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 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:
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:
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:
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:
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:
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:
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 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:
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.
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.
posted by John Robotham at 3:25 AM
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