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Preliminaries to Prosecution Notes
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Preliminaries to Prosecution Notes - BPTC, CRIMINAL LITIGATION In conjunction with BPP Criminal Litigation Manual and Blackstone's Criminal Practice 2021.
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Police Powers and Preliminaries to Prosecution Notes1. PACE Codes of Practice (intended to safeguard rights of suspects)
“Constable” in PACE = any police officer.
S67(10) PACE➔ PO or other person failure to have regard to provisions of the codes does not, of
itself, render him liable to criminal or civil proceedings BUT: the codes are admissible in criminal/civil
proceedings (s67(11)). A breach may provide basis for an application to exclude evidence.
2. The provisions of Code C.10: Cautions/Warnings and Code C.11: interviews
Interviews = the ‘questioning of a person regarding their involvement or suspected
involvement in a criminal offence/s which must be carried out under caution (para 11.1A).
A person whom there are grounds to suspect of an offence, must be cautioned before any questions
about an offence OR further questions if the answers provide grounds for suspicion, are put to them
if either the suspect’s answers or silence, may be given in evidence to a court (Code C, 10.1)
A caution is not necessary if questions are for other purposes e.g.
(a) Solely to establish identify or ownership of a vehicle;
(b) to obtain information in accordance with a stat requirement, e.g. statutory drink-driving
procedure is not an interview.
(c) in furtherance of the proper and effective conduct of a search (although if questioning goes
further, e.g. to establish whether drugs found were intended to be supplied, caution necessary)
(d) to seek verification of a written record of comments made by the person outside an interview.
SO→ the questioning of a person in circumstances where a caution does not have to be administered
does not amount to an interview for Code C. BUT questioning a person about an offence of which
there are grounds to suspect him will amount to an interview even if he has not been arrested. The
reference to 'an offence' means that a caution must be given if the person is questioned about an
offence other than that for which he has been arrested if there are grounds to suspect him of it.
Where an Interview May be Conducted = where officer has decided to arrest, interview should be
conducted at police station or other authorised place of detention. He should not delay the arrest in
order to question the suspect before doing so (Code C, section 11)
Exception to conducted at police station where delay would be likely to:
(a) lead to interference with or harm to evidence connected with an offence, interference with or
physical harm to other persons, or serious loss of/damage to, property; or
(b) lead to the alerting of other persons suspected of having committed an offence but not yet
arrested; or
(c) hinder the recovery of property obtained in consequence of the commission of an offence
NOTE: Interviewing in any of these circumstances must cease once the relevant risk has been
averted or the necessary questions have been put to avert the risk (Code C, para. 11.1).
Live Link → S39(3A) PACE enables a custody officer to transfer detained person to a police officer for
the purpose of a live link interview conducted by another officer. This officer (who is not at the police
station) has the same duty as the officer to whom custody of the person has been entrusted to ensure
that the person is treated in accordance with the provisions of PACE (s. 39(3B); Code C, para. 3.21A).
,Cautions and Special Warnings
CAUTION= You do not have to say anything. But it may harm your defence if you do not
mention when questioned something which you later rely on in Court. Anything you do say
may be given in evidence (10.5). NOTE: minor deviation from these words is permissible
provided that the sense of the caution is preserved (10.7).
If it appears the suspect does not understand the caution, the person giving it should explain it in his
own words.
Caution must take place at commencement of an interview (whether or not at police station) (Code
C, 10.1). The suspect must also be reminded that he is under caution at the recommencement of an
interview after any break, and if there is any doubt, the caution should be given again in full (10.8).
Caution must be given on arrest (10.4).
If interpreter used, the fact a caution is not perfectly translated will not render it invalid provided
that the essential features are adequately conveyed to the suspect.
Suspect interviewed after charge/interviewed where has requested a solicitor but not permitted
to consult with one, there is a different caution= 'You do not have to say anything, but anything you
do say may be given in evidence'. (Code C, annex C, para. 2). This is because in such circumstances
inferences cannot be drawn under s34,36,37 CJPOA 1994. Code C does not require a caution if
statement taken after charge but should be given.
A caution to 'whom there are grounds to suspect' of an offence requires ‘reasonable, objective
grounds for the suspicion, based on known facts or information’. So, caution does not apply to the
questioning of a person whom there is suspicion not amounting to reasonable suspicion, even
though what he says may subsequently be used in evidence against him.
Failure to administer a caution in circumstances where it is required is a significant and substantial
breach of Code C, although it will not necessarily result in exclusion of evidence of the interview
AND giving the wrong caution will not necessarily lead to exclusion.
Before the interview
Suspect and solicitor (if represented), must be given sufficient information to make it possible to
understand the nature of the suspected offence and why the person is suspected. E.g. suspect
believed facing theft charge as not told V died so made admissions- held should have been excluded
(Kirk (1999).
The disclosure obligation (para. 11.1A) does not require the disclosure of details at a time which
might prejudice the investigation. The decision on what should be disclosed rests with the
investigating officer who must make a record of what was disclosed and when.
At the beginning of the interview, but after caution:
At the interview the interviewing officer must, after caution, put to suspect any significant
statement or silence which occurred in the presence and hearing of a police officer or other police
staff (and which has not been put to him in the course of a previous interview) (Para 11.4).
, A significant statement = one which appears to be capable of being used in evidence, especially
admission of guilt (it does not include what a suspect is alleged to have said as part of the conduct
constituting the offence).
A significant silence = failure/refusal to answer a question, or answer satisfactorily when under
caution which might, give rise to an AIs under CJPAO 1994.
A special warning must be also be given where (para 10.11):
(a) asked to account for any object, mark or substance, or mark on such objects found on his
person, in or on his clothing or footwear, otherwise in his possession, or in the place where he
was arrested; or
(b) asked to account for his presence at the place where he was arrested.
Inferences cannot be drawn if the warning is not given (s36(4) and 37(3) CJPO 1994). Special
warning requirement does not apply if person requested a solicitor and is interviewed w/o
opportunity to consult him b/c inferences for refusal or failure to account cannot be drawn from
s36(4A) and 37(3A) (para 10.10).
Information about Legal Advice → Prior to the commencement of an interview, the interviewing
officer must, unless access to a solicitor has been delayed or one of the exceptions applies, remind
the suspect of his entitlement to free legal advice and that the interview can be delayed for legal
advice to be obtained (para 11.2). Violations of this entitlement may lead to exclusion of evidence.
Conduct of the Interview
No police officer or other interviewer may try to obtain answers to questions or to elicit a statement
by the use of oppression, or indicate (except in answer to a direct question), what action the police
will take if the suspect answers or refuses to answer questions or make a statement. If the suspect
asks directly what action will be taken, the officer may inform the suspect of his proposed action e.g.
keeping the person in detention if further action is to be taken. The proposed action must be proper
and warranted (para 11.5). The police should not seek a confession by offering a caution.
Case law guidance on conduct:
• Legitimate for PO to pursue their interrogation of a suspect to elicit admissions even where the
suspect denies involvement in the offence or declines to answer specific questions;
• A confession should be excluded where the police falsely informed the suspect that
incriminating fingerprints had been found.
• Positive duty on the police not to actively mislead a suspect
• Asking hypothetical questions is permissible, although may need to be approached with care
• Police questioning which is carried on after repeated denials or refusals may become oppressive
• Hectoring and bullying throughout held to be oppressive whereas rude/discourteous with raised
voices and bad language, was not.
When Interviews should cease
An interview of a person not been charged or informed that he may be prosecuted must cease when
the officer in charge of the investigation is satisfied that all the questions he considers relevant to
obtaining accurate and reliable information about the offence have been put to the suspect, the
officer has taken account of other available evidence, and he (or the custody officer in the case of a
detained suspect) reasonably believes there is sufficient evidence to provide a realistic prospect of
conviction (para 11.6)
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