Unit 34 - Criminal litigation for paralegals
Hello, I'm Matthew Hickling. And in this video, I'd like to introduce you to the content off the Unit 34 Workbook published by the National Association Off Licensed Paralegals. Unit 34 is entitled Criminal Litigation for Paralegals but it has fine sections in this video will be looking at Section One, which is entitled police powers in the investigation and detection Off Crime Section one is set out in a way that broadly follows Thekla enology off the possible progress off a police investigation and in this video will be following some of the subheadings in section one of the workbook so that if you have the workbook in front of you, you can also follow this commentary alongside the text off the workbook. So let's now have a look at Section One. It starts off by reminding us that criminal prosecutions are taken in the name off the Koran, which will be either Regina or Rex, depending on whether we have a queen or king on the throne at the time. But in any event, it's a capital R versus the defendant. Generally speaking, you also see that the section includes a reference to the fact that while the police used to make historically their own A charging decisions, so whether they decided to charge a suspect or not. Now, apart from minor on some admitted offenses, those decisions to charge are taken by the Crown Prosecution Service that CBS that which is headed up by the director off public prosecutions of the DPP and prosecutors in the CPS making charging decisions will apply what is known as the full code test, which is asking questions as to whether or not, firstly, there is sufficient evidence to provide a reasonable prospect of conviction and secondly, whether it is in the public interest to prosecute, said one, also introduces you to the police and Criminal Evidence Act 1984 which is also a locally known you probably already knows as pace pace gives the police statutory powers to investigate on detect crime. On it is a broadly set out in s sequential manner. Sections one and two off pace refer to stopping and searching somebody in the street, and it goes through to arresting a person, searching them, taking them to the police station, searching them again if necessary, keeping a record of their detention on other matters as you would expect. So pace that gives the police their statutory powers to investigate crime on says that basically, if somebody's not cooperating, then you can do these things. Pace is supported by the codes of practice. I should say its own code of practice or codes of practice, because they are issued under section 66 off pace. And when a power is exercised, it may be that the giving of the power does not actually contain any or much guidance is toe have the power should be exercised. So using an example, pace might empower the police to stop and search. A person in the street on pace will say Well, in order for that to be lawful, you must have reasonably founded grounds objective grounds to search this person. So what gave you the grounds that you can't walk up to a person, search them that you have to have grounds to? Certainly those grounds must lead you to believe that the person is in possession off stolen goods, prohibited articles and so forth. Was it the empowering actor? What pace that does not do is tell you how to exercise those powers, so this is where the code to come in so that the codes will say If you are exercising this power to search a person in the street, you don't strip. Search them a new so it's outer clothing only, and if you want to search them any further than, you may detain them for that purpose. But you take them somewhere where they are not going to be embarrassed in front. Off passes by under that members of the public. So in this sense, pace and the case of writer's work together, the ghost of practice are set out in alphabetical terms. Eso any person practicing criminal law, whether it be a police station practitioner or criminal practitioner, whoever needs to at least know their way around through the codes of practice as well. A space code, a refers to stop and search code be refers to the search off premises and the seizure of property code see relates to the treatment and questioning of persons in detention. A code D relates to identification matters such as fingerprinting, photographing, DNA sampling and so forth Code. E refers to the procedures for audio recording, a interview, an interview under caution code F refers to the procedures for audio visually recording an interview under caution Code G sets act the necessities for Arrested, which we'll talk about shortly, and code H is your substitute code C. If indeed, the suspect is a terrorism suspect and has been arrested for one or more off certain specified terrorism offenses. If you look at the coast of practice, each one finishes. It ends with a note for guidance, which is a number of additional paragraphs. The notes for guidance are merely that they do not have any legal force at all. On say, what they do is is simply enhance and enable us a better understanding off the coast of practice. So that's where the powers come from. Pace. The codes of practice is to how to deal with them and some notes for guidance, which are sort of on add on if you like. So your workbook then talks about arrest on it refers to the fact that people can attend the police station or wherever they please want to interview them voluntarily on. This has increased substantially in recent years. Following the changes. Teoh the powers to arrest a person so before 2006 The police could only arrest you if you were believed or suspected to have committed an arrestable offence. So in minor offense they couldn't arrest you unless certain other conditions applied on what happened with the serious organized crime and police active has been five or soccer parrot. We refer to it. Isn't that all changed on the police were given a power to arrest a personal suspicion off committing any criminal offence in the matter have minor or trivial But that power was balanced by a requirement for any arrest to be necessary necessary for certain reasons. And those are set out in your workbook at section 24 subsection five which commences with the words the reasons are and for an arrest to be lawful one or bore off, those reasons must apply on If it doesn't, then the arrest will be unlawful. And so you'll see that if a person says to the police, it's ok are come in voluntarily. I'm happy to be subjected to questioning. Then there is no need to arrest me on When this change in the legislation occurred, the police of some police we're was still over mind that there was a process to be done, which is you get a suspect, you arrest them, bring them in into the them under caution, then decide whether to charge the more Baylor. But of course, that had all changed. And what happened is that certain people who had said that they were prepared Teoh come and cooperate with the interview under caution process and cooperate with the taking examples and anything else that might be required basically took the police to the civil courts for having bean arrested when there was arguably no need and not all of them succeeded. But by and large they did. One notable case was a teacher who was accused of a common assault on a pupil. Common assault, of course, not previously being on arrestable offence on, he said it is not. It was not necessary to arrest me on What you have done then is to arrest me on lawfully on the high court's that Yes, If you arrest a person, then it is up to you. Having taken away their liberty, which is a very serious step to take. It is up to you to demonstrate why it was necessary to do so. Those power. Then that power of the police under Section 24 is set out in detail in your work work. And if you have bean in criminal practice, you will already know that the necessity that seems to be most commonly relied upon by the police is that given by section 24 5 e, which is that it was necessary to arrest the person to allow the prompt and effective investigation off the events off the comet off the person in question You're Workbook also gives a mentioned toothy case off a horror on the chief constable off the R. U C in 1997. Because although we say that you need to have reasonable suspicion in order to arrest someone, what the House of Lords said on there, the Supreme Court, it would be said you need to have reasonable grounds to form that suspicion. So it's a combination of two things. Firstly, as a police officer conducting an arrest, you need to suspect that the person you are arresting has committed a criminal offence. But secondly, on that's a subjective test. So you might say that come what may But there's also an objective element which is then needs to be objectively reasonable grounds for you to have formed that suspicion. And so those two things together operate on the mind. Often arresting Officer Onda will determine whether or not the statutory power to arrest. It's a fulfilled on. Then, of course, it's subject to the necessities the world, but then also refers to the citizens powers of summary arrests. It's called there in relation to offenses, and you'll see that these are a little more restricted. Your have ago Hero needs to know, isn't it an indicted offense on that has one being committed? And do I do this? It's almost pretty off putting. Quite frankly, yes, we all would like to help the police. I'm sure on way will do when we can. But when it comes to actually arresting somebody, then we have to be much more careful. And you'll know that people are detained by store detectives and shop start, for example, on this is where a citizen makes a citizen's arrest on, then cause the police to come and sort it out and and those powers do exist. But they have to be used very carefully. The theft, of course, is indicted will offense. It's an either way offence, which means that it's indict evil on. Therefore, generally speaking, those arrests are lawful. Your world, but also refers to police community support officers PC essays because they have limited powers slightly more than a member of the public but less than a regular police officer. And you'll see that the PCs A may detain somebody on hold them for up to 30 minutes, which is the the time that it is expected that a constable can attend. What is going on on? Review the matter on arrival so the constable will attend and say, Tell me what you detain this person for Andi, I show then, and make a decision as to whether or not their continued arrest. If you like, it's a lawful Onda. Take over from you by arresting the person and taking them to a designated police station, you'll see. Your workbook also refers to procedures to be followed on arrest. On that, it's a person must be cautioned. There's a additional mention off the right to silence on that is, if you like part off the middle bit of the course. One say the caution says to a person when they're arrested, you don't have to say anything, and that is fundamentalist requirement on a person. Teoh say anything on the this right to silence, then sort of continues to be reflected in the caution when it says, But it may harm your defence if you do not mention when question something which you later rely on in court. This is, I don't think to say to a person when they're arrested is no requirement to tell them where they're being taken or anything else, but just this rather odd, a sort of middle bit of what we call the caution. In other words, if you are ultimately prosecuted for this offense and you go to court and you seek to rely in your defense on facts that you failed to mention when you were questioned under caution about what none of this is happening yet, you're just being arrested on DSO. It's rather odd Teoh have that in what we call the caution. That was a standard caution, but it is there nonetheless on why it is there. Well, you can draw your own conclusion, really. It just does seem rather odd place to inserted the culture of finishes off. To say that anything you say may be used in evidence is it's You may have heard off something called a voluntary statement where somebody, when they are questioned by the police or they are told that they are being arrested or even when the police come to the door, Let's say the police come to my door. I opened the door and they say, Oh, it's always the place you have been expecting you. Come on. Yeah, I know what it's all about. All of this is what we call referred to in court. Patriot was, It is adverse to me to be a sort of acknowledging the fact that I was expecting the police to call on. There's no need to caution me before I make a voluntary statement the police on use that evidence against me. So the caution has a places desert requirement for someone to be given the caution when they are arrested, but it probably has more effect at the point when a person is to be interviewed on into it. Of course, as we call it under caution at the time off being cautioned, you'll see that your work also refers to Pete Person being taken to a designated police station. Chief constables across the country are required to designate to those police stations which have the facilities to keep a person in a cell or a detention room on Also Teoh, feed that person, keep them warm, keep them fed, etcetera and also let him have a wash if they want one. And so your workbook mentions the police station on the rights that people have say What pace does is it says to the police own. If you do this, you must also tell a person that they have rights and entitlements so that they're entitled to have somebody informed of their arrested on detention. And they're entitled to access the legal advice, saving certain circumstances where use where exercises that entitlement might actually harm the the ongoing investigation, etcetera. So it's all very sensibly laid out. Your workbook then talks about searches and stop and search searches of the accused, and all of these are set out in your workbook when it so you can imagine that a person could not only be searched with that being arrested. But if you were to arrest me, you would want to make sure that I didn't have a knife in my pocket or or evidence in my in my pocket or whatever. And so you would be able to search me to that extent and for that purpose clearly. Also, when you take me to the police station before I put into a cell, it's obviously going to be a power to search me again to make sure that when I go into the cell, I'm not going to have anything on me that I met used himself, harm and things like that. With a lot of prisoners, they can actually take things into the cells and reading material and stuff like this. But but the person needs to be searched in the first instance to make sure that they could be left in the cell with the police taking responsibility for their health and welfare for a period of time. With that sort of being under that constant scrutiny, the Web recalls refers to intimate searches and this is the search of a person's body orifice other than the mouth, which is the only non incident body orifice. And as you can imagine, there are rules to say that other than in on occasions of extreme urgency, it's central that the those so intimate searches can only be conducted by registered medical practitioners and nurses on things like this. They very rarely done with that person's consent because of medics tend to be unhappy to try to sort of search a person's intimate body orifice while they are kicking under screaming. Your workbook also refers toothy Search off Premisys, which I have alluded to already on You'll see that I mentioned is made again off Section eight, or pace, which is the issue of a warrant. A warrant is a direction to the police to go and search and arrest or whatever the warrant says. If you're dealing with a warrant as a as a criminal practitioner or someone who's been searched or arrested under under the terms of a warrant, your first port of call is to get a copy off the warrant because if if what has been done has been done under the authority off that warrant, then the warrant will be will tell you whether or not what has been done is lawful. There's also a mention of Section 17 of Pace, which is sometimes referred to cloak, really as the life and limb prevision, which means the police can enter property and premises if indeed they without a warrant. If indeed they believe that it is necessary either to arrest somebody Ortio or to save life from things like this. There's also references to section 32 of Pace, which is the on arrest search Section 18 which is the post arrest search. So after a person has been arrested on, these powers are slightly different as you could as you would expect. So if you were to arrest me, Andi, you would want you could search me. You could search the place where I was arrested. You can search anywhere where I was immediately before I was arrested on. The purpose of your search would be confined to finding evidence off the offense or offenses for which you are arresting me. The Section 18 search. The post arrest search is a separate power on, and that is to search any premises occupied or controlled by me. And now you can search not only for evidence off the offense or offenses which I've been arrested for, but also any other offenses connected with or similar to. So the wording off these powers is actually quite important on Gwen. We, as lawyers are reviewing the lawfulness of what's happened to our clients. We need today the wording, or if we don't we look it up and check it on. Make sure that things have been done unlawfully, which is, of course, our primary function. And you'll also see that there's a reference to giving a unoccupied premises and notice of rights and things like this, which you would expect section one of your work but then goes on to talk about the detention and interrogation off suspects, which is reasonably heavily controlled. And it says that if a person is it has been arrested, are entitled toe. Have something informed their arrest consultant privately with a solicitor Big cautioned on a record must be kept, of course, which is the custody record off. What is happening to a detained personal DP as your workbook shortens it, too. Suspects kept in custody are entitled to rest food, exercise, etcetera on also breaks. When being a question different date. They are being questioned on and on charge to be cautioned again. And so all of these or these elements are are requisite under the legislation under pace and also expanded further. In the case of practice, periods of detention are limited. You can't keep someone in custody without charge for ever. On as you would expect, there are provisions to say, Listen, you, why the charges person or you let him go or if you charge them, you take them before court Andi paces constructed so that officers who are not involved in the investigation directly liaise with those who are, in a sense, looking over their shoulders, I suppose, just to make sure that everything is conducted properly and as a defense lawyer, what you do is you participated that process. So the custody sergeant reviews the arresting officers lawfulness of the arrest. A duty inspector then reviews whether the custody sergeant is doing the right thing. The lawyer comes along and reviews whether everybody is doing the right thing and so forth. So the whole structure of pace is designed to ensure that you don't have one rogue individuals, much less likely for things to go wrong. When you forcibly include a number of people in the process to oversee what the others are doing and then, if you like, is the part of the essence of pace as well. When it comes to people being detained, the section also refers to identification. I've mentioned that which is to do with making sure that a person is who they say they are, say you say your job logs. But actually you're not. You're ever on Smith or whatever on we know that because we have checked your DNA profile of checked your fingerprints, etcetera. Onda and your work also refers to three Yusof Reasonable force in exercising any of the powers under pace. On Quite rightly says that if if the police need to use force to exercise the powers that that they can use such force as is reasonable, it's pretty difficult taking somebody's fingerprints without their cooperation. And so, generally speaking, you need to wait until people have either come down, say, but up or are in a position to reflect and take some legal advice. Otherwise it might hurt, and it might not be very successful either. So there are these powers can actually be used on their not police. Not to say we won't do that if you're not going to cooperate. In that case, Um, as far as identification is concerned, then the powers to take DNA samples, non intimate samples and also fingerprints etcetera relate to a category offenses called recordable offences. It's just that category of offenses with those offenses which can be recorded on the police computer, or that locally or nationally and those are helpfully set out in your workbook, your world, but then goes on Teoh thes subsection dealing with bail. The two types of Bayliss pre charge a bail or police bail or bail without charge on bail after charge. Police bail or bail without charge is when the police release somebody in circumstances where the person may continue to be a suspect, but there's insufficient evidence for the moment to charge them, so they are released. Please bail came under scrutiny in 2017 2018 on a lot of changes were made restricting of the ability of the police to grant or to bail a person without charge. I should say Onda, those as we speak in 2020 currently being reviewed by the Home Office. So rather than go through them in detail with you while I'm making this video in 2020. What I ought to say is that you will find that in 2021 beyond that, the periods of time and the authorizations have changed. So if you're researching and looking at police bail, that is bail without charge, then do please check that you have some up to date online data available. What happened when Bale became much, much more difficult and more technically problematic is that the police stopped using it on. People were released under investigation on. In the space of a couple of years, the country acquired something over 200,000 people who had Bean released under investigation, with matters apparently pending, but not going anywhere on not being informed off progress, etcetera on DSO. This was a reason to try to seek to reintroduced police bail in a form that the police could use but mawr, particularly in a form that would maintain some sort of managerial control over it. So if you've got somebody bailed to a certain date, you should have a an officer or manager saying right by that date, then something needs to be done. A. Rather, they're simply releasing somebody without any sort of review dates. The unit also talks about the bail act and the right to bail on the grounds for refusing bound very sensibly. You're not going to let somebody out in circumstances where they are going to cause harm to somebody else etcetera on Do you will see that there are conditions that could be applied to bail not only by the police but also by the courts on the unit section. Talks about in the Magistrates Court in the Crown Court on the powers to grant bail on door refuse bail on if a person is refused bail. But then there are certain time limits that apply what we call custody time limits within which their case ought to be brought to court unless those limits are extended by the court, the section that also talks with Roll off the custody officer. We've already mentioned it briefly. The custody officer is responsible for keeping a custody record and making sure that people in detention their rights on day are at least properly looked after. So a person in custody becomes, if you like the custody officers prisoner, not the arresting officers. Prisoner on the custody officer is responsible then for making sure that the person is looked after, has access to legal advice assembly, informed of their arrest, etcetera and making sure that everything is done lawfully. You also see that the sector refers to oppressive interviews. If a person is interviewed under caution, early generally are, if they're a suspect with the police, have a duty to investigate criminal offenses or alleged criminal offenses, and you'll see that those interviews are also regulated by both pace. On the case of practice, they mustn't be conducted oppressively on. There are formalities where a person must be caution, etcetera while they are being interviewed, and they must have legal advice on DSO fourth. Everything that you would you would expect and part of the task of a lawyer is to ensure that if your client is being interviewed under caution that that interview is being conducted lawfully in accordance with both paste under the codes off practice you're Unit also then refers to reviewing suspects in detention, which is what I've mentioned already, which is everyone looking over each other's shoulders to make sure that things are being conducted lawfully on that if a person is being kept in custody for longer and longer than there is an evermore senior police officer involved in reviewing that. And ultimately, of course, it is for the courts to review at the lawfulness of it all. You ever then talks about establishing sufficient evidence to charge on when there is sufficient evidence to charge. Then a person, quite frankly, should be charged your workbook. Section one finishes then, with the consequences off, breaching paste the coast of practice. If paces breached a code of practice are breached, then it is likely that whoever is breaching them will be acting unlawfully. That does not necessarily mean that the evidence will not be missed. Reality usually is admissible despite being gathered or unlawfully, or despite the fact that there was some sort of unlawful conduct. But in those circumstances, it is possible for a court to say, Well, hang on a minute. It would not be fair for that evidence to remain in on. Therefore, it ought to be excluded. And so what paste does in relation to both confession evidence and any other evidence is to say these are the circumstances under which it will be admissible, and these are the circumstances under which it may be excluded. That really just finishes dealing with section one off the unit 34 workbook. I have we found it helpful at this introduction. Eso do Please have a read off the workbook in more detail. Andi, I hope this will have helped you to absorb on digest its content.
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