Comprehensive Study Notes on Prosecution Preliminaries, Investigation, and Arrest
Syllabus Area 2: Preliminaries to Prosecution
Scope of Syllabus Area 2:
Preliminaries to prosecution.
Powers of investigation.
Powers of arrest.
Detention and treatment of suspects.
Courts, Parties, and abuse of process.
Starting a prosecution and a preliminary.
Time Limits for starting proceedings for summary offences.
Conduct and Regulation of Interviews
Definition of an Interview:
An interview is defined as the 'questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which must be carried out under caution'.
Circumstances where a Caution is Not Necessary:
Questions asked to establish the identity of a person.
Questions asked to establish the ownership of a vehicle.
Questions asked to obtain information in accordance with a statutory requirement.
Questions asked in furtherance of the proper and effective conduct of a search.
Questions asked to seek verification of a written record of comments made by the person outside an interview.
Location of Interviews:
Following a decision to arrest, the suspect must normally be interviewed only at a police station or other authorised place of detention.
'A decision to arrest' signifies that if a police officer has decided to arrest a person, the arrest should not be delayed specifically to question the suspect before the arrest occurs.
Exceptions for Interviewing Outside a Police Station:
Interviewing elsewhere is permitted where a delay would be likely to:
Lead to interference or harm to evidence or to other persons.
Lead to the alerting of other suspects.
Hinder the recovery of property.
Ceasing Outside Interviews: Interviewing in these exceptional circumstances must cease once the relevant risk has been averted or the necessary questions to avert the risk have been put to the suspect.
Remote Interviewing:
Under s. 39, provision is made enabling persons in police detention to be interviewed by an officer who is not physically at the police station, through the use of a live link.
Cautions and Special Warnings
Timing and Reiteration of Cautions:
A caution must be administered at the commencement of an interview, regardless of whether it is conducted at a police station.
The suspect must be reminded they are under caution at the recommencement of an interview after any break.
If there is any doubt regarding the application of the caution, it should be given again in full.
The caution must also be given at the time of arrest.
Interpretation and Translation:
Where an interpreter is used, the fact that a caution is not perfectly translated will not render it invalid, provided the essential features are adequately conveyed.
Grounds for a Caution:
A caution must be given to a person 'whom there are grounds to suspect of an offence'.
This is defined as 'some reasonable, objective grounds for the suspicion, based on known facts or information'.
The sufficiency of grounds is an objective question and does not depend solely on the personal regard of the police officer.
Failure to Caution:
Failure to administer a caution when required is a significant and substantial breach of Code C.
This breach does not automatically result in the exclusion of interview evidence, though it is a factor.
Provision of Information Before Interview:
A person (and their solicitor if represented) must be given sufficient information before the interview to make it possible to understand the nature of the suspected offence and the reason for the suspicion.
Special Warnings:
A special warning must be given if a suspect is interviewed at a police station or authorized place following arrest and is asked:
To account for any object, mark, or substance (or mark on clothing/footwear) found on their person or in the place of arrest.
To account for their presence at the place where the arrest took place.
Consequence: Adverse inferences cannot be drawn from a suspect's silence if this warning is not provided.
Suspect Rights and Administrative Procedures
Information Regarding Legal Advice:
Prior to starting or restarting an interview at a police station, the officer must remind the suspect of their entitlement to free legal advice.
The suspect must be informed that the interview can be delayed to obtain legal advice, unless access to a solicitor has been delayed or specific exceptions apply.
Significant Statements or Silence:
At the start of the interview, after the caution, the officer must put to the suspect any significant statement or silence that occurred in the presence and hearing of police staff.
Significant Statement: One appearing capable of being used in evidence, especially a direct admission of guilt.
Significant Silence: A failure or refusal to answer a question satisfactorily under caution which might give rise to an adverse inference.
Conduct of the Interview:
Interviewer Prohibitions: No use of oppression to obtain answers.
Indicating Police Action: Officers may not indicate projected police actions in response to suspect behavior except when answering a direct question from the suspect.
Permissible Responses: If asked directly, an officer may inform the suspect of proposed actions (e.g., continued detention), provided the action is proper and warranted.
Prohibited Inducements: The police should not seek a confession by offering a caution.
Deception: Confessions may be excluded if the police falsely inform a suspect of incriminating forensic evidence (e.g., false fingerprints), particularly if the solicitor is also deceived.
Tricks and Misleading: Not every trick results in exclusion, but there is a positive duty on the police not to actively mislead a suspect.
Questioning Style:
Hypothetical questions are permissible but should be approached with care.
Questioning after repeated denials or refusals may become oppressive.
Hectoring and bullying are held to be oppressive.
Note: Questioning that is rude, discourteous, includes raised voices, or use of some bad language is not necessarily held to be oppressive.
Criteria for Ceasing an Interview:
For a person not yet charged or informed of prosecution, the interview must cease when:
The investigating officer is satisfied all relevant questions for obtaining accurate and reliable information have been put.
The officer has taken account of other available evidence.
The officer (or custody officer for a detained suspect) reasonably believes there is sufficient evidence for a realistic prospect of conviction.
Recording and Special Suspect Categories
Recording Requirements:
Interviews must normally be contemporaneously recorded, whether at a police station or not.
Any relevant comment (including unsolicited ones) made outside the interview context must be recorded.
Where practicable, the suspect should be given the opportunity to verify the record of such outside comments.
Authorized recording devices must normally be used for interviews under caution.
Special Categories of Persons:
Vulnerable Persons: Children, young persons, or mentally disordered/vulnerable individuals must not be interviewed or asked to sign statements without an 'appropriate adult' present (unless specific away-from-station conditions are met).
Efforts must be made to notify parents and the appropriate adult.
Role of Appropriate Adult: To serve as an adviser, observer, and facilitator of communication.
Interpreters: Suspects requiring an interpreter must not be interviewed without one unless authorized by an officer of the rank of Superintendent or above, based on risks outlined in Code C.
Intoxicated Persons:
Code C, para. 11.18, precludes interviewing any person unable to appreciate the significance of questions/answers or understand proceedings due to drink, drugs, illness, or ailments.
Exception: Such an interview must be specifically authorised by an officer of the rank of Superintendent.
Powers of Investigation and Use of Force
Reasonable Suspicion:
Relates to the existence of facts, not the state of the law.
Two-Part Test:
The constable carrying out the arrest actually suspects (Subjective Test).
A reasonable person in possession of the same facts would also suspect (Objective Test).
The arrest must be 'Wednesbury reasonable'.
Reasonableness is evaluated based on what the constable knew at the time; hindsight is not applicable.
Use of Force:
An officer may use reasonable force, if necessary, in exercising powers.
Force is authorized for: Stop and search, entry and search, arrest, detention at a station, searching a person (including intimate searches), fingerprinting without consent, and taking non-intimate samples without consent.
Prohibited Force (Requires Consent): Visual identification procedures and the taking of intimate samples.
Standards for Force: Must be both 'necessary and proportionate'.
Officer's Burden: Must demonstrate an honestly held belief in the need for force, that the belief was objectively reasonable, and that the force used was no more than objectively reasonable.
Court Considerations: Nature/degree of force, gravity of the offence, potential harm from the force, and possible alternative means of arrest.
Results of Force: Serious injury does not automatically make force unreasonable. Excessive force does not necessarily render the arrest itself unlawful.
Use of Handcuffs:
Handcuffs should only be used where reasonably necessary to prevent escape or a violent breach of the peace.
Handcuffing is not an automatic consequence of arrest.
Unjustified use of handcuffs constitutes trespass to the person, even if the arrest is otherwise lawful.
Powers and Legal Characteristics of Arrest
Legal Standards:
An arrest does not guarantee a charge will follow.
An arrest is unlawful if the officer knows at the time that there is no possibility of a charge being made, even if reasonable suspicion exists.
A constable may still arrest to obtain a confession even if a complainant withdraws their complaint.
Burden of Proof:
Police bear the burden of proving a lawful arrest.
Complainants bear the burden of proving excessive force if the arrest is lawful.
Communication during Arrest:
An arrest is unlawful unless the person is informed they are under arrest as soon as practicable.
An arrest is unlawful unless the person is informed of the grounds for arrest at the time or as soon as practicable.
Failure to inform the person why the arrest was necessary does not render the arrest unlawful.
Sufficiency Test: The person must be told the essential legal and factual grounds in simple, non-technical language they can understand.
Recording of Arrest:
The arresting officer must record the nature/circumstances of the offence, necessity for arrest, the caution, and suspect statements in their pocket book (or other recording method) at the time or as soon as possible.
Arrest Without a Warrant:
Police Officers: May arrest for any offence.
Civilians: Powers are confined strictly to indictable offences.
Both are subject to a 'necessity test'.
Powers are generally discretionary.
Specific Police Powers: Can arrest anyone about to commit, in the act of committing, or suspected (on reasonable grounds) of being about to/committing an offence. If an offence has been committed, they can arrest those guilty or suspected on reasonable grounds of being guilty.
Breach of the Peace:
Common-law power of arrest (available to constables and civilians) if:
A breach occurs in their presence.
There is a reasonable belief a breach will be committed in the immediate future.
A breach has occurred and a further breach is threatened.
Arrest Under Warrant:
Applies if the offence is indictable or punishable with imprisonment, or if the address for a summons is not established.
Detention and Treatment of Suspects
Custody Records:
Must be opened as soon as practicable for anyone brought to a station under arrest, arrested at the station after attending voluntarily, or attending in accordance with bail.
Volunteers: No record required if not arrested.
Transfers: Records or copies must accompany a person to another station, detailing the time and reason for transfer.
Detention Time: Time in police detention before bail release normally counts toward maximum detention periods.
Notification of Arrest (PACE 1984, s. 56(1)):
Suspects have the right to have one friend, relative, or person known to them (interested in their welfare) told of their arrest and location.
This must be done as soon as practicable.
The custody officer must inform the suspect of this right (Code C, para. 3.1(i)).
If the primary person cannot be contacted, the suspect may choose up to two alternatives.
Discretion exists for the custody officer to allow further attempts if initial contacts fail.