A Distinction-level comprehensive set of study notes covering the Criminal Litigation module on the LPC. It is designed to be direct and to the point by covering the technical aspects in a practical sense. Each part of revision notes can be applied directly to exam questions on each topics during a...
• Initial police powers/responsibilities to keep an eye out for as a solicitor
• Explain the steps a solicitor should take on receiving instructions to represent a client at the police station;
• Explain the steps a solicitor should take on arrival at the police station;
• Identify any significant issues arising from the PACE Codes of Practice and Custody Record documents;
• Advise a client on length of detention; and
• Advise a client whether to answer questions during a police interview.
1. Initial police powers/responsibilities that the solicitor needs to check on to see if they are compliant.
Paragraph 2 of Code C is about the Custody Record:
It must be opened as soon as is reasonably practicable.
The legal advisor or other appropriate adult can inspect the Custody Record at any time whilst the individual is
detained. A copy of the Custody Record is then allowed once the individual is no longer detained.
The Custody Record itself must outline:
The reasons for arrest
Authorisation for detention or search procedures
Requests of the suspect for legal or medical advice
Reviews of the suspects detention
Details of food and drink
Complaints made by the suspect in terms of treatment
Paragraph 3 of Code C is about Continued Rights of the Suspect:
The Custody Officer should explain that the suspect has:
The right to have someone informed of his arrest
The right to consult in private with a solicitor for free
The right to consult the Codes of Practice
Paragraph 4 of Code C is about the Detainees Property:
Custody Officer is responsible for searching the detainee for property they have on them when they arrive to the
station.
Paragraph 5 of Code C is about letting someone know the suspect has been detained:
Those with interest in the welfare of the suspect may be notified of them being detained but only if the suspect
requests it.
,Paragraph 6 of Code C is about legal advice:
It must be a constant option (posters must be in the station advertising it).
A detainee cannot be interviewed or continued to be interviewed if they request legal advice.
Requests for legal advice must be recorded.
Paragraph 8 of Code C is about the conditions of detention:
There should ideally be one person per cell.
Access to toilet and washing facilities.
Fresh clothes.
Paragraph 9 of Code C is about the treatment of detained persons:
Custody officer must ensure that the detainee is receiving the right clinical attention if he requires it.
This can either be requested by the detainee or actively decided by the custody officer.
Paragraph 10 of Code C is about cautioning a suspect:
A caution must be given before any questions are asked about the offence.
It must be given at the commencement or recommencement of an interview.
Special Warnings may need to be given e.g. court/jury may draw inferences if suspect does not answer questions
under interview.
Paragraph 15 of Code C is about extension of detention:
Section 41 PACE = limit on detention is 24 hours calculated from when they arrive at the station or the arrest (which
is earlier).
Section 42 PACE = can extend to 36 hours if superintendent believes it is necessary and the offence is an indictable
one.
Section 43 PACE = apply to the Magistrates for a warrant of further detention of another 36 hours. Can apply again
to go beyond 72 hours. But at the end of 96 hours the suspect must be charged or released or on bail.
Role of the Review Officer:
Must determine whether to authorise a person’s continued detention in light of ECHR Article 5.
o The first review shall be not later than six hours after the detention was first authorised;
o The second review shall be not later than nine hours after the first; and
o Subsequent reviews shall be at intervals of not more than nine hours.
2. What to do when receiving instructions to represent a client at the police station
After the initial call from the Defence Solicitor Call Centre:
Call the Custody Officer to obtain more details about the case.
, Ask whether the police are ready for interview and state you want to be notified when they will be ready.
Tell the Custody Officer that the Custody Record sheet needs to state that solicitor must be present for interview.
Talk to client and tell him that nothing is off the record.
Advise that he does not say anything to police until solicitor has arrived.
Ask about health e.g. food/drink/medical attention
Do a conflict check if there is time.
3. What to do on arrival at the police station
Keep a record of everything that has been done/said
Get a copy of the Custody Record sheet and get details of the offence/breaches of PACE.
Go to arresting officer for further information.
Then go to investigating officer – under no obligation to disclose but always ask.
If no information is being disclosed then it may indicate that the case is weak and so silence may be the better
option (more on this soon).
Ask for access to CCTV/witness statements
Ask if all evidence has been showed to you
Now go to the client and ensure meeting is private – advice on sentence and whether to be silent v,Tell client
everything you know about the case first and then hear there side to prevent conduct issues.
Prep the client for interview – they may be ‘bad’ at interviews
4. Whether to answer or be silent during interviewing
Silence when questioned under caution or charged (s.34)
Effect of accused's failure to mention facts when questioned or charged
Inferences can only be drawn if:
• the suspect is being questioned about an offence, informed they are about to be charged or actually being
charged (s.34(1)); and
• the suspect fails to mention a fact that they later rely on at trial in their defence (s.34(1)); and
• the court thinks it is reasonable in the circumstances which existed at that time for the suspect to have
mentioned the fact (s.34(1)).
Safeguards:
• the suspect must have been cautioned (s.34(1)(a)); and
• the suspect should have been allowed an opportunity to consult a solicitor s.34(2)(a); and
• in addition, the fact omitted must be one which ‘in the circumstances existing at the time the accused could
reasonably have been expected to mention’.
Court, when deciding whether it is reasonable in the circumstances to have mentioned the fact, must consider:
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