Criminal procedure in England and Wales governs the entire journey of a criminal case, from the initial arrest all the way to conviction or acquittal. It sets out the rules for legal proceedings and involves three main institutions: the police, the Crown Prosecution Service (CPS), and the courts. Understanding this process is crucial for students of law and anyone interested in the justice system.
Understanding Criminal Procedure in England and Wales: An Overview
Almost all criminal cases begin when an offence is reported to the police. The police then investigate, and if they find sufficient evidence, they recommend to the Crown Prosecution Service (CPS) that charges be brought against an individual. Ultimately, the courts decide on guilt or innocence after hearing the case. This structured approach aims to balance individual liberties with the need to prevent and detect crime.
The Police: Investigation, Arrest, and Rights
When a crime is reported, the police decide whether to investigate. They create a crime report, take statements from victims and witnesses, and gather evidence from the crime scene. Their goal is to identify and arrest a suspect, or summon them to court.
Arrest by Police and Citizens
- Police Arrest: Most arrests are made by police officers. They need reasonable grounds to suspect someone is involved in a crime. Police can arrest anywhere and at any time. When arresting, they must:
- Identify themselves as police.
- Tell the suspect they are being arrested.
- State the suspected crime.
- Explain why the arrest is necessary.
- Explain the suspect is not free to leave.
- Reasonable Force: If a suspect resists or tries to escape, police can use 'reasonable force', such as holding them down or using handcuffs.
- Citizen's Arrest: Private citizens can also make arrests without a warrant under specific conditions:
- When a person is in the act of committing an arrestable offence.
- When there are reasonable grounds to suspect a person is committing an arrestable offence.
- When a person has committed an arrestable offence.
- When there are reasonable grounds to suspect a person is guilty of committing an offence.
- When a person commits a 'breach of the peace' (disorderly conduct like fighting or excessive noise).
- False Imprisonment: If an arrestable offence was not committed, an unlawfully detained person can sue the citizen in a civil court for false imprisonment.
Rights After Arrest
Once arrested and taken to a police station, a custody officer must explain the detainee's rights. These are fundamental protections:
- Right to Legal Advice: Free legal advice is available from a duty solicitor if the detained person cannot afford their own. This advice is available 24 hours a day.
- Right to Inform Someone: The right to have someone informed about the arrest. This can be delayed if there's a risk of alerting others or harming evidence.
- Medical Help: The right to receive medical help if needed.
- Codes of Practice: The right to see the rules police must follow ('Codes of Practice') and a written notice describing rights (e.g., regular breaks, an interpreter).
- Right to Silence: The defendant is entitled to remain silent during police questioning. However, the police caution warns: “You do not have to say anything. But it may harm your defense if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.”
- Appropriate Adult: For young people and mentally disordered or handicapped adults, an 'appropriate adult' (social worker or parent) must be present during police interviews.
Detention and Investigation Powers
Upon detention, the arrestee will be searched, and possessions kept by the custody officer. Police can question the suspect, and this will be recorded. Police have powers to take photographs, fingerprints, and DNA samples (e.g., mouth swab) without permission.
- Detention Periods: Suspects can be held for up to 24 hours before being charged or released. For serious crimes like murder, this can extend to 36 or 96 hours. Under the Terrorism Act, detention without charge can be up to 14 days.
- Investigation Outcomes: After investigation, police can:
- Charge the suspect.
- Set them free.
- Release them on bail.
- Issue a caution, reprimand, final warning, or penalty notice.
The Police and Criminal Evidence Act 1984 (PACE): Balancing Power and Protection
The Police and Criminal Evidence Act 1984 (PACE) is a cornerstone of criminal procedure in England and Wales. It aims to strike a balance between giving police powers to detect and prosecute criminals and protecting citizens from harassment. PACE covers key areas of police action, including:
- Arrest
- Stop and search
- Detention
- Investigation
- Identification
- Interviewing arrestees
Stop and Search Powers under PACE
Section 1 of PACE grants police the right to stop and search people and vehicles in a public place. They can only do so if they have 'reasonable grounds' to suspect the person is carrying, or the vehicle contains, any of the following:
- Illegal drugs
- A weapon
- Stolen property
- Something that could be used to commit a crime (e.g., a crowbar)
An officer must be in uniform when stopping a vehicle. When stopping a person, if not in uniform, they must show their warrant card. Police can ask for coats, jackets, or gloves to be removed. If more clothing or items worn for religious reasons (like a veil or turban) are requested to be removed, it must be done out of public view, and by an officer of the same sex as the suspect.
Entry and Search of Premises
Generally, police need a search warrant issued by a magistrate to enter and search premises. However, a warrant is not needed to enter premises in specific situations:
- To arrest a person under a warrant or for an arrestable offence.
- To recapture an escaped prisoner.
- To save life, prevent injury or damage, or prevent a breach of the peace.
- To search the arrestee's premises for evidence related to the offence for which they were arrested.
When conducting a search, officers must identify themselves, produce the warrant (if applicable), explain the reason for the search, and inform the occupier of their rights. If they have a warrant, they can force entry if the occupier refuses entry, is absent, or communication is impossible.
Bail and Remand: Before the Trial Begins
After an investigation, if charged, a suspect is either bailed to appear in court or remanded in custody. Bail is the temporary release of an accused person from custody before a criminal trial. It is granted in return for a promise to appear in court on the appointed date, with money forfeited if they fail to do so.
Statutory Presumption of Bail
There is a statutory presumption of bail because a person is presumed innocent until proven guilty. Denying bail means depriving someone of liberty who may ultimately be acquitted. Bail can be granted by the police or magistrates.
Factors for Granting or Refusing Bail
When considering bail, all relevant factors are weighed, including:
- The nature and seriousness of the offence.
- The defendant's character and any previous criminal record.
- Their background, upbringing, education, and community ties.
- The type of people they associate with.
Bail is generally not granted for specific serious offences (murder, attempted murder, manslaughter, rape, attempted rape) if the defendant has a previous conviction for such an offence. The court can also refuse bail for the defendant's own protection.
Types of Bail Conditions
Bail can be conditional or unconditional.
- Unconditional Bail: The accused simply agrees to surrender to the court on the appointed date.
- Conditional Bail: Conditions can be attached, with no statutory limit on what the court may impose. Common conditions include:
- Reporting daily or weekly to a police station.
- Residing at a particular address.
- Surrendering a passport.
- Avoiding specific places or people.
Surety and Recognisance
A surety is someone who legally agrees to be responsible if the bailed person fails to appear for trial. They promise the court a certain sum of money (this promise is called recognisance) if the defendant absconds. This differs from systems like in the USA, where money is paid upfront and refunded upon court attendance.
Remand
If the court decides to remand an offender, they go to custody until the hearing at a Magistrates' court. Remand is likely if the offender:
- Has been charged with a serious crime (e.g., armed robbery).
- Has a past conviction for a serious crime.
- The police believe they may not attend court.
- The police believe they may commit another crime while on bail.
- Has previously been given bail and breached its terms.
The Crown Prosecution Service (CPS): Deciding to Prosecute
The Crown Prosecution Service (CPS) is a non-ministerial government department established in 1986 to prosecute criminal cases in England and Wales. It acts as an independent body, separate from the police, and works in partnership with various agencies within the criminal justice system.
Role and Responsibilities of the CPS
The CPS is headed by the Director of Public Prosecutions (DPP), who is accountable to the Attorney General for England and Wales. The CPS's key functions include:
- Advising the police on cases for potential prosecution.
- Deciding which cases should be prosecuted.
- Reviewing cases submitted by the police.
- Determining appropriate charges for serious or complex cases.
- Preparing and presenting cases in both Magistrates' and Crown Courts.
- Providing information, assistance, and support to victims and witnesses.
Crucially, the CPS does not supervise police investigations but acts on the file presented by the police. They cannot instruct the police to investigate a particular incident.
The Two-Stage Test for Prosecution
The CPS uses a rigorous two-stage test to decide whether to proceed with a prosecution:
- Evidential Test: Prosecutors must assess the reliability and credibility of the evidence. There must be sufficient evidence to provide a realistic prospect of conviction. This means it must be more likely than not that a properly directed jury would convict the defendant based on the available evidence. If this test is not passed, proceedings are discontinued.
- Public Interest Test: If the evidential test is passed, the CPS then considers whether a prosecution is in the public interest. Factors include:
- Whether a conviction is likely to result in a significant sentence.
- The seriousness of the offence (e.g., use of violence or a weapon).
- Circumstances of the offence (e.g., motivation by discrimination).
- Circumstances of the victim.
The CPS will discontinue proceedings even if the evidential test is met, if they believe prosecution is not in the public interest. They will not prosecute if the court is likely to impose a very small penalty, the harm was minor and a single incident, or if prosecution would severely affect the victim's physical or mental health (while still considering offence seriousness).
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FAQ: Common Questions on Criminal Procedure in England and Wales
What are the main institutions involved in criminal justice in England and Wales?
The three primary institutions involved in the criminal justice process in England and Wales are the police, the Crown Prosecution Service (CPS), and the courts.
What are 'reasonable grounds' for a police officer to stop and search someone?
'Reasonable grounds' mean the police officer must genuinely suspect the person is carrying illegal drugs, a weapon, stolen property, or something that could be used to commit a crime. This suspicion must be based on facts, information, or intelligence, not just a hunch.
When can bail be refused in England and Wales?
Bail can be refused in several situations, including if the defendant is accused of very serious crimes (like murder or rape) and has a previous conviction for such an offence. It can also be refused if there's a belief the defendant might not attend court, commit further crimes, interfere with witnesses, or for their own protection. Prior breaches of bail terms are also a reason for refusal.
What is the 'right to silence' and how does the police caution relate to it?
The 'right to silence' means a defendant is entitled to remain silent when questioned by the police. However, the police caution (