Thursday 23 November 2006.

We began with a look at the classification of offences, something with which you should already be familiar. Offences are classified as either:

Summary – tried only in a Magistrates’ Court, minor motoring matters.
Triable either way – offences which if committed by an adult are triable either on indictment or summarily, e.g. theft.
Indictable offences – triable only at a Crown Court, e.g. murder.

SUMMARY OFFENCES are created by statute which set out the relevant offence and also specify the maximum penalty which can be imposed on summary conviction.

INDICTABLE OFFENCES are the more serious offences, e.g. rape, s18 wounding, robbery, aggravated burglary etc are triable only on indictment. All common law offences are indictable (e.g. murder).

OFFENCES TRIABLE EITHER WAY: classified in one of two ways:

(1) by the statute creating the offence providing two separate penalties. one relating to summary conviction, the other to conviction upon indictment, e.g. s47 a.b.h. or
(2) by the inclusion of an indictable offence in Schedule 1 to the MAGISTRATES’ COURTS ACT 1980.

Where a defendant is charged/summoned to appear before the court with damaging or destroying property contrary to s1 CRIMINAL DAMAGE ACT 1971, if the amount of damage does not exceed £5,000 then the offence will be a summary offence and thus no mode of trial proceedings will arise. If the value exceeds £5,000, the mode of trial procedure will be used, giving the accused a right, if the magistrates are prepared to hear the case, to elect jury trial if he so wishes.

Except in the case of some minor offences , the decision to prosecute is taken not by the police but by the Crown Prosecution Service established under the provisions of the PROSECUTION OF OFFENCES ACT 1985.

Alternatives to prosecution are the administering of a formal caution or, in the case of certain road traffic offences, issuing a fixed penalty notice.

Prosecutions in Magistrates’ Courts are normally conducted by Crown Prosecutors who are qualified solicitors or barristers, or agents acting for and on behalf of the Crown Prosecution Service who are normally engaged to meet staffing shortfalls within the Crown Prosecution Service. In the Crown Court, however, no permanent employee of the Crown Prosecution Service, be he a qualified solicitor or barrister, can at the current time prosecute the matter, and the Crown Prosecution Service therefore brief counsel practising on the various circuits within England and Wales to appear on behalf of the Crown.

We now turn to an important topic, the FINANCING OF CRIMINAL LITIGATION.

When one is consulted by a client in connection with a non-contentious matter the client is usually under no illusions that anyone is going to pay his costs except himself (e.g. residential or commercial conveyancing). It is sensible at the outset of the case to discuss with one’s client the question of costs. The criteria for the granting of legal aid in criminal cases are dealt with below; however, from the outset, in some cases, it is clear that a prospective client will not be granted legal aid and is not eligible for advice under the advice and assistance scheme. It is prudent in such cases to obtain money in advance or “on account of costs”. This can either be by asking to be put in funds to an amount which will adequately cover costs, travelling expenses and VAT or alternatively to seek payment in instalments. In some cases there is a risk of a custodial penalty, when it is important to ensure that one’s firm has money “on account of costs”. Perhaps the most frequent occasions when people will not be eligible for legal aid are cases involving drinking and driving. The Magistrates’ Association’s suggested penalties are fines and disqualification’s. In relatively few Crown Court cases are people not eligible for legal aid because of the more serious category of case that is dealt with there. Where, however, a privately funded client is to go before the Crown Court then a substantial payment in advance is normally required. One should be aware of the fact that the solicitor will be liable for counsel’s fees whatever the outcome of the case. As a rule of thumb, costs at the Crown Court tend to total something in the region of £1,500 per day and thus for a two or three day Crown Court trial substantial sums are required in advance of the commencement of the proceedings.

If a defendant is acquitted, it may be possible for him to get an order reimbursing him for his legal costs, assuming of course that these were not in fact borne by the legal aid fund. Provisions as to costs orders are in ss 16-21 PROSECUTION OF OFFENCES ACT 1985. The court may make a “defendant’s costs order” under s16 if the defendant is acquitted after summary trial or if he is acquitted even on one of several counts following trial on indictment, or if he is discharged following committal proceedings where the prosecution were unable to establish a case to answer. The costs covered will be those reasonably incurred in the proceedings.

If a defendant is convicted, he may be ordered to pay “just and reasonable” prosecution costs, in respect of any kind of trial (s19).

Costs orders may cover proceedings in the court making the order, and any court below it (s21).

The making of costs orders is discretionary, but guidance given in the Practice Direction (Crime Costs in Criminal Proceedings) [1999]. An order should be made unless the defendant’s actions were such that it misled the prosecution to believe that their case was stronger than it actually was.

Publicly funded or subsidised advice and assistance is available in the following forms.

ADVICE & ASSISTANCE. The advice enables a solicitor to give a client, who qualifies on financial grounds, advice on any matter of English law. The client’s financial eligibility is worked out with the aid of a “key card”.

So far as it concerns criminal litigation, the advice will include work up to the value of two hours fees covering such things as taking the client’s first proof of evidence, a preliminary consideration of the evidence and providing assistance in completing an application form for “full” legal aid. A solicitor can apply to have the two hour limit exceeded by completing an application form indicating the grounds for seeking to do further work for the client beyond the basic amount. In urgent cases authorisation may be sought by telephone.

ADVICE UNDER THE DUTY SOLICITOR SCHEME. The Duty Solicitor Scheme originated over 20 years ago as an experiment in certain parts of the country. It involved experienced criminal lawyers being available on a rota basis to give advice to suspects who were held at police stations or to assist those appearing before the Magistrates’ Court who were unrepresented; and covered such matters as preliminary bail applications or pleas in mitigation. The Duty Solicitor Scheme covers the areas of advice and assistance at the police station and at court.

Where the client is at the police station, either in custody or attending voluntarily, he is entitled to free legal advice from either his own solicitor or some other qualified person or from the duty solicitor under the Duty Solicitor Scheme This scheme is not means tested, so even the wealthiest client is entitled to free assistance.

Once a case has been referred to a duty solicitor, he will often first make contact with the police station by telephone to ascertain the reason for the arrest, the arresting officer and any other relevant information which will assist in speaking to the suspect. The solicitor also has the right to consult privately with the suspect by telephone. In some cases the detained person will seek the duty solicitor’s attendance when he is being interviewed by police officers.

The court duty solicitor will see a defendant before he goes before the court for the first time and may represent him at the first hearing making a bail application or, where the defendant has pleaded guilty. making a plea in mitigation. If the case proceeds after the first hearing. the defendant must apply for “full” legal aid.

In relation to all work undertaken at both the police station and at court, no charge is made to the arrested person.

Legal aid is now known as a REPRESENTATION ORDER. It is available for any trial in a magistrates’ court including all preliminary applications such as bail; for trial or committal for sentence in the Crown Court; for appeal from Magistrates’ Court to the Crown Court, for appeal from the court to the Crown Court of Appeal or thereafter to the House of Lords.

Two grounds have to be satisfied for legal aid to be granted:

(1) it appears that the applicant’s financial resources are such that he requires assistance in meeting the costs of the proceedings; and
(2) it is desirable to do so in the interests of justice.

The means test has gone in an out of favour, but as from 2 October 2006 all applications for a representation order are subjected to a means test. The following qualify automatically:

Those on benefit
Under the age of 16 years
Under the age of 18 years and in full-time education

Otherwise a ‘simple means test’ is applied. If the end figure is below £11,590 the applicant will qualify: over £20,740 they will not. If the figure is in between the two a “full means test’ is applied. Here the annual disposable income needs to be less than £3,156 to be eligible. THE FIGURES CHANGE YEARLY, SO THERE IS NO POINT IN TRYING TO MEMORISE THEM, FOR THEY WILL NOT BE CORRECT AT THE TIME OF THE EXAM.

An application for criminal legal aid is made to the court, either orally or in writing. The application will be made at the accused’s first appearance, the early administrative hearing. Assunming that the applicant qualigies under the means test, the matter is then subjected to an “interests of justice” or “merits” test.

Section 22 LEGAL AID ACT 1988 assists the court by suggesting that in defined circumstances the “interests of justice” test (also commonly known as the “Widgery” criteria) is satisfied where one or more of the following criteria applies:

LIKELIHOOD OF DEPRIVATION OF LIBERTY. The offence is such that if proved it is likely that the court would impose a sentence which would deprive the accused of his liberty. This condition is likely to be satisfied where the client is charged with a serious offence for which imprisonment is the likely punishment or where he has previous convictions or is in breach of a probation order which will increase the severity of the sentence to be imposed. The condition is also likely to apply where the offence involves serious aggravating circumstances such as theft in breach of trust.

To determine whether the ground applies to the particular defendant, reference should be made to the sentencing approaches of the courts and the Magistrates’ Association Sentencing Guidelines.

Deprivation of liberty includes all forms of imprisonment.

LOSS OF LIVELIHOOD. Motoring offences cover the “loss of livelihood” criteria, where the client may lose his licence and his job either through disqualification or under the totting up procedure. Also included in this category would be where the offence is relatively trivial, but a conviction may jeopardise the client’s continued employment where, for example, he is charged with theft and his job involves handling money or having charge of people’s property or generally acting in a fiduciary capacity.

It will seldom be granted where the defendant is to be disqualified as a result of drink/drive (mandatory disqualification), or the ‘totting-up’ procedure.

SERIOUS DAMAGE TO REPUTATION. If the defendant occupies a position of standing in the community such as member of the clergy, a solicitor or a doctor, legal aid will be granted even where the offence is relatively minor.

THE CHARGE MAY INVOLVE CONSIDERATION OF A SUBSTANTIAL QUESTION OF LAW. This ground will apply where there is a conflicting case law on a point relevant to the client’s case. In these circumstances it is clearly in the “interests of justice” for the client to be professionally represented.

THE DEFENDANT HAS INADEQUATE KNOWLEDGE OF ENGLISH, OR SUFFERS FROM MENTAL ILLNESS OR PHYSICAL DISABILITY. Clearly it is in the interests of justice that legal aid should be granted in these circumstances.

THE DEFENCE CASE WILL INVOLVE THE TRACING AND INTERVIEWING OF WITNESSES. The nature of the defence case or the way in which the defence should challenge the prosecution case requires the specialised, professional skills of a lawyer.

LEGAL REPRESENTATION IS DESIRABLE IN THE INTERESTS OF SOMEONE OTHER THAN THE DEFENDANT. The most common example in this category is the case of a sexual offence. It is clearly undesirable that the accused should be permitted personally to cross-examine the victim. In this situation legal aid would also probably be granted under other “interests of justice” criteria, most notably under ground (1). We will consider this further when looking at vulnerable witnesses.

In addition to the “interests of justice” criteria under s22, a legal aid order must be made, subject to the defendant’s financial means, in the following circumstances:

(a) where a person is committed for trial on a murder charge: or
(b) where an unrepresented person who wishes to be legally represented is brought before a Magistrates’ Court having once been remanded in custody and not legally represented on the first occasion and risks a second remand in custody or of being committed to the Crown Court in custody; or
(c) a person having been convicted is remanded in custody by a Magistrates’ Court or the Crown Court so that reports may be made before passing sentence; or
(d) to a person who received legal aid in the Court of Appeal whose case has been taken to the House of Lords by the prosecution.

An appeal against a refusal is made to the same court that refused, and is made to the appropriate court officer.

In the Crown Court legal aid is very freely available because in the nature of things the charge is likely to be more serious and thus the first of the Widgery criteria will be more easily satisfied. Representation under the legal aid order in the Crown Court does of course extend to representation by counsel. The scheme is means tested, and always has been.

We then turned to another popular examination topic, the issue of BAIL. Bail is the release of a person subject to a duty to surrender to custody in the future. The question of bail arises both during the suspect’s detention at the police station, and, if the matter proceeds to court, during the proceedings. Bail in the course of criminal proceedings is governed by the BAIL ACT 1976, and applies only to bail granted by a court. The question of bail also arises at the police station where the custody officer has to decide whether to authorise the suspect’s continued detention (where Code C permits) or whether to release the suspect on bail or unconditionally. This is governed by PACE 1984 as amended by the Criminal Justice & Public Order Act 1994.

Where the person has yet to be charged, and there are further enquiries to make, it is possible to bail the suspect to return to the police station under s47(3) PACE. No condition can be imposed on the bail, other than the condition to return.

We will continue with this next week.

Thursday 16 November 2006

PROCEEDING AGAINST THE SUSPECT
At the conclusion of an investigation, the police may:

release the suspect without charge;
offer a caution/conditional caution
release him on bail pending consideration of charge by the Crown Prosecution Service or subject to further investigation;
charge him where the offence is one of those listed below:

The decision to charge a suspect will be taken either by the police or by the CPS depending on the type of offence to be charged.

The police will charge the suspect where the defendant makes an early indication that he will plead guilty in the Magistrates’ Court except:

s20 wounding or grievous bodily harm
s47 abh
violent disorder: s2 POA 1986)
affray: s3 POA 1986;
offences of deception and handling stolen goods

The police will also charge the suspect with the following offences (whether an early plea is made or not):

Bail act offences
s5 POA 1986
Town Police Clauses Act 1847 offences
Vagrancy Act 1824 offences
Street Offences Act 1959
all summary offences punishable on conviction with a term of imprisonment of three months or less
any by-law offence; and
all motoring offences except:

cases involving death
dangerous driving
aggravated vehicle taking
allegations of TWOC unless suitable for an early disposal as a guilty plea in the magistrates’ court.

The CPS will decide the charge in the following offences:

all offences tried on indictment only
any offence triable on indictment due to the seriousness of the offence and/or the defendant’s previous convictions
offences under the Terrorism Act 2000
any other offence linked with terrorist activity
offences under any Official Secrets Acts
any offence involving any racial, religious or homophobic aggravation
any offences under the Sexual Offences Act 2003 committed by or upon any person under the age of 18

NOTE: I do not believe that it is worth trying to learn these lists.

In deciding whether to charge and the appropriate charge, the police or the CPS will apply the evidential and public interest tests under the Code for Crown Prosecutors: (i) there must be sufficient evidence to achieve a realistic prospect of a conviction and (ii) it is in the public interest for the suspect to be charged.

A CONDITIONAL CAUTION is governed by ss23-27 Criminal Justice Act 2003. A conditional caution is available where:

the suspect is 18 or over;
the suspect admits the offence to an authorised person; and
that, in the opinion of the relevant prosecutor, there is sufficient evidence to charge the suspect with the offence.

The police have no discretion to impose a conditional caution, which may only be given by a prosecutor even in those cases where it would have been open for the police to have charged the suspect.

In deciding whether a conditional caution is appropriate, regard should be had to the suspect’s criminal record and the seriousness of the present offence.

The conditional caution will usually be given at the police station but may also be administered at the offender’s home or at any other appropriate location. When the caution is administered, the offender is required to sign a document which contains:

details of the offence;
an admission by him that he committed the offence;
his consent to being given the conditional caution; and
an agreement to comply with the conditions attached to the caution.

The conditions attached to the caution must be:

proportionate to the offence;
achievable; and
proportionate.

The conditions should also be aimed at the offender’s rehabilitation and/or reparation. The rehabilitative element may require the offender to attend a drug or alcohol rehabilitation course or an anger management course. The reparative element might include repairing or making good any damage caused to property such as cleaning graffiti or simply apologising to the victim.

The time-limit for administering a conditional caution must not be too long, especially in connection with a summary offence where a prosecution would have to be commenced within six months of the commission date, if the offender fails to comply with the conditions of the caution.

If the suspect fails to comply with the conditions of the caution, he is liable to be prosecuted for the original offence. The conditional caution may be cited in any subsequent criminal proceedings.

DRUG TESTING AT THE POLICE STATION
s63B PACE 1984, as amended by s7 Drugs Act 2005, gives the police the power to demand a urine sample from a suspect on arrest or after charge in order to test for the presence of a Class A drug. The power to take a sample arises in connection with certain trigger offences under MDA 1971 and the Theft Act 1968.

In addition, s9 DA 2005 gives the police the power to require a person who has tested positive to undergo an initial assessment to ascertain whether the person has a propensity to misuse a Class A drug and that he would be suitable for treatment. Where the test shows the presence of a Class A drug, the information will be passed onto the court which must take it into account when making a bail decision under BA 1976. A failure to give a sample or to consent to undergo an initial assessment or follow-up treatment constitutes a criminal offence.

The testing procedure is currently being piloted at police stations in a number of police forces, including West Midlands.

We then turned to the courts & their personnel, beginning with the magistrates' court. Magistrates are either:

unpaid justices of the peace with no legal qualifications. Known as lay magistrates. There are approximately 30,000 active lay magistrates in England and Wales; or
District Judges appointed from amongst solicitors and barristers of at least seven years’ standing and paid a fixed salary.

Justices of the peace are appointed by the Lord Chancellor in the name of the Queen - s5 JUSTICES OF THE PEACE ACT 1997. In this the Lord Chancellor is advised by committees of magistrates in the various commission areas.

District Judges, who sit in the busy magistrates' court of London and in most cities and large towns, are appointed by the Queen on the advice of the Lord Chancellor, ss 11,16 JUSTICES OF THE PEACE ACT 1997. There can be up to 60 appointed to sit in the inner London courts and up to 40 can be appointed to sit outside London. Their work is also supplemented by a number of acting District Judges.

LAY MAGISTRATES may be removed from office by:

the Lord Chancellor under s5 JUSTICES OF THE PEACE ACT 1997 in “exceptional circumstances”, e.g. commission of serious crime; or
being placed on the “supplemental list” by the Lord Chancellor, where the magistrate is too infirm to sit or fails to attend court regularly – s7 JUSTICES OF THE PEACE ACT 1997. Where s7 applies, the magistrate retains the status of justice of the peace but may not exercise a judicial function; or
be subject to the compulsory retirement age of 70 and automatically placed on the supplemental list.

STIPENDIARY MAGISTRATES may be removed from office by:

the Lord Chancellor on the grounds of inability or misdemeanour; or
being subject to compulsory retirement at the age of 70, unless the Lord Chancellor gives special authority for them to continue for a limited period of up to two years.

Sitting in front of the lay magistrates is a magistrates’ clerk. Such clerks are appointed from amongst barristers and solicitors of at least five years’ standing or have worked for at least five years as assistants to a magistrates’ clerk. Each clerk is assisted by other court staff many of whom need not be legally qualified although assistants to the magistrates will invariably be legally qualified. The clerk and his staff are responsible for important areas of court administration such as issuing summonses and the collection of fines. Clerks and their assistants also sit in court to advise the Bench on points of law, evidence and procedure.

A justice of the peace is appointed to one of the commission areas in England and Wales and has jurisdiction only in that area. A justice of the peace is normally required to live in or within 10 miles of the commission area for which he acts. Commission areas are further divided into petty sessional divisions, and a Magistrates’ Court is located in each division. On appointment a justice of the peace is allocated to a particular petty sessional division and will normally sit only in the courts for that division.

District Judges are allocated to courts by the Lord Chancellor. Outside London they are also justices of the peace for the commission areas in which they are appointed to work.

Criminal proceedings are initiated by the process of the presentation of an information to a magistrate, alleging that the person named has committed a specified offence (later).

Section 50 CRIME AND DISORDER ACT 1998 provides that a defendant’s first appearance before a Magistrates’ Court may take the form of an administrative hearing where eligibility for legal aid may be made. The system applies to all cases other than where the defendant is charged with an indictable only offence and other related offences. A single magistrate/clerk can conduct the hearing.

Section 50(2) sets out the procedure:

the accused will be asked whether he wants legal aid;
if yes, his eligibility will be determined
if eligible, the necessary arrangements will be made.

It is simply a statutory footing for what was previously common practice.

When trying a case a Magistrates’ Court must be composed of at least two and no more than seven magistrates, it is normally three, although Birmingham magistrates often sit in two’s due to a lack of lay magistrates. A District Judge sits alone, except in a Youth Court, is empowered to sit alone and usually does so. The rules of natural justice means that a magistrate:

should have no direct pecuniary interest in the outcome of any case he is trying; and
he should have no other interest in a case before him which would cause a reasonable man to believe that bias might be present or which would create a real likelihood of bias – R v Altrincham Justices ex parte Pennington [1975] (a case involving the underweighing of carrots!); and
he should act fairly and be seen to act fairly.

A justice of the peace should not take any part in a contested summary trial if in the course of the same proceedings the justice has been informed during an earlier bail application that the accused has one or more previous convictions – s42 MCA 1980. It should be noted that the matter relates only to contested proceedings where the magistrate has earlier presided in the same proceedings and therefore simply because a magistrate has heard a regular offender’s case on an earlier occasion is no bar to the magistrate to continue to hear the matter.

At the outset of a case if it is obvious to a justice that he knows that the defendant has previous convictions which may lead to bias, or suggestion of bias, in the mind of an ordinary member of the public then the magistrate should not continue to hear the matter.

R v Downham Market Justices, ex parte Nudd [1989] – a chairman of the Bench presided over a court which dealt with a case concerning threats by the defendant to his, the chairman’s, wife. Within four weeks the defendant was next before the court charged with a drink-related driving offence. The Divisional Court held that that magistrate should not have adjudicated in the matter. In brief, where circumstances arise in which a fair-minded and reasonable person knowing all the relevant facts would have a suspicion that a fair trial was not possible the Divisional Court would interfere to set aside such an adjudication.

Section 49 and 50 CRIME AND DISORDER ACT 1998 make changes to Magistrates’ Court procedures:

s49(1): a single justice can:

extend bail
impose bail conditions
mark an information as withdrawn
request a PSR following a guilty plea

s49(3): a clerk cannot:

indicate the seriousness of an offence for a PSR
prohibit reporting restrictions
remand in custody for a medical report

The COURTS ACT 1971 created the Crown Court to deal with more serious criminal offences. The Crown Court is now largely governed by the SUPREME COURT ACT 1981. It has the following jurisdiction:

trials of offences triable either way committed for trial at the Crown Court, and indictable offences;
the sentencing of offenders committed for sentence by Magistrates’ Courts;
appeals against conviction by a Magistrates’ Court and/or against sentences imposed by magistrates; and
certain civil matters, largely concerning children, young persons and licensing matters; and
the issue of some search warrants e.g. special procedure material

The following types of judge preside over sittings of the Crown Court:

High Court judges (known as Puisne judges), who hear the most serious cases;
Circuit Judges, who are hill-time judges; and
Recorders and Assistant Recorders, who are part-time judicial officers.

Work is distributed amongst these different types of judge according to the Practice Direction (Crown Court: Allocation of Business) #2 [1998].

In a nutshell:

Class 1 offences – include murder, genocide, or treason under s1 OFFICIAL SECRETS ACT 1911). Just remember them as the former offences where the death penalty could be imposed.
Class 2 offences – include manslaughter, infanticide. child destruction, abortion, rape, sexual intercourse with a girl under 13, incest with a girl under 16, sedition, mutiny, piracy, incitement, attempt or conspiracy to commit any of the above offences)
Class 3 offences – all offences triable only on indictment other than those in Classes 1 and 2.
Class 4 offences – the remainder.

We will continue with this next week.

Thursday 10 Novermber 2006

The introduction of the tape-recording of interviews brought into focus many deficiencies in the techniques adopted by police officers when questioning suspects. Home Office Circular 7/1993 introduced a national training initiative which provides guidance to officers during interviews with suspects. This is commonly known as the PEACE approach to interviewing. It was intended that its introduction would put an end to the bullying style of questioning which had been disclosed in the case of Paris, Abdullah and Miller [1994], a case that we cover later.

The following seven principles of investigative interviewing are set out in Annex A to Home Office Circular 22/1992, and are expressly approved in Circular 7/1993:

(1) The role of the investigative interviewing is to obtain accurate and reliable information from suspects, witnesses or victims in order to discover the truth about matters under police investigation.
(2) Investigative interviewing should be approached with an open mind. Information obtained from a person who is being interviewed should always be tested against what the interviewing officer already knows or what can reasonably be established.
(3) When questioning anyone a police officer must act fairly in the circumstances of each individual case.
(4) The police interviewer is not bound to accept the first answer given. Questioning is not unfair merely because it is persistent.
(5) Even when the right of silence is exercised by a suspect, the police still have the right to put questions to the suspect.
(6) When conducting an interview, police officers are free to ask questions in order to establish the truth; except for interviews with child victims of sexual or violent abuse which are to be used in criminal proceedings, they are not constrained by the rules applied to lawyers in court.
(7) Vulnerable people, whether victims, witnesses or suspects, must be treated with particular consideration at all times.
Questioning may be considered “oppressive” if the officer asks:

· multiple questions (i.e. several questions rolled into one);
· ambiguous questions (i.e. where the potential answers have more than one meaning);
· irrelevant questions (i.e. questions which have no logical connection with the police enquiry);
· questions concerning other offences;
· hypothetical questions;
· questions based on dubious or non-existent evidence;
· questions concerning a co-suspect.

The evidential requirements for the admissibility of a confession play a major part in the way in which the investigating officer conducts the interview. If the defence or the court raises the admissibility of the suspect’s confession, the prosecution is required to prove beyond reasonable doubt that the confession was not obtained by “oppression” (s76(2)(a) PACE); and/or that it was not obtained in circumstances which would render it unreliable (s76(2)(b) PACE); and/or that it would not be unfair to the accused to admit evidence of the confession (s78 PACE). We will look at this later.

Where, during the interview, the officer in charge of the investigation reasonably believes that there is sufficient evidence to provide a realistic chance of conviction for the offence, the interview should cease immediately and the custody officer should be informed. He will then decide whether the suspect should be charged (paras 11.6 and 16.1 Code C).

However, as exceptions to this general rule, para 16.5 Code C provides that a suspect may continue to be interviewed after charge or informed that he is to be prosecuted for the offence where the interview is necessary:

· to prevent or minimise harm or loss to some other person, or the public;
· to clear up an ambiguity in a previous answer or statement;
· it is in the interests of justice for the detainee to have further questions put to them, and have an opportunity to comment on, information concerning the offence which has come to light since they were charged or informed they might be prosecuted.

INTERVIEWS - ADVISING THE SUSPECT

The most significant advice is whether the suspect should answer police questions or remain silent. Since the introduction of ss34, 36 and 37 CJPOA 1994, this decision for both the suspect and his legal adviser has taken on added significance. Advice should therefore always be given on the basis of balancing the risks between the suspect remaining silent and answering police questions. This decision will be determined by a number of factors:

· the extent of disclosure by the police of the case against the suspect; the apparent strength of the police evidence against the client;
· the admissibility of the police evidence; the likely fairness of the interview;
· the apparent mental condition of the client;
· the strength of the client’s defence, including evidence of any alibi; any specific benefits for remaining silent;
· any possible advantage of an early admission of the offence(s).

Thursday 2 November 2006

We began by discussing detention without charge post-24 hours. Remember, the first review took place after six hours, with subsequent reviews at nine hourly intervals, undertaken by a “review officer”. He is an officer not below the rank of Inspector, unconnected with the investigation. At the end of 24 hours the person must be released if detained for a criminal offence. However, if detained for an INDICTABLE OFFENCE (the horrible phrase chosen to mean it includes either-way offences here), then further detention is possible.

s6 Criminal Justice Act 2003 introduces s40A(1) and (2) PACE 1984, which allow the review of the suspect’s detention to be undertaken by telephone where it is not reasonably practicable for the Inspector to be present at the police station to review the suspect’s detention. The power cannot be exercised where the review is undertaken by video-conferencing facilities, which should be used in preference to the telephone.

Alternatively, before the end of the initial 24-hour period and where the suspect has been detained in connection with an INDICTABLE OFFENCE, under s42(1) PACE 1984 a superintendent can authorise the continued detention without charge for a further 12 hours where he has reasonable grounds for believing that:

• the detention of that person without charge is necessary to secure or preserve evidence relating to an offence for which he is under arrest or to obtain such evidence by questioning him; and


• an offence for which he is under arrest is an indictable offence; and


• the investigation is being conducted diligently and expeditiously.

The grounds for such authorisation must be explained.

If a superintendent has authorised a suspect’s detention beyond 24 hours then, before the 36-hour period expires, the police may apply to a magistrates’ court for a “warrant of further detention”. s43(3) provides that the subject of such an application is entitled to be legally represented at the hearing and if he is not represented but wishes to be represented then the court will not proceed with the application until legal advice and assistance have been obtained. The court cannot make a warrant of further detention unless the offence is an indictable offence and the suspect’s detention is necessary to secure or preserve evidence relating to the offence for which he is under arrest or to obtain such evidence by questioning him. The court must also be satisfied that the investigation is being conducted diligently and expeditiously.

In practice it is rare to find a Magistrates’ Court failing to grant the police a warrant of further detention. The police can also make application for an extension of a warrant of further detention. They may be able to detain suspects arrested for indictable offences up to 72 and then 96 hours. AT the 96 hour stage the prisoner must be either charged or released.

If there is sufficient evidence to charge the arrested person he must do so – s37(1) – although s47(3) bail may be appropriate. This is where the person is bailed to return to the police station whilst further investigations are made. No conditions can be placed upon this bail. A person who has been charged may also be released on police bail (later) unless:     

• the name and address of the person charged cannot be ascertained or the custody officer has reasonable grounds for doubting whether a name or address furnished by the person charged is his real name or address; or


• he has reasonable grounds for believing that the detention of the person arrested is necessary for his own protection or to prevent him from causing physical injury to any other person or from causing loss or damage to property; or


• he has reasonable grounds for believing that the person arrested will fail to appear in court to answer bail or that his detention is necessary to prevent him from interfering with the administration of justice or with the investigation of offences.

If a charged person is not bailed he must be brought before a magistrates’ court as soon as is practicable and in any event not later than the first sitting of the court after he has been charged with an offence. It is common to find courts sitting on Saturdays to deal with bail, although less so than in the past since the Police now have the power to grant conditional bail.

Continued detention of an non-charged person is allowed under s37(2) if the custody officer has reasonable grounds for believing that his detention without charge is necessary:

• to secure or preserve evidence relating to an offence for which he is under arrest; or


• to obtain such evidence by questioning him.


• Section 41 limits detention to 24 hours, unless the offence is an INDICTABLE OFFENCE, allowing for an overall maximum of 96 hours.

PACE does allow for reviews to take place both before and after the designated time. It is not a part of the syllabus.

We then turned to INTERROGATION OF SUSPECTS. Where suspects are arrested and taken to the police station, their interrogation is governed by Codes of Practice C, D and E for the detention, treatment and questioning of persons by the police.

There are seven  Codes:

A – exercise of police powers of stop and search
B – searching of premises and seizure of property
C – detention, treatment and questioning of persons
D – identification of persons
E – tape-recording interviews
F – video interviews
G – Police powers of arrest

The Codes must be readily available at all police stations for consultation by police officers, detained persons and members of the public. Breach of a provision of a Code renders a police officer liable to disciplinary proceedings, but is not itself a criminal offence or civil wrong. However, it may found a claim that the evidence thus obtained should be inadmissible against a defendant.

Code D deals with identification, including:

• identification parades


• group identification


• video film


• confrontation


• photographs


• voice


• computer imagery

all managed by the “identification officer”.

Whilst the ID parade is almost extinct since the introduction of video identification, the rules are the same.

If the suspect wants an identification parade, one must be held if practicable unless the person is of ‘peculiarly singular experience’.

There should be eight other persons reasonably like the client on a parade, or twelve where two similar clients are on the same parade. The witnesses are shown the parade one at a time, and aren’t allowed to collaborate with each other.

A group identification is covered by annex C of Code D. these may take place with or without the suspect’s consent. Where it takes place is a matter for the identification officer. IN Birmingham it is usually on the ramp to New Street rail station. In Tiplady [1995] the Court of Appeal held that the foyer of a magistrates’ court was a suitable place.

The main power to obtain fingerprints is contained in s61 PACE as amended by s9 Criminal Justice Act 2003. Under s61(2) PACE fingerprints may be taken in the following circumstances:

• without consent where a suspect has been arrested and detained in connection with a recordable offence; or


• without consent where the suspect has been charged or informed that he will be prosecuted for a recordable offence and he has not had his fingerprints taken in the course of the investigation sample; or


• he has provided a fingerprint sample but it has proved unsuitable or insufficient; or


• without consent where he has been convicted of a recordable offence or cautioned or reprimanded in relation to a recordable offence.

s117 SOCPA 2005 has extended the power to take fingerprints by permitting an officer under s61(6A) PACE to take a person’s fingerprints without consent where:

• the officer reasonably suspects that the person is committing or attempting to commit an offence or has committed or has attempted to commit an offence; and


• the name of the person is unknown and cannot be readily ascertained by the officer; or


• the officer has reasonable grounds for doubting whether a name furnished by the person is his real name.

This extended ground for taking fingerprints removes the need for the person to be arrested where the principal purpose is to confirm the person’s identity.

As with the taking of non-intimate samples, a recordable offence covers all offences punishable by imprisonment and a small number of non-imprisonable offences.

Reasonable force can be used where the suspect refuses to co-operate in having his fingerprints taken.

ss81 and 82 CJPA 2001 amend s64 PACE 1984 so that the police are entitled to retain the suspect’s fingerprints or DNA samples even where the suspect is not charged or is acquitted by a court. This provision was challenged in:

Chief Constable of South Yorkshire (Marper) [2003] under Art 8 ECHR, the right to privacy. The court held that, even if the provision was an interference with Art 8, it was proportionate to the aim to be achieved.

The police commonly use photographs to assist the victim or a witness to identify the potential suspect. The police have an enormous stock of photographs which traditionally have been taken of any person who has been arrested and held at the police station. A person can be photographed with or without his consent.

S116 SOCPA 2005 amends s64A PACE 1984 by permitting a person to be photographed (including video) without his consent elsewhere than at a police station (s64A(lA)).

s64A PACE 1984 permits photographs and other images to be used for any purpose related to the prevention or detection of crime, the investigation of an offence or the conduct of a prosecution or to enforce a sentence.

A new power is provided by s64A(1B) PACE 1984 which permits a person’s photograph to be taken and retained without his consent or where it is not practicable to obtain consent in a number of circumstances including:

• where the person has been arrested by the officer for an offence;


• taken into custody after an arrest by a person other than a police officer; or


• required to wait with a community support officer.

The extended powers permit a photograph to be taken of a person even where he has not been arrested but is merely required to wait with a community support officer or has been arrested under the citizen’s power of arrest (s24A PACE 1984).

Annex E Code D sets out the rules for showing photographs to the crime victim or witnesses. Photographs should not be used where the identity of the suspect is known. In these circumstances an alternative identification procedure should be used.

Photographs may be a suitable method of identifying the suspect where the police do not have a suspect in mind but have taken a description of the suspect from the witness. Where photographs are used the procedure should be as follows:

• the witness must be shown at least 12 photographs of a similar type and where possible these should be of people who resemble the description provided; and


• where a witness makes a positive identification, there should be no further showing of photographs and an identification parade, video identification or group identification should be held for the other witnesses and the witness who identified the photograph.

The defence solicitor must be told if a witness has been shown photographs.

Voice identification is permissible, and Home Office circular 57/2003 gives advice as to its use. Compare the cases of Hersey [1998] and Roberts [1999].

We then began looking at the law with regard to the taking of samples. They are divided into intimate and non-intimate. An INTIMATE SAMPLE consists of:

• blood


• semen


• other bodily fluid


• urine


• pubic hair


• a dental impression


• swabs taken from a bodily orifice other than the mouth

They can only be taken from a suspect in police detention with the authorisation of a Inspector who has reasonable grounds for believing the person to be involved in a recordable offence. The Superintendent must have reasonable grounds for believing that the sample would confirm or disprove that person’s involvement and that person has given his consent.

Where the suspect refuses to give his consent, an intimate sample cannot be taken, but, by virtue of s62(10), a court is permitted to draw adverse inferences from a refusal to give an intimate sample without good cause. Where the suspect gives his consent, the intimate sample must be taken by a medical practitioner, or a dental practitioner in respect of a dental impression.

We will begin with a NON-INTIMATE SAMPLE next time.