Criminal justice process

Being arrested

Rights and obligations

If the police suspect you of being involved in an offence they have the power to arrest you whether you are at home or in public place. When arrested you temporary lose your right to freedom but still retain some rights while being arrested or during the period you are in custody.

You can expect being handcuffed as it is standard procedure in order to make sure that you don’t hurt yourself, the police officer or try to escape. Then you should be taken to a custody office in a police station. You will be searched and your possessions will be kept by the police for the duration of your custody.

When you are being arrested, the procedure gives you the rights:

• to be shown evidence that the people arresting you are from the police force
• to be advised that you are under arrest and you are not free to leave
• to be told the crime you are suspected of committing
• to be read the police caution
• to be provided medical help if you are feeling ill

 Resisting arrest

The arrest is lawful as long as the officer performing it is on duty and you are either committing, about to commit or suspected that you have committed or are committing an offence. While the first part is straight forward the second one depends on the condition set out in the Police and Criminal Evidence Act 1984. If you are a suspect, the police must honestly believe according to the facts known to them that you might have committed an offence. Also, they must act in reasonable belief that the arrest is necessary. An arrest will be deemed necessary:

• if it was found out that you have given a false name or address
• to prevent physical injuries or committing a crime
• to carry out justice and assist the proper and effective investigation

In general, it is advisable that you do not resist the arrest even if you might consider it unlawful. You will be deemed to have resisted the arrest for instance if you try to run away or take any actions that wilfully obstruct a police officer on duty. You can refuse to talk to the police officer performing the arrest - as long as you comply with the arrest, you will not be charged with the offence. But if you shout obscenities or struggle, you will most likely be charged with an offence. If you attack the police officer trying to arrest you, you could be charged with assault with intent to resist arrest, for which the sanctions are more severe.

If you are under 18

If you are under 18 or deemed to be a vulnerable adult, there are specific rights that apply to your situation:

• after the arrest the police must try to contact your parent, guardian or carer
• you cannot be interviewed without a responsible adult being present
• if your parent, guardian or carer can not be present, the police must arrange for another appropriate adult to be present during your interview

How long can you be held under arrest 

Usually you should not be held in custody for more than 24 hours without being charged with a crime. However, if there is suspicion for a serious crime, for example murder, this can be extended to 36 hours by the police superintendent or to 96 hours by the court. If you are suspected of terrorism you can be held under arrest for up to 14 days without being charged with an offence.

While in custody, a police officer should be reviewing your detention in regular intervals throughout the whole period to ensure that the matter is being investigated appropriately and there is need for you to be held in the police station. The Inspector should also inform you and explain what is happening.

Custody rights

When taken in custody you will be told your rights and you will be asked to sign a declaration that you have understood them. There are four general rights you have during this period and it is advisable to take advantage of all of them.

You are entitled to receive a copy of the Police and Criminal Evidence Act 1984. By requesting it you can show the police officers that you are familiar with your rights and you can use it to inform yourself further during your time under arrest.

When you are under arrest you have the right to free independent legal advice from a duty solicitor at any time, unless it is a serious case when this right can be postponed. You must also be given an information sheet explaining how to get legal help. This does not depend on your financial circumstances.

You have the right to ask the police force to inform someone about your arrest. It is likely that the police force will do it themselves and would not let you talk. Any other calls that you ask for, whether to be done by you or them are at the discretion of the custody sergeant.

You have the right to writing materials. This is useful so you can make notes from the provided statute or keep yourself occupied while in custody. The papers that you have written on can be used as evidence by the police, therefore you should be careful as to what you write.

Questioning

If you are interviewed (or questioned) by the police, the interview should always take place in the police station. You should be informed why you are being interviewed and if you are the suspect, the nature of the offence should be explained to you. The interview should be tape recorded and you, as a suspect, have the right to hear the recording afterwards.

Bails

If you are not charged with an offence you will be free to go in most cases. However, there are certain conditions and different types of bail depending on whether you are charged with an offence or not and if you are found guilty of an offence.

1. Police bail

If the police cannot charge you they can release you on police bail if they think there will be need for further questioning later. In this case you do not have to pay but you must return to the station for questioning. Failing to comply with bail conditions is a criminal offence.

2. Conditional bail

In addition, you can be released on conditional bail if you are charged with an offence. This means that your freedom will be restricted in some way. For example, you can be required to report to the police station at a certain time, stay at a specific address, stay inside your house between specific hours or surrender your passport.

A breach will result in a charge under the Bail Act 1976, which means you can be arrested, the case will be brought before the Court and you may be detained until the trial of the case.

3. Court bail

If you are charged with an offence you can apply for bail during the hearing. The court may grant you bail, may allow you bail with conditions or refuse the bail.

If you have never been convicted of any offence it is your right to be granted bail, unless certain specific conditions apply. For example, if the court considers that it is likely that you will interfere with witnesses or may commit other offences, they can refuse to bail you. In the decision the court will take into account the seriousness of the offence, any previous charges, the strength of the evidence against you and whether you have failed to answer bail before.

If the Court decides that it is appropriate they can attach conditions to your bail. For example, they can ask you to provide surety. This is when you are required to put up a sum of money as an assurance that you will turn up when you are required. You do not need to pay the court but only to show them that the money is available.

Bail offences

While not considered particularly serious by the public the bail offences do result in actual penalties. A failure to surrender will most often result in breach of trust which may affect your future bail requests if you are ever charged with an offence again. It can also result in unconditional custody and a penalty.

Stop and search

A police officer has powers to stop and search you if they have reasonable grounds to suspect you are carrying illegal drugs, a weapon, stolen property or something which could be used to commit a crime.

You can only be stopped and searched without reasonable grounds if it has been approved by a senior police officer. This can happen if it is suspected that serious violence could take place, you are carrying a weapon or have used one or you are in a specific location or area.

The police officer must be in uniform or, if they are not, they must show you their warrant card. Before you are searched the police officer must tell you their name and police station, what they expect to find, the reason they want to search you, why they are legally allowed to search you, that you can have a record of the search and if this is not possible at the time, how you can get a copy.

A police officer can ask you to take off your coat, jacket or gloves.

The police might ask you to take off other clothes and anything you are wearing for religious reasons, for example a veil or a turban. If they do, they must take you somewhere out of public view.

If the officer wants to remove more than a jacket and gloves they must be the same sex as you.

Types of court 

Summary offences are offences which are tied in a speedily manner. The guilt of the offender is decided by a judge or panel of judges. This is like that in order to speed up te procedure and not to bother the population with unneeded trial attendance for every small case.

In general, the criminal cases are tried either in a magistrates’ court or in a crown court, depending on the seriousness of the case. The offences are classified as ‘summary’, ‘on indictment’ or ‘either-way’.

‘Summary’ offences are the less serious ones, they are reviewed by the lesser courts and passing a judgement on them does not require a jury.

In contrast, the ‘on indictment’ offences are the most serious ones for example, murder or rape. The cases are heard in a crown court and passing a judgement or sentence on those cases requires a decision from a jury.

The third type, the ‘either-way’ cases are in between of the two presented above. When reviewing such cases the judges from the magistrates’ court can decline jurisdiction and the case will then be send to a crown court.

Magistrates' court

A magistrates’ court deals with the summary offences, for example motoring offences, minor assaults, minor criminal damage and some robbery and drugs offences. They also deal with ‘either-way’ offences. These offences can be heard either in a magistrates’ or crown court. Such offences include handling stolen goods and theft. Finally, the court considers bails applications for high profile cases, deals with fine enforcement and grants search warrants. As there is no jury in this court, if there is a need for a jury the case will be heard by a crown court.

The maximum punishments that can be given by a magistrates’ court is six months in prison (or up to 12 months in total for more than one offence), a £5,000 fine or a community sentence (community work). If there is need for more severe punishment the court can pass the case to a crown court.

Crown court

A crown court hears ‘either-way’ and indictable only cases, cases requiring jury and cases that are decided in magistrates’ court but sent for sentencing and/or appeals. A magistrates’ court has the discretion to refer a case to a crown court if for example, the case is out of the court’s jurisdiction. If the offender pleads not guilty and requests a jury trial the case is sent to a crown court.

There are three classes of seriousness of the offences tried in crown courts. Class 1 are the most serious. They include treason and murder and are usually tried by High Court Judge. Class 2 offences include rape and sexual assault with penetration, and are usually heard by a circuit judge, under the authority of Presiding Judge. All other offences are Class 3 and are normally heard by a circuit judge or recorder. They include offences such as kidnapping, burglary, grievous bodily harm and robbery.

A crown court can give wider range of sentences than a magistrates’ court, including life imprisonment.

Youth court

A youth court is the part of the magistrates’ court that deals with cases where the offender is a young person under 18. Similarly to the adult trials, the cases are heard of by three magistrates or a district judge and there is no jury.

There are two general differences in youth trials compared to adult ones. If you are under 18 you must be accompanied by your parent or your guardian during the trial. The youth trials are less formal than the adult ones. You are called by your first name instead of your full name and the young people and their families are allowed more participation in the case. Also, members of the public are usually not allowed in the hearings, unless they have been given permission and even the victim must submit a formal request before the trial in order to attend the hearing.

The youth court deals with cases like theft and burglary, anti-social behaviour and drugs offences. Similarly to the adult court, for serious cases, they can start in the youth court but will be passed to a crown court.

A youth court can give a different range of sentences including community service and detention and training orders carried out in secure centres for young people.

Being in court

Defendant

As a defendant in a trial you are entitled to some fundamental rights. The first one is that you are innocent until proven guilty. Also, you have the right to a fair trial which for example might make the court consider issuing an order for the media to refrain from mentioning certain aspects of the case to prevent bias amongst the jurors. In the spirit of the justice’s interest is also the right to defend yourself or to have free legal representation and competent legal counsel, the right to have sufficient time to prepare their defence and the right to be informed about the charge and the case against you in a language you can understand. For example, even if the defendant is not fluent in English an interpreter will be appointed at no cost to the defendant. Furthermore, you can be assured that the witnesses can be examined by both the defendant and the prosecution.

Your rights also extend to sentencing. When giving a verdict of a case the judge must take into account the history of the accused and their circumstances. In addition, if you feel that the sentence is unjust you have the right to appeal against it.

Victim/Witness

In the criminal justice process, victims are treated as witnesses. Ordinary witnesses are entitled to an extensive set of rights and most victims and vulnerable and intimidated witnesses fall in the category of witness that is protected by the special measures. The latter group includes victims of sexual offences, domestic violence, racially motivated crimes, certain gun and knife crimes, family members of homicide victims and child witnesses. You may also be in that group if you suffer from mental disorder, psychological or physical impairment.

It is important to note that those measures will not be automatically available at trial and if you feel you fall in the category of the witness entitled to them you should ask the prosecutor to make an application to the court. It is vital that you make the prosecutor aware of your wishes and needs before the application is made.

Attending the court as a witness is an important part of the trial and under the Code of Practice for Victims of Crime 2013 you, as a witness, have certain rights during the trial.

You should be notified by the police if and when you have to go to the court. Afterwards you can expect to be contacted by the Witness Service. They will provide you with more information and try to provide you with support. You can discuss your rights with them and for example ask them to take you to the court room before the trial so you know what to expect during the hearing. You should also be provided with legal advice free of charge with regards to your statement.

If you are entitled to the ‘special measures’ you can also expect that you will be accommodated in a different waiting area to the person you are providing evidence against. You can also ask for number of protective measures such as screens to shield you from the accused, video recorded interview and cross examination, ‘live link’ interview or cross examination which will allow you to participate in the hearing without actually being in the court and having to face the accused or being pressured by the hostile environment.

Also, if you are victim depending on the nature of the crime the court may order mandatory protection from being cross examined directly by the defendant, restriction about questions with regards to your sexual behaviour, and media ban which prohibits any reports by the media of information that is likely to lead to your identification.

Furthermore, if you are witness of the prosecution, before the trial you will be accommodated in a different waiting area to the person you are providing evidence against.

If you have given statement to the police and it has been a while since you have seen it, you can ask the police or the Crown Prosecution to see it before the trial.

You can also claim certain expenses that you have endured because of the trial’s attendance. For example, you can claim travel and refreshment expenses.

Before giving evidence you will be required to take an oath. You are entitled to take your oath on a holy book of your choice or without one at all.