Criminal Litigation Revision Notes:
Syllabus 2: Preliminaries to prosecution
1. Police powers in the investigation of crime
[D1.1]
Police powers of investigation include:
- Arrest
- Detention
- Interrogation
- Entry and search of premises
- Personal search
- Taking of samples
- Procedures of identification
A failure by a PO or other person required to have regard to provisions of the codes does not, of itself,
render that offiscer liable to criminal or civil proceedings.
2. Interrogation of suspects d
[D1.81- D1.90]
a. Definition of interview [Code C para 11.1A]
An interview is the questioning of a person regarding their involvement or suspected involvement in a
criminal offence or offences which, under par 10.1, must be carried out under caution.
A caution is not necessary if questions are for the purposes such as:
- Solely to establish their ID or ownership of a vehicle;
- To obtain information in accordance with statutory requirements
- In furtherance of the proper and effective conduct of a search
- To seek verification of a written record of comments made by the person outside an interview.
b. Where interview is to be conducted [Code C section 11]
Following a decision to arrest a suspect, he must normally be interviewed only at a police station or
other authorised place of detention.
Exceptions:
the delay would lead to or is likely to lead to:
- Interference with or harm or physical harm to a person or serious loss of/or damage to
property.
- Alert other people suspected of committing an offence but not yet arrested.
- Hinder the recovery of property (risk property won’t be recovered)
A caution must be administered at the commencement of an interview, whether or not conducted at a
police station.
,There must be some reasonable, objective grounds for the suspicion, based on known facts or
information.
Whenever a person is interviewed and 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.
Where a suspect is interviewed at a police station or other authorised place of detention following
arrest and:
- Is asked to account for an object, mark or substance, or mark on such objects found on his/her
person, in his or her clothing or footwear otherwise in his/her possession, or in the place
where the arrest took place, or
- To account for his/her presence at the place where the arrest took place
A special warning must be given in the terms set out in Code C para 10.11. Inferences cannot be
drawn if the warning is not given.
c. Information about legal advice
Prior to the commencement of the interview or recommencement, the officer must, unless access to a
solicitor has been delayed or one of the exceptions applies, remind the suspect of their entitlement to
free legal advice and the interview can be delayed for legal advice to be obtained.
d. Significant statement or silence
At the beginning of the interview, the 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
police staff.
A significant statement is one which appears to be capable of being used in evidence and in
particular a direct admission of guilt.
A significant silence is a failure or refusal to answer a question or answer satisfactorily when under
caution, which might, allowing for the restrictions on drawing inferences from silence, give rise to an
adverse inference under CJPO 1994.
e. Conduct in interview
No PO may try to obtain answers to questions or to elicit a statement by the 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.
f. When interviews should cease
Interview must cease when the OIC 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 OIC reasonably believes there is sufficient
evidence to provide a realistic prospect of conviction.
g. Recording of interviews
Must normally be contemporaneously recorded. Any comment that might be relevant to the suspected
offence made by the suspect outside the context of an interview must be recorded and where
practicable the suspect must be given the opportunity to verify the record.
, 3. Use of force
[D1.7 - D1.8]
S.117 PACE: where any provision of the Act confers a power on a constable and does not provide that
that power may be exercised only with the consent of a person other than a police officer, the officer
may use reasonable force if necessary
Excludes the use of force in connection with the conduct of a visual identification procedure
governed by PACE Code D, or taking of an intimate sample under s.62
Determining reasonable force: nature/degree of force used, gravity of offence for which arrest
is made, harm that would flow from the use of force, possibility of effecting the arrest or
preventing the harm by other means
Handcuffs only to be used where reasonably necessary to prevent an escape or a violent
breach of the peace by a prisoner.
4. Powers of arrest: general provisions
[D1.14-D1.18, D1.20]
s.24 PACE governs powers of arrest without a warrant.
Arrest is not defined by PACE or other legislation.
One approach > a person is arrested if as a result of what is said or done, the person is under
compulsion and is not free to go.
Whether a person has or not been arrested depends not on the legality of the arrest but whether the
person has been deprived of liberty to go where he/she pleases.
There is no necessary assumption that an arrest will be followed by a charge. 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 the arrest that there is no possibility of a charge being made.
The burden of proof of a lawful arrest is on the police officer. If an arrest is lawful, the burden of
proof of excessive force is on the complainant.
a. Communication of fact of and grounds for arrest
Where a person is arrested, otherwise than by being informed of being under arrest, the arrest is
unlawful unless the person is informed of being under arrest as soon as is practicable after the arrest.
An arrest is unlawful unless the arrested person is informed of the grounds for the arrest at the time of
the arrest or as soon as is practicable after the arrest.
The test for whether words used were sufficient is whether, having regard to all the circumstances of
the case, the person arrested was told, in simple non-technical language that the person could
understand.
Where a person is arrested for an offence that person must be informed of the nature of the suspected
offence and when and where it was allegedly committed.
A person who is arrested or further arrested must be cautioned at the time of the arrest or as soon as
practicable unless it is impractical to do so because of the persons condition or behaviour. Failure to
, administer the caution does not render the arrest unlawful although it may provide grounds for
exclusion of evidence under s.76 or s.78.
The above must be recorded by the arresting officer in the officers pocket book.
b. Action following arrest
Where a person is arrested at any place other than a PS or is taken into custody by a constable
following an arrest made by a civilian, the constable is obliged to take the person to a designated PS
as soon as practicable.
In exceptional circumstances, the person may be taken to a non-designated station.
This may be delayed if necessary in order to carry out such investigations as it is reasonable to carry
out immediately but the reasons must be recorded.
An arrested person may instead of being taken to a PS, be released either without bail or on bail, to
attend at a PS on a future date. Bail must be necessary and proportionate in all the circumstances. Any
decision to release on bail must be authorised by a custody officer.
s.30A PACE:
In determining whether releasing the person on bail is necessary and proportionate in all the
circumstances, the constable must have regard in particular to—
(a)the need to secure that the person surrenders to custody,
(b)the need to prevent offending by the person,
(c)the need to safeguard victims of crime and witnesses, taking into account any vulnerabilities of any
alleged victim of, or alleged witness to, the offence for which the person was arrested where these
vulnerabilities have been identified by the constable,
(d)the need to safeguard the person, taking into account any vulnerabilities of the person where these
vulnerabilities have been identified by the constable, and
(e)the need to manage risks to the public.
If the person is released on bail, conditions may be imposed for the purpose of securing surrender,
preventing further offences, preventing interference with witnesses or obstruction of the
administration of justice or for the persons own protection.
An application to vary conditions may be made to the police and thereafter to the magistrate's court.
A person released with or without bail may be re-arrested without warrant if new evidence has come
to light of an examination or analysis of existing evidence has been made which could not reasonably
have been made before the release.
5. Arrest without warrant
[D1.22-D1.23]
s.24 PACE
(1)A constable may arrest without a warrant—
(a)anyone who is about to commit an offence;
(b)anyone who is in the act of committing an offence;
Syllabus 2: Preliminaries to prosecution
1. Police powers in the investigation of crime
[D1.1]
Police powers of investigation include:
- Arrest
- Detention
- Interrogation
- Entry and search of premises
- Personal search
- Taking of samples
- Procedures of identification
A failure by a PO or other person required to have regard to provisions of the codes does not, of itself,
render that offiscer liable to criminal or civil proceedings.
2. Interrogation of suspects d
[D1.81- D1.90]
a. Definition of interview [Code C para 11.1A]
An interview is the questioning of a person regarding their involvement or suspected involvement in a
criminal offence or offences which, under par 10.1, must be carried out under caution.
A caution is not necessary if questions are for the purposes such as:
- Solely to establish their ID or ownership of a vehicle;
- To obtain information in accordance with statutory requirements
- In furtherance of the proper and effective conduct of a search
- To seek verification of a written record of comments made by the person outside an interview.
b. Where interview is to be conducted [Code C section 11]
Following a decision to arrest a suspect, he must normally be interviewed only at a police station or
other authorised place of detention.
Exceptions:
the delay would lead to or is likely to lead to:
- Interference with or harm or physical harm to a person or serious loss of/or damage to
property.
- Alert other people suspected of committing an offence but not yet arrested.
- Hinder the recovery of property (risk property won’t be recovered)
A caution must be administered at the commencement of an interview, whether or not conducted at a
police station.
,There must be some reasonable, objective grounds for the suspicion, based on known facts or
information.
Whenever a person is interviewed and 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.
Where a suspect is interviewed at a police station or other authorised place of detention following
arrest and:
- Is asked to account for an object, mark or substance, or mark on such objects found on his/her
person, in his or her clothing or footwear otherwise in his/her possession, or in the place
where the arrest took place, or
- To account for his/her presence at the place where the arrest took place
A special warning must be given in the terms set out in Code C para 10.11. Inferences cannot be
drawn if the warning is not given.
c. Information about legal advice
Prior to the commencement of the interview or recommencement, the officer must, unless access to a
solicitor has been delayed or one of the exceptions applies, remind the suspect of their entitlement to
free legal advice and the interview can be delayed for legal advice to be obtained.
d. Significant statement or silence
At the beginning of the interview, the 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
police staff.
A significant statement is one which appears to be capable of being used in evidence and in
particular a direct admission of guilt.
A significant silence is a failure or refusal to answer a question or answer satisfactorily when under
caution, which might, allowing for the restrictions on drawing inferences from silence, give rise to an
adverse inference under CJPO 1994.
e. Conduct in interview
No PO may try to obtain answers to questions or to elicit a statement by the 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.
f. When interviews should cease
Interview must cease when the OIC 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 OIC reasonably believes there is sufficient
evidence to provide a realistic prospect of conviction.
g. Recording of interviews
Must normally be contemporaneously recorded. Any comment that might be relevant to the suspected
offence made by the suspect outside the context of an interview must be recorded and where
practicable the suspect must be given the opportunity to verify the record.
, 3. Use of force
[D1.7 - D1.8]
S.117 PACE: where any provision of the Act confers a power on a constable and does not provide that
that power may be exercised only with the consent of a person other than a police officer, the officer
may use reasonable force if necessary
Excludes the use of force in connection with the conduct of a visual identification procedure
governed by PACE Code D, or taking of an intimate sample under s.62
Determining reasonable force: nature/degree of force used, gravity of offence for which arrest
is made, harm that would flow from the use of force, possibility of effecting the arrest or
preventing the harm by other means
Handcuffs only to be used where reasonably necessary to prevent an escape or a violent
breach of the peace by a prisoner.
4. Powers of arrest: general provisions
[D1.14-D1.18, D1.20]
s.24 PACE governs powers of arrest without a warrant.
Arrest is not defined by PACE or other legislation.
One approach > a person is arrested if as a result of what is said or done, the person is under
compulsion and is not free to go.
Whether a person has or not been arrested depends not on the legality of the arrest but whether the
person has been deprived of liberty to go where he/she pleases.
There is no necessary assumption that an arrest will be followed by a charge. 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 the arrest that there is no possibility of a charge being made.
The burden of proof of a lawful arrest is on the police officer. If an arrest is lawful, the burden of
proof of excessive force is on the complainant.
a. Communication of fact of and grounds for arrest
Where a person is arrested, otherwise than by being informed of being under arrest, the arrest is
unlawful unless the person is informed of being under arrest as soon as is practicable after the arrest.
An arrest is unlawful unless the arrested person is informed of the grounds for the arrest at the time of
the arrest or as soon as is practicable after the arrest.
The test for whether words used were sufficient is whether, having regard to all the circumstances of
the case, the person arrested was told, in simple non-technical language that the person could
understand.
Where a person is arrested for an offence that person must be informed of the nature of the suspected
offence and when and where it was allegedly committed.
A person who is arrested or further arrested must be cautioned at the time of the arrest or as soon as
practicable unless it is impractical to do so because of the persons condition or behaviour. Failure to
, administer the caution does not render the arrest unlawful although it may provide grounds for
exclusion of evidence under s.76 or s.78.
The above must be recorded by the arresting officer in the officers pocket book.
b. Action following arrest
Where a person is arrested at any place other than a PS or is taken into custody by a constable
following an arrest made by a civilian, the constable is obliged to take the person to a designated PS
as soon as practicable.
In exceptional circumstances, the person may be taken to a non-designated station.
This may be delayed if necessary in order to carry out such investigations as it is reasonable to carry
out immediately but the reasons must be recorded.
An arrested person may instead of being taken to a PS, be released either without bail or on bail, to
attend at a PS on a future date. Bail must be necessary and proportionate in all the circumstances. Any
decision to release on bail must be authorised by a custody officer.
s.30A PACE:
In determining whether releasing the person on bail is necessary and proportionate in all the
circumstances, the constable must have regard in particular to—
(a)the need to secure that the person surrenders to custody,
(b)the need to prevent offending by the person,
(c)the need to safeguard victims of crime and witnesses, taking into account any vulnerabilities of any
alleged victim of, or alleged witness to, the offence for which the person was arrested where these
vulnerabilities have been identified by the constable,
(d)the need to safeguard the person, taking into account any vulnerabilities of the person where these
vulnerabilities have been identified by the constable, and
(e)the need to manage risks to the public.
If the person is released on bail, conditions may be imposed for the purpose of securing surrender,
preventing further offences, preventing interference with witnesses or obstruction of the
administration of justice or for the persons own protection.
An application to vary conditions may be made to the police and thereafter to the magistrate's court.
A person released with or without bail may be re-arrested without warrant if new evidence has come
to light of an examination or analysis of existing evidence has been made which could not reasonably
have been made before the release.
5. Arrest without warrant
[D1.22-D1.23]
s.24 PACE
(1)A constable may arrest without a warrant—
(a)anyone who is about to commit an offence;
(b)anyone who is in the act of committing an offence;
