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Summary CRIMINAL PRACTICE Notes
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CRIMINAL PRACTICE comprehensive notes for the SQE 1 FLK 2 Exams
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CRIMINAL PRACTICEADVISING CLIENTS ABOUT THE PROCEDURE AND PROCESSES AT THE
POLICE STATION
Detaining a Suspect at the Police Station and Police Interviews
- Police and Criminal Evidence Act (PACE) 1984
- Code of Practice to PACE for the Detention, Treatment and Questioning of
Persons by Police Officers (Code C)
- Code of Practice for the Identification of Persons by Police Officers (Code D)
- Code of Practice on Audio Recording Interviews with Suspects (Code E)
- Code of Practice on Visual Recording with Sound of Interviews with Suspects
(Code F)
Procedure on arrival at Police Station
- A suspect who has been arrested other than at police station must be taken to
the police station ‘as soon as is practicable after the arrest’ – s30(1A)
- Unless the arresting officer decides to grant ‘street bail’
- Para 1.1 of Code C –
- ‘all persons in custody must be dealt with expeditiously and be
released from the police station as soon as the need for detention no
longer applies’
The Custody Officer
- a suspect who has been arrested much be brought before a custody officer in
the custody suite on their arrival at the police station.
- Custody officer is responsible for authorising the detention of the suspect and
supervising their welfare
- Holds at least a rank of a sergeant
- Should not be involved in the investigation of the offence for which the
suspect has been arrested.
- Para 2.1A of Code C confirms that a suspect who has been arrested should
be brought before the custody officer as soon as practicable.
- Initial Steps?
- Opening and maintaining the custody record for each suspect
a) It is an electronic document
b) Also have attached to it a detention log
This is a record of all significant events that occur whilst
the suspect is in police custody
- Must also inform the suspect about their ongoing rights.
, - Search of the detained person
- Ss54(1) and (2) – must find out what items of property a suspect has
on their person and make a record of these items.
- Custody officer will authorise a search to ascertain what items the
suspect has on their person
- S54(3)-
a) Allows the custody officer to seize and retain any items the
suspect has on their person.
- Items of clothing and personal effects may be seized only if the custody
officer has reasonable grounds for believing they may be evidence or if
the custody officer believes that the suspect may use them:
a) To cause physical injury to themselves or others
b) To cause damage to property
c) To interfere with evidence or
d) To assist them to escape (Code C para 4.2)
The decision to detain a suspect
- Custody officer must determine if there is sufficient evidence to charge
the suspect with the offence for which they have been arrested –
s37(1)
- Custody officer should note in the custody record any comments made
by the suspect in relation to the account given by the arresting officer of
reasons for the arrest.
- Suspect should be charged straight away and either release on bail to
appear before the magistrates’ court on a later date or remanded in
police custody until they can be brought before the magistrates’ court
Grounds for Detention
- If there is not sufficient evidence, the suspect must be released on bail or
without bail unless:
- The custody officer has reasonable grounds for believing that detaining
the suspect without charge is necessary to secure or preserve
evidence relating to an offence which they are under arrest or
- It is necessary to obtain such evidence by questioning – s37(2)
- S39- if the custody officer becomes aware at any time that the grounds on
which a suspect’s detention was authorised have ceased to apply, the
suspect must be released immediately
Conditions for detention
- Cell must be adequately heated, cleaned and ventilated and adequately lit –
Code C para 8.2
- Any bedding must be of a reasonable standard and in a clean and sanitary
condition – Code C 8.3
- Access to toilet and washing facilities = Code C 8.4
- Offered at least 2 light meals and one main meal in any 24 hour period and
drinks should be provided at mealtimes and upon reasonable request
between meals – Code C para 8.6 and Guidance 8B
- Offered brief outdoor exercise daily if this is practicable – Code C para 8.7
- Visited in their cell at least every hour – Code C para 9.3
,RIGHTS OF SUSPECT BEING DETAINED BY POLICE FOR QUESTIONING
- Suspect must be informed about their ongoing rights which may be exercised
at any time whilst in custody:
- The right to have someone informed of the suspect’s arrest – s56
- The right for the suspect to consult privately with a solicitor (free
independent legal advice) – s58 and
- The right to consult the Codes of Practice.
- Suspect must also be advised of their right to be informed about the offence
and any further offences for which they are arrested whilst in custody and why
they have been arrested and detained.
Right to Legal Advice
- Right to received free and independent legal advice
- S58(1)-
- A person arrested and held in custody in a police station or other
premises shall be entitled, if he so requests, to consult a solicitor
privately at any time
- S58(4)-
- Allowed to consult a solicitor as soon as practicable
- Para 6.2 of Code C-
- All detainees must be informed that they may at any time consult and
communicate privately with a solicitor, whether in person, in writing or
by telephone, and that free independent legal advice is available.
- Police must contact the Defence Solicitor Call Centre (DSCC) – they will then
determine whether the case is such that telephone advice is sufficient or
whether a solicitor should attend.
- Telephone advice is provided for free through Criminal Defence Direct (CDD)
- If the suspect wants to speak to their own solicitor, they will be told that they
need to pay for the call.
- If attendance is required, the suspects own solicitor or the duty solicitor will be
notified.
- When solicitor arrives, the suspect must be notified and asked again if they
want to see the solicitor – this should be noted on the custody record.
- Code C-
- At no time should a police officer do or say anything with the intention
of dissuading a person from obtaining legal advice (para 6.4)
- Para 6ZA of Notes for Guidance to Code C:
- No police officer or police staff shall indicate to any suspect, except to
answer a direct question, that the period for which he is liable to be
detained or if not detained, the time taken to complete the interview,
might be reduced:
a) If they do not ask for legal advice or do not want a solicitor
present when they are: or
b) If they have asked for legal advice or asked for a solicitor to be
present when they are interviewed but change their mind and
agree to be interviewed without waiting for a solicitor
, - Can the right to legal advice be delayed?
- The police have a very limited right to delay the exercise of the right to
legal advice. Any delay must be authorised by an officer of at least
the rant of superintendent
a) Can only be authorised when a suspect has been arrested for
an indictable offence (s58(6))
- S58(5) – the length of any delay can be for a maximum of 36 hours
from the relevant time
- S58(7) – authorisation for the delay can be given orally but it must be
confirmed in writing as soon as is practicable.
- Delay may only be authorised if the officer has reasonable grounds for
believing that the exercise of this right will:
a) Lead to interference with or harm to evidence connected with an
indictable offence or interference with or physical injury to other
persons or
b) Lead to the alerting of other persons suspected of having
committed such an offence but not yet arrested for it or
c) Hinder the recovery of any property obtained as a result of such
offence – s58(8)
- Guidelines contained in Annex B to Code C
- suspect who requires legal advice should not be interviewed
until such advice can be received (Code C of Code of Practice
to Police and Criminal Evidence Act 1984, paragraph 6.6
- R v Samuel –
a) Court laid down some guidelines on the power to delay the right
to legal advice. The superintendent authorising the delay must
have a subjective belief that consultation with a legal adviser will
result in one of the above 3 conditions happening and that this
will very probably happen.
b) The belief must be towards a particular legal adviser
c) The fear that a solicitor might advise his client not to answer
questions would never be an adequate ground to delay such
access.
Detention Time Limits and Reviews of Detention under PACE 1984, Code C
1. Detention Clock – maximum period of detention before charge
a. S41- a person shall not be kept in police detention for more than 24
hours without being charged.
b. Begins from relevant time:
i. In a case of a person attending voluntarily at the police state
who is then arrested that the police station, the relevant time is
the time of their arrest – s41(2)(c)
ii. Where a person attends a police station to answer ‘street bail’
granted under s30A, the relevant time is when they arrive at the
police station – s41(2)(ca)
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