Prep 1 Police Powers - Preliminaries to Prosecution

What will the arresting officer have to demonstrate to detain someone?

• They have the legal authority to do so

• They are exercising the power lawfully

Action following Arrest

Take the arrested to a police station as soon as possible

Reasons to delay immediately taking the arrested to the Police station

To carry out reasonable immediate investigations such as:

• Being searched;

• Being taken to premises being searched; or

• Being taken to a place to check their alibi

Role of the Custody Officer

Responsible for handling and welfare of suspects in detention at a police station including authorisation of detention and release

Grounds to Detain

• To secure or preserve evidence; or

• Obtain such evidence by questioning

Custody Record

Records all relevant information relating to detainee and their arrest including:

• Requirement to inform the person of the reason for their arrest

• The circumstances of the arrest

• Why the arrest was necessary

• Any comments made by the arrested person

Definition of Solicitor in COP C

solicitor who holds a current practising certificate or an accredited or probationary representative included on the register of representatives maintained by the Legal Aid Agency

Reviews of Detention under s40 PACE

• First review must take place no more than 6 hours of authorisation and then periodically every 9 hours thereafter

• Review officer must be at least an inspector and not connected to the investigation

Detention Time Limits under s41 PACE

Maximum detention time without extension is 24 hours from the relevant time

Relevant Time

Usually the moment the arrested arrives at the Police Station as indicated in the Custody Record

Extension of Detention under s42 PACE

Detention can be extended up to 36 hours from relevant time

Process for extending detention under s42 PACE

• Authorisation must be given before the expiry of the initial 24 hours but after the second review has occurred

• Grounds must be explained to the suspect and noted in the custody record

• The suspect and/ or their solicitor should be allowed the opportunity to make representations

Criteria for extending detention under s42 PACE

• Must be at least a superintendent

• Must have reasonable grounds for extension to secure/ preserve evidence or obtain evidence by questioning

• Offence must be indictable

• Investigation must be diligent and expeditious

Power to detain beyond 36 hours under ss43 and 44 PACE

May be extended by a magistrates court for up to 96 hours (in two 36 hour applications)

Rights of a Detained Person

• Private Consultation with a solicitor or legal representative

• Right to have someone informed of their arrest

• Right to consults the Codes of PRactice

Right to Free and Independent Legal Advice under s58 PACE

Detainee must be told of the right immediately and it may include consulting in person, on the phone or in writing

Power to delay the right to a Legal Representative under s58 PACE and COP C Annex B

• Can be delayed for up to 36 hours

• If authorised, must be recorded and the suspect informed

• If suspect is interviewed before receiving advice, restrictions on drawing adverse inferences apply

Criteria for delaying the right to a Legal Representative

• Indictable Offence

• At least a Superintendent

• Reasonable grounds to believe that right’s exercise would cause interference with/ harm to evidence or others or alerting others suspected of committing an indictable offence

Delaying the right to a Legal Representative based on benefit to the suspect under COP C Annex B

Right may be delayed if indictable and the suspect may move the beneficial property relating to the crime

Right to have someone informed of the arrest under s56 PACE

Arrested person can have a friend, relative or other told of the arrest as soon as is practicable and at public expense each time they move to a different police station

Criteria for delaying the right to have someone told udner s56 PACE

• Indictable Offence

• At least an inspector

• Reasonable grounds to believe the right’s exercise would cause interference with/ harm to evidence or others or altering people or hindering of recovery of property obtained

Conditions to delaying a right

• Delay must be proportionate

• Can only be delayed for up to 36 hours

• Person should be notified when right is permitted again

Right to an Appropriate Adult (where required)

• If a person is, or appears to be, under 18

• If the person appears mentally disordered or vulnerable either if told or on observation

Who can act as an appropriate adult?

• Parent

• Guardian

• Social Worker

• Representative of a care authority or voluntary organisation

• ANyone who is not a police officer or employee

Who cannot act as a representative?

• The representing solicitor

• Anyone involved in the offence or investigation (including witnesses and victims)

• Anyone who received admissions from the person detained beforehand

• Anyone of low IQ or who cannot appreciate the gravity of the situation

• An estranged parent who the arrested juvenile objects to

Role of the Appropriate Adult

• Ensure the detained understands the situation and their rights

• Support, advise and assist the detained

• Observe the police to ensure proper and fair action

• Assist with communication

• Can request legal representation for the detained

Proceeding without an Appropriate Adult

Young, mentally disordered or vulnerable detainee should not be interviewed unless delay would likely:

• Interfere with/ harm evidence or others

• Cause loss or damage to property

• Alert suspects not yet arrested

• Hinder the recovery of property

The Right to an Interpreter

Determined by the custody officer and suspect must not be interviewed without interpreter

Delaying right to an Interpeter

• Authorised by Superintendent or higher

• Must be satisfied that delaying right will prevent interference or harm to evidence or people or property

Treatment of Suspects in a Police Station under COP C 8

• So far as practicable, no more than one detainee in a cell

• Cell must be adequately heated, cleaned and ventilated

• Bedding must be supplied

• Toilet and washing facilities made available

• Replacement clothing of a reasonable standard available if clothing was removed

• Two light meals and one main meal every 24 hours

Definition of Interview under Code C, para 11.1A

“the questioning of a person regarding their involvement in a criminal offence or offences”

Caution and Interviews

Interviews must be carried out under cautioned and detainee should be re-cautioned after each break

Police Station Process

1. Custody officer authorisation and report

2. Rights read

3. Non-intimate samples taken

4. May see healthcare professional

5. May speak to legal representative

6. Interview

7. Release/ Bail/ Remanded in Custody

Police Ranking in Ascending Order

• Constable 

• Sergeant 

• Inspector 

• Chief Inspector 

• Superintendent 

• Chief Superintendent 

Investigating Officer

• Any rank

• Usually officer in charge of the case (OIC)

• Speaks to the legal representative to provide pre-interview disclosure

• Likely leads the interview

Location of Interview

Should be at police station or authorised place of detention

Exceptions to Location of Interview

Can be held in another place to reasonably prevent:

• Interference with evidence or persons or property

• Alerting other suspects

• Hindering recovery of property

Disclosure

Generally no right to disclosure with the exception of:

• Significant Statements

• Custody Record

Disclosure and PACE COP C 11.1A

“solicitor must be given sufficient information to enable them to understand the nature of any such offence and why they [the client] are suspected of committing it” 

Significant Statements

Statements that appear capable of being used in evidence, and in particular any direct admission of guilt

Recording an Interview

• All interviews must be contemporaneously recorded

• Indictable offence interviews must be audio recorded

When can an interview be recorded in writing?

• Relates to a minor offence

• Person has not been arrested

• Takes place other than at a police station

Fitness for Interview

Unless authorised by superintendent or higher, a person should not be interviewed if they are unable to:

• Appreciate the significance of their answers

• Understand what is happening due to intoxication or any illness

Requirements for an Interview

• Takes place in an interview room of a police station

• Is recorded

• In the presence of legal representative (if the right has been exercised)

• Can be suspended by the arrested or their representative at any time

Inappropriate Questions in an Interview

• Misrepresenting information

• Hypothetical Questions

• Repetitive Questioning

• Disruptive listening

Confessions and Admissibility under s76(2) PACE 1984

Generally a confession is admissible unless it is as a result of oppression or unreliability

Oppression under s76(8) PACE

Torture, inhuman or degrading treatment or the use or threat of violence that must have caused the confession

Unreliability under s76 PACE

Where a confession is obtained as a result of something said or done which renders it unreliable

Court Powers and Confessions under s78 PACE 1984

Court may exclude evidence that “would have such an adverse effect on the fairness of proceedings that the court ought not to admit it”