Introducing Criminal Litigation notes from The SQE Hub specifically tailored by addressing each of the assessment specifications listed on the SRA website. These high yield notes are an amazing revision aid and address the following:
- Rights of a suspect being detained by the police for question...
SQE 1 Assessment specification: Rights of a suspect being detained by the police for
questioning
Suspect (S) must usually be taken to PS ‘as soon as is practicable after the arrest’ (s.30 (IA)
PACE 1984 unless the arresting officer grants ‘street bail’.
Para 1.1 Code C - all people in custody dealt with ‘expeditioning’ and be released as soon
as need for detention no longer applies.
Initial steps:
- Custody officer = usually at least sergeant rank. Should not be involved in
investigation of offence.
- CO decides if ‘sufficient evidence’ to charge S with offence (s.37(1)) - will ask the
investigating officer for details of evidence.
- If yes, S will be released on bail or kept in detention until CPS has reviewed the
evidence to decide a charge.
- If there is no sufficient evidence to charge S, S should be released, or released on
with bail, detained if CO thinks detention is necessary to secure/preserve evidence or
necessary to obtain evidence.
- If CO decides to detain, must:
1. Authorise the detention of S
2. Open a custody record which will contain a written record of the time of arrest,
arrival at police station, time of detention, grounds for detention, the S’ charge
and S’s personal details
3. Inform S of the reason for their arrest
4. Inform S the reason for their detention
5. Advise S of their rights
6. Arrange for S to be searched.
S has several rights as soon as they’re detained:
1. s.56 - right to have someone informed of S’s arrest.
2. S.58 - right for S to consult privately with a sol
3. right to have someone review S’s detention time.
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Right to Legal Advice:
Grounds for delay to legal advice:
- Any delay must be authorised by rank of superintendent (higher than an inspector)
and can only be authorised if S is arrested for an indictable offence.
- Must be reas grounds – superintendent must reasonably believe that exercise of right
will lead to interference with evidence/harm to other people/alerting other people of
offence/hindering the recovery of property.
- Limits to delay: delay cannot be beyond 36 hours after the client arrived at the police
station.
- Delay can be done orally but must be confirmed in writing asap.
Right to have someone informed of arrest:
- S entitled to have one friend/relative/other person informed of arrest as soon as is
practicable
Grounds for delay are:
- Indictable offence – S mist be in detention for an offence that can be tried at CC
- Authority of delay can only be given by a rank of inspector; and
- Must be reas grounds – inspector must reasonably believe that exercise of right will
lead to interference with evidence/harm to other people/alerting other people of
offence/hindering the recover of property.
Limits to delay: delay cannot be beyond 36 hours after the client arrived at the police
station.
Reviews and Detention time limits under PACE, Code C
Clients’ detention must be reviewed by CO AND the “review officer” (rank of inspector or
above not involved in case) to ensure grounds for detention still exist. Review must take
place no more than 6 hours after the CO first authorised the detention, then
periodically every 9 hours after that first review.
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- Failure to carry out the reviews at required times makes detention unlawful.
Detention clock, as per Code C:
- From arrival to police station: this is when detention is considered to begin:
0-24 hours = max period of detention without charge. Within this time, police
are within right to detain S without charging them or taking any other action.
24-36 hours: police may extend for additional 12 hours – up to 36 hours from
arrival. But to do this:
- Must be exercised before expiry of first 24 hours
- Indicatable offence incl either way offences
- Superintendent must authorise
- Grounds for detention must still exist
- Continuing investigation must be conducted by police diligently and expeditiously
36 + hours: more than 36 hours must be authorised by a warrant given by
Mag court (police apply to Mag court to get one). Following conditions must
apply:
- Must be exercised before expiry of 36 hours
- Indicatable offence incl either way offences
- Superintendent must authorise
- Grounds for detention must still exist
- Continuing investigation must be conducted by police diligently and expeditiously
Police application can be done for a max period of 36 hours but S cannot be detained
for more than a total of 96 hours (so if 1st appl was 36 hours, then next can only be 24
hours).
Relevant time =
- Person attending volun, who is then arrested at PS = time of the arrest
- Person attend PS to answer ‘street bail’ = when they arrive at PS
- S arrested away from PS = when S arrives at the first PS
- If conduct of interview breaches any provisions above, court may rule inadmissible
any admission/confession made by D in the interview at trial.
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SQE 1 Assessment specification: Procedure for interviewing a suspect under PACE
1984
Role and appropriate conduct by defence legal representative/solicitor including
representation of vulnerable client:
Once CO has authorised detention of S, the investigating officer (IO) carries out further
investigation which involves:
1. Carrying audibly recorded interview with S and S’ involvement in offence
2. Identification procedure to be conducted by another officer to see if V or witness of
offence identifies S
3. Taking fingerprints from S to see if match fingerprints found in crime scene or
anything police have recovered
4. Samples of S to see if match samples obtained during the course of police
investigation.
POLICE INTERVIEW
Must comply with the requirements of Code C and E.
- Interview defined in para 11.1A Code C = the questioning of a person regarding their
involvement or suspected involvement in a criminal offence or offences which, under
para 10.1, must be carried out under caution. Police must ensure caution given to
S at start of the interview “you do not have to say anything, but anything you do say
may be given in evidence” → wording import so no adverse inference is drawn at trial
from S’ silence.
1. Start of interview = PO conducting interview will give caution. If S remains silent in
interview but raises defence later, court can draw an adverse inference from silence.
- Continuing right to legal advice = After caution, S must be reminded that they are
entitled to free and independent legal advice, even if a sol is present at interview.
2. Significant statements and silences = IO puts ‘any significant statement or silence
which occurred at time of arrest or before interview in presence of a police officer’
(para 11.4).
- IO must ask S to confirm earlier statement and significant silence:
‘Significant statement’ = statement appears capable of being used in evidence
against S at trial, in particular a direct admission of guilt.
‘Significant silence’ = failure or refusal to answer a q or to answer satisfactorily
when under caution, allowing the court to draw an adverse inference from silence
at trial.
3. S/sol will be given sufficient information so that they can understand the nature of the
offence and why they are a suspect.
4. Interview must take place at the police station.
5. Para 11.18b of Code C - S who at time of interview does not appreciate significance
of q’s or their answers or understand what is happening because of drunk, drugs,
illness/condition should not be interviewed.
6. Conduct at interview = no interviewer may try to obtain answers or elicit a
statement by the use of oppression’ (para 11.5).
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