Procedural Criminal Law: England and Wales

Understanding Procedural Criminal Law in England and Wales: A Comprehensive Guide

Procedural criminal law in England and Wales governs the entire process from an individual's arrest to their conviction or acquittal. It sets out the rules for legal proceedings and involves key institutions: the police, the Crown Prosecution Service (CPS), and the courts. This guide offers a detailed overview, ideal for students seeking to understand the English criminal justice system.

The Role of the Police in Criminal Procedure

Most criminal cases begin when an offence is reported to the police. The police investigate the case, take statements, and gather evidence. Their goal is to identify a suspect who will then be arrested for questioning or summoned to court.

Arrest Powers and Procedures

Arrest is the apprehension of a person suspected of criminal activities. While most arrests are made by police officers, private citizens can also perform an arrest under specific conditions, known as a citizen's arrest.

Police officers must have 'reasonable grounds' to suspect a person is involved in a crime to perform an arrest. 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 that the suspect is not free to leave.

Police can use 'reasonable force' if a suspect resists or tries to escape, including handcuffing. They also have the power to search the suspect.

Citizen's Arrest Conditions

A citizen's arrest can be made without a warrant in specific situations, such as:

• When a person is actively 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.
• In cases of a breach of the peace, involving disorderly conduct like public fighting or excessive noise. Unlawful detention by a citizen can lead to a civil lawsuit for false imprisonment.

Rights of a Detained Person

Upon arrival at a police station, the custody officer must inform the arrestee of their rights. These include:

• The right to free legal advice from a duty solicitor if they cannot afford their own.
• The right to have someone informed about their arrest (though this can be delayed if there's a risk of harming evidence or alerting others).
• The right to medical help if needed.
• The right to see the Police and Criminal Evidence Act (PACE) Codes of Practice.
• The right to a written notice of rights, including regular breaks and an interpreter.
• The right to silence during questioning, meaning they do not have to answer questions.
• The right to an 'appropriate adult' for young people or mentally disordered/handicapped adults during interviews.

Arrestees are searched, and their possessions are kept by the custody officer. Before questioning, the police must read the caution:

"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."

Detention Periods and Evidence Collection

The police can hold a suspect for up to 24 hours before charging or releasing them. For serious crimes, this can be extended to 36 or 96 hours with an application. Under the Terrorism Act, detention without charge can last up to 14 days.

The police also have the right to take photographs, fingerprints, and DNA samples (e.g., from a mouth swab) without permission.

Outcomes of Police Investigation

After investigation, the police will typically:

• Charge the suspect.
• Release the suspect.
• Release the suspect on bail.
• Issue a caution, reprimand, final warning, or penalty notice.

If charged, a suspect is either bailed to appear in court or remanded in custody for serious offences.

Bail in English Criminal Law

Bail is the release of an accused person from custody before a criminal trial, contingent on a promise to appear in court. This system operates under a statutory presumption of bail, reflecting the principle that a person is presumed innocent until proven guilty.

Factors for Granting or Refusing Bail

When considering bail, courts and police assess all relevant factors, including:

• The nature and seriousness of the offence.
• The defendant's character, previous criminal record, background, upbringing, education, and community ties.
• The type of persons the defendant associates with.

Bail is generally not granted if the defendant is accused of murder, attempted murder, manslaughter, rape, or attempted rape and has a previous conviction for such an offence. The court can also refuse bail for the defendant's own protection.

Conditional vs. Unconditional Bail

Bail can be unconditional, requiring only the accused to surrender to court on the appointed date. More commonly, conditions are attached. There is no statutory limit to these conditions, but common ones include:

• Reporting daily or weekly to a police station.
• Residing at a specific address.
• Surrendering a passport.
• Not going to particular places or associating with specific people.

Surety and Recognisance

A surety is someone who agrees to be legally responsible if the bailed person fails to appear for trial. They promise the court to pay a certain sum of money, a promise called recognisance. This differs from systems like the USA, where money is paid upfront and refunded upon court attendance.

Remand in Custody

If bail is refused, the offender is remanded in custody until their 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.
• Is deemed a flight risk by the police.
• Is thought likely to commit another crime while on bail.
• Has previously failed to comply with bail terms.

Police and Criminal Evidence Act 1984 (PACE)

To balance police powers for crime detection and prosecution with the protection of citizens' liberties, Parliament enacted the Police and Criminal Evidence Act 1984 (PACE). PACE and its codes of practice cover:

• Arrest
• Stop and search
• Detention
• Investigation
• Identification
• Interviewing arrestees

Stop and Search Powers

Section 1 of PACE grants police the right to stop and search people and vehicles in public places. Officers must have 'reasonable grounds' to suspect a person or vehicle carries:

• Illegal drugs
• A weapon
• Stolen property
• Something usable to commit a crime (e.g., a crowbar)

Officers must be in uniform when stopping a vehicle. When stopping a person, an officer not in uniform must show their warrant card. Officers can ask a person to remove a coat, jacket, or gloves. For other clothing, or items worn for religious reasons (like a veil or turban), the search must occur out of public view, and the officer must be of the same sex as the suspect.

Entering and Searching 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 to:

• Arrest a person under a warrant or for an arrestable offence.
• Recapture an escaped prisoner.
• Save a life or prevent injury or damage.
• Prevent a breach of the peace.
• Search the arrestee's premises for evidence related to their arrest offence.

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. They can force entry if entry is refused, communication is impossible, or the occupier is absent/premises are unoccupied.

The Crown Prosecution Service (CPS) in England and Wales

Established in 1986, the Crown Prosecution Service (CPS) is a non-ministerial government department responsible for prosecuting criminal cases investigated by the police on behalf of the State in England and Wales. It operates across 13 geographical areas and is headed by the Director of Public Prosecutions (DPP), accountable to the Attorney General.

Independence and Partnership

The CPS is institutionally separate from the police, acting as an independent body. While it works closely with the police, courts, Home Office, and Ministry of Justice, it does not supervise police investigations but acts on the evidence file presented after police investigation. It cannot instruct the police to investigate specific incidents.

Key Functions of the CPS

The CPS primarily reviews evidence gathered by the police and decides whether to proceed with a prosecution. Their functions include:

• Advising police on cases for possible prosecution.
• Reviewing cases submitted by the police.
• Determining appropriate charges for serious or complex cases.
• Preparing and presenting cases in both Magistrates' and Crown Courts, using in-house or self-employed advocates.
• Providing information, assistance, and support to victims and witnesses.

The Two-Stage Test for Prosecution

Except for very minor cases, the decision to prosecute rests solely with the CPS, based on a two-stage test:

1. Evidential Test: Prosecutors must assess the reliability and credibility of evidence. There must be sufficient evidence to provide a realistic prospect of conviction, meaning it is more likely than not that a properly directed jury would convict the defendant. If this test is not passed, proceedings are discontinued.

2. Public Interest Test: If the evidential test is passed, prosecutors then consider whether a prosecution is in the public interest. Factors include:

• The likelihood of a significant sentence if convicted.
• The seriousness of the offence (e.g., use of violence or a weapon).
• Circumstances of the offence (e.g., discrimination-motivated crimes).
• Circumstances of the victim.

The CPS will discontinue proceedings if, despite passing the evidential test, prosecution is not deemed to be in the public interest. This might occur if a very small penalty is likely, the harm is minor and a single incident, or if prosecution would severely impact the victim's physical or mental health.

Frequently Asked Questions about Procedural Criminal Law

What are the main stages of the criminal justice process in England and Wales?

The criminal justice process typically begins with an offence reported to the police, followed by investigation, arrest, and potential charge. The Crown Prosecution Service then reviews the evidence and decides whether to prosecute, leading to court proceedings that conclude with conviction or acquittal.

What rights does an arrested person have in police custody?

An arrested person has several rights, including the right to free legal advice, to have someone informed of their arrest, to medical help, to see police codes of practice, to receive a written notice of rights, to remain silent during questioning, and for vulnerable individuals, the right to an 'appropriate adult' during interviews.

When can police conduct a stop and search without a warrant?

Police can conduct a stop and search in a public place if they have 'reasonable grounds' to suspect a person or vehicle is carrying illegal drugs, a weapon, stolen property, or anything that could be used to commit a crime, as outlined by Section 1 of the Police and Criminal Evidence Act 1984 (PACE).

What is the role of the Crown Prosecution Service (CPS) in the criminal justice system?

The CPS is an independent body that prosecutes criminal cases investigated by the police. Their role involves advising police, reviewing evidence, deciding whether to prosecute based on evidential and public interest tests, determining charges, and presenting cases in court.

What is bail and under what conditions can it be granted or refused?

Bail is the release of an accused from custody before trial, based on a promise to appear in court. It can be unconditional or conditional, with conditions like reporting to police or surrendering a passport. Bail may be refused for serious offences (like murder or rape with prior convictions) or if the defendant is deemed a flight risk, likely to commit further crimes, or for their own protection.