably expect that over the period the witness observes the group, the witness will be able to see, from time to time, a number of others (in addition to the suspect) whose appearance is broadly similar.

(less controlled than identification parade)

- requires suspect consent

What is Confrontation?

- Suspect is known and available

Confrontation is when the suspect is directly confronted by the eyewitness.

DOES not require suspect consent and less controlled.

When is confrontation available?

Confrontation is available when the suspect refuses to consent to an identification procedure.

Therefore, it is available when the suspect is known but not available.

When is an identification parade considered impactable?

Code D, specifies that an n identification parade may not be practicable because of factors relating to the witnesses, such as their number, state of health, availability and travelling requirements. A video identification would normally be more suitable if it could be arranged and completed sooner than an identification parade.

Who prescribes/carries out the identification procedure?

The identification officer.

What is an identification officer?

Independent from the main investigation, the identification officer oversees the identification procedure and ensures that PACE 1984, Code D, is complied with. The identification officer must be of the rank of at least inspector and any duties imposed must be performed as soon as practicable.

What must an identification officer explain to a suspect before carrying out an identification procedure?

They must provide 'notice'. They do this by explaining to the suspect:

- the purpose of the procedure

- the relevant process for the procedure, including the rights to legal advice

- and to have a solicitor or friend present

- the right to refuse to participate

- the consequence of refusing to take part

- if appropriate, any special arrangements for juveniles or vulnerable persons

- the fact that their solicitor will be provided with the initial description of the suspect, as first given by eyewitnesses

Once an identification procedure has been conducted, the [...]

information must then be recorded in written notice and handed to the suspect.

What is the process of conducting video identification?

Rules governed in Annex A

- The set of images must include the suspect and at least eight other people, who so far as possible, resemble the suspect in age, general appearance and position in life.