Criminal Law and Practice
PROFESSIONAL CONDUCT ISSUES:
Do not accept third-party instructions, unless confirmed by the suspect
The starting point is that a duty solicitor should agree to represent as many clients as
possible.
If there is a conflict, or a significant risk of a conflict, between two or more current
clients, you must not act for all, or possibly any of them
NO EXCEPTIONS APPLY IN CRIMINAL LITIGATION!
Your firm cannot act for clients whose interests conflict.
Note also the duty not to mislead the court, whether knowingly or recklessly
e.g., calling a witness whose evidence the solicitor knows to be untrue, or putting forward a
positive defence where the solicitor knows that the defendant is guilty
If your client insists on a course of action which would lead you to misleading the court, you
must cease acting
-> note that your duty of confidentiality will prevent you from disclosing the reason for your
ceasing to act
if an admission has been made to you, you can still act but you cannot put forward a
positive defence (i.e., suggest that the defendant is innocent of the crime alleged)
-> the prosecution can be put to proof
Detention at the police station
Police rankings:
1. Constable
2. Sergeant
3. Inspector
4. Chief inspector
5. Superintended
6. Chief superintendent (most senior)
The custody officer will determine whether there is sufficient evidence to proceed to
charge the detainee.
If not, the arrested person must be released unless there are reasonable grounds for
believing that detention is necessary to:
Secure or preserve evidence; or
Obtain such evidence by questioning.
If there are grounds to detain, the custody officer will:
Authorise detention of the suspect;
Open a custody record;
Inform the detainee of the reason of their arrest/detention;
Inform the detainee of their rights.
Three fundamental rights:
(a) The right to free and independent legal advice;
, s.58 PACE
Includes consulting with a solicitor either in person, on the telephone or in writing.
Power to delay only exercisable if: (note that this is rare)
- Authorised by a senior police officer of the rank of superintendent;
- In writing;
- The suspect has been charged with an indictable offence;
- Reasonable grounds exist that the exercise of the right will lead to interference with
or harm to evidence; interference with or physical injury to other persons; or the
alerting of other persons suspected of having committed the offence but not yet
arrested for it.
max. 36 hours delay may be permitted.
Note that adverse inferences may be drawn at trial if access to legal advice has been
withheld.
(b) The right to have someone informed of the arrest;
s.56 PACE
An arrested person has the right to have a friend, relative or other person told that they are
under arrest.
Not a right to a telephone call!
Power to delay only exercisable if:
- Authorised by a senior police officer of the rank of inspector;
- In writing;
- The suspect has been charged with an indictable offence;
- Reasonable grounds exist that the exercise of the right will lead to interference with
or harm to evidence; interference with or physical injury to other persons; or the
alerting of other persons suspected of having committed the offence but not yet
arrested for it.
max. 36 hours delay available, and in any case for as long as the relevant grounds
exist.
(c) The right to consult the Codes of Practice.
Length of detention without charge: 24 hours from the arrival at police station.
Can be extended for a further 12 hours, provided that a superintendent is satisfied that
detention is still necessary, and that the investigation is being conducted diligently and
expeditiously.
Any further extension can only be granted by the magistrates’ court: warrant of further
detention.
max detention time: 96 hours.
Reviews of detention: i.e., that the grounds for detention still exist.
Conducted by an officer of the rank of inspector.
First review: no later than 6 hours after detention was first authorised.
Subsequent reviews should take place no later than 9 hours following last review.
PROFESSIONAL CONDUCT ISSUES:
Do not accept third-party instructions, unless confirmed by the suspect
The starting point is that a duty solicitor should agree to represent as many clients as
possible.
If there is a conflict, or a significant risk of a conflict, between two or more current
clients, you must not act for all, or possibly any of them
NO EXCEPTIONS APPLY IN CRIMINAL LITIGATION!
Your firm cannot act for clients whose interests conflict.
Note also the duty not to mislead the court, whether knowingly or recklessly
e.g., calling a witness whose evidence the solicitor knows to be untrue, or putting forward a
positive defence where the solicitor knows that the defendant is guilty
If your client insists on a course of action which would lead you to misleading the court, you
must cease acting
-> note that your duty of confidentiality will prevent you from disclosing the reason for your
ceasing to act
if an admission has been made to you, you can still act but you cannot put forward a
positive defence (i.e., suggest that the defendant is innocent of the crime alleged)
-> the prosecution can be put to proof
Detention at the police station
Police rankings:
1. Constable
2. Sergeant
3. Inspector
4. Chief inspector
5. Superintended
6. Chief superintendent (most senior)
The custody officer will determine whether there is sufficient evidence to proceed to
charge the detainee.
If not, the arrested person must be released unless there are reasonable grounds for
believing that detention is necessary to:
Secure or preserve evidence; or
Obtain such evidence by questioning.
If there are grounds to detain, the custody officer will:
Authorise detention of the suspect;
Open a custody record;
Inform the detainee of the reason of their arrest/detention;
Inform the detainee of their rights.
Three fundamental rights:
(a) The right to free and independent legal advice;
, s.58 PACE
Includes consulting with a solicitor either in person, on the telephone or in writing.
Power to delay only exercisable if: (note that this is rare)
- Authorised by a senior police officer of the rank of superintendent;
- In writing;
- The suspect has been charged with an indictable offence;
- Reasonable grounds exist that the exercise of the right will lead to interference with
or harm to evidence; interference with or physical injury to other persons; or the
alerting of other persons suspected of having committed the offence but not yet
arrested for it.
max. 36 hours delay may be permitted.
Note that adverse inferences may be drawn at trial if access to legal advice has been
withheld.
(b) The right to have someone informed of the arrest;
s.56 PACE
An arrested person has the right to have a friend, relative or other person told that they are
under arrest.
Not a right to a telephone call!
Power to delay only exercisable if:
- Authorised by a senior police officer of the rank of inspector;
- In writing;
- The suspect has been charged with an indictable offence;
- Reasonable grounds exist that the exercise of the right will lead to interference with
or harm to evidence; interference with or physical injury to other persons; or the
alerting of other persons suspected of having committed the offence but not yet
arrested for it.
max. 36 hours delay available, and in any case for as long as the relevant grounds
exist.
(c) The right to consult the Codes of Practice.
Length of detention without charge: 24 hours from the arrival at police station.
Can be extended for a further 12 hours, provided that a superintendent is satisfied that
detention is still necessary, and that the investigation is being conducted diligently and
expeditiously.
Any further extension can only be granted by the magistrates’ court: warrant of further
detention.
max detention time: 96 hours.
Reviews of detention: i.e., that the grounds for detention still exist.
Conducted by an officer of the rank of inspector.
First review: no later than 6 hours after detention was first authorised.
Subsequent reviews should take place no later than 9 hours following last review.
