#10510 - Police Powers - Criminal Procedure and Evidence

Summary arrest (without warrant) – s.24 PACE

• Since CJA amendments, can arrest without a warrant with reasonable grounds of suspecting the person is about to commit, is committing, or has committed any criminal offence.

  • Previously only applied to ‘arrestable’ offences but this distinction disappeared.

• s.24(5) PACE, also need reasonable grounds for believing that it is necessary to arrest for one of the following reasons:

  • Enable name/address to be obtained

  • Prevent physical injury, loss of or damage to property, offences against public decency or unlawful obstruction to the highway

  • Protect children or vulnerable

  • Allow for prompt and effective investigation

  • Prevent hindrance of prosecution by the person’s disappearance.

• Also see PACE Code G on Powers of Arrest – s24(5) is exhaustive and arrest must be non-discriminatory and proportionate.

• Richardson: arrest of willing suspect unlawful b/c no necessity.

So reasonable grounds to suspect offence will/is/was being committed + reasonable grounds for believing it is necessary for one of listed reasons.

Citizens powers of arrest now in s.24A PACE

Action on and after arrest

Informing of arrest:

• PACE s.28(1) – form of words making clear that arrestee not free to go where he chooses + physically seize/touch person and tell them as soon as practicable.

• PACE s28(3) and (4) – provide reason.

Caution:

• Code C: caution suspect immediately when have grounds to suspect of an offence.

• Caution: they do not have to say anything but it can harm defence if they fail to mention something that they later rely upon in court, and anything they do say can be relied upon as evidence.

Post-arrest

• S.30(1A) – take to police station as soon as reasonably practicable.

  • Can detour to carry out such investigations that need to be carried out immediately.

• S.30A – release on bail w/ requirement to attend police station.

• S.56 – right to have someone informed – only max 36 hours incommunicado where reasonable grounds to believe particular condition in s.56(5) and (5A) has been satisfied (e.g. interfering with witnesses).

Action at the police station – PACE Code C

Initial stages:

• Report to the custody officer, who tells the detainee of right to free, independent and private legal advice, to have someone informed of arrest and right to read Codes of Practice.

• Custody officer opens custody record w/ all details of arrest and detention.

• Possessions:

  • S.54(1) – custody officer ascertains possessions, power to search in 54(6).

  • Discretion to seize anything found in the search.

  • Clothing and personal effects only seized where custody officer believes detainee might use them to injure himself/others, damage property, interfere w/ evidence or assist in escape OR reasonable grounds to believe they are evidence of an offence ss.54(3)-(4).

• Photograph/fingerprints/footprints s.61 PACE.

• Intimate and non-intimate body samples defined in s.65. Consent needed to take intimate ones under s.62, no consent needed under s.63 for non-intimate.

Consideration of evidence pre-charge (s37):

• Custody officer, post-formalities, considers evidence against detainee under s.37(1)

  • If not sufficient evidence – release under s.37(2) unless detention without charge believed by custody officer to be necessary to either secure/preserve evidence relating to offence OR to obtain such evidence through questioning.

  • If there is sufficient evidence, investigating officers should charge or release (or bail on condition of return).

• So under s.37 can hold for interrogation before charging.

Once charged:

• s.46 – production at the next sitting of the mag’s court, at the latest on day after arrest (unless Christmas/Good Friday/Sunday).

Detention without charge:

• Governed by PACE ss.40 and 44 = sets out timetable for detention

Charging take detainee to custody officer, caution again, write charge down and read to him, record reply and give written notice. (In accordance with s37A – DPP guidance on when to charge).

Questioning post-charge is generally not allowed (Code C16.5).

Release or detention post-charge

• S.38(1) - Once charged custody officer should order release unless

  • Refused to give name/address

  • Reasonable grounds to believe

    • Name/address not genuine

    • Detainee will not answer bail

    • Detention necessary to prevent him committing a further offence

    • Detention necessary to prevent him causing injury to another or loss/damage to property.

    • Detention necessary to prevent him from interfering with the administration of justice or investigation of an offence

    • Detention necessary for his own protection

Framework in PACE Code C.

Conduct of questioning

• Code C is there to ensure that evidence from interrogation cannot be excluded later.

• Gathering information

  • Code – all citizens’ duty to help officers prevent crime/discover offenders. Merely a civic/moral duty, no legally enforceable obligation.

  • If refuse to answer & later charged can = adverse inferences

• Cautioning: Persons of whom there are grounds to suspect an offence must be cautioned before any questions are put to them for the purpose of obtaining evidence which can be given to court in a prosecution (Para 10.1 Code C)

  • Terms in 10.5, esp important since s.34 CJPOA 1994 adverse inferences.

  • Special warnings in 10.11 when ss36-37 CJPOA 1994 might apple (objects/marks/substances/presence at place of arrest).

  • Not required where not trying to obtain evidence for prosecution of the interviewee.

  • If break in Q = remind of caution on resumption.

  • If not under arrest, remind that they can leave when they want + can get legal advice.

• Questioning away from police station

  • Para 11.1 – should not normally happen once arrested, only when likely interference w/ evidence, harm to others, alerting of other suspects, damage to property.

• Questioning at police station

  • Para 11.5 – no oppression

  • 12.1-12.14 cover interrogation to be applied where helping police w/ enquiries or when arrested and detained w/o charge.

  • Custody officer permission, 8 hours continuous rest in any 24 hours period, well heated/lit/ventilated interview room, police identify themselves and everyone present, breaks every 2 hours and at regular mealtimes, complaints recorded + reported to custody officer – 12.1-12.9

• Charging stage

  • Once satisfied of evidence to prosecute, officer must satisfy himself that he has taken all evidence into account and given suspect opportunity to answer all relevant Qs.

    • Then cease Qs 11.6

  • Custody officer considers + decides whether to charge

  • Cannot delay charge when there is evidence for it.

• Post-Charging stage

  • 16.5 – cannot question further unless

    • Qs necessary to prevent/minimise harm to others

    • Necessary to clear up any ambiguity in a previous answer/statement

    • Interests of justice to let him comment on info that has come to light since charge.

Making record of what suspect says:

• Must ensure all records are reliable.

• Accurate recordings of all interviews with suspects

  • As it happens on forms specifically provided or in the officer’s pocket book – para 11.7

  • UNLESS: either not practicable or would interfere with the interview.

• If not contemporaneous, should be done as soon as is reasonably practicable – 11.8

• Should invite to read and sign – 11.11.

  • If not – record refusal

• Canale: Conviction quashed because trial judge should have excluded admissions not contemporaneously recorded under s78.

• Delaney: CA quashed conviction bc trial judge should have excluded admissions not contemporaneously recorded under s78. Importance of noting interviews contemporaneously noted by Lords.

  • Refusing to comply was ‘flagrant’ breach of code.

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