Criminal Practice Revision Notes
Police Station Advice
Detainee’s Rights
Relevant Time – The Relevant Time begins at the moment the suspect arrives at the police
station or is arrested, whichever is earlier, and must be indicated in the Custody Record (“CR”).
Authorisation Time – The Authorisation Time begins at the time detention is authorised by the
Custody Officer (“CO”).
Delay Factors – Reasonable grounds to believe that exercise will lead to any or all of (a) an
interference with / harm to evidence or to others, (b) the alerting of other suspects of an
indictable offence but not yet arrested, or (c) the hindering of the recovery of property obtained
in consequence of the commission.
Extension Factors – Reasonable grounds to believe that detention is necessary to secure or
preserve evidence or obtain evidence by questioning and the investigation is being conducted
diligently and expeditiously.
Police Rankings – 1) Constable 2) Sergeant 3) Inspector 4) Chief Inspector 5) Superintendent 6)
Chief Superintendent.
Right to Legal Advice
Reinforming – A detainee must be retold their right to free legal advice immediately before (a)
the commencement / recommencement of an interview, (b) being asked to provide an intimate
sample, (c) an intimate drug search, or (d) an identification parade or VIP.
Right – If sought, advice must be provided as soon as is practicable. If it is declined, it must be
noted on the CR. Nothing should be done to dissuade a detainee from obtaining legal advice. If
exercised, no interview should commence before advice is received.
Change – If a detainee initially declines but changes their mind, the interview should cease
and can recommence once the detainee has exercised their right.
Right for Someone to be informed
Right – A detainee has the right for a friend, relative, or other person who is likely to be
concerned for their welfare to be told they are under arrest.
Exercise – The right can be exercised every time a detainee is taken to a different police
station. If exercised, a detainee’s chosen person must be contacted as soon as practicable.
Right to Appropriate Adult (“AA”) / Interpreter
Right – If a detainee is, or appears to be, under 18, they must have an AA present. This applies to
anyone whom a police officer (a) expects or (b) has been told in good faith may be mentally
disordered or otherwise vulnerable.
AA – An AA is a parent, or guardian, or, for young persons in care, a representative of a care
authority voluntary organisation, or a social worker. Failing these, any person aged 18 or over
who is not a police officer or police employee suffices.
Inappropriate Adult – An AA must not be a (a) solicitor or legal representative, (b) victim or
witness, (c) involved in the investigation, (d) a person who has received admissions from the
detainee before acting, (e) person of low IQ, or (f) an estranged parent to whom the detainee
objects to attend.
1
, Role – An AA is to (a) ensure the detainee understands what is happening and why, (b) support
and assist the detainee, (c) observe whether the police are acting properly and fairly and to
intervene if not, (d) facilitate communication between the detainee and police, and (e) ensure
that the detainee understands their rights.
Detention
Location – An arrested person can be taken to any station unless it is anticipated that they will be
detained for more than 6 hours. If so, they must be taken to a designated station.
Review – The Review Officer must review the grounds for detention not more than six hours
from the Authorisation Time and periodically every nine hours thereafter.
Requirement – A Review Officer must be of at least the rank of inspector who is not
connected with the investigation and is not the CO.
First Review – The detainee must be retold of (a) the right to legal advice and (b) be allowed
to make representations unless they are unfit to do so or asleep.
Delay of Rights of Detainee
Right Authorisatio Requirements Limitations & Procedure
n
Legal Advice Superintendent Indictable offence + Can only be delayed up to 36 hours
or above in Delay Factors. from the Relevant Time.
writing.
Detainee must be informed and the
reasons for the delay recorded in the
CR.
Someone to Inspector or Must be proportionate and should last
be Informed above in writing. no longer than necessary.
Can only be delayed up to 36 hours
from the Relevant Time.
Appropriate CO. Delay Factors or N/A.
Adult serious loss /
damage to
property.
Interpreter Superintendent Indictable offence + N/A.
or above in Delay Factors or
writing. serious loss /
damage to property
Interview at N/A. Delay Factors or N/A.
Police Station serious loss /
damage to property
Charge / Superintendent Indictable offence + Up to a maximum of 36 hours.
Release or above in Extension Factors.
within 24 writing. Must be done before the expiry of the
Hours initial 24 hours but after the second
review. The grounds for the extension
must be explained to the detainee and
noted in the CR . The detainee and / or
solicitor must be permitted to make
representations.
2
, Warrant of Constable. The MC must be Application to the MC for a Warrant of
Detention satisfied of Detention to authorise a further 36
Extension Factors. hours on first application and a further
36 hours on a second application (up
to 96 hours).
Police Station Interview
Caution – Interviews must be carried out under caution unless questions are asked (a) solely to
establish identity or ownership of a vehicle, (b) to obtain information in accordance with a
statutory requirement, (c) in furtherance of the proper and effective conduct of a search or (d) to
seek verification of a written record of comments made by the person outside of an interview.
Disclosure – A solicitor must be given sufficient information to enable them to understand the
offence and why the detainee is suspected of committing it. Beyond this, there is no duty of
disclosure other than with respect to (a) significant statements and (b) the CR.
Significant Statement – A statement capable of being used in evidence against the suspect.
Such statements or silence which occurred in the presence and hearing of a police officer
must be put to a detainee at the start of an interview for confirmation or denial.
Recording – All interviews must be contemporaneously recorded and all interviews under
caution for any indictable offence must be audio recorded.
Writing – An interview can be recorded in writing where (a) it relates to a minor offence, (b)
the person has not been arrested, and (c) it takes place other than at a police station.
Fitness – No person should be interviewed, unless authorised by an officer of at least
superintendent, if they are unable to (a) appreciate the significance of the questions asked and
their answers or (b) understand what is happening because of the effects of drink, drugs or any
illness or condition.
Role of Solicitor – A solicitor should hold a private consultation with their client to (a) discuss the
case and (b) advise the client on their options in the interview. During an interview, a solicitor
should intervene when (a) further consultation is required or (b) the questioning is
inappropriate, such as misrepresenting information, hypothetical or repetitive questions, or
disruptive listening.
Formulating Advice
Options – 1) Answer 2) No Comment 3) Prepared Statement and No Comment.
No Comment – If a detainee answers no questions, no transcript will be read out at trial.
Prepared Statement (PS) – If used, a PS must be handed in at the beginning of the interview
setting out the defence. A PS does not prevent adverse inferences. Inferences are less likely
where D maintains their account.
Mixed Interview – A mixed interview should be advised against in the strongest possible terms.
Answering Questions
Disclosure – Where the police provide little or no disclosure, it is prudent to advise a detainee to
remain silent as the court is reluctant to draw inferences where disclosure was insufficient.
Admissibility – A solicitor should consider whether (a) any witnesses have provided written
statements and are compellable, (b) any Significant Statements were unlawfully obtained, and (c)
any COP breaches.
Strength – If there is little evidence, it is sensible to advise them to remain silent. However, if
evidence becomes available, silence may become relevant, and inferences may be drawn.
Client’s Account – If D has a defence, it should be put forward early to avoid adverse inferences.
3
, State of Client – The court should not draw inferences from silence where the suspect's
condition, such as ill-health, confusion, intoxication or shock, give the solicitor cause for concern.
A solicitor should check the CR to see whether the forensic medical examiner has certified the
suspect fit for interview.
Advising Vulnerable Clients
Vulnerable Client – A person who, because of a mental health condition or disorder, but not the
influence of alcohol or drugs:
o may have difficulty understanding or communicating effectively;
o does not understand the significance of questions asked, or their responses; or
o appears to be particularly prone to (a) confusion, (b) providing unreliable, misleading, or
incriminating information, (c) accepting / acting on suggestions without consciously
knowing / wishing to do so, or (d) readily agreeing to suggestions / proposals without
protest or question.
Treating a Client as Vulnerable – The CO must undertake a risk assessment and identify whether
the suspect is or might be vulnerable. If so, they will be given access to an AA, who the CO will
inform of the grounds for and location of detention.
Role of AA – An AA may request a solicitor or legal representative on behalf of the detainee.
The detainee need not see the solicitor. The AA need not be with the detainee when they
consult a solicitor.
Suspecting a Vulnerable Person – If at any time an officer suspects that a person is vulnerable
then the person will be treated as vulnerable unless there is clear evidence to the contrary.
Next Steps – The officer must make reasonable enquiries to ascertain whether the person
falls within the definition of vulnerable and record that information. Relevant information
may include (a) behaviour, (b) mental health and capacity, (c) self-identification, and (d)
information from police, staff, records, health and social care or professionals who have had
previous contact with the detainee.
Role of Solicitor – A solicitor should ensure a vulnerable client understand what is happening,
the interview process, how to approach a no comment interview, that regular breaks are taken,
and the language and tone used by officers is appropriate.
Right to Silence & Adverse Inferences (“AI”)
Right to Silence – Every suspect has a right to silence.
AIs – AIs may be drawn where:
o a fact later relied on at trial would have been reasonable to mention in interview;
o there is a failure to account for a mark, object or substance on their person or their
presence at the scene.
Fact Later Relied On – A court does not have to draw any inference but, if it does, any inference
that is drawn must be “proper”. An inference cannot be drawn if the detainee was not cautioned.
Reasonable to Mention – It must have been reasonable to have mentioned the fact at the
time, accounting for the disclosure made, the detainee’s knowledge at the time of
questioning or charge, the condition and circumstances of the detainee, and any legal
advice that the detainee received.
Effect – At trial, an AI will undermine D’s case on the basis of (a) fabrication since interview,
(b) D’s account would not withstand questioning, or (c) no reasonable explanation at the
time of the interview.
Failure to Account – The detainee must be given a Special Warning / Ordinary Language Caution
explaining (a) the offence, (b) what they are being asked to account for and why, (c) that a court
may draw an inference if they fail or refuse, and (d) a record is being made of the interview.
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Police Station Advice
Detainee’s Rights
Relevant Time – The Relevant Time begins at the moment the suspect arrives at the police
station or is arrested, whichever is earlier, and must be indicated in the Custody Record (“CR”).
Authorisation Time – The Authorisation Time begins at the time detention is authorised by the
Custody Officer (“CO”).
Delay Factors – Reasonable grounds to believe that exercise will lead to any or all of (a) an
interference with / harm to evidence or to others, (b) the alerting of other suspects of an
indictable offence but not yet arrested, or (c) the hindering of the recovery of property obtained
in consequence of the commission.
Extension Factors – Reasonable grounds to believe that detention is necessary to secure or
preserve evidence or obtain evidence by questioning and the investigation is being conducted
diligently and expeditiously.
Police Rankings – 1) Constable 2) Sergeant 3) Inspector 4) Chief Inspector 5) Superintendent 6)
Chief Superintendent.
Right to Legal Advice
Reinforming – A detainee must be retold their right to free legal advice immediately before (a)
the commencement / recommencement of an interview, (b) being asked to provide an intimate
sample, (c) an intimate drug search, or (d) an identification parade or VIP.
Right – If sought, advice must be provided as soon as is practicable. If it is declined, it must be
noted on the CR. Nothing should be done to dissuade a detainee from obtaining legal advice. If
exercised, no interview should commence before advice is received.
Change – If a detainee initially declines but changes their mind, the interview should cease
and can recommence once the detainee has exercised their right.
Right for Someone to be informed
Right – A detainee has the right for a friend, relative, or other person who is likely to be
concerned for their welfare to be told they are under arrest.
Exercise – The right can be exercised every time a detainee is taken to a different police
station. If exercised, a detainee’s chosen person must be contacted as soon as practicable.
Right to Appropriate Adult (“AA”) / Interpreter
Right – If a detainee is, or appears to be, under 18, they must have an AA present. This applies to
anyone whom a police officer (a) expects or (b) has been told in good faith may be mentally
disordered or otherwise vulnerable.
AA – An AA is a parent, or guardian, or, for young persons in care, a representative of a care
authority voluntary organisation, or a social worker. Failing these, any person aged 18 or over
who is not a police officer or police employee suffices.
Inappropriate Adult – An AA must not be a (a) solicitor or legal representative, (b) victim or
witness, (c) involved in the investigation, (d) a person who has received admissions from the
detainee before acting, (e) person of low IQ, or (f) an estranged parent to whom the detainee
objects to attend.
1
, Role – An AA is to (a) ensure the detainee understands what is happening and why, (b) support
and assist the detainee, (c) observe whether the police are acting properly and fairly and to
intervene if not, (d) facilitate communication between the detainee and police, and (e) ensure
that the detainee understands their rights.
Detention
Location – An arrested person can be taken to any station unless it is anticipated that they will be
detained for more than 6 hours. If so, they must be taken to a designated station.
Review – The Review Officer must review the grounds for detention not more than six hours
from the Authorisation Time and periodically every nine hours thereafter.
Requirement – A Review Officer must be of at least the rank of inspector who is not
connected with the investigation and is not the CO.
First Review – The detainee must be retold of (a) the right to legal advice and (b) be allowed
to make representations unless they are unfit to do so or asleep.
Delay of Rights of Detainee
Right Authorisatio Requirements Limitations & Procedure
n
Legal Advice Superintendent Indictable offence + Can only be delayed up to 36 hours
or above in Delay Factors. from the Relevant Time.
writing.
Detainee must be informed and the
reasons for the delay recorded in the
CR.
Someone to Inspector or Must be proportionate and should last
be Informed above in writing. no longer than necessary.
Can only be delayed up to 36 hours
from the Relevant Time.
Appropriate CO. Delay Factors or N/A.
Adult serious loss /
damage to
property.
Interpreter Superintendent Indictable offence + N/A.
or above in Delay Factors or
writing. serious loss /
damage to property
Interview at N/A. Delay Factors or N/A.
Police Station serious loss /
damage to property
Charge / Superintendent Indictable offence + Up to a maximum of 36 hours.
Release or above in Extension Factors.
within 24 writing. Must be done before the expiry of the
Hours initial 24 hours but after the second
review. The grounds for the extension
must be explained to the detainee and
noted in the CR . The detainee and / or
solicitor must be permitted to make
representations.
2
, Warrant of Constable. The MC must be Application to the MC for a Warrant of
Detention satisfied of Detention to authorise a further 36
Extension Factors. hours on first application and a further
36 hours on a second application (up
to 96 hours).
Police Station Interview
Caution – Interviews must be carried out under caution unless questions are asked (a) solely to
establish identity or ownership of a vehicle, (b) to obtain information in accordance with a
statutory requirement, (c) in furtherance of the proper and effective conduct of a search or (d) to
seek verification of a written record of comments made by the person outside of an interview.
Disclosure – A solicitor must be given sufficient information to enable them to understand the
offence and why the detainee is suspected of committing it. Beyond this, there is no duty of
disclosure other than with respect to (a) significant statements and (b) the CR.
Significant Statement – A statement capable of being used in evidence against the suspect.
Such statements or silence which occurred in the presence and hearing of a police officer
must be put to a detainee at the start of an interview for confirmation or denial.
Recording – All interviews must be contemporaneously recorded and all interviews under
caution for any indictable offence must be audio recorded.
Writing – An interview can be recorded in writing where (a) it relates to a minor offence, (b)
the person has not been arrested, and (c) it takes place other than at a police station.
Fitness – No person should be interviewed, unless authorised by an officer of at least
superintendent, if they are unable to (a) appreciate the significance of the questions asked and
their answers or (b) understand what is happening because of the effects of drink, drugs or any
illness or condition.
Role of Solicitor – A solicitor should hold a private consultation with their client to (a) discuss the
case and (b) advise the client on their options in the interview. During an interview, a solicitor
should intervene when (a) further consultation is required or (b) the questioning is
inappropriate, such as misrepresenting information, hypothetical or repetitive questions, or
disruptive listening.
Formulating Advice
Options – 1) Answer 2) No Comment 3) Prepared Statement and No Comment.
No Comment – If a detainee answers no questions, no transcript will be read out at trial.
Prepared Statement (PS) – If used, a PS must be handed in at the beginning of the interview
setting out the defence. A PS does not prevent adverse inferences. Inferences are less likely
where D maintains their account.
Mixed Interview – A mixed interview should be advised against in the strongest possible terms.
Answering Questions
Disclosure – Where the police provide little or no disclosure, it is prudent to advise a detainee to
remain silent as the court is reluctant to draw inferences where disclosure was insufficient.
Admissibility – A solicitor should consider whether (a) any witnesses have provided written
statements and are compellable, (b) any Significant Statements were unlawfully obtained, and (c)
any COP breaches.
Strength – If there is little evidence, it is sensible to advise them to remain silent. However, if
evidence becomes available, silence may become relevant, and inferences may be drawn.
Client’s Account – If D has a defence, it should be put forward early to avoid adverse inferences.
3
, State of Client – The court should not draw inferences from silence where the suspect's
condition, such as ill-health, confusion, intoxication or shock, give the solicitor cause for concern.
A solicitor should check the CR to see whether the forensic medical examiner has certified the
suspect fit for interview.
Advising Vulnerable Clients
Vulnerable Client – A person who, because of a mental health condition or disorder, but not the
influence of alcohol or drugs:
o may have difficulty understanding or communicating effectively;
o does not understand the significance of questions asked, or their responses; or
o appears to be particularly prone to (a) confusion, (b) providing unreliable, misleading, or
incriminating information, (c) accepting / acting on suggestions without consciously
knowing / wishing to do so, or (d) readily agreeing to suggestions / proposals without
protest or question.
Treating a Client as Vulnerable – The CO must undertake a risk assessment and identify whether
the suspect is or might be vulnerable. If so, they will be given access to an AA, who the CO will
inform of the grounds for and location of detention.
Role of AA – An AA may request a solicitor or legal representative on behalf of the detainee.
The detainee need not see the solicitor. The AA need not be with the detainee when they
consult a solicitor.
Suspecting a Vulnerable Person – If at any time an officer suspects that a person is vulnerable
then the person will be treated as vulnerable unless there is clear evidence to the contrary.
Next Steps – The officer must make reasonable enquiries to ascertain whether the person
falls within the definition of vulnerable and record that information. Relevant information
may include (a) behaviour, (b) mental health and capacity, (c) self-identification, and (d)
information from police, staff, records, health and social care or professionals who have had
previous contact with the detainee.
Role of Solicitor – A solicitor should ensure a vulnerable client understand what is happening,
the interview process, how to approach a no comment interview, that regular breaks are taken,
and the language and tone used by officers is appropriate.
Right to Silence & Adverse Inferences (“AI”)
Right to Silence – Every suspect has a right to silence.
AIs – AIs may be drawn where:
o a fact later relied on at trial would have been reasonable to mention in interview;
o there is a failure to account for a mark, object or substance on their person or their
presence at the scene.
Fact Later Relied On – A court does not have to draw any inference but, if it does, any inference
that is drawn must be “proper”. An inference cannot be drawn if the detainee was not cautioned.
Reasonable to Mention – It must have been reasonable to have mentioned the fact at the
time, accounting for the disclosure made, the detainee’s knowledge at the time of
questioning or charge, the condition and circumstances of the detainee, and any legal
advice that the detainee received.
Effect – At trial, an AI will undermine D’s case on the basis of (a) fabrication since interview,
(b) D’s account would not withstand questioning, or (c) no reasonable explanation at the
time of the interview.
Failure to Account – The detainee must be given a Special Warning / Ordinary Language Caution
explaining (a) the offence, (b) what they are being asked to account for and why, (c) that a court
may draw an inference if they fail or refuse, and (d) a record is being made of the interview.
4
