Preliminaries to Prosecution

Seite 1

Police powers in the investigation of crime

includes arrest, detention, interrogation, entry and search of premises, personal search and taking of samples

failure to have regard to the provisions of the PACE Codes of Practice does not of itself render the police liable to criminal/civil proceedings

however, to the extent that they are relevant, the Codes are admissible in evidence in criminal/civil proceedings

Interrogation of suspects

Caution

a person whom there are grounds to suspect of an offence must be cautioned before (a) any questions about an offence, or (b) further questions if the answers provide the grounds for suspicion are put to them, if either the suspect's answers or silence may be given in evidence to a court in prosecution

'grounds to suspect'

means there must be 'some reasonable, objective grounds for the suspicion, based on known facts/information

hence, caution does not apply to the questioning of a person in respect of whom there is some suspicion not amounting to a reasonable suspicion, even though what he says may subsequently be used in evidence against him

whether there are sufficient grounds for a caution to be administered is an objective question i.e. does not simply depend on how the police regarded the matter

questioning of a person about an offence of which there are grounds to suspect him WILL amount to an interview

this is so even if he has not been arrested, and no decision to arrest him has been made

When must caution be given?

at the time of arrest

or as soon as is practicable afterwards, unless it is impracticable to do so due to his condition/behaviour at the time

or immediately before arrest eg, where he was initially questioned regarding a suspected offence w/o being arrested

at the commencement of the interview, whether or not it is conducted at a police station

at the recommencement of an interview after any break - remind S that he is under caution, or if in doubt, give caution again in full

Terms of caution

Normal 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 from these words will not render it invalid as long as the essential features are adequately conveyed

can explain it in his own words if S does not understand the caution

Special caution

if S is interviewed after charge, or interviewed in circumstances where he has requested a solicitor but has not been permitted to consult with one

‘You do not have to say anything, but anything you do say may be given in evidence’

reason for different caution is that in such circumstances inferences cannot be drawn

if S is interviewed and asked to account for any object/mark/substance, or for his presence at the place he was arrested, a special warning must be given in the following terms:

special warning need not be given where the person has requested a solicitor but not given opportunity to consult him, since inferences from refusal/failure to account cannot be drawn

inferences cannot be drawn if this special warning is not given

(a) what offence is being investigated;

(b) what fact they are being asked to account for;

(c) this fact may be due to them taking part in the commission of the offence;

(d) a court may draw a proper inference if they fail or refuse to account for this fact; and

(e) a record is being made of the interview and it may be given in evidence if they are brought to trial.

Circumstances where caution is NOT necessary

where the questions are for the purpose:

(a) solely to establish identity/ownership of a vehicle

(b) to obtain information in accordance with a statutory requirement

eg. to obtain name and address of a vehicle's driver

(c) in further of the proper and effective conduct of a search

however, if questioning goes further eg. to establish whether drugs found were intended to be supplied to another, a caution will be necessary

(d) to seek verification of a written record of comments made by the person outside an interview

Questioning of a person these circumstances DOES NOT amount to an interview

Consequences of failure to administer caution

failure to caution is a significant and substantial breach of Code C,

However, it does not render the arrest unlawful

It may provide grounds for exclusion of evidence under s76 or s78, but will not necessarily result in exclusion of evidence of the interview

giving wrong caution also will not necessarily lead to exclusion

Interview

questioning of a person regarding their involvement/suspected involvement in criminal offence(s), which must be carried out under caution

Where an interview may be conducted

General rule

following a decision to arrest a suspect, he must normally be interviewed only at police station, or other authorised place of detention

'decision to arrest' = if a police officer has decided to arrest a person, he should not delay the arrest in order to question a suspect before doing so

Exception

requirement for interview to be conducted at police station is subject to exception where delay would be likely to

(a) lead to

interference with/harm to evidence connected with an offence, or

interference with/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 for it; or

(c) hinder the recovery of property obtained in consequence of the commission of an offence

Interviewing in any of these circumstances shall cease once

the necessary questions have been put in order to attempt to avert that risk.

the relevant risk has been averted or

Live link

suspect may be interviewed by an officer who is not at the police station using live link

custody officer may transfer/permit the transfer of the detained person to a police officer for the purpose of a live link interview conducted by another officer

Requirement before an interview can be conducted

Suspect or his solicitor must be given, before the interview:

(a) sufficient information to make it possible to understand the nature of the suspected offence, and

(b) why the person is suspected of committing it

eg. D was arrested for theft but was not told that V had died. He made admissions believing he was faced with a charge of theft only. It was held that these should have been excluded

Interviewing officer must remind S of his entitlement to free legal advice, and that the interview can be delayed for legal advice to be obtained, unless access to a solicitor has been delayed or one of the exceptions applies

violation of S's right to legal advice may lead to exclusion of evidence

At the beginning of an interview after cautioning S, interviewing officer must put to S any significant statement or silence which occurred in the presence and hearing of police officer

significant statement

a statement which appears to be capable of being used in evidence, and in particular a direct admission of guilty

does not include what a suspect is alleged to have said as part of the conduct constituting the offence

significant silence

failure or refusal to answer a question, or answer satisfactorily when under caution which might give rise to an adverse inference

Conduct of Interview

no police officer may try to obtain answers to questions/elicit a statement, by use of oppression

no police officer may indicate, except in answer to a direct question, what action the police will take if S answers/refuses to answer questions or make a statement

if S asks the officer directly what action will be taken in any of those events, the officer may inform the suspect of his proposed action

proposed action eg. keep S in detention if further action is to be taken

proposed action must be proper and warranted eg. it is improper for police to tell a church organist accused of theft from choirboys that the police would interview all of the choirboys if he did not confess

Examples of proper conduct of interview

it is legitimate for police officers to pursue interrogation of a suspect with a view to eliciting admissions, even where the suspect denies involvement in the offence/declines to answer specific questions

asking of hypothetical questions is permissible, but need to be approached with care

Questioning that was rude and discourteous, with raised voices and some bad language was held not to be oppressive

Examples of improper conduct of interview

confession should be excluded where the police falsely informed the suspect that incriminating fingerprints had been found

police questioning which is carried on after repeated denials/refusals may become oppressive

hectoring and bullying throughout an interview was held to be oppressive

When interviews should cease

interview of a person who has not been charged/informed that he may be prosecuted must cease when the officer in charge of the investigation is satisfied that:

(a) all the questions he considers relevant to obtaining accurate and reliable information about the offence has been put to S,

(b) he has taken account of other available evidence, and

(c) he (or custody officer in the case of detained suspect) reasonably believes there is sufficient evidence to provide a realistic prospect of conviction

this is subject to the limits imposed by PACE and the maximum periods of detention w/o charge

once the custody officer determines that he has before him sufficient evidence to charge the person, he must proceed to preclude further interviewing

when a person is detailed in respect of > 1 offence, it is permissible to delay informing the custody officer until the conditions are satisfied in respect of each of the offences

Recording of interviews

interview of suspects must normally be contemporaneously recorded

any comment that might be relevant to the offence made by S outside the context of an interview (including unsolicited comments) must be recored, and where practicable, the suspect must be given the opportunity to verify the record

failure to comply with the recording requirements has led to exclusion of evidence of what was allegedly said

Special categories of Persons

Youth / Mentally disordered person / Mentally vulnerable person

they must not be interviewed/asked to provide or sign a written statement in the absence of appropriate adult, unless

(a) the conditions for conducting an interview away from a police station are satisfied, OR

(a) lead to

interference with/harm to evidence connected with an offence, or

interference with/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 for it; or

(c) hinder the recovery of property obtained in consequence of the commission of an offence

(b) the interview is authorised by an officer of the rank of superintendent or above

Juvenile should be interviewed at his place of education only in exceptional circumstances and the principle/his nominee agrees

efforts should be made to notify parents and the appropriate adult

in cases of necessity, and provided the school was not the victim of the alleged offence, principal may act as the appropriate adult

A person whom custody officer has determined requires an interpreter

he must not be interviewed without an interpreter, unless

(a) the conditions for conducting an interview away from a police station are satisfied, AND

(a) lead to

interference with/harm to evidence connected with an offence, or

interference with/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 for it; or

(c) hinder the recovery of property obtained in consequence of the commission of an offence

(b) the interview is authorised by an officer of the rank of superintendent or above, AND

(c) the interview would not significantly harm the person's physical or mental state

interpreter must normally be physically present, but may also be provided by live link if the custody officer/interviewer are satisfied that this would not adversely affect/undermine or limit S's ability to communicate confidently and effectively

where S cannot read and an interview is recorded in writing, the record must be read over to S who must be asked to verify it

Intoxicated person

a 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/condition must not be interviewed, unless

(a) the conditions for conducting an interview away from a police station are satisfied, AND

(a) lead to

interference with/harm to evidence connected with an offence, or

interference with/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 for it; or

(c) hinder the recovery of property obtained in consequence of the commission of an offence

(b) the interview is authorised by an officer of the rank of superintendent or above, AND

(c) the interview would not significantly harm the person's physical or mental state

Seite 2

Reasonable suspicion

relates to the 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 this exercises his power of arrest, does not have reasonable suspicion

there must be some reasonable, objective grounds for the suspicion, based on known facts and information

facts and information is not confined to those which tend to indicate guilt, but also those that tend to dispel guilt)

information requires to form a reasonable suspicion is of a lower standard than that required to establish a prima facie case - therefore can take into account matters which are not admissible in evidence, or those admissible but could not form part of a prima facie case

it is NOT necessary for the constable to have identified the specific offence, but he must reasonably suspect the existence of facts amounting to an offence of a kind that he has in mind

the test for reasonable suspicion is in two parts

(a) Subjective test - the constable carrying out the arrest must actually suspect S, and

(b) Objective test - a reasonable person in possession of the same facts as the constable would also suspect

in addition, the arrest must be Wednesbury reasonable

whether the constable had reasonable suspicion must be determined according to what he knew and perceived at the time

reasonableness is to be evaluated WITHOUT reference to hindsight i.e. without reference to understanding of a situation or event only after it has happened or developed)

Use of force

where any PACE provision 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

this would include force used in connection with

stop and search

entry and search of premises

arrest

detention of a person at police station

search of a person

intimate search of a detained person

fingerprinting without consent

taking of a non-intimate sample without consent

this would not include the use of force in connection with (because these require consent)

conduct of a visual identification procedure

taking of an intimate sample

a civilian who is a designated person under s 38 Police Reform Act 2002 may use reasonable force in the same circumstances as a constable

any person can use such force as is reasonable in the circumstances in the prevention of crime, or in effecting/assisting in the lawful arrest of a suspected offender

Factors determining what force is reasonable

the court may take into account all the circumstances including

the nature and degree of the force used

the gravity of the offence for which arrest is to be made

the harm that would flow from the use of force against S

the possibility of effecting the arrest/preventing the harm by other means

the fact that force used results in serious injury does not necessarily make it unreasonable

use of excessive force will not render the arrest unlawful

Use of handcuffs

handcuffs should be used only where they are reasonably necessary to

(a) prevent an escape, or

(b) prevent a violent breach of the peace by a prisoner

where handcuffs are unjustifiably resorted to, their use will constitute a trespass even though the arrest itself is lawful

Power of arrest : General provisions

Arrest

a person is arrested if, as a result of what is said or done, he is under compulsion and is not free to go as he pleases

whether or not a person has been arrested depends NOT on the legality of the arrest, but on whether he has been deprived of his liberty to go where he pleases

deprivation of liberty vs restriction of movement - whether a situation amounts to deprivation of liberty is a matter of degree and intensity

There is NO necessary assumption that an arrest will be followed by a charge

Examples of circumstances which does not amount to arrest

handcuffed by a police officer and told that he would be arrested later by other officers

taking hold of a person's arm for the purpose of simply drawing his attention to what is being said to him, without an intention to detain/arrest - this is neither an arrest nor a trespass, unless it goes beyond what is acceptable by the ordinary standards of everyday life

takes a drunk person by the arm to steady him for his own safety

Note: take hold of a person's arm to detain him while deciding whether to arrest - this amounts to trespass

Note: detain a person by confining him to a restricted space without intending to arrest them - this amounts to unlawful imprisonment

Lawful or unlawful arrest

if the lawfulness of an arrest is challenged, it is for the police to prove that the officer who asked for the arrest to be made acted in good faith in making the request

burden of proof of lawful arrest is on the police

if the arrest is lawful, the burden of proving excessive force is on the complainant

Examples of lawful arrest

the fact that an arrest is motivated by a desire to investigate another more serious offence, it does not render it invalid provided there are valid grounds for the arrest

even though a complainant withdraws his complaint, a constable may still arrest S where he hopes by so doing to obtain a confession

Examples of unlawful arrest

if the officer knows at the time of arrest that there is no possibility of a charge being made, arrest for that offence will be unlawful (this is so even if an offence is made on the basis of reasonable suspicion)

Communication of Fact of arrest & Grounds for arrest

For the arrest to be lawful, the person must be informed of

(a) the fact that he is under arrest

at the time when he is arrested, or

as soon as practicable after the arrest, AND

(b) the ground for the arrest

at the time when he is arrested, or

as soon as practicable after the arrest

this applies even if the fact/ground of arrest is obvious

failure to do so will render the arrest unlawful

the test for whether the words used were sufficient = whether, having regard to all the circumstances of the case, the person arrested was told, in simple non-technical language that he could understand, the essential legal and factual grounds for his arrest

where a person is arrested he must be informed of

(i) the nature of the suspected offence, and

(ii) when and where it was allegedly committed

information may be given by colleague (need not be the arresting officer)

where no reasons are given at the time of arrest because it is impracticable to inform S, acts done at the time of arrest do not become retrospectively invalid because of a later failure to inform him

provided that the words used can appropriately describe the offence for which the arrest is made, it suffices even if it describes more than one offence

however, if police wishes to arrest S for second offence, he may not lead S to think that he is arresting him for only one offence

S must also be informed why arrest is believed to be necessary, but failure to do so will not render arrest unlawful

Action following arrest

where S is arrested at any place other than a police station, or is taken into custody by a constable following an arrest made by a civilian, the constable is normally obliged to take him to a designated police station as soon as is practicable thereafter

the constable may delay taking S to a police station/releasing him on bail if his presence at a place other than police station is necessary in order to carry out such investigations as it is reasonable to carry out immediately

eg. taking S from one place to another to check his alibi

eg. search of the arrested person

eg. entry and search of premises

a constable who is satisfied that there are no grounds for keeping D under arrest must release him

instead of taking S to a police station, he may be released either without bail or on bail, to attend at a police station on a future date

S may be released on bail only if

(a) the officer is satisfied that it is necessary and proportionate in all the circumstances, and

(b) it is authorised by an officer of the rank of inspector or above

if S is released on bail, conditions may be imposed for the following purposes:

secure surrender

prevent further offences

prevent interference with witnesses/obstruction of administration of justice

for S's own protection

application to vary condition may be made to police and thereafter to MC

Seite 3

Police's powers of arrest

police may arrest for any offence ; civilian may arrest for indictable offences

powers of arrest are generally discretionary - if the conditions are satisfied, police/civilian may arrest, but is not required to

exception: if a person has been arrested for an offence and is consequently at police station, and it appears to the police that if released, he would be liable to arrest for some other offence, he must be arrested for that other offence

ARREST WITHOUT WARRANT

there has to be a ground for the arrest and a reason why it is necessary to arrest the suspect

see section 24 PACE or BPP Manual page 20 for the grounds and reasons

Arrest for breach of peace

BOP occurs whenever

(a) harm is actually done/likely to be done to a person or property, or

(b) where a person is in fear of being harmed through an assault, affray, riot, unlawful assembly or other disturbance

any person (whether constable or civilian) has power to arrest where

(a) a breach of peace is committed in his presence, or

(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

(d) constable/civilian reasonably believes that a breach of peace has occurred and that a further breach is threatened

arrest must be for the purpose of bringing S before a competent legal authority

reasonable belief is an objective requirement - court must determine whether the belief was reasonable having regard to the circumstances as perceived by the person carrying out the arrest at the time

where a reasonable apprehension of an imminent BOP exists, the preventive action taken must be reasonable, necessary and proportionate

ARREST UNDER WARRANT

MAGISTRATES COURT

MC can issue an arrest warrant on the basis of written information substantiated on oath that a person has/suspected of having committed an offence

such a warrant may or may not be endorsed for bail

if endorsed on bail, the warrant will specify the amounts in which any sureties are to be bound

if bail is to be granted with sureties, the police must release D if the sureties approved by the officer enter into recognizance in accordance with the endorsement

the person bailed is then obliged to appear before MC at the time and place named in the recognizance

if D > 18 yo, MC's power to issue a warrant is limited

offence must be

indictable,

punishable with imprisonment, or

the person's address must be not sufficiently established for a summons to be served on him

MC also has power to issue warrant of

a person who has failed to appear to answer to a summons

a person who has been granted bail and fails to surrender to custody

a person who has been granted bail, and having surrendered to custody, then absents himself before the court is ready to deal with the case

if warrant is issued for non-appearance before a MC

it must not be issued unless the offence to which the warrant relates is

punishable with imprisonment, or

where the court, having convicted D, proposes to impose a disqualification upon him

CROWN COURT

Where an indictment has been signed, but D has not been sent for trial, CC may

issue a summons requiring D to appear before it, or

issue a warrant for his arrest

where a person charged with/convicted of an offence has entered into a recognizance to appear at CC but failed to do so, CC may

issue a summons requiring D to appear before it, or

issue a warrant for his arrest

such a warrant may be endorsed for bail

Seite 4

DETENTION AND TREATMENT OF SUSPECTS

Persons in police detention

a person is in police detention if

he has been taken to a police station after being arrested for an offence, or

he has been arrested at a police station after attending voluntarily/accompanying a constable to it and he is detained there/elsewhere in the charge of a constable, or

he is in the custody of a designated civilian detention, investigating or escort officer

a person is not in police detention if

his at court after being charged

he attends police station to answer a live-link bail

Certain rights apply to persons arrested, persons held in custody at a police station, and apply irrespective of whether he was arrested

right to intimation (to make a phone call)

right to legal advice

Custody officer

a person arrested must normally be taken to a police sttion

he may be taken to any police station, unless it is anticipated that it will be necessary to detain him for more than six hours, in which case he should be taken to a designated police station

CO must be of at lest the rank of sergeant

if CO is not readily available, or if a person is taken to a non-designated police station, another officer may perform the role, however, he must normally not involved in the investigation of an offence which S is in detention

S arrested can only be kept in police detention on the authority of CO

S may not be released except on CO's authority

it is CO's responsibility to ensure that S is treated in accordance with PACE, though responsibility can be temporarily transferred

Custody record

must be opened as soon as is practicable in respect of each person

brought to police station under arrest

arrested at police station after having attended voluntarily

attends police station in accordance with bail

CO is responsible for recording in CR all matters required by PACE to be recorded

Right to notification of arrest

S has a right, at his request, to have one friend/relative/other person who is known to him/likely to take an interest in his welfare, told of his arrest and place detained

CO must inform S of this right and ask whether he wishes to exercise it

If yes, this is to be done as soon as is practicable

if the person chosen cannot be contacted, S may choose up to 2 alternatives

if they too cannot be contacted, CO has discretion to allow further attempts until the information has been conveyed

Right of access to solicitor

S who is arrested and held in custody at police station has a right to consult a solicitor privately at any time

This right may apply prior to the decision to detain a person or prior to him being formally arrested

this statutory right (PACE) does not apply to a prisoner on remand in custody in MC, however, he has a common-l;aw right to consult a solicitor

S must be told of this right immediately before the beginning/recommencement of any interview

Juvenile/Mentally disordered or vulnerable person

police must take into account the need to safeguard and promote the welfare of children in discharging their functions

a mentally disordered/vulnerable person must be assessed as soon as possible

before deciding to remove a person to/keep a person at a place of safety, constable must consult medical practitioner

a child cannot be detained in a police cell as a place of safety

maximum period that a person can be detained is reduced from 72 to 24 hours (can be extended by 12 hours if authorised my medical practitioner)

in respect of adult, police station may only be used as a place of safety if it is satisfied that

(a) S's behaviour poses an imminent risj of serious injury or death to himself/another

(b) because of that risn, no place of safety other than a police station can reasonably be expected to detain the person, and

(c) as far as reasonably practicable, a health care professional is present and available throughout the period he is detained

detention in such circumstances must be authorised by an officer of the rank of inspector or above

DETENTION TIME LIMIT (DTL)

maximum period without charge - 24 hours from the relevant time

time normally runs continuously from the relevant time

however, where a detainee is removed to hospital for medical treatment, time spent at hospital/travelling to and from hospital does not count, except on any time spent questioning the person to obtain evidence

relevant time

(a) the time an arrested person arrives at the first police station that he is taken to, or

(b) 24 hours after arrest

whichever is the earlier

where a person released on police bail is detained when he attends at the police station to surrender to custody, or is arrested failure to surrender to custody

but any time during which he was on bail is not included

relevant time = that which applies to original detention

where a person is arrested because there is new evidence justifying a further arrest

relevant time = that relating to the subsequent arrest

Period of detention w/o charge may be extended in respect of a person arrested for indictable offence

up to a total of 36 hours from the relevant time, by officer > superintendent (i.e. permit a further 12 hours)

up to a total of 96 hours from the relevant time, by magistrates court

Where DTL has expired and S has not been charged, he must be released, either on bail or w/o bail

Where DTL has expired and S is released without charge, he may not be re-arrested without warrant for the offence he previously arrested for, unless since his release,

new evidence has come to light, or

examination/analysis of existing evidence has been made which could not reasonably have been made before

Appropriate adult

Juvenile and mentally disordered/vulnerable person must not be (a) interviewed by police, or (b) asked to provide a written statement in the absence of an appropriate adult, unless delay would be likely to

(a) lead to

interference with/harm to evidence connected with an offence, or

interference with/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 for it; or

(c) hinder the recovery of property obtained in consequence of the commission of an offence

if interview at police station is necessary for these reason(s), it must be authorised by an officer > superintendent

Appropriate adult of Juvenile

appropriate adult includes:

parent

guardian

if juvenile is in the care of a local authority or voluntary organisation

a person representing that authority/organisation

a social worker of a local authority [or if failing these]

some other responsible person who is not a police officer or police employee

appropriate adult does not include:

an estranged parent whom an arrested juvenile does not wish to attend and to whom J specifically objects

an illiterate parent with low IQ who cannot appreciate the gravity of the situation

Appropriate adult of Mentally disordered/vulnerable person

appropriate adult includes:

relative

guardian

other person responsible for care/custody of

someone who has experience dealing with such persons but not police officer/police employee [or if failing these]

some other responsible adult > 18 yo who is not a police officer/police employee

Who should not be appropriate adult?

solicitor attending a police station on S's behalf

a person suspected of involvement in the suspected offence

victim

witness

a person who is involved in the investigation

a person who has received admissions from the suspect before acting as the appropriate adult

social worker/youth offending team whom the suspect has made admissions to

Role of appropriate adult

to safeguard the rights, entitlements and welfare of juveniles and vulnerable persons

AA are expected to

support, advise and assist detainees when they are given/asked to provide information or participate in any procedure

observe whether the police are acting properly and fairly, and to inform an officer > inspector if they consider they are not

assist detainees to communicate with the police while respecting their right to say nothing unless they want to

help them to understand their rights and ensure that those rights are protected and respected

presence of AA during a consultation between S and his lawyer does not destroy the legal advice privilege

in the case of identification & other evidential procedures that require appropriate consent

Y (14 yo - 18 yo) - consent is required from both juvenile and his parent/guardian

Y (< 14 yo) - consent is required from parent only

NOTE: appropriate adult who is NOT a parent/guardian cannot give consent

Seite 5

ROLE OF CPS and PROSECUTORS

State plays a direct role in the prosecution system through DPP and the law officers of Crown (AG and Solicitor-General)

Office of DPP is a barrister or solicitor of at least ten years' standing, appointed by the AG

DPP's duties can be found in BCP D3.44 (page 21 of notebook)

CPS

CPS is not instructed by police - it acts on behalf of the DPP

DPP's powers may be exercised by Crown Prosecutors acting within the general authority delegated to them and without express instructions from the DPP

CPS takes over prosecutions begun by the police, and exercise an independent judgment in deciding any legal questions which arise

Non-CPS personnel

DPP can appoint persons who are not members of CPS to institute/take over the conduct of such criminal proceedings as the DPP may assign to them

there is no fetter placed on the circumstances in which DPP may exercise power to assign cases to non-CPS personnel

however, the appointed person must have general qualification

he has all the powers of a Crown Prosecutor, but has to exercise those powers subject to any instructions given to him by a Crown Prosecutor

he is expected to obtain authority from a CPS lawyer before taking steps in relation to case such as offering no evidence on a charge, or accepting a bind over

Seite 6

PROCEDURE FOR SECURING D'S PRESENCE

First appearance of D before a MC may be secured in a number of different ways:

Arrest D > police seek advice from CPS > police charge D

Arrest D > grant police bail > CPS decide whether there is sufficient evidence to justify a charge > CPS start prosecution against D using written charge and requisition' procedure

Arrest D > grant police bail, subject to the requirement that he must return to police station on a specified date > CPS decide whether there is sufficient evidence to justify a charge > D returns to police station > Police charges D with the offence specified by CPS

Serve a written charge and requisition on D w/o D first having been arrested

Lay an information (serve an information) on MC > MC issue summons/warrant requiring D to attend before MC

Written charge and requisition procedure (WCR)

applies to prosecutions brought by specified public bodies

prosecutor may institute criminal proceedings against D by issuing a written charge (which charges D with an offence)

when P issues a written charge, a requisition must be issued at the same time (which requires D to appear before MC to answer the written charge)

this is available only where P is a 'relevant prosecutor' (prosecuting body specified under the legislation)

this apply to prosecutions brought by

(a) a police force;

(b) the Director of the SFO;

(c) the DPP (and therefore the CPS);

(d) the Director General of the NCA;

(e) the A-G (not yet in force);

(f) a person specified by the Secretary of State in an order under the CJA 2003, s. 29(5)(h)

Laying an information

WCR is not available in the case of private prosecutions (prosecutions where the prosecutor is not a 'relevant prosecutor)

therefore, a prosecutor who is not a 'relevant prosecutor' can commence proceedings by serving an information (same meaning as written charge) on the court for the purpose of obtaining the issue of a summons (same meaning as requisition) or warrant - this process is traditionally referred to as 'laying' information

Process

prosecutor who wants the court to issue a summons must either

(a) serve a written application on the court, or

(b) present an application orally to the court

on an information being laid before the justice that a person has/suspected of having committed an offence, the justice may issue

(a) a summons directed D to appear before MC to answer the information, or

(b) a warrant to arrest D and bring him before MC

NOTE: Justices' clerk may issue a summons, but not warrant

Contents of the written charge/information

Information or written charge must contain

(a) 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; and

(b) sufficient particulars of the conduct constituting the commission of the offence to make clear what the prosecutor alleges against the defendant.

Where a number of incidents, taken together, amount to a course of conduct (having regard to the time, place or purpose of commission), those incidents may be included in the allegation

Moreover, a single document may contain more than one charge

a requisition/summons must contain a notice setting out when and where the accused must attend the court, and must specify each offence in respect of which it has been issued. Additionally, a summons must identify the issuing court, and a requisition must identify the person under whose authority it is issued.