SQE FLK2 Criminal Practice

What are the different ways of commencing criminal proceedings?

1. Arrest and charge

2. Written charge and requisition (appear before court - available to relevant prosecutors - CPS)

3. Summons

What is a written charge and requisition?

• Alternative to arrest: compels attendance before court to enter plea

• Historically used by corporate bodies, driving offences

• Majority now brought by CPS

What must be include in a written charge?

1. statement of offence - described in ordinary language

2. reference to statutory provision creating the offence

3. sufficient particulars of conduct complained of for accused to know what is alleged

What must be included in a summons?

1. notice setting out when/where accused is required to attend court

2. must identify the issuing court

3. specify each offence in respect of which it has been issued

What is required in a requisition?

1. notice setting out when/where accused is required to attend court

2. specify each offence in respect of which it has been issued

3. must identify the person under whose authority it was issued

What is the time limit for bringing a charge?

No requirement

Unless: s.127(1) MC Act provides for summary only offences, a MC shall not try an information or hear a complaint unless information was laid or complaint made within 6 months of date of alleged offence

What grounds must the police have to arrest someone?

Must have reasonable grounds for doing so - it must be necessary to arrest

• prevent an imminent threat of crime

• prevent absconding of suspect

• secure and preserve evidence

Who presides over magistrates court?

District Judge (Judge); or
Panel of lay magistrates (3) - Sir, Madam, Your Worships

Arbiters of fact and law

Maximum sentence in Magistrates

• Max 6 months imprisonment for 1 offence

• Max 12 months for 2+ offences

• Unlimited fines after 13 March 2015

Who presides over crown court?

• Crown Court Judge (arbiters of law)

• Jury (arbiters of fact)

What are the three types of judges that sit in the Crown Court?

1. Recorder (barristers and solicitors who sit part-time) - Your Honour

2. Circuit Judges - Your Honour

3. High Court Judges - My Lord/Lady

What is the make-up of the Court of Appeal?

• Lord Chief Justice + 2 HC judges

• Lord Justice of Appeal + 2 HC judges

• 1 HC Judge and 1 specifically nominated Senior Circuit Judge

What is a Divisional Court?

Handles some Magistrates' court appeals
When misinterpreted a point of law or evidence

What jurisdiction do magistrates have?

• Preliminary matters during early stage prosecution

• Summary offences / either way offences

• dealing with allocation procedure for either way offence

• committing a defendant of either way offence to crown court

• sending an either way offence to crown court

• sending indictable only offence to crown court

• issue warrants for arrest

• removal to a place of safety orders

• authorises seizure of property

• order to detain for more than 36 hours

What cases does the crown court deal with?

1. indictable only

2. either way when MC declined jurisdiction or when D has elected CC

3. either way or summary offences related to another offence being heard by CC if punishable by imprisonment/ and or disqualification from driving

4. appeals against convictions and sentence from MC

What do PACE codes of practice broadly cover?

Stop and search
Arrest
Detention
Investigation
Identification
Interviewing detainees

What is PACE Code C?

Requirements for the detention, treatment and questioning of suspects (not related to terrorism) in custody

What is PACE Code D?

Code of practice for exercise by police of statutory powers to identify persons

What is PACE Code E?

Audio recording of interviews with suspects in police station

When will a suspect be arrested and charged?

Arrested: if there's reasonable grounds to suspect a person has been involved in the commission of an offence (necessary)

Charged: if CPS think there's a realistic prospect of conviction and it's in the public interest to prosecute

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

Constable
Sergeant
Inspector
Chief Inspector
Superintendent
Chief Superintendent
Assistant Chief Constable
Deputy Chief Constable
Chief Constable

What are 5 suspect rights at the police station under PACE 1984?

1. access to free legal advice, medical help, interpreter

2. notify someone of their arrest

3. right to silence

4. informed of reason for arrest

5. information on detention time limits

What rights does a suspect at a police station generally have?

1. access to free legal advice

2. access to free medical help and interpreter

3. right to notify someone of their arrest

4. right to inspect police codes of practice

5. right to silence

6. right to be informed of reason of their arrest

7. right to inspect documents relating to there arrest and detention

8. right to information on detention time limits

Who books the suspect in on arrival at the police station?

The Custody Officer

What is a custody officer?

• At least a sergeant

• Independent of the investigation

• Responsible for the welfare of the suspect in custody

What must a custody officer do on the arrival of a suspect at the police station?

Must make sure the suspect is told clearly about:

1. right to consult privately with a solicitor, and their arrival

2. that free independent legal advice is available
   
   Can be told any time they are in custody

What must a suspect be told on the arrival of a solicitor whilst in custody?

Must be told of an attempt to be contacted, applies even if detainee refuses legal advice.

Who can be a custody officer?

Independent of investigation
At least sergeant

What is the role/responsibilities of the custody officer?

• responsible for suspect's welfare

• opens custody record

• Informs suspect of the reason for their arrest and detention

• informing suspect of rights under detention
  responsible for the authorisation of detention & release

What is a custody record?

Document opened and kept by custody officer which is used to record details of suspect and their welfare whilst in police detention

Who decides if a suspect is vulnerable?

The custody officer

Who is a vulnerable person?

1. may have difficulty understanding/communicating effectively about full implications for them

2. do not appear to understand significance of what they’re told, questions asked or their replies

3. appear particularly prone to confusion providing unreliable, misleading or incriminating information without knowing

Who is a juvenile?

1. anyone under 18

2. in absence of clear evidence to confirm age, anyone who appears to be under 18 will be treated as such

Can a vulnerable person or juvenile be interviewed or asked to sign a written statement without an appropriate adult?

No Unless delay would be likely to:

• interfere or harm evidence

• interfere or harm other people

• serious loss or damage of property

• alerting suspects not yet arrested- hinder the recovery of property

What is the role of an appropriate adult?

Person who attends police station to provide support, advice and assistance to juvenile or vulnerable person.

They do NOT provide legal advice and their conversations are not covered by legal privilege.

They have the right to ask for a solicitor even if the juvenile/vulnerable person refused

What is an appropriate adult generally expected to do?

1. support, advise and assist J/VP when required to provide information or participate in procedure

2. observe whether police are acting properly and fairly, inform inspectors or above if they consider they aren’t

3. assist detainees to communicate with the police whilst respecting their right not to say anything unless they want to

4. help them understand their rights and ensure those rights are protected and respected.

Who can be an appropriate adult for juveniles (in order of priority)?

(1) parent or guardian
(2) social worker
(3) a responsible adult not connected to the police

Who can be an appropriate adult for vulnerable people (in order of priority)?

(1) relative, guardian, or other person responsible for their care
(2) someone experienced in dealing with vulnerable people (not police)
(3) a responsible adult not connected to the police

Who CANNOT be an appropriate adult?

Anyone who:
(1) is suspected of involvement in the offence
(2) is a victim or witness to the crime
(3) is involved in the investigation
(4) has received admissions from suspect before acting
(5) is a solicitor representing them
(6) is an estranged parent (if not wanted)

What are the rules governing access to adult for vulnerable suspects?

(1) adult should be present at interview
(2) when appointing, wishes of suspect should be considered
(3) if appropriate adult was not called the admissibility of any evidence obtained during interview may be excluded

Who determines if free legal advice to suspect in police station should be via phone or in person?

DSCC call centre who is connected when right is exercised

What is the Defence Solicitor Call Centre (DSCC)?

Free legal advice centre. Once contacted, they determine whether a telephone call is sufficient or whether a solicitor or police station rep should attend in-person

Who is entitled to free, in-person advice at the police station?

All suspects, unless the punishment for the offence is non-imprisonable

Normally a suspect can be taken to any police station, when can they only be taken to a designated police station?

If detention is expected to be more than 6 hours

Who is responsible for the custody record?

Custody officer

At what time must a custody record be opened?

As soon as practicable on arrival

What is included in a custody record?

• Suspect details

• Offence

• Time of arrest

• Why arrest was needed

• Time of arrival at police station

• Time of interview

• Confirmation that rights explained to suspect

• Compliance with PACE Codes

• Any comments/requests made by suspect

• Arrival of the solicitor

• Suspect’s decision to see solicitor

Who can inspect a custody record and when?

• suspect

• their solicitor

• appropriate adult

at any time whilst in custody

Can you obtain a copy of the custody record?

Yes, upon request when released from custody

Once a suspect is booked, what does the custody officer do next?

Decides whether sufficient evidence to charge.

• If so, should charge then either release on bail or remand them into police custody.

• If not, should release on bail or unconditionally unless detention can be justified.

When may the custody officer detain a suspect without charge?

If they have reasonable grounds to believe that suspect's detention is needed to:

1. secure or preserve evidence; or

2. obtain evidence through questioning

If there is insufficient evidence to charge the suspect, what must the custody officer do?

Should release suspect on bail (with or without conditions), or unconditionally unless detention is justified

If there is sufficient evidence to charge the suspect, what must the custody officer do?

Charge suspect and either release them on bail to appear before MC at later date, or remand them into police custody to be seen following day

When must the suspect be informed of their right to legal advice?

1. on arrival at police station

2. on arrest following voluntary attendance at police station

3. immediately before commencement/recommencement of any interview

4. intimate samples / drug searches

5. ID parade

Generally, if a suspect requests legal advice when should a suspect be able to consult with a lawyer?

As soon as practicable - custody officer should act no delay in ensuring a solicitor is contacted

What must be done if a suspect declines legal advice?

• Must be informed of their right to legal advice including over the telephone.

• If they still decline, custody officer must ask why and record answer in custody record

If a suspect declines legal advice initially, can they request a solicitor later?

Yes, at any time

Under what circumstances can access to legal advice be delayed (annex B)?

1. suspect is arrested on an indictable offence

2. officer of superintendent rank or higher has reasonable grounds to believe that exercising the legal right will:

   1. interfere/harm evidence or others

   2. will alert other suspects not yet arrested

   3. hinder the recovery of property related to the offence
      
      MUST be authorised in writing and recorded in custody record

Who can authorise a delay in legal advice?

Officer of superintendent rank or above

Can a suspect be denied access to a particular solicitor?

If there are grounds to believe the solicitor may pass on a message or act in a way that would lead to one of the consequences (rare)

Must be permitted to choose another solicitor instead

How long can assess to free legal advice for suspect in station be delayed for?

• 36 hours from the relevant time

• Suspect must be informed of the reason for the delay and a note on custody record

What is the difference between an indictable offence and indictable only offence?

Indictable offence: can be either-way or indictable only but has option to be tried in CC

Indictable only offence: only tried in CC

What is the effect of a delay in the right to legal advice?

If legal advice from a particular solicitor is delayed on the basis of Annex B, Code C, access to another solicitor must be offered

Does a suspect have the right to have someone informed of their arrest?

• Yes, unless exception applies

• Can inform one person (and up to 2 alternatives)

• Must be done as soon as practicable

Who can be informed?

• relative

• friend

• anyone else who would take an interest in their welfare

As soon as practicable

What information is a suspect's friend/family allowed to know when informed of the arrest?

About suspect's whereabouts if:

1. suspect agrees AND

2. Annex B doesn't apply

What if the detainee does not have anyone they can inform of their arrest?

Custody officer should bear in mind any local voluntary bodies or other orgs. that might be able to help

Under what circumstances can the right to have someone informed of an arrest be delayed?

1. suspect is arrested on an indictable offence

2. officer of inspector rank or higher has reasonable grounds to believe that exercising the legal right will:

   1. interfere/harm evidence or others

   2. will alert other suspects not yet arrested

   3. hinder the recovery of property related to the offence

   4. detainee has benefitted from their criminal conduct
      
      MUST be authorised in writing

Who can authorise a delay in right to notify?

Officer of inspector or above

How long can right to notify be delayed for?

• 36 hours from the relevant time

• Suspect must be informed of reason and a note on custody record

When else may a delay to legal advice or notification be authorised?

If there are reasonable grounds to believe that:

• D has benefitted from their criminal conduct

• Recovery of value of property constituting the benefit will be hindered by telling the named person of their arrest

What does relevant time mean?

Time when the detention clock starts -

• when the arrested suspect arrives at police station

• or 24 hours after arrest (if injured/in hospital), whichever is earlier

What is the general rule as to how long someone can be detained without charge?

24 hours from the relevant time:

• volunteer attending station: at time of arrest

• suspect on street bail: time of arrival

• suspect arrested away from station: at time of arrival at 1st station

How long can a suspect be held in custody?

24 hours starting from the relevant time:

• Extension 1- further 12 hours (36 total)

• Extension 2- further 36 hours (72 total)

• Extension 3- further 24 total of 96 hours (must be either released/charged)

What options do the police have when the initial 24hrs is set to expire?

1. seek to extend detention or

2. release the suspect

What is required to extend a suspect's detention to 36 hours (+12hrs)?

Extended by an officer of superintendent or higher if:

• indictable offence

• reasonable grounds that detention is necessary to secure/preserve evidence or obtain via questioning

• investigation must be conducted diligently and expeditiously

• must be extended before expiry of initial 24hrs

If detention is extended by 12hrs, what must be done?

• grounds must be explained to suspect and noted in custody record

• suspect/solicitor should be allowed to make representations

What is required to extend a suspect's detention to 72 Hours (+36 hours)?

Warrant must be sought by Magistrates Court (2 lay magistrates or DJ):

• application made on oath by warranted constable, supported by written information

• suspect is present in court in connection with indictable offence

• reasonable grounds to justify:
  - necessary to preserve/secure evidence or obtain evidence via questioning
  - investigation must be carried out diligently and expeditiously

What is the maximum extension MC can give?

1. 36hrs on first extension

2. 24hrs on second extension so as not to go over 96hrs

What is required to extend a suspect's detention to 96hrs?

By Magistrates if:
(1) grounds under s.43 (preserve evidence etc) are satisfied; and
(2) reasonable grounds for believing that further detention is justified

Who can authorise a detention without charge over 24 hours?

Superintendent or higher

If the police wish to extend detention without charge over 24 hours, must the defendant or their solicitor be allowed to make representations?

Yes

What is the maximum time the police can extend detention without charge to?

36hrs (+12 on top of 24)
Suspect must be informed and reasons noted in custody record

+36 requires magistrates

How can the police detain someone without charge for more than 36 hours?

Apply for a warrant from the magistrates

Under what circumstances can the magistrates extent someone's detention in police custody without charge for over 36 hours?

the court is satisfied that there are reasonable grounds for believing that further detention is justified to:
- secure evidence
- question the suspect
- the investigation is being conducted diligently and expeditiously

How long can the magistrates extend the detention without charge?

36 hours, then a second application (up to) 24hours

Total time in custody without charge CANNOT exceed 96 hours

When must the police get the magistrate's warrant?

Must have it before initial 36hrs are up
Cannot warrant an extension if deadline has already passed

What are the options when the time in police detention without charge is up?

1. charge suspect

2. release suspect on bail

3. release suspect, if not enough evidence

Who authorises a charge?

The CPS

When does the detention review clock start?

When custody officer first authorises the suspect's detention

NOTE: this is different to detention without charge clock

What is a detention review?

Ensures that the grounds on which the detention was initially authorised by the custody officer still apply.

Conducted by inspector or above

When must be detention reviews be carried out?

FIRST: within 6hrs from detention being authorised (by an officer not below inspector)

SECOND: within 9hrs from 1st (by an officer not below inspector)

THIRD: within 9hrs from 2nd (by an officer not below inspector) to charge, seek an extension or release suspect without charge

What is the difference between the detention clock and review clock?

Detention clock: begins at point of arrival at station

Review clock: begins when CO first authorises detention

What are the considerations of a detention review?

(1) is there sufficient evidence to charge?
(2) if not, is detention is still needed?

Must take representation from suspect, adult, solicitor

When must ID procedures be held?

Suspect disputes:
(1) an eyewitness identifying or purporting to identify suspect
(2) an eyewitness expresses an ability to identify suspect
(3) there's a reasonable chance of an eyewitness being able to identify the suspect in video ID, ID parade or group ID procedure

What are the exceptions to the general rule for where ID procedures must be used?

• it is not practicable to hold any such procedure or

• any such procedure would serve no useful purpose in proving or disproving whether the suspect was involved in committing the ofence

When might ID procedure serve no useful purpose?

• suspect admits being at the crime scene and accounts as to what took place and eyewitness didn’t see anything to contradict this

• not disputed that suspect is already known to D who claims to have recognised them when seeing the crime committed

What does known and available mean for ID purposes?

Known: police have sufficient information to justify their arrest du to suspect involvement in committing alleged offence

Available: immediately, or in a short period of time, wiling to participate in ID procedures

Who is the Identification Officer?

Independent from main investigation, overseeing ID procedure to ensure Code D is complied with.

Must be at least an inspector, and any duties imposed must be performed as soon as practicable

What may the police do if suspect is not yet known/identified?

Take witness to the scene of the crime to see if suspect can be identified locally or show photos of potential suspects following compliance.

Formal Identification procedure MUST then be carried out