Prelimenaries to Prosecution.docx

**[Unit 1 -- Pre-Trial Principles: EXAMANBLE]** +-----------------------+-----------------------+-----------------------+ | Summary Only | Indictable Offences | Either way Offences | +=======================+=======================+=======================+ | Common Assault | Rap...

**[Unit 1 -- Pre-Trial Principles: EXAMANBLE]** +-----------------------+-----------------------+-----------------------+ | Summary Only | Indictable Offences | Either way Offences | +=======================+=======================+=======================+ | Common Assault | Rape | Theft | | | | | | Criminal Damage | Robbery | Burglary | | valued under 5000 | | | | pounds | S18 Wounding/Grievous | Fraud | | | Bodily Harm with | | | | Intent. | S20 Wounding/Grievous | | | | Bodily Harm with | | | | Intent. | | | | | | | | Assault Occasioning | | | | actual Bodily Harm | | | | | | | | Sexual Assault | | | | | | | | Possession of Class A | | | | or B Drugs | | | | | | | | Possession of Class A | | | | or B Drugs, with an | | | | intent to supply | | | | | | | | Supply of Class A or | | | | B drugs | | | | | | | | Criminal Damage Value | | | | more than 5000 | | | | pounds. | +-----------------------+-----------------------+-----------------------+ **[Classification of Offences -- ]** **[Preliminaries to Prosecution -- 3 Q's]** **[D1.1]** What are the police's powers in investigation of crime? - Investigation, including arrest, detention, interrogation, entry and search of premises, personal search and the taking of samples and various procedures for identification *[**D1.4** What is reasonable suspicion? ]* - existence of facts and not to the state of the law. An officer who reasonably but mistakenly proceeds on a particular view of the law, and thus exercises his or her power of arrest, does not have reasonable suspicion. - stop and search - requires both a genuine suspicion on part of the officer concerned and an objective basis for that suspicion. - Arrest -- there must be some reasonable, objective grounds for the suspicion, based on known facts and information. - It has been held that reasonable suspicion requires both that the constable carrying out the arrest actually suspects (a subjective test) and that a reasonable person in possession of the same facts as the constable would also suspect (an objective test). - **Subjective objective test.** Arrest must be Wednesbury reasonable. if it is so unreasonable that no reasonable person acting reasonably could have made it. - Materially the same test for stop and search. - Information to form reasonable suspicion is lower in standard than one required in establishing a prima facie case. Not necessary to have identified the specific suspicious offence. - The constable must reasonably suspect the existence of facts amounting to an offence of a kind in mind *[D1.7 When can officers use of force -- ]* - where any provision of the Act confers a power on a constable and "does not provide that the power may be exercised only with the consent of a person other than a police officer", the officer may use reasonable force, if necessary, in the exercise of the power. - Force used in connect with stop and search - Entry and search of premises - *[Arrest ]* - Detention of person in a police station. - Search of a person - Intimate search of a detained person - Fingerprinting without consent Does not include -- - Conduct of a visual identification procedure - Taking of an intimate sample under s63 since this requires consent. A civilian designated under the Police reform act s38 may in exercising those powers use the same reasonable force as a constable. *[What force is necessary? ]* - All the circumstances are taken into account including the nature and degree of the force used, the gravity of the offence for which the arrest is to be made, the harm that would flow from the use of force against the suspect, and the possibility of effecting the arrest or preventing the harm by other means. - The fact that the force used results in serious injury does not necessarily make it unreasonable, it needs to be reasonable and proportionate. - The use of excessive force will not render the arrest unlawful. *[D1.8 Use of Handcuffs -- ]* - Handcuffs should be used only where they are reasonably necessary to prevent an escape or to prevent a violent breach of the peace by a prisoner. - When unjustifiable it will be trespass, but the arrest will be lawful. *[D1.14 What powers of arrest do police have? ]* - Police powers of arrest without a warrant in relation to criminal offences are principally governed by the PACE 1984, s. 24. - The other remaining power of arrest without warrant is the common law power of arrest for breach of the peace. - Without a warrant - With a warrant - Breach of peace *[How do define an arrest? ]* - HOL distinguished between deprivation of liberty and restriction of movement. It\'s a matter of fact. A whole range of factors has to be considered including the individual's specific situation, the context in which the restriction occurs and the purpose of the confinement or restriction. - taking ahold of a person\'s arm to simply draw attention to what has been said, without intention to detain or arrest is not an arrest nor an actionable trespass, unless it goes beyond what is acceptable by ordinary standards of everyday life. - if an officer takes hold of a person's arm to detain that person while the officer decides whether to arrest, this does amount to a trespass - detaining a person by confinement in a restricted space, without any intention of arrest, amounts to unlawful imprisonment  - not necessary assumption that arrest will be followed by a charge - an arrest is motivated by a desire to investigate another, more serious, offence does not render it invalid provided there are valid grounds for the arrest - An arrest for an offence will, however, be unlawful, even though made on the basis of reasonable suspicion, where the officer knows at the time of arrest that there is no possibility of a charge being made - even though a complainant withdraws the complaint, a constable may still arrest a suspect where hoping by so doing to obtain a confession - if the arrest is challenged onus and the burden of proof is on the police to prove that the arrest made was in good faith. - If arrest is lawful burden of proof of excessive force is on the complainant *[D1.17 (4 things to say after arrest) -- ]* 1. That the person is under arrest ASAP, "or it is unlawful". Even if the arrest is obvious. 2. Need to inform the grounds of the arrest, "or it is unlawful" 3. Why the arrest was necessary, failure does not make it unlawful. 4. Caution the person. While doing this the language should be non-technical, need to tell essential and factual grounds of arrest. Must be told the nature of the offence and where and when it took place. *[D1.18 Any conditions on the communication of arrest? ]* - Not compulsory that it should be the arresting officer who does this. - If no reasons are given because it is impracticable, acts done at the time of the arrest do not retrospectively become invalid. - Need to aplty describe the offence for the arrest, even if more than one offence. - Officers cannot mislead the person on offence. - A person arrested must be caution if practicable and if not it is ok if person was cautioned before. - Officers pocket book must record the nature and circumstances of the offence, the reason of it\'s necessity, giving caution. ASAP. This info must be in the custody record. *[D1.20 What to do after arrest? ]* - If the person is arrested at any other place other than the station he must be taken to a designated police station as soon as is practicable thereafter. Except in exceptional circumstances. - Delay in taking a person to the station or releasing on bail is valid if the person presence is required at a place other than a police station in order to carry out such investigations as it is reasonable to carry out immediately, reasons must eb recorded. - If there are no grounds for arrest or releasing on bail, the person must be released. - a person may be released with or without bail, to attend a police station on a future date. - Constable may release on bail a person arrested or taken into custody, if the constable is satisfied that releasing the person on bail is necessary and proportionate in all the circumstances. (having regard to any conditions). - conditions for bail being necessary and proportionate does not apply, then a constable may release without bail a person who is arrested or taken into custody *[D1.22 What are the powers to arrest "without a warrant"? ]* - Police officer may arrest for may arrest for any offence but civilians can only arrest on indictable only offence (Rape, Robbery and s18 GBH) - a test of necessity - Powers is discretionary, if conditions are satisfied the officer "may" arrest A constable may arrest without a warrant a person -- - about to commit an offence - act of committing an offence - reasonable grounds of suspecting to be about to commit an offence - whom he has reasonable grounds of suspecting to be committing an offence. Reasonable objective grounds for suspecting that an offence has been committed, he may arrest without a warrant anyone whom he has reasonable grounds to suspect of being guilty of it. - Test is the same as reasonable objective above. (RGOS) - If the offence is committed, can arrest anyone who is guilty or RGOS of being guilty. Powers are exercisable when it is necessary to arrest for the purpose of -- - to enable the name of the person in question to be ascertained - to prevent the person causing physical harm to himself or any other person, - To protect a child or any other vulnerable person, to allow the prompt and effective investigation of the offence of the conduct of the person in question *[D1.33 What are the powers for arrest for a breach of peace? ]* Any person, whether constable or civilian, has a common-law power of arrest where a. a breach of the peace is committed in the person's presence, b. the person effecting the arrest reasonably believes that such a breach will be committed in the immediate future by the person arrested, or c. a breach of the peace has been committed or the person effecting the arrest reasonably believes that a breach of the peace has occurred and that a further breach is threatened. Arrest must be for bringing the person before a competent legal authority. - An arrest is lawful notwithstanding that the person is released before it was practical to bring the person before a court. *[What is breach of peace? ]* - whenever harm is actually done or is likely to be done to a person or in his presence to his property, or a person is in fear of being so harmed through an assault, affray, riot, unlawful assembly or other disturbance'  The test is of a reasonable belief (same as above). - Where a reasonable apprehension of an imminent breach of the peace exists, the preventive action taken must be reasonable, necessary and proportionate - The power to arrest for an apprehended breach of the peace caused by apparently lawful conduct is exceptional and should be exercised by him only in the clearest circumstances when he was satisfied on reasonable grounds that a breach of the peace was about to occur or was imminent. (think police arresting the person who was outside his house in the fear that he will cause problems to his wife. *[D1.35 What are arrest warrants? Especially Magistrates? MCA 1980]* - a justice can issue a warrant on the basis of a written information substantiated on oath that a person has, or is suspected of having, committed an offence. (can be endorsed by bail) - The power of a magistrates' court to issue a warrant for the arrest of any person who has attained the age of 18 years is limited by s. 1(4). The offence concerned must be indictable, or punishable with imprisonment, or the person's address must be not sufficiently established for a summons to be served. - A warrant to arrest any person for non-appearance before a magistrates' court must not be issued unless the offence to which the warrant relates is also punishable with imprisonment or where the court, having convicted the defendant, proposes to impose a disqualification - private prosecutions for certain offences -- consent of DPP is required for warrant. - power to issue an arrest warrant for a person who was granted bail and then fails to surrender to custody. *[D1.36 -- What are crown court warrants? ]* - where an indictment has been signed but the person charged has not been sent for trial, the Crown Court may issue a summons requiring that person to appear before it or may issue an arrest warrant. - where a person charged with or convicted of an offence has entered into a recognizance to appear at the Crown Court and fails to do so - May be endorsed by bail. *[D1.40 What is detention and treatment of suspects? ]* - Difference between person\'s in police detention and other held in custody at a police station. - If the person has been taken to a police station after being arrested for an offence or under the TA 2000, s. 41, or has been arrested at a police station after attending voluntarily or accompanying a constable to it, and is detained there or detained elsewhere in the charge of a constable  - if in the custody of a designated civilian detention, investigating or escort officer - A person who is at court after being charged is not in police detention. - a person who attends a police station to answer to live link bail is not in detention, unless an exception applies. - Right of intimation and right to legal advice apply to detention too? *[D1.44 Who is the custody officer? ]* - Post detention can be taken to any police station, unless it is anticipated that detention of more than 6 hours will be necessary then a designated police station. - Custody officers need to be atleast the rank of the sergeant. - Another officer can perform their role, should not be involved with the investigation. - Can be arrested and detained only on the authority of the custody officer. And may not release without the custody officers authority. - Responsibility of the custody officer to ensure that a person in police detention is treated in accordance with the PACE 1984. *[D1.45 What are custody records? ]* - A custody record must be opened as soon as is practicable in respect of each person who is brought to a police station under arrest. Not for a volunteer who is not arrested. - Custody officer is required to record everything required by PACE. - If the detained person is transferred to another police station, the custody record or a copy of it must accompany the person must show the time of and reason for the transfer. *[D1.52 What is notification of arrest? ]* - A person arrested has a right, at the person's request, to have one friend, or relative or other person who is known to him or her or who is likely to take an interest in his or her welfare, told of the arrest and the place of detention. ASAP - custody officer must inform the suspect of this right. - The detainee may choose up to two alternatives, has discretion to allow more until information has been conveyed. *[D1.55 Right to consult a solicitor?]* - A person who is arrested whether or not for an offence and held in custody at a police station or other premises has a right at his or her request to consult a solicitor privately at any time. - The right to legal assistance may apply prior to the decision to detain a person at a police station, and even before the person has been formally arrested. - An appropriate adult has an independent right to legal advice even if the child or young person or vulnerable adult does not want one, although a child or young person cannot be forced to see a solicitor if he or she does not wish to do so - While the statutory right does not apply in respect of a prisoner on remand in custody at a magistrates' court, there is a common-law right to consult a solicitor as soon as is reasonably practicable. Police cannot refuse request outside customary hours. *[When must a person be told his right to free legal advice? ]* - when brought to a police station under arrest - when arrested having initially attended voluntarily - Immediately before the beginning or recommencement of an interview. - Before a review of detention is conducted or before a decision is made whether to extend the period of detention - After charge or being informed that the person may be prosecuted, where a police officer wishes to bring to the person's attention any statement or the content of any interview, or where the person is re-interviewed - Before being asked to provide an intimate sample - Before an intimate drug search is conducted under the - an x-ray or ultrasound scan is taken under - before the person is (exceptionally) interviewed after charge - and before an identification parade or group or video identification is conducted *[D1.63 -- What must the police do during the detention of children, young people, mentally disordered or vulnerable person\'s? ]* - anyone who appears to be under the age of 18 years is a 'juvenile'. - police to take into account the need to safeguard and promote the welfare of children in discharging their functions, do not pose additional obligations. - if any suspicion that person of any age must be vulnerable, in absence of clear evidence to dispel that suspicion, the person must be treated as such. - suspicion may be dispelled following examination by a forensic medical officer  - Imperative to assess them as soon as possible. The Mental Health Act 1983, ss. 135 and 136 -- a. before deciding to remove a person to, or to keep a person at, a place of safety, a constable must, if practicable, consult a registered medical practitioner, registered nurse, approved mental health practitioner, or a person of a description specified in regulations made by the Secretary of State; b. a child cannot be detained in a police cell as a place of safety; and c. the *[maximum period that a person can be detained at a police station is reduced from 72 hours to 24 hours]*, which may be extended by 12 hours where authorised by the responsible medical practitioner. Police station may only be used as a place of safety in respect of an adult where the relevant decision-maker is satisfied that: a. the behaviour of the person poses an imminent risk of serious injury or death to him or herself or another; b. because of that risk, no place of safety other than a police station can reasonably be expected to detain the person; and c. so far as reasonably practicable, a healthcare professional is present and available to the detained person throughout the period of detention at the police station) will be met. Detention in such circumstances must be authorised by an officer of the rank of inspector or above  *[D1.64 Who is an appropriate adult? ]* - Appropriate adult', in the case of a young suspect, is defined as a parent or guardian or, if the child or young person is in the care of a local authority or voluntary organisation. - Think these people but cannot be anyone related to the police. - An estranged parent whom an arrested child or young person does not wish to attend and to whom the child or young person specifically objects should not act as an appropriate adult. - an illiterate parent with a low IQ who cannot appreciate the gravity of the situation should not be one. - Appropriate adult' in the case of a person who is mentally disordered or vulnerable is defined as a relative, guardian or other person responsible for care or custody of the person, someone who has experience of dealing with such person\'s, again not anyone related to police. - Not a solicitor. A person should not be the appropriate adult if the person a. is suspected of involvement in the suspected offence, b. is the victim or a witness, c. is involved in the investigation, or d. has received admissions from the suspect before acting as the appropriate adult  *[D1.66 What does an appropriate adult do?]* - The role of the appropriate adult is to safeguard the rights, entitlements and welfare of children and vulnerable persons. - Support, advise and assist detainees; observe whether the police are acting properly and fairly inform the inspector or above if not; help them to understand their rights and ensure that those rights are protected. - Same for police interviews. - Can sit into solicitor meetings without destroying privilege. Consent -- - person who has attained the age of 14 but is under 18 years, consent is required from the young person and his or her parent or guardian. - in the case of a person under 14 years, only the consent of the parent or guardian is required. Note that if the appropriate adult is not a parent or guardian, he or she cannot give consent. CODE C.10 and C.11 -- **[D1.81 -D1.92]** *[What is an Interview? ]* - CODE C para 11.1A as "questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under para 10.1 must be carried out in caution". *[How to Caution? ]* - Para 10.1 a person whom there are *[grounds to suspect]* must be cautioned before any questions about an offence, or further questions if the answers provide the ground for suspicion, are put to them if either *[the suspects answers or their silence may be given in evidence to a court in prosecution. ]* *[When and How should a caution be administered? ]* - Caution must be administered at the commencement of an interview, whether or not at the police station. Also at any further recommencement. Also on arrest. - Code C para 10.5 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". - Minor deviation is permissible, but preserve the sense of the caution. Perfect translation for an interpreter is not required, doesn't make it invalid. - Code C does not require a caution be given if a statement is taken after charge, it should be given. *[Caution and grounds to suspect -- ]* - Caution to be given to whom there are grounds to suspect -- means [some reasonable objective grounds for the suspicion, based on known facts or information.] objective question not an officers subjective one. - Caution may not apply to a person for whom there is suspicion not reasonable suspicion, but what the person says may be used against them. - Shepherd -- No obligation to caution where the police officers were unaware of a byelaw which could have given rise to reasonable suspicion. *[When is no Caution needed? ]* - establish identity or ownership of vehicle, - to obtain information in accordance with statutory requirement. E.g under the RTA 1988, s165 statutory drink driving procedure is not an interview. - *In furtherance of the proper and effective conduct of search*, (think how chmabers was asked why she was running?) if questioning goes further e.g- to establish whether drugs found were intended to be supplied to another a caution will be necessary - To seek verification of a written record of comments made by the person outside an interview. *[What happens when you fail to administer caution?]* - 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. - Similarly, giving the wrong caution will not necessarily lead to exclusion *[When will questioning still amount to an interview? ]* - Questioning will amount to interview if there are grounds for suspicion and even if the person is not arrested and no decision to arrest has been made. (think when chambers was asked to tell if the drugs were hers) - No caution needed no interview. - Every offence needs a new caution. *[Where should an interview take place? ]* - Following a decision to arrest normally be interviewed only at a police station or other authorised place of detention (Code C, para. 11.1). - "a decision to arrest" means that if a police officer has decided to arrest a person, the arrest should not be delayed in order to question the suspect before doing so. *[Are there any exceptions to interviews taking place outside the police station? ]* - Where delay would be likely to lead to interference with or harm to evidence connected with an offence, interference with or physical harm to other persons, or serious loss of, or damage to, property; or - lead to the alerting of other persons suspected of having committed an offence but not yet arrested for it; or - hinder the recovery of property obtained in consequence of the commission of an offence. If the risk is averted then the interview in these circumstances must be ceased. PACE 1984, s 39 -- Person can be interviewed by a police officer who is not at the police station via live link. *[What information should be provided during the interview? ]* The accused and the solicitor if represented, must be given, before the interview , sufficient information to make it possible to understand the nature of the suspected offence and why the person is suspected of committing it. (think arrested for theft, didn't tell him person died, court excluded admissions made). - But not the disclosure of details which might prejudice the investigation. - Investigating officer must make a record of what has been disclosed and when. *[What does silence on certain questions in interview mean? ]* Questions -- - is asked to account for any object, mark or substance, or mark on such objects found on his or her person, in or on his or her clothing or footwear, otherwise in his or her possession, or in the place where the arrest took place; or - to account for his or her presence at the place where the arrest took place If not answered warning should be given, C 10.11 -- For an inference to be drawn when a suspect fails or refuses to answer a question about one of these matters or to answer it satisfactorily, the suspect must first be told in ordinary language: The Warning -- - what offence is being investigated; - what fact they are being asked to account for; - this fact may be due to them taking part in the commission of the offence; - a court may draw a proper inference if they fail or refuse to account for this fact; and - a record is being made of the interview and it may be given in evidence if they are brought to trial. Inferences cannot be drawn if the above warning is not given. Duty to warn does not apply where the person who has requested a solicitor is interviewed without having been given an opportunity to consult the solicitor, since inferences from refusal or failure to account cannot be drawn. *[Are there any obligations on the police to tell the suspects of their legal right? ]* - Prior to commencement or any recommencement of interview, unless the access to solicitor has been delayed or does not apply, remind the suspect of their right to free legal advice. - Evidence excluded if not. *[What does a significant statement or silence mean? ]* - The interviewing officer must, after cautioning the suspect, put to the 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 in the course of a previous interview) - "Significant statement" -- one which appears to be capable of being used in evidence and in particular a direct admission of guilt. Does not include what the suspect has alleged to have said. - "Significant silence" -- failure or refusal to answer a question, or answer satisfactorily when under caution which might allowing for the restrictions on drawing inference from silence, give rise to an adverse inference under CJPO. *[What cant police officers do in an interview? ]* - Can\'t obtain answers to questions or to elicit a statement by "use of oppression" - nor 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 (think how chambers was told what would happen). - Cannot tell them that if a person doesn't answer they will question everyone. - Positive duty on the police not to actively mislead - Police questioning after repeated denials may be oppressive - Hectoring and bullying is oppressive. *[What can police officers do during an interview? ]* - Legitimate for officers to pursue an interrogation to elicit admission even when suspect denies involvement and does not answer specific questions. - Hypothetical questions is permissible, with care. - Rude and discourteous questioning with raised voices was not excluded *[When to cease an interview? ]* - The interview of a person who has not been charged or informed that he or she may be prosecuted must cease when the officer in charge of the investigation is satisfied that all the questions the officer 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 the officer (or the custody officer in the case of a detained suspect) reasonably believes there is sufficient evidence to provide a realistic prospect of conviction - This is subject to maximum period of detention without charge. - Provisions regarding breaks during interviews and rest periods. - Officers acting under revenue may invite them to answer more questions even after they are satisfied. - Detained subject -- decision is on the custody officer - When a suspect is detained for more than one offence it is permissible to delay informing the custody officer until the conditions are satisfied in respect of each of the offences. *[Do Police need to record interviews? ]* - Interviews whether or not at the station must be recorded. - Any comments relevant to the suspected offence made by a suspect outside the context of an interview must be recorded, where practicable the suspect must be given the opportunity to verify the record. - Failure to comply with the recording requirement has led to exclusion of evidence what was allegedly said, but not always. Authorised recording device must be used. *[Interviews of special categories of people? ]* - A child or young person or a mentally disordered or vulnerable person must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult unless the conditions for conducting an interview away from a police station under Code C, para 11.1, are satisfied or the interview is authorised by an officer of the rank of superintendent or above. - A child will be interviewed at school only if necessary and with the permission fo the principal. Efforts should be made to notify the parents. - In cases of necessity and provided that the school was not the victim of the alleged offence, the principal may act as the appropriate adult. - The appropriate adult is to be reminded of his or her functions as adviser and observer as well as that of facilitating communication with the person being interviewed. - A child who is the ward of the court, it was held that judicial consent is not required before a police interview. - A person whom the custody officer has determined requires an interpreter (Code C, paras. 3.5(c)(ii) and 3.12, and see D1.50) must not be interviewed without an interpreter unless authorised by an officer of the rank of superintendent or above, being satisfied that delaying the interview will lead to the consequences in Code C, para. 11.1(a) to (c) (mentioned above). *[Intoxicated people -- ]* - Precludes the interviewing of any person who is unable to appreciate the significance of questions and their answers, or to understand what is happening because of the effects of drink, drugs or any illness, ailment or condition, unless it is authorized by an officer of the rank of superintendent. *[D1.67 What are the detention time limits?]* - The normal maximum period of detention without charge is 24 hours from the "relevant time". - Subject to the powers to extend, if the person has not been charged then he/she must be released either on bail or without bail. - Indictable offence -- can be raised to 36 hours by superintendent. - 96 hours if authority from the magistrates court. - Where a detention time-limit has expired and the person is released without charge, he or she may not be re-arrested without warrant for the offence for which the person was previously arrested, unless, since the release, new evidence has come to light or an examination or analysis of existing evidence has been made which could not reasonably have been made before. - time normally runs continuously from the relevant time - If person is removed to a hospital for medical treatment time spent there or to and fro from hospital does not count, except for any time spent questioning the person fro the purpose of obtaining evidence in respect of an offence. - Cannot do hospital questioning without the agreement of a responsible doctor. - Can consult a solicitor - 'medical treatment' does not require treatment to be administered and is wide enough to encompass psychiatric and psychological interview *[D1.68 -- What is Relevant time?]* - Normally -- the time when an arrested person arrives at the first police station or 24 hours after arrest, whichever is earlier. - A person released on police bail, who is detained when attending at the police station to surrender to custody, or is arrested s. 46A for failure to surrender under custody *[the relevant time is that which applies to the original detention]*. The detention clock and resume at the point they were 'paused' at on the person's release - If the person is arrested under s46A (1); (1A) (failing to attend a police station at an appointed time; breaching pre charge bail conditions) the period of "three hours beginning with the time at which the person arrives at the police station" following the arrest is not included as part of any period of police detention - If a person is arrested other than under s. 46A, e.g., because there is new evidence justifying a further arrest (see D1.67), the relevant time will be that relating to the subsequent arrest. *[D3.44 -- Who is the DPP?]* - state plays a direct role through DPP and law officers of the crown; Barrister or Solicitor of 10 years standing, appointed by the A-G, Functions are discharged under the superintendence of the AG. *[What are DPP's duties? ]* - To take over the conduct of all criminal proceedings instituted by or on behalf of a police force, other than 'specified proceedings'. "Specified offences" -- road traffic offences, offences under POA 1986, s5 Criminal Damage where value does not exceed 5000 pounds, theft where the offence constitutes low value shop lifting. - Moreover, proceedings for an offence cease to be specified once a magistrates' court has begun to hear evidence in those proceedings. - An offence ceases to be a specified offence if a summons or requisition has been issued in respect of it, unless (if the offence is a summary one) or (if the offence is triable either way). - DPP is not under a duty to take over conduct of criminal proceedings dealt with in accordance with the Single Justice Procedure. - DPP can institute and conduct criminal cases in any case where it appears to the DPP appropriate to do so. - To take over conduct of all binding over proceedings instituted on behalf of a police force; Any criminal proceedings by the NCA; Extradition proceedings; Advise police forces on criminal offences. To appear for the prosecution when directed by the court to do so on - Hight Court to SC appeal - Crown Court to COA appeal - Appeals to the Crown Court against the exercise by MC of the Contempt of the Courts Act, to deal with contempt of court offences. *[D3.46 -- What is the CPS?]* - To enable the DPP to perform this task, the Act also provided for the creation of the CPS, of which the DPP is the head - The CPS is not instructed by the police --- acting on behalf of the DPP it takes over prosecutions begun by the police, and therefore exercises an independent judgement in deciding any legal questions which arise. *[D3.49 -- Who are the Crown Prosecutors? ]* - The DPP's powers may be exercised by Crown Prosecutors acting within the general authority delegated to them and without express instructions from the DPP. s\. 10 of the Prosecution of Offences Act 1985, Code for Crown Prosecutors giving guidance on the general principles to be applied by them in: - determining whether proceedings for an offence should be instituted or (if already instituted) continued; - determining what charge(s) should be preferred; and - considering what representations should be made to a magistrates' court about mode of trial *[D3.50 -- Appointment of other prosecutions ]* - DPP to appoint persons who are not members of the Service to institute or take over the conduct of such criminal proceedings as the DPP may assign to them. No fetter in this power. - Person must have a general qualification. Person has all the powers of the crown prosecutor but needs to use those powers subject to any instructions of the crown prosecutors. - The agent is expected to obtain authority from a CPS lawyer before taking steps in relation to offering no evidence on charge or accepting a bind over. DPP power to appoint staff who are not legally qualified. These staff are now known as 'associate prosecutors' and "may represent the CPS on bail applications and on other pre-trial applications, such as requests for adjournments". - Offence must be a non-imprisonable summary offence. - Have the power to represent the CPS relating to 'preventative civil orders'. *[D5.2 How to commence proceedings? ]* A diagram of a court Description automatically generated This is first appearance before magistrates court. Trial of an information -- "an information" is an application to MC for a summons to require the accused to attend court and answer the allegation of having committed an offence. *[D5.4 -- What is the written charge and requisition procedure? ]* - Applies only to prosecutions brought by a 'relevant prosecutor'; A Police force; The director of the SFO; The DPP (and therefore the CPS); The Director general of the NCA; The AG (not yet in force); A person specified by the Secretary of State. - Long list of relevant prosecutors. (look at main notes). - A prosecutor may institute criminal proceedings by issuing a charge against a person with an offence. a requisition must be issued at the same time, requires the accused to go to MC to answer the charge. - written charge and requisition must be served on the accused and a copy of both must be served on the court. *[D5.8 -- How to apply for a summons? ]* - The written charge and requisition procedure is not available in the case of private prosecutions. - These must be commenced by making an application to the MC's for an issue of summons. (known as laying information). - Prosecutor who wants a summons -- must serve a written application to the court or present an application orally to the court. - the application must (a) set out the allegation(s) made by the applicant (in accordance with r. 7.3), and (b) if there is a time-limit for prosecution of the offence(s), demonstrate that the application is made in time. - there must at least be a reference to the applicable time limit, otherwise it is not "demonstrated" that the application is made in time'. It is sufficient that it would be merely apparent from the application setting out the date of the alleged offence and the date of the application that it is in time *[D5.11 -- What is a summons? ]* - the justice may issue a summons directed to that person requiring him to appear before the magistrates court to answer information. - A warrant to arrest that person and bring him before a MC. - A justices clerk may issue a summons but not a warrant. *[D5.14 -- What is the content of the written charge or application for summons?]* - A statement of the offence which describes the offence 'in ordinary language' and (if the offence is created by statute) identifies the legislation that creates it - Sufficient particulars of the conduct constituting the commission of the offence to make clear what the prosecutor alleges against the defendant. - including the value of any damage or theft alleged where that value is known and where it affects the exercise of the court's powers - Where a number of incidents amount to a course of conduct that may be included in the allegations. - A requisition or summons must contain a notice setting out when and where the accused must attend the court. - A summons must identify the issuing court, and a requisition must identify the person under whose authority it is issued *[D21.17 -- What is the time limit for starting proceedings for summary offences? ]* - Six months from the time of the alleged offence. Does not apply to indictable offences. - Where a prosecution is initiated by the written charge and requisition process, the written charge must be issued within the six months. " the written charge can be regarded as issued only when the document comprising the written charge is completed, with all relevant details and in the form needed for service" six months of the relevant offence. - Not done in time which should be and it is unwarranted, unjustified delay then this should not go without remedy. - Uncertainty whether started on time should be determined acc to criminal standard of proof. *[D21.17 -- What is the time limit for starting proceedings for either way offences? ]* - There is no time-limit within which proceedings must be started, unless it is one of the exceptional offences for which there is statutory limitation on the time for taking proceedings on indictment, in which case that limitation applies equally to summary proceedings. - Even where a statute creates an either way offence and then appears to impose a time-limit in respect of summary proceedings (but not proceedings on indictment), the limitation is overridden by the MCA 1980, s. 127(2).