Police Vs Cyclist

RS2000.

Cornucopia wrote: »

No. Not AFAIK.

The related case of PF Glasgow vs Akram could be relevant across the UK.

No, only in Scotland to not relevant to this thread.

Bollotom

I think the bikist was RS2000

matttye

Cornucopia wrote: »

There is a great deal of debate and hand-wringing about where in the proceedings the caution should be issued. I am with you on this: I think it needs to be given before ANY questions are put to you about an offence that the Police have reasonable grounds to suspect you of. I also think that the caution should always reference Right to Counsel, when at the moment, it isn't always required.

Not really.

PACE Code C 10.1-10.4 says when a caution must be given - https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/364707/PaceCodeC2014.pdf

PACE Code C 11.2 says that a suspect should be reminded of their right to legal advice prior to any interview or the recommencement of any interview: "11.2 Immediately prior to the commencement or re-commencement of any interview at a police station or other authorised place of detention, the interviewer should remind the suspect of their entitlement to free legal advice and that the interview can be delayed for legal advice to be obtained, unless one of the exceptions in paragraph 6.6 applies. It is the interviewer’s responsibility to make sure all reminders are recorded in the interview record."

The right to legal advice will also be read out to the suspect during the booking in procedure at the police station.

There is no need to mention it during the arrest itself because the first time that legal advice can actually be sorted out is at the police station. Every suspect should go through a risk assessment, the custody sergeant will open a custody record and read out the suspect's rights. The suspect will be told he is entitled to free and independent legal advice either in person or on the phone at any time during his period in custody.

There is one exception to that rule. A superintendent can delay the suspect's right to legal advice if he has reasonable grounds to believe that exercising that right will lead to interference with or harm to evidence connected with an indictable offence, or interference with or physical harm to any person, will lead to the alerting of other suspects, or will hinder the recovery of property obtained as a result of an offence. If such a delay is authorised by a superintendent, the suspect must be given the old-style caution during interview which is "You do not have to say anything, but anything you do say may be given in evidence." I.e. no adverse inference can be drawn from a suspect's silence when they are denied access to legal advice. s.58 PACE covers the right to legal advice.

In my 6 years (nearly 2 years as a trainee and now accredited rep, a legal secretary prior to that) working for my current firm I've only known the police deny access to legal advice once, and that is when our client had been arrested for kidnapping and the victim was still missing. Once the victim had been found he was allowed his legal advice.

Also, you're highly unlikely to get counsel (a Barrister) at the police station unless you pay privately for them. You're much more likely to get a Solicitor or Accredited/Probationary Police Station Representative.

Cornucopia

Yes, but you can be interviewed under caution other than at a Police Station, and other than whilst you are under arrest.

matttye

Cornucopia wrote: »

Yes, but you can be interviewed under caution other than at a Police Station.

Yes you can, and the right to legal advice should be given at the start of the interview. If a suspect is not told they have the right to a solicitor you could apply to have the interview excluded under s.78 PACE or (less likely) s.76 (which is more to do with oppressive interviews).

11.2 (posted above) would apply to other agencies as well if they are conducting a criminal investigation, or if a constable is interviewing somewhere elsewhere than a police station. I've dealt with interviews conducted by HMRC, immigration officers, local authority officers, and they all conduct interviews in accordance with PACE.

One thing I forgot to mention is that PACE Code C defines as interview at 11.1A:

"11.1A An interview is the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which, under paragraph 10.1, must be carried out under caution. Before a person is interviewed, they and, if they are represented, their solicitor must be given sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it (see paragraphs 3.4(a) and 10.3), in order to allow for the effective exercise of the rights of the defence."

So technically if the officers question you on the way to the police station, you are being interviewed.

Cornucopia

matttye wrote: »

Yes you can, and the right to legal advice should be given at the start of the interview. If a suspect is not told they have the right to a solicitor you could apply to have the interview excluded under s.78 PACE or (less likely) s.76 (which is more to do with oppressive interviews).

Yes. But non-Police agencies are typically not cautioning regarding right to counsel. This is the substance of PF Glasgow vs Akram, and I can tell you that TV Licensing never caution regarding right to counsel. When questioned about this, they cite "McNamara", however, I've never managed to find a record of this case.

11.2 (posted above) would apply to other agencies as well if they are conducting a criminal investigation, or if a constable is interviewing somewhere elsewhere than a police station. I've dealt with interviews conducted by HMRC, immigration officers, local authority officers, and they all conduct interviews in accordance with PACE.

They are required to interview in accordance with PACE. The question is whether, at the margins, they are or not. My main experience in this area relates to TV Licensing who most certainly do not observe PACE as I understand it.

RS2000.

Cornucopia wrote: »

Yes. But non-Police agencies are typically not cautioning regarding right to counsel. This is the substance of PF Glasgow vs Akram, and I can tell you that TV Licensing never caution regarding right to counsel. When questioned about this, they cite "McNamara", however, I've never managed to find a record of this case.


They are required to interview in accordance with PACE. The question is whether, at the margins, they are or not. My main experience in this area relates to TV Licensing who most certainly do not observe PACE as I understand it.

The caution and right to free legal advice are two separate issues.

The caution is the suspects right to silence and legal advice is the right to counsel as you keep callin it.

Why are you confusing things but quoting matters in Scotland and PACE?

You do realise PACE doesn't apply there?

Guest101

Cornucopia wrote: »

Yes. But non-Police agencies are typically not cautioning regarding right to counsel. This is the substance of PF Glasgow vs Akram, and I can tell you that TV Licensing never caution regarding right to counsel. When questioned about this, they cite "McNamara", however, I've never managed to find a record of this case.


They are required to interview in accordance with PACE. The question is whether, at the margins, they are or not. My main experience in this area relates to TV Licensing who most certainly do not observe PACE as I understand it.

I see your point. I imagine it's to do with being under arrest. As opposed to the tv licensing example.

But the theory of what you say seems correct

RS2000.

Guest101 wrote: »

I see your point. I imagine it's to do with being under arrest. As opposed to the tv licensing example.

But the theory of what you say seems correct

It total !!!!!!!!.

matttye

Cornucopia wrote: »

Yes. But non-Police agencies are typically not cautioning regarding right to counsel. This is the substance of PF Glasgow vs Akram, and I can tell you that TV Licensing never caution regarding right to counsel. When questioned about this, they cite "McNamara", however, I've never managed to find a record of this case.


They are required to interview in accordance with PACE. The question is whether, at the margins, they are or not. My main experience in this area relates to TV Licensing who most certainly do not observe PACE as I understand it.

PACE s67(9):

"(9)Persons other than police officers who are charged with the duty of investigating offences or charging offenders shall in the discharge of that duty have regard to any relevant provision of F4... a code."

So any evidence obtained in the face of breaches of PACE is subject to the same risk of being excluded under s76/s78 PACE.

As RS2000 says, PACE (well most of it) doesn't apply to Scotland. Some of it does but not much.