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Revision notes Dispute Resolution - Distinction quality

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Lecture notes of 43 pages for the course Dispute Resolution at ULaw (Revision Notes.)

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  • May 31, 2021
  • 43
  • 2020/2021
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kellygibson
ROLE OF THE SOLICITOR WHEN ATTENDING THE POLICE STATION

Where a client has exercised his right to legal advice, the procedure on the solicitor attending the police station is as
follows:
Police powers and regulation on those powers largely comes from:
1. PACE 1984 - Powers of detention, stop and search, questioning etc. come from this act.
2. Codes of Practice

Issued by Home Secretary
S.67 (11) of PACE obliges courts to take into account any relevant breaches of the Codes in relation to an issue in proceedings –
i.e. it could be used to contest the admissibility of some evidence.

Breach of the codes is not an offence or civil wrong, but a formal complaint may be made to the relevant police force and,
potentially, this may be referred to the IPCC.

Telephone Call The solicitor will need to:
between o Identify himself
Solicitor and o Ask the client to confirm that he wants the solicitor to come to the police station
Client o Remind the client that any advice will be free.

The solicitor should not assume that the conversation will be completely confidential, and the client should
therefore be advised to confine himself to ‘Yes/No’ answers

BASICALLY – TELL THE CLIENT TO SAY NOTHING UNTIL THE SOLICITOR ARRIVES

ATTEND THE POLICE STATION
Three Objectives for the Solicitor at the Police Station
1. Find out as much as possible about the alleged offence
2. Find out if there have been any breaches of procedure and Codes by the police
3. Check on the client’s state and find out about any vulnerability

Speak to  The solicitor has a right to view the Custody Record and Detention Log (Code C, para 2.4). These record all
the significant events, which have occurred since the client arrived at the police station. – has the suspect been
Custody treated in accordance with Code C? Has he made any significant comments since arrival?
Officer
 They must tell you the basis for the detention/charge - s.57 - , state of suspect, let you see custody record and
detention log (Code C para 2.4)

The solicitor should speak/(telephone call) to the Custody Officer and check the following details:
 The alleged offence for which the client was arrested.
 The time when the custody officer authorised detention.
o Relevant for assessing Detention Reviews (below)

 The grounds for authorisation of detention:
o eg. was detention authorised to obtain or preserve evidence, or to obtain such evidence by questioning?
 Any significant comments made by the client
 Any samples, fingerprints or impressions of footwear, which may already have been taken
 Any identification procedure, which may already have taken place.
 Any interview which may already have taken place at the police station
o NB: police are entitled, in certain circumstances, to interview suspects without their legal representative present,
however no adverse inferences may be drawn from silence in such an interview if the suspect had not been allowed
access to legal advice  s.58 Youth Justice and Criminal Evidence Act 1999

 Whether the client is under any form of physical or mental disability.
 Any illness, which the client may be suffering from, or any indication that the client is in any way vulnerable or requires medical
treatment.
 Any significant items found as a result of a search either of the client’s person, or at the client’s property, or where the client
was arrested.

, If the client has already been at the police station for six hours or more, details of any detention reviews
 Speaking to the Custody Officer and examining the Detention Log/Custody Record is largely about checking on the client’s
welfare and that they have been treated appropriately at the police station (see below).



ATTEND THE POLICE STATION

Speak to the The solicitor should seek to obtain from the investigating officer, details as to:
Investigating 1. The facts of the offence:
Officer  The Custody Log/Detention Record alone is likely to show solely the offence e.g. Fraud, and not the
facts behind it

2. Disclosure of the police’s evidence:
 The police are not obliged to provide the solicitor with evidence.
 HOWEVER, if the police do not provide sufficient disclosure:
o The solicitor is entitled to point out that in those circumstances he cannot properly advise
his client as to the nature of the case against him and therefore will only be able to advise
the client to give a ‘no comment’ interview

3. Any Significant Statements or Silences made by the Client

4. The Next Steps in the Investigation the officer proposes to take: Likely to be an interview, then possible
charge and release on bail pending a hearing at the magistrates’ court.

If the officer refuses to disclose evidence, solicitor should employ DEAL technique
 Describe offending behavior – tell officer he is making insufficient discloser
 Explain why it offends – unable to advise client and breach of Para 11.1A Code C (solicitor should be given
sufficient information to understand nature of the offence and why the client is a suspect).
 Ask officer to refrain from offending behavior – to make proper disclosure
 Let officer know what will happen if he refuses – client will give no comment interview and request that
officer’s refusal be noted in custody lock.

Speak to the  The solicitor should give the client details of what he has been told by the investigating officer about the
Client offence and advise as to the substantive law and what the police need to prove.
 The solicitor will then obtain the client’s version of events.
 In light of this, the solicitor will advise as to next steps and the most appropriate method of answering the
police’s questions e.g. no comment interview, written statement, full interview etc.

Should the  Decision is that of the client
suspect  Check – is the client in a fit state to be interviewed (e.g. not drunk or exhausted etc)
answer  Note that any confessions/statements made if obtained in such a way as to make it unreliable or by
questions? oppression will be disregarded  s.76 (2) PACE

General  No vulnerable groups targeted
 No person working in the public sector targeted
 Not premeditated
 Not acting in a gang or group
 No religious or racial motive

With regards  Injuries were minor
to assault  Single blow
 No weapon use

With regards  No use of force
to a property  Items of low value stolen
offence  Opportunistic
 No damage caused
 Property unoccupied




1

, POINTS TO CONSIDER WHEN ASSESSING THE CUSTODY RECORD/DETENTION LOG:

Has the Maximum stay of detention without charge is 24 hours from the “relevant time” – s.41 of PACE 1984
suspect  The “relevant time” is:
been kept - If the suspect was arrested and then brought to the station, the time the suspect arrives at the
for longer station –s.41 (1)(d)
than is - If the suspect attended the station voluntarily, but was arrested at the station, the time of his
permissible? arrest – s.41 (2)(c)
EXTENSIONS

Extensions up to 36 hours from the relevant time
s.42  the police have the power to extend the period detention to up to 36 hours from the “relevant time” if:
Detention is authorised by a superintendent or above who must have reasonable grounds for believing that:
o Detention is necessary to secure or preserve evidence relating to an offence or to obtain such
evidence by questioning the suspect
o The offence is an indictable offence (particularly serious offence which would be tried by jury at the
Crown Court e.g. Murder, Manslaughter, GBH, Rape etc.)
o The investigation is being carried out diligently and expeditiously.

Extensions beyond 36 hours
s.43  Extensions of a further 36 hours (i.e. 72 hours [3 days] total) possible but requires a warrant of further
detention from the magistrates’ court.
 The detention must be “justified”, which will be the case if:
- Detention is necessary to secure or preserve evidence relating to an offence or to obtain such
evidence by questioning the suspect.
- The investigation is being carried out diligently and expeditiously

Extensions of the warrant of further detention are possible under s44 if the above grounds remain satisfied.
An extension may be “be for any period as the court thinks fit” but:
 This cannot be longer than 36 hours and
 This cannot end later than 96 hours after the ‘relevant time’.

This means that the police can detain a suspect in police custody for a maximum period of four days before that
suspect must be either released or charged

Where the Detention reviews must be carried out:
detention  First review - no later than six hours after detention was authorised by the custody officer.
reviews  Second review - no later than nine hours after the first review
carried out  All subsequent reviews - must take place at intervals of not more than nine hours.
on time?
If reviews are not carried out, any detention after this time will be unlawful and will amount to the tort of false
imprisonment (Roberts v Chief Constable of the Cheshire Constabulary (1999))




2

, POINTS TO CONSIDER WHEN ASSESSING THE CUSTODY RECORD/DETENTION LOG:

How has the Has the client been looked after in terms of:
client been  Cell Condition: must be adequately heated, lit, cleaned and ventilated  (Code C, Para 8.2)
treated?
 Bedding: must be in a clean and sanitary condition  (Code C, para 8.3)

 Toilet and Washing Facilities: a suspect must be able to access these  (Code C, para 8.4)

 Meals: two light meals and one main meal in any 24-hour period. Drinks should be provided and
upon reasonable request between meals  (Code C, para 8.6)

 Exercise: suspect should be offered brief outdoor exercise daily if this is practicable  (Code C, para
8.7)

 Visits: suspects should be visited in their cells at least every hour  (Code C, para 9.3)

The client’s general well-being should be considered :
The client has a right under s.56 (1) of PACE 1984 to have, on request, someone informed of his arrest “as soon
as practicable”. If the right was delayed, was this permissible?

The police may only delay this right:
 For a maximum of 36 hours from the “relevant time” i.e. time of authorisation of detention  s.56
(3)
 If this was authorised by an inspector or above  s.56 (2)(a)
 If the suspect is detained for an indictable offence  s.56 (2)(b)
 If there were “reasonable grounds” for the delay i.e. that allowing the suspect to access their right
would likely:
o Lead to interference with evidence or harm to another person.
o Lead to the alerting of other suspects.
o Hinder the recovery of any property obtained as a result of the offence.
 The authorisation should be confirmed in writing as soon as practicable  s.56 (4)

Similarly, a client has a right under s.58 (1) to Legal Advice. If this right was delayed, was this permissible?
The circumstances in which this right can be delayed are the same, as those for delaying the right to inform
another of their arrest, save for a delay in exercising a right to legal advice must be authorised by a
superintendent or above.

Custody officers are permitted to seize and retain items on a suspect’s person under s.54 (3) of PACE 1984.

If the client has had items removed from his person, what are these? Was it acceptable for these to be
removed?

If the client has made reasonable requests e.g. for drinks, medication etc. were they given to the client or
refused? If they were refused, were the grounds for refusal reasonable?

Why is this important?
If the client has been mistreated at the police station it may be possible to argue at trial that, for instance, any
evidence given in interview such as confession was inadmissible because it was obtained in circumstances in
which it was unfair to admit it e.g. client was desperate to get out of the station, feeling unwell, desperate to
leave, so said whatever was said purely to try and get home.




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