SCHEDULE
(Article 1)
codes of PRACTICE
CODE A
A Code of Practice for the Exercise by
Police officers of Statutory Powers of Stop and Search
1 General
1.1 This
Code of Practice must be readily available at all police stations and Parish
Halls for consultation by police officers, detained persons and members of the
public.
1.2 The
notes for guidance included are not provisions of this Code, but are guidance
to police officers and others about its application and interpretation. Provisions
in the Annexes to the Code are provisions of this Code.
1.3 This
Code governs the exercise by police officers of statutory powers to search a
person or a vehicle without first making an arrest. The main stop and search
powers to which this Code applies are set out in Annex A, but that list should
not be regarded as definitive. [See Note 1]
1.4 This
Code applies to stops and searches under powers –
(a) requiring
reasonable grounds to suspect that articles unlawfully obtained or possessed
are being carried;
(b) authorised
under Article 40 of the Terrorism (Jersey) Law 2002, authorisation to stop and
search to prevent acts of terrorism;
(c) authorised
under Article 49 of, and paragraphs 4 to 7 of Schedule 8 to, the Terrorism (Jersey) Law 2002,
authorisation to stop and search within ports.
2 Principles
governing stop and search
2.1 Powers
to stop and search must be used fairly, responsibly, with respect for people
being searched and without discrimination. Officers must not discriminate on
the grounds of race, colour, ethnic origin, nationality or national origins
when using their powers.
2.2 The
intrusion on the liberty of the person stopped or searched must be brief and
detention for the purposes of a search must take place at or near the location
of the stop.
2.3 If
these fundamental principles are not observed the use of powers to stop and
search may be drawn into question. Failure to use the powers in the proper
manner reduces their effectiveness. Stop and search can play an important role
in the detection and prevention of crime, and using the powers fairly makes
them more effective.
2.4 The
primary purpose of stop and search powers is to enable officers to allay or
confirm suspicions about individuals without exercising their power of arrest.
Officers may be required to justify the use or authorisation of such powers, in
relation both to individual searches and the overall pattern of their activity
in this regard, to their supervisory officers or in court. Any misuse of the
powers is likely to be harmful to policing and lead to mistrust of the police.
Officers must also be able to explain their actions to the member of the public
searched. The misuse of these powers can lead to disciplinary action.
3 Explanation
of powers to stop and search
3.1 This
Code applies to powers of stop and search as follows –
(a) powers
which require reasonable grounds for suspicion, before they may be exercised,
that articles unlawfully obtained or possessed are being carried, or under
Article 39 of the Terrorism (Jersey) Law 2002 that a person is a terrorist;
(b) powers
authorised under Article 11 of the Police Procedures and Criminal Evidence
(Jersey) Law 2003, based upon a reasonable belief that incidents involving
serious violence may take place or that people are carrying dangerous
instruments or offensive weapons within any locality in the police area;
(c) powers
authorised under Article 40(1) or 40(2) of the Terrorism (Jersey) Law 2002
based upon a consideration that the exercise of one or both powers is expedient
for the prevention of acts of terrorism;
(d) powers
to search a person who has not been arrested in the exercise of a power to
search premises; (see Code B paragraph 1.3)
(e) powers
of an “Examining Officer” to search any person, vehicle or vessel
at a Port under Article 49 (see Schedule 8) of the Terrorism (Jersey) Law 2002.
Searches
requiring reasonable grounds for suspicion
3.2 Reasonable
grounds for suspicion depend on the circumstances in each case. There must be
an objective basis for that suspicion based on facts, information, and/or
intelligence which are relevant to the likelihood of finding an article of a
certain kind or, in the case of searches under Article 39 of the Terrorism
(Jersey) Law 2002, to the likelihood that the person is a terrorist. Reasonable
suspicion can never be supported on the basis of personal factors alone without
reliable supporting intelligence or information or some specific behaviour by
the person concerned. For example, a person’s race, age, appearance, or
the fact that the person is known to have a previous conviction, cannot be used
alone or in combination with each other as the reason for searching that
person. Reasonable suspicion cannot be based on generalisations or
stereotypical images of certain groups or categories of people as more likely
to be involved in criminal activity.
3.3 Reasonable
suspicion can sometimes exist without specific information or intelligence and
on the basis of some level of generalisation stemming from the behaviour of a
person. For example, if an officer encounters someone on the street at night
who is obviously trying to hide something, the officer may (depending on the
other surrounding circumstances) base such suspicion on the fact that this kind
of behaviour is often linked to stolen or prohibited articles being carried.
Similarly, for the purposes of Article 39 of the Terrorism (Jersey) Law 2002,
suspicion that a person is a terrorist may arise from the person’s
behaviour at or near a location which has been identified as a potential target
for terrorists.
3.4 However,
reasonable suspicion should normally be linked to accurate and current
intelligence or information, such as information describing an article being
carried, a suspected offender, or a person who has been seen carrying a type of
article known to have been stolen recently from premises in the area. Searches
based on accurate and current intelligence or information are more likely to be
effective. Targeting searches in a particular area at specified crime problems
increases their effectiveness and minimises inconvenience to law-abiding
members of the public. It also helps in justifying the use of searches both to
those who are searched and to the general public. This does not however prevent
stop and search powers being exercised in other locations where such powers may
be exercised and reasonable suspicion exists.
3.5 Searches
are more likely to be effective, legitimate, and secure public confidence when
reasonable suspicion is based on a range of factors. The overall use of these
powers is more likely to be effective when up to date and accurate intelligence
or information is communicated to officers and they are well-informed about
local crime patterns.
3.6 Where
there is reliable information or intelligence that members of a group or gang
habitually carry knives unlawfully or weapons or controlled drugs, and wear a
distinctive item of clothing or other means of identification to indicate their
membership of the group or gang, that distinctive item of clothing or other
means of identification may provide reasonable grounds to stop and search a
person. [See Note 9]
3.7 A police
officer may have reasonable grounds to suspect that a person is in innocent
possession of a stolen or prohibited article or other item for which he or she
is empowered to search. In that case the officer may stop and search the person
even though there would be no power of arrest.
3.8 Under
Article 39 of the Terrorism (Jersey) Law 2002 an officer of the Force may stop
and search a person whom the officer reasonably suspects to be a terrorist to
discover whether the person is in possession of anything which may constitute
evidence that the person is a terrorist. These searches may only be carried out
by an officer of the same sex as the person searched.
3.9 An
officer who has reasonable grounds for suspicion may detain the person
concerned in order to carry out a search. Before carrying out a search the
officer may ask questions about the person’s behaviour or presence in
circumstances which gave rise to the suspicion. As a result of questioning the
detained person, the reasonable grounds for suspicion necessary to detain that
person may be confirmed or, because of a satisfactory explanation, be
eliminated. [See Notes 2 and 3] Questioning may
also reveal reasonable grounds to suspect the possession of a different kind of
unlawful article from that originally suspected. Reasonable grounds for
suspicion however cannot be provided retrospectively by such questioning during
a person’s detention or by refusal to answer any questions put.
3.10 If, as a
result of questioning before a search, or other circumstances which come to the
attention of the officer, there cease to be reasonable grounds for suspecting
that an article is being carried of a kind for which there is a power to stop
and search, no search may take place. [See Note 3]
In the absence of any other lawful power to detain, the person is free to leave
at will and must be so informed.
3.11 There is no
power to stop or detain a person in order to find grounds for a search. Police
officers have many encounters with members of the public which do not involve
detaining people against their will. If reasonable grounds for suspicion emerge
during such an encounter, the officer may search the person, even though no
grounds existed when the encounter began. If an officer is detaining someone
for the purpose of a search, he or she should inform the person as soon as
detention begins.
Searches
authorised under Article 11 of the Police Procedures
and Criminal Evidence (Jersey) Law 2003
3.12 Authority for
an officer of the Force in uniform to stop and search under Article 11 of the
Police Procedures and Criminal Evidence (Jersey) Law 2003 may be given if the
authorising officer reasonably believes –
(a) that
incidents involving serious violence may take place in any locality on Jersey,
and it is expedient to use these powers to prevent their occurrence; or
(b) that
persons are carrying dangerous instruments or offensive weapons without good
reason in any locality in the officer’s police area.
3.13 An
authorisation under Article 11 may be given by an officer of the rank of Chief
Inspector or above, in writing, specifying the grounds on which it was given,
the locality in which the powers may be exercised and the period of time for
which they are in force. The period authorised shall be no longer than appears
reasonably necessary to prevent, or seek to prevent incidents of serious
violence, or to deal with the problem of carrying dangerous instruments or
offensive weapons. It may not exceed 24 hours. [See
Notes 10-13]
3.14 An Inspector
may give authorisation if he or she believes that incidents involving serious
violence are imminent and no officer of the rank of Chief Inspector or above is
available. The Inspector must, as soon as practicable, inform an officer of or
above the rank of Chief Inspector. This officer may direct that the
authorisation shall be extended for a further 6 hours, if violence or the
carrying of dangerous instruments or offensive weapons has occurred, or is
suspected to have occurred, and the continued use of the powers is considered
necessary to prevent or deal with further such activity. That direction must
also be given in writing at the time or as soon as practicable afterwards. [See Note 12]
Searches
authorised under Article 40 of the Terrorism (Jersey) Law 2002
3.15 An officer of
the rank of Chief Inspector or above, may give authority for the following
powers of stop and search under Article 40 of the Terrorism (Jersey) Law 2002
if the officer considers it is expedient for the prevention of acts of terrorism –
(a) under
Article 40(1) of the Terrorism (Jersey) Law 2002, to give an officer of the
Force in uniform power to stop and search any vehicle, its driver, any
passenger in the vehicle and anything in or on the vehicle or carried by the
driver or any passenger; and
(b) under
Article 40(2) of the Terrorism (Jersey) Law 2002, to give an officer of the
Force in uniform power to stop and search any pedestrian and anything carried
by the pedestrian.
An
authorisation under Article 40(1) may be combined with one under Article 40(2).
3.16 If an
authorisation is given orally at first, it must be confirmed in writing by the
officer who gave it as soon as reasonably practicable.
3.17 When giving an
authorisation, the officer must specify the geographical area in which the
power may be used, and the time and date that the authorisation ends (up to a
maximum of 28 days from the time the authorisation was given). [See Notes 12 and 13]
3.18 The officer
giving an authorisation under Article 40(1) or (2) must cause the Home Affairs
Committee to be informed, as soon as reasonably practicable, that such an
authorisation has been given. An authorisation which is not confirmed by the
Home Affairs Committee within 48 hours of its having been given, shall have
effect up until the end of that 48 hour period or the end of the period
specified in the authorisation (whichever is the earlier). [See Note 14]
3.19 Following
notification of the authorisation, the Home Affairs Committee may –
(i) cancel
the authorisation with immediate effect or with effect from such other time as
may be directed,
(ii) confirm
it, but for a shorter period than that specified in the authorisation, or
(iii) confirm
the authorisation as given.
3.20 When an
authorisation under Article 40 is given, an officer of the Force in uniform may
exercise the powers –
(a) only
for the purpose of searching for articles of a kind which could be used in
connection with terrorism (see paragraph 3.21);
(b) whether
or not there are any grounds for suspecting the presence of such articles.
3.21 The selection
of persons stopped under Article 40 of Terrorism (Jersey) Law 2002 should
reflect an objective assessment of the threat posed by the various terrorist
groups active in Great Britain. The powers must not be used to stop and search
for reasons unconnected with terrorism. Officers must take particular care not
to discriminate against members of minority ethnic groups in the exercise of
these powers. There may be circumstances, however, where it is appropriate for
officers to take account of a person’s ethnic origin in selecting persons
to be stopped in response to a specific terrorist threat (for example, some
international terrorist groups are associated with particular ethnic
identities). [See Notes 12 and 13]
3.22 The powers
under Articles 39 and 40 of the Terrorism (Jersey) Law 2002 allow an officer of
the Force to search only for articles which could be used for terrorist
purposes. However, this would not prevent a search being carried out under
other powers if, in the course of exercising these powers, the officer formed
reasonable grounds for suspicion.
Powers
to search in the exercise of a power to search premises
3.23 The following
powers to search premises also authorise the search of a person, not under
arrest, who is found on the premises during the course of the
search –
(a) under
a warrant issued under Article 15 of the Police Procedures and Criminal
Evidence (Jersey) Law 2003, but only if the warrant specifically authorises the
search of persons found on the premises;
(b) under
a warrant issued under Article 17(2) of the Misuse of Drugs (Jersey) Law 1978
to search premises for drugs or documents but only if the warrant specifically
authorises the search of persons found on the premises.
3.24 A warrant to
search premises and persons found therein may be issued under Article 17(2) of
the Misuse of Drugs (Jersey) Law 1978 if there are reasonable grounds to
suspect that controlled drugs or certain documents are in the possession of a
person on the premises.
3.25 The powers in
paragraph 3.23(a) or (b) do not require prior specific grounds to suspect that
the person to be searched is in possession of an item for which there is an
existing power to search. However, it is still necessary to ensure that the
selection and treatment of those searched under these powers is based upon
objective factors connected with the search of the premises, and not upon
personal prejudice.
4 Conduct
of searches
4.1 All
stops and searches must be carried out with courtesy, consideration and respect
for the person concerned. This has a significant impact on public confidence in
the police. Every reasonable effort must be made to minimise the embarrassment
that a person being searched may experience. [See Note
4]
4.2 The
co-operation of the person to be searched must be sought in every case, even if
the person initially objects to the search. A forcible search may be made only
if it has been established that the person is unwilling to co-operate or
resists. Reasonable force may be used as a last resort if necessary to conduct
a search or to detain a person or vehicle for the purposes of a search.
4.3 The
length of time for which a person or vehicle may be detained must be reasonable
and kept to a minimum. Where the exercise of the power requires reasonable
suspicion, the thoroughness and extent of a search must depend on what is
suspected of being carried, and by whom. If the suspicion relates to a
particular article which is seen to be slipped into a person’s pocket,
then, in the absence of other grounds for suspicion or an opportunity for the
article to be moved elsewhere, the search must be confined to that pocket. In
the case of a small article which can readily be concealed, such as a drug, and
which might be concealed anywhere on the person, a more extensive search may be
necessary. In the case of searches mentioned in paragraph 3.1(b), (c), and (d),
which do not require reasonable grounds for suspicion, officers may make any
reasonable search to look for items for which they are empowered to search. [See Note 5]
4.4 The
search must be carried out at or near the place where the person or vehicle was
first detained. [See Note 6]
4.5 There
is no power to require a person to remove any clothing in public other than an
outer coat, jacket, gloves or headgear except under Article 41(3) of the
Terrorism (Jersey) Law 2002 (which empowers an officer of the Force conducting
a search under Article 40(1) or 40(2) of that Law to require a person to remove
footwear in public) [See Notes 4 and 6] A search
in public of a person’s clothing which has not been removed must be
restricted to superficial examination of outer garments. This does not,
however, prevent an officer from placing his or her hand inside the pockets of
the outer clothing, or feeling round the inside of collars, socks and shoes if
this is reasonably necessary in the circumstances to look for the object of the
search or to remove and examine any item reasonably suspected to be the object
of the search. For the same reasons, a person’s hair may also be searched
in public (see paragraphs 4.1 and 4.3).
4.6 Where
on reasonable grounds it is considered necessary to conduct a more thorough
search (e.g. by requiring a person to take off a T-shirt), this must be done
out of public view, for example, in a police van unless paragraph 4.7 applies,
or police station if there is one nearby. [See Note 6]
Any search involving the removal of more than an outer coat, jacket, gloves,
headgear or footwear, or any other item concealing identity, may only be made
by an officer of the same sex as the person searched and may not be made in the
presence of anyone of the opposite sex unless the person being searched
specifically requests it. [See Notes 4, 7 and 8]
4.7 Searches
involving exposure of intimate parts of the body must not be conducted as a
routine extension of a less thorough search, simply because nothing is found in
the course of the initial search. Searches involving exposure of intimate parts
of the body may be carried out only at a nearby police station or other nearby
location which is out of public view (but not a police vehicle). These searches
must be conducted in accordance with paragraph 11 of Annex A to Code C except
that an intimate search mentioned in paragraph 11(f) of Annex A to Code C may
not be authorised or carried out under any stop and search powers. The other
provisions of Code C do not apply to the conduct and recording of searches of
persons detained at police stations in the exercise of stop and search powers.
[See Note 7]
Steps
to be taken prior to a search
4.8 Before
any search of a detained person or attended vehicle takes place the officer
must take reasonable steps to give the person to be searched or in charge of
the vehicle the following information –
(a) that
the person is being detained for the purposes of a search;
(b) the
officer’s name (except in the case of enquiries linked to the
investigation of terrorism, or otherwise where the officer reasonably believes
that giving his or her name might put him or her in danger, in which case a
warrant or other identification number shall be given) and the name of the
police station to which the officer is attached, or in the case of an Honorary
police officer the Parish to which he or she is appointed;
(c) the
legal search power which is being exercised; and
(d) a
clear explanation of –
(i) the purpose of
the search in terms of the article or articles for which there is a power to
search, and
(ii) in the case of
powers requiring reasonable suspicion (see paragraph 3.1(a)), the grounds for
that suspicion, or
(iii) in the case of powers
which do not require reasonable suspicion (see paragraph 3.1(b), and (c)), the
nature of the power and of any necessary authorisation and the fact that it has
been given.
4.9 Officers
not in uniform must show their warrant cards. Stops and searches under the
powers mentioned in paragraphs 3.1(b), and (c) may be undertaken only by an
officer of the Force in uniform.
4.10 Before the
search takes place the officer must inform the person (or the owner or person
in charge of the vehicle that is to be searched) of his or her entitlement to a
copy of the record of the search, including his or her entitlement to a record
of the search if an application is made within 12 months, if it is not
practicable to make a record at the time. If a record is not made at the time
the person should also be told how a copy can be obtained (see section 4). The person should also be
given information about police powers to stop and search and the individual’s
rights in these circumstances.
4.11 If the person
to be searched, or in charge of a vehicle to be searched, does not appear to
understand what is being said, or there is any doubt about the person’s
ability to understand English, the officer must take reasonable steps to bring
information regarding the person’s rights and any relevant provisions of this
Code to his or her attention. If the person is deaf or cannot understand
English and is accompanied by someone, then the officer must try to establish
whether that person can interpret or otherwise help the officer to give the
required information.
5 Recording
requirements
5.1 An
officer who has carried out a search in the exercise of any power to which this
Code applies, must make a record of it at the time, unless there are
circumstances which would make this impracticable (e.g. in situations involving
public disorder or when the officer’s presence is urgently required
elsewhere). If a record is not made at the time, the officer must make one as
soon as practicable afterwards. There may be situations in which it is not
practicable to obtain the information necessary to complete a record, but the
officer should make every reasonable effort to do so.
5.2 A
copy of a record made at the time must be given immediately to the person who
has been searched. The officer must ask for the name, address and date of birth
of the person searched, but there is no obligation on a person to provide these
details and no power of detention if the person is unwilling to do so.
5.3 The
following information must always be included in the record of a search even if
the person does not wish to provide any personal details –
(i) the
name of the person searched, or (if it is withheld) a description;
(ii) a
note of the person’s self-defined ethnic background; [See Note 21]
(iii) when
a vehicle is searched, its registration number; [See
Note 19]
(iv) the
date, time, and place that the person or vehicle was first detained;
(v) the
date, time and place the person or vehicle was searched (if different from (iv));
(vi) the
purpose of the search;
(vii) the
grounds for making it, (unless the search is a voluntary one) or in the case of
those searches mentioned in paragraph 3.1(b) and (c), the nature of the power
and of any necessary authorisation and the fact that it has been given; [See Note 20]
(viii) its outcome
(e.g. arrest or no further action);
(ix) a
note of any injury or damage to property resulting from it;
(x) subject
to paragraph 4.8(a), the identity of the officer making the search. [See Note 18]
5.4 Nothing
in paragraph 5.3(x) requires the names of police officers to be shown on the
search record or any other record required to be made under this Code in the
case of enquiries linked to the investigation of terrorism or otherwise where
an officer reasonably believes that recording names might endanger the
officers. In such cases the record must show the officers’ warrant or
other identification number and duty station, or in the case of a member of the
Honorary Police, his or her Parish Hall.
5.5 A record
is required for each person and each vehicle searched. However, if a person is
in a vehicle and both are searched, and the object and grounds of the search
are the same, only one record need be completed. If more than one person in a
vehicle is searched, separate records for each search of a person must be made.
If only a vehicle is searched, the name of the driver and his or her
self-defined ethnic background must be recorded, unless the vehicle is
unattended.
5.6 The
record of the grounds for making a search must, briefly but informatively,
explain the reason for suspecting the person concerned, by reference to the
person’s behaviour and/or other circumstances.
5.7 After
searching an unattended vehicle, or anything in or on it, an officer must leave
a notice in it (or on it, if things on it have been searched without opening
it) recording the fact that it has been searched.
5.8 The
notice must include the name of the police station/Parish to which the officer
concerned is attached and state where a copy of the record of the search may be
obtained and where any application for compensation should be directed.
5.9 The
vehicle must if practicable be left secure.
6 Monitoring
and supervising the use of stop and search powers
6.1 In
order to promote public confidence in the use of powers, the States of Jersey
Police, in consultation with the Home Affairs Committee, will arrange for the
publication of statistics generated from police forms as part of the Chief
Officer’s annual report.
Notes
for Guidance
Officers
exercising stop and search powers
1 This
Code does not affect the ability of an officer to speak to or question a person
in the ordinary course of the officer’s duties (and in the absence of
reasonable suspicion) without detaining the person or exercising any element of
compulsion. It is not the purpose of the code to prohibit such encounters
between the police and the community with the co-operation of the person
concerned and neither does it affect the principle that all citizens have a
duty to help police officers to prevent crime and discover offenders. This is a
civic rather than a legal duty; but when a police officer is trying to discover
whether, or by whom, an offence has been committed he or she may question any
person from whom useful information might be obtained, subject to the
restrictions imposed by Code C. A person’s unwillingness to reply does
not alter this entitlement, but in the absence of a power to arrest, or to
detain in order to search, the person is free to leave at will and cannot be
compelled to remain with the officer.
2 Nothing
in this Code affects the ability of an officer to search a person in the street
with that person’s consent where no search power exists. In these
circumstances an officer should always make it clear that he or she is seeking
the consent of the person concerned to the search being carried out by telling
the person that he or she need not consent and without his or her consent the
person will not be searched.
3 In
some circumstances preparatory questioning may be unnecessary, but in general a
brief conversation or exchange will be desirable not only as a means of
avoiding unsuccessful searches, but to explain the grounds for the stop/search,
to gain co-operation and reduce any tension there might be surrounding the
stop/search.
4 If
the officer acts in an improper manner this will invalidate a voluntary search.
5 Juveniles,
people suffering from a mental disorder, the mentally vulnerable and others who
appear not to be capable of giving an informed consent should not be subject to
a voluntary search.
6 Where
a person is lawfully detained for the purpose of a search, but no search in the
event takes place, the detention will not thereby have been rendered unlawful.
7 Where
there may be religious sensitivities about asking someone to remove a face
covering, for example in the case of a Muslim woman wearing a face covering for
religious purposes, the officer should permit the item to be removed out of
public view. Where practicable, the item should be removed in the presence of
an officer of the same sex as the person and out of sight of anyone of the
opposite sex.
8 A
search of a person in public should be completed as soon as possible.
9 A
person may be detained under a stop and search power at a place other than
where the person was first detained, only if that place, be it a police station
or elsewhere, is nearby. Such a place should be located within a reasonable
travelling distance using whatever mode of travel (on foot or by car) is
appropriate. This applies to all searches under stop and search powers, whether
or not they involve the removal of clothing or exposure of intimate parts of
the body (see paragraphs 4.6 and 4..7) or take place in or out of public view.
It means, for example, that a search under the stop and search power in Article
17(3) of the Misuse of Drugs (Jersey) Law 1978 which involves the removal of
more than a person’s outer coat, jacket or gloves cannot be carried out
unless a place which is both nearby the place the person was first detained and
out of public view, is available. If a search involves exposure of intimate
parts of the body and a police station is not nearby, particular care must be
taken to ensure that the location is suitable in that it enables the search to
be conducted in accordance with the requirements of paragraph 11 of
Annex A to Code C.
10 A
search in the street itself should be regarded as being in public for the
purposes of paragraphs 4.6 and 4.7 above, even though it may be empty at the
time a search begins. Although there is no power to require a person to do so,
there is nothing to prevent an officer from asking a person voluntarily to
remove more than an outer coat, jacket, gloves or headgear, (or footwear under
Article 41(3) of the Terrorism (Jersey) Law 2002) in public.
11 Where
there may be religious sensitivities about asking someone to remove headgear,
the police officer should offer to carry out the search out of public view (for
example, in a police van or police station if there is one nearby).
12 Other
means of identification might include jewellery, insignias, tattoos or other
features which are known to identify members of the particular gang or group.
Authorising
officers
13 The powers under
Article 11 are separate from and additional to the normal stop and search
powers which require reasonable grounds to suspect an individual of carrying an
offensive weapon (or other article). Their overall purpose is to prevent
serious violence and the widespread carrying of weapons which might lead to
persons being seriously injured by disarming potential offenders in
circumstances where other powers would not be sufficient. They should not
therefore be used to replace or circumvent the normal powers for dealing with
routine crime problems.
14 Authorisations
under Article 11 require a reasonable belief on the part of the authorising
officer. This must have an objective basis, for example: intelligence or
relevant information such as a history of antagonism and violence between
particular groups; previous incidents of violence at, or connected with,
particular events or locations; a significant increase in knife-point robberies
in a limited area; reports that individuals are regularly carrying weapons in a
particular locality.
15 It
is for the authorising officer to determine the period of time during which the
powers mentioned in paragraph 3.1(b) and (c) may be exercised. The officer
should set the minimum period he or she considers necessary to deal with the
risk of violence, the carrying of knives or offensive weapons, or terrorism. A
direction to extend the period authorised under the powers mentioned in
paragraph 2.1(b) may be given only once. Thereafter further use of the powers
requires a new authorisation. There is no provision to extend an authorisation
of the powers mentioned in paragraph 3.1(c); further use of the powers
requires a new authorisation.
16 It
is for the authorising officer to determine the geographical area in which the
use of the powers is to be authorised. In doing so the officer may wish to take
into account factors such as the nature and venue of the anticipated incident,
the number of people who may be in the immediate area of any possible incident,
their access to surrounding areas and the anticipated level of violence. The
officer should not set a geographical area which is wider than that he or she
believes necessary for the purpose of preventing anticipated violence, the
carrying of knives or offensive weapons, acts of terrorism, or, in the case of
Article 11, the prevention of commission of offences. It is particularly
important to ensure that officers of the Force exercising such powers are fully
aware of where they may be used. The officer giving the authorisation should
specify the roads which form the boundary of the area.
17 An
officer who has authorised the use of powers under Article 40 of the Terrorism
(Jersey) Law 2002 must take immediate steps to send a copy of the authorisation
to the Home Affairs Committee as soon as is reasonably practicable, but
certainly within 48 hours of the authorisation being made.
Recording
18 Where
a stop and search is conducted by more than one officer the identity of all the
officers engaged in the search must be recorded on the record. Nothing prevents
an officer who is present but not directly involved in searching from
completing the record during the course of the encounter.
19 Where
a vehicle has not been allocated a registration number (e.g. a rally car or a
trials motorbike) that part of the requirement under 5.3(iii) does not apply.
20 It
is important for monitoring purposes to specify whether the authority for
exercising a stop and search power was given under Article 11 of the Police
Procedures and Criminal Evidence (Jersey) Law 2003 or under Article 40(1) or
40(2) of the Terrorism (Jersey) Law 2002.
21 Officers
should record the self-defined ethnicity of every person stopped according to
the categories listed in Annex B. Respondents should be asked to select one of
the five main categories representing broad ethnic groups and then a more
specific cultural background from within this group. The ethnic classification
should be coded for recording purposes using the coding system in Annex B. An
additional "Not stated" box is available but should not be offered to
respondents explicitly. Officers should be aware and explain to members of the
public, especially where concerns are raised, that this information is required
to obtain a true picture of stop and search activity and to help improve ethnic
monitoring, tackle discriminatory practice, and promote effective use of the
powers. If the person gives what appears to the officer to be an
"incorrect" answer (e.g. a person who appears to be white states that
he or she is black), the officer should record the response that has been
given. Officers should also record their own perception of the ethnic
background of every person stopped and this must be done by using the
PNC/Phoenix classification system. If the “Not stated” category is
used the reason for this must be recorded on the form.
CODE A
– ANNEX A
Summary
of Main Stop and Search Powers
|
POWER
|
OBJECT
OF SEARCH
|
EXTENT
OF SEARCH
|
WHERE
EXERCISABLE
|
|
Unlawful articles general
|
|
|
|
|
1. Police Procedures and
Criminal Evidence (Jersey) Law 2003
Article
9
|
Stolen or Prohibited articles being those
for use in connection with offences of Larceny, Robbery, Breaking and
Entering, Illegal Entry, Offences under Article 28 of the Road Traffic
(Jersey) Law 1956, Fraud, Obtaining by False Pretences, Embezzlement and
Fraudulent Conversion and Offensive Weapons.
|
Persons and vehicles
|
Where there is public access
|
|
2. Misuse of Drugs (Jersey)
Law 1978
Article
17 (3)
|
Controlled drugs
|
Persons and vehicles
|
Anywhere
|
|
3. Customs and Excise (Jersey)
Law 1999
Article
51 – 53
|
Goods:
(a) on which duty has not been paid;
(b) being unlawfully removed, imported or
exported;
(c) otherwise liable to forfeiture to
HM Customs and Excise
|
Vehicles and vessels only
|
Anywhere
|
|
4. Terrorism (Jersey) Law
2002,
Article
39
|
Evidence of liability to arrest a person
described under Article 36 of the Law
|
Persons
|
Anywhere
|
|
5. Terrorism (Jersey) Law
2002,
Article
40(1)
|
Articles which could be used for a
purpose connected with the commission, preparation or instigation of acts of
terrorism
|
Vehicles, driver and passengers
|
Anywhere within the area or locality
authorised
|
|
6. Terrorism (Jersey) Law
2002,
Article
40(2)
|
Articles which could be used for a
purpose connected with the commission, preparation or instigation of acts of
terrorism
|
Pedestrians
|
Anywhere within the area of locality
authorised
|
|
7. Paragraphs 4, 5 and 6 of
Schedule 8 to the Terrorism (Jersey) Law 2002
|
Anything relevant to determining if a
person being examined falls within Article 36 of the Law
|
Persons, vehicles, vessels etc.
|
Ports and airports
|
CODE A
– ANNEX B
Self-Defined
Ethnic Classification Categories
|
White
|
|
W
|
|
A
|
White – British
|
|
W1
|
|
B
|
White – Irish
|
W2
|
|
|
C
|
Any other White background
|
W9
|
|
|
Mixed
|
|
M
|
|
D
|
White and Black Caribbean
|
M1
|
|
|
E
|
White and Black African
|
|
M2
|
|
F
|
White and Asian
|
|
M3
|
|
G
|
Any other Mixed Background
|
|
M9
|
|
Asian / Asian – British
|
|
A
|
|
H
|
Asian – Indian
|
A1
|
|
|
I
|
Asian – Pakistani
|
|
A2
|
|
J
|
Asian – Bangladeshi
|
|
A3
|
|
K
|
Any other Asian background
|
A9
|
|
|
Black / Black – British
|
|
B
|
|
L
|
Black - Caribbean
|
|
B1
|
|
M
|
Black African
|
|
B2
|
|
N
|
Any other Black background
|
B9
|
|
|
Other
|
|
O
|
|
O
|
Chinese
|
|
O1
|
|
P
|
Any other
|
|
O9
|
|
Not Stated
|
|
NS
|
CODE B
A Code of Practice for the Searching of
Premises by Police officers and the Seizure of Property Found by Police
officers on Persons or Premises
1 General
1.1 This
Code of Practice must be readily available at all police
stations and Parish Halls for consultation by police officers, detained
persons and members of the public.
1.2 The
notes for guidance included are not provisions of this Code, but are guidance
to police officers and others about its application and interpretation.
1.3 This
Code applies to searches of premises –
(a) undertaken
for the purposes of an investigation into an alleged offence, with the occupier’s
consent, other than searches made in the following circumstances:
– routine
scenes of crime searches
– calls
to a fire or a burglary made by or on behalf of an occupier or searches
following the activation of fire or burglar alarms
– searches
to which paragraph 4.4 applies
– bomb
threat calls;
(b) under
powers conferred by Article 19 of the Police Procedures and Criminal Evidence
(Jersey) Law 2003, which gives a police officer powers to enter and search any
premises –
(i) to arrest a
person who the officer suspects has committed an offence or where the officer
suspects that an offence is in progress or has been committed on the premises,
(ii) where the officer
has reasonable cause to suspect that a person is committing, has committed or is about to commit an offence,
(iii) to save life, limb or
private damage to property;
(c) under
Article 29 of the Police Procedures and Criminal Evidence (Jersey) Law 2003,
which authorises a police officer to search a person on arrest and any premises
where the person came from immediately before arrest;
(d) undertaken
in pursuance of a search warrant issued in accordance with Article 15 of the
Police Procedures and Criminal Evidence (Jersey) Law 2003, Article 38 of or
Schedule 5 to the Terrorism (Jersey) Law 2002.
‘Premises’ for the purpose of this Code is defined in
Article 1 of the Police Procedures and Criminal Evidence (Jersey) Law 2003. It
includes any place and, in particular, any vehicle, vessel, aircraft,
hovercraft, tent or movable structure.
1.4 Any
search of a person who has not been arrested which is carried out during a
search of premises shall be carried out in accordance with Code A. Persons may
be searched under a warrant issued under Article 17(2) the Misuse of Drugs
(Jersey) Law 1978, to search premises for drugs or documents only if the warrant
specifically authorizes the search of persons on the premises.
1.5 This
Code does not apply to the exercise of a statutory power to enter premises or
to inspect goods, equipment or procedures, if the exercise of that power is not
dependent on the existence of grounds for suspecting that an offence may have
been committed and the person exercising the power has no reasonable grounds
for such suspicion.
1.6 The
Code does not affect any directions of a search warrant or order lawfully
executed in Jersey, that any item or evidence seized under that warrant or
order be handed over to a police force, court or tribunal or other authority
outside Jersey. For example, search warrants issued under the Criminal Justice
(International Co-operation) (Jersey) Law 2001, Article 6.
1.7 In
all cases, police officers should:
· Exercise
their powers courteously and with respect for persons and property.
· Only
use reasonable force when this is considered necessary and proportionate to the
circumstances.
1.8 A
written record of all searches conducted under this Code should be made on the
forms provided and only if they are unavailable should officers use their
pocket book.
1.9 Nothing
in this Code requires the identity of officers to be recorded or
disclosed –
(a) in
the case of enquiries linked to the investigation of terrorism; or
(b) if
officers reasonably believe recording or disclosing their names might put them
in danger.
In these cases officers should use warrant or other identification
numbers.
1.10 The ‘officer
in charge of the search’ means an officer of the Force assigned specific
duties and responsibilities under the Code. Whenever there is a search of
premises to which this Code applies one officer must act as the officer in
charge of the search. [See Note 1A]
Notes for Guidance
1A Some
exceptions are –
(a) a
supervising officer who attends or assists at the scene of a premises search
may appoint an officer of lower rank as officer in charge of the search if that
officer is:
· more
conversant with the facts;
· a
more appropriate officer to be in charge of the search;
(b) when
all officers of the Force, in a premises search are the same rank. The
supervising officer if available must make sure one of them is appointed officer
in charge of the search, otherwise the officers themselves must nominate one of
their number as the officer in charge;
(c) a
senior officer assisting in a specialist role. This officer need not be
regarded as having a general supervisory role over the conduct of the search or
be appointed or expected to act as the officer in charge of the search.
Except in (c), nothing diminishes the role
and responsibilities of a supervisory officer who is present at the search or
knows of a search taking place.
2 Search
warrants and production orders
Action
to be taken before an application is made
2.1 Where
information is received which appears to justify an application, the officer
concerned must take reasonable steps to check that the information is accurate,
recent and has not been provided maliciously or irresponsibly. An application
may not be made on the basis of information from an anonymous source where
corroboration has not been sought. [See Note 2A]
2.2 The
officer shall ascertain as specifically as is possible in the circumstances the
nature of the articles concerned and their location.
2.3 The
officer shall also make reasonable enquiries to establish what, if anything, is
known about the likely occupier of the premises and the nature of the premises
themselves; and whether they have been previously searched and if so how
recently; and to obtain any other information relevant to the application.
2.4 No
application for a search warrant may be made without the authority of an
officer of at least the rank of Inspector or in the case of the Honorary Police
the Connétable or Centenier (or, in the case of urgency where no officer
of this rank is readily available, the senior officer on duty). No application
for a production order or warrant under Schedule 5, paragraph 1 or paragraph 4
of the Terrorism (Jersey) Law 2002, may be made without the authority of an
officer of at least the rank of Inspector and any application made under
Schedule 5 paragraph 2 can only be made by a Chief Inspector or above.
2.5 Except
in a case of urgency, if there is reason to believe that a search might have an
adverse effect on relations between the police and the community then the
community officer should be consulted before it takes place.
Making an application
2.6 An
application for a search warrant must be supported by an application in
writing, specifying:
(a) the
enactment under which the application is made;
(b) the
premises to be searched,
(c) the
object of the search; [see Note 2B]
(d) the
grounds on which the application is made (including, where the purpose of the
proposed search is to find evidence of an alleged offence, an indication of how
the evidence relates to the investigation).
(e) there
are no reasonable grounds to believe the material to be sought, when making
application to the Bailiff or a Jurat consists of or includes items subject to
legal privilege, excluded material or special procedure material;
(f) if
applicable, a request for the warrant to authorise a person or persons to
accompany the officer who executes the warrant. [see
Note 2C]
2.7 An
application for a search warrant under paragraph 11 of Schedule 2 to the Police
Procedures and Criminal Evidence (Jersey) Law 2003, or under Schedule 5 to the
Terrorism (Jersey) Law 2002, shall also, where appropriate, indicate why it is
believed that the service of notice of an application for a production order
may seriously prejudice the investigation, or that the issue of a warrant is
necessary in the circumstances of the case.
2.8 If
an application is refused, no further application maybe made for a warrant to
search those premises unless supported by additional grounds.
Notes
for Guidance
2A The
identity of an informant need not be disclosed when making an application, but
the officer concerned should be prepared to deal with any questions the Bailiff
or a Jurat may have about the accuracy of previous information provided by that
source or any other related matters.
2B The
information supporting a search warrant application should be as specific as possible,
particularly in relation to the articles or persons being sought and where in
the premises it is suspected they may be found. The meaning of ‘items
subject to legal privilege’, ‘special procedure material’ and
‘excluded material’ are defined by the Police Procedures and
Criminal Evidence (Jersey) Law 2003, Articles 5 and 6 respectively.
2C A
search warrant may authorise persons other than police officers to accompany
the police officer who executes the warrant. This includes, e.g. any suitably
qualified or skilled person or an expert in a particular field whose presence
is needed to help accurately identify the material sought or to advise where
certain evidence is most likely to be found and how it should be dealt with. It
does not give the person any right to force entry, to search for or seize
property but it gives that person the right to be on the premises during the
search without the occupier’s permission.
3 Entry
without warrant
Making an arrest etc
3.1 The
conditions under which an officer may enter and search premises without a
warrant are set out in Article 19 of the Police Procedures and Criminal
Evidence (Jersey) Law 2003.
Search after arrest of
premises in which arrest takes place or in which the arrested person was
present immediately prior to arrest
3.2 The
powers of an officer to search premises in which he or she has arrested a
person or where the person was immediately before he or she was arrested are as
set out in Article 29 of the Police Procedures and Criminal Evidence (Jersey)
Law 2003.
Search after arrest of
premises other than those in which arrest takes place
3.3 The
specific powers of an officer to search premises occupied or controlled by a
person who has been arrested for a serious offence or any other offence the
punishment for which is imprisonment for a term of one year or more, are as set
out in Article 20 of the Police Procedures and Criminal Evidence (Jersey) Law
2003. They may not (unless paragraph (5) of Article 20 applies) be exercised
unless an officer of the rank of Inspector or above has given authority in
writing, or in the case of an Honorary Police officer, a Connétable or
Centenier. If possible the authorising officer should record the authority on
the Notice of Powers and Rights (see paragraph 5.7(1)) and subject to paragraph
1.8 sign the notice. The record of the grounds of the search, required by
Article 20(7) of the Law, shall be made in the custody record, where there is
one, otherwise in the officer’s pocket book or the search record. In the
case of enquiries linked to the investigation of terrorism, the authorising
officer shall use his or her warrant or other identification number.
4 Search
with consent
4.1 Subject
to paragraph 4.4 below, if it is proposed to search premises with the consent
of a person entitled to grant entry to the premises the consent must, if
practicable, be given in writing on the Notice of Powers and Rights before the
search takes place. The officer must make enquiries to satisfy himself or
herself that the person is in a position to give such consent. [See Notes 4A and 4B and paragraph 5.7(i)]
4.2 Before
seeking consent the officer in charge of the search shall state the purpose of
the proposed search and its extent. This information must be as specific as
possible, particularly regarding the articles or persons being sought and the
parts of the premises to be searched. The person concerned must be clearly
informed he or she is not obliged to consent and anything seized may be
produced in evidence. If at the time the person is not suspected of an offence,
the officer shall say this when stating the purpose of the search.
4.3 An
officer cannot enter and search premises or continue to search premises under
4.1 above if the consent has been given under duress or is withdrawn before the
search is completed.
4.4 It
is unnecessary to seek consent under paragraphs 4.1 and 4.2 above where in the
circumstances this would cause disproportionate inconvenience to the person
concerned. [See Note 4C]
Notes for Guidance
4A In
the case of a lodging house or similar accommodation a search should not be
made on the basis solely of the landlord’s consent unless the tenant,
lodger or occupier is unavailable and the matter is urgent.
4B Where
it is intended to search premises under the authority of a warrant or a power
of entry and search without warrant, and the co-operation of the occupier of
the premises is obtained in accordance with paragraph 5.4 below, there is no
additional requirement to obtain written consent as at paragraph 4.1 above.
4C Paragraph
4.4 is intended in particular to apply to circumstances where it is reasonable
to assume that innocent occupiers would agree to, and expect that, police
should take the proposed action. Examples are where a suspect has fled from the
scene of a crime or to evade arrest and it is necessary quickly to check
surrounding gardens and readily accessible places to see whether he or she is
hiding; or where police have arrested someone in the night after a pursuit and
it is necessary to make a brief check of gardens along the route of the pursuit
to see whether stolen or incriminating articles have been discarded.
5 Searching
of premises: general considerations
Time of searches
5.1 Searches
made under warrant must be made within one calendar month from the date of
issue of the warrant.
5.2 Searches
must be made at a reasonable hour unless this might frustrate the purpose of
the search. [See Note 5A]
5.3 A
warrant authorises entry on 2 occasions only, the second of which shall be
within 3 days of the first.
Entry other than with
consent
5.4 The
officer in charge shall first attempt to communicate with the occupier or any
other person entitled to grant access to the premises by explaining the
authority under which the officer seeks entry to the premises and ask the
occupier to allow the officer to enter, unless:
(i) the
premises to be searched are unoccupied;
(ii) the
occupier and any other person entitled to grant access are absent; or
(iii) there
are reasonable grounds for believing that to alert the occupier or any other
person entitled to grant access would frustrate the object of the search or
endanger officers or other people.
5.5 Unless
sub-paragraph 5.4(iii) applies, if the premises are occupied the officer,
subject to paragraph 1.8, shall identify himself or herself, show his or her
warrant card (if not in uniform) and state the purpose of and grounds for the
search before the search begins.
5.6 Reasonable
force may be used if necessary to enter premises if the officer in charge is
satisfied that the premises are those specified in any warrant, or in exercise
of the powers described in 3.1 to 3.3 above, and where:
(i) the
occupier or any other person entitled to grant access has refused a request to
allow entry to the premises;
(ii) it
is impossible to communicate with the occupier or any other person entitled to
grant access; or
(iii) any
of the provisions of 5.4 (i) to (iii) apply.
Notice of Powers and
Rights
5.7 If
an officer conducts a search to which this Code applies the officer shall,
unless it is impracticable to do so, provide the occupier with a copy of a
notice in a standard format:
(i) specifying
whether the search is made under warrant, or with consent, or in the exercise of
the powers described in 3.1 to 3.3 above (the format of the notice shall
provide for authority or consent to be indicated where appropriate - see 3.3
and 4.1 above);
(ii) summarising
the extent of the powers of search and seizure conferred by the Police Procedures
and Criminal Evidence (Jersey) Law 2003;
(iii) explaining
the rights of the occupier, and of the owner of property seized in accordance
with the provisions of 6.1 to 6.5 below, set out in the Law and in this Code;
(iv) explaining
that compensation may be payable in appropriate cases for damage caused in
entering and searching premises, and giving the address to which an application
for compensation should be directed; [See Note 5C]
(v) stating
that a copy of this Code is available to be consulted at any police station.
5.8 If
the occupier is:
• present,
copies of the Notice and warrant shall, if practicable, be given to the
occupier before the search begins, unless the officer in charge of the search
reasonably believes this would frustrate the object of the search or endanger
officers or other people;
• not
present, copies of the Notice and warrant shall be left in a prominent place on
the premises or appropriate part of the premises and endorsed, subject to
paragraph 1.8 with the name of the officer in charge of the search, the date
and time of the search the warrant shall be endorsed to show this has been
done.
Conduct of searches
5.9 Premises
may be searched only to the extent necessary to achieve the object of the
search, having regard to the size and nature of whatever is sought.
5.9A A search may not
continue under:
• a
warrant’s authority once all the things specified in that warrant have
been found
• any
other power once the object of that search has been achieved
5.9B No search may
continue once the officer in charge of the search is satisfied whatever is
being sought is not on the premises. [See Note 5D]
This does not prevent a further search of the same premises if additional
grounds come to light supporting a further application for a search warrant or
exercise or further exercise of another power. For example, when, as a result
of new information, it is believed articles previously not found or additional
articles are on the premises.
5.10 Searches must
be conducted with due consideration for the property and privacy of the
occupier of the premises searched, and with no more disturbance than necessary.
Reasonable force may be used only where this is necessary because the
co-operation of the occupier cannot be obtained or is insufficient for the
purpose. [See Note 5E]
5.11 A friend, neighbour
or other person must be allowed to witness the search if the occupier wishes
unless the officer in charge of the search has reasonable grounds for believing
the presence of the person asked for would seriously hinder the investigation
or endanger officers or other people. A search need not be unreasonably delayed
for this purpose. A record of the action taken should be made on the premises
search record including the grounds for refusing the occupier’s request.
Leaving premises
5.12 If premises have
been entered by force the officer in charge shall before leaving them, satisfy
himself or herself that they are secure either by arranging for the occupier or
the occupier’s agent to be present or by any other appropriate means.
Search under Schedule 2 to
the Police Procedures and Criminal Evidence (Jersey) Law 2003
5.13 An officer of
the rank of Inspector or above shall take charge of and be present at any
search made under a warrant issued under Schedule 2 to the Police Procedures
and Criminal Evidence (Jersey) Law 2003 or under Schedule 5 to the
Terrorism (Jersey) Law 2002. That officer is responsible for ensuring that the
search is conducted with discretion and in such a manner as to cause the least
possible disruption to any business or other activities carried on in the
premises.
5.14 After
satisfying himself or herself that material may not be taken from the premises
without his or her knowledge, the officer in charge of the search shall ask for
the documents or other records concerned to be produced. The officer may also,
if he or she considers it to be necessary, ask to see the index to files held
on the premises, if there is one; and the officers conducting the search may
inspect any files which, according to the index, appear to contain any of the
material sought. A more extensive search of the premises may be made only if
the person responsible for them refuses to produce the material sought, or to
allow access to the index; if it appears that the index is inaccurate or
incomplete; or if for any other reason the officer in charge has reasonable
grounds for believing that such a search is necessary in order to find the
material sought. [See Note 5B]
Notes for Guidance
5A In
determining at what time to make a search, the officer in charge should have
regard, among other considerations, to the time of day at which the occupier of
the premises is likely to be present, and should not search at a time when the
occupier, or any other person on the premises, is likely to be asleep unless
not doing so is likely to frustrate the purpose of the search.
5B In
asking for documents to be produced in accordance with paragraph 5.14 above,
officers should direct the request to a person in authority and with
responsibility for the documents.
5C Whether
compensation is appropriate depends on the circumstances in each case.
Compensation for damage caused when effecting entry is unlikely to be
appropriate if the search was lawful, and the force used can be shown to be
reasonable, proportionate and necessary to effect entry. If the wrong premises
are searched by mistake everything possible should be done at the earliest
opportunity to allay any sense of grievance and there should normally be a strong
presumption in favour of paying compensation.
5D It
is important that, when possible, all those involved in a search are fully
briefed about any powers to be exercised and the extent and limits within which
it should be conducted.
5E In
all cases the number of officers and other persons involved in executing the
warrant should be determined by what is reasonable and necessary according to
the particular circumstances.
6 Seizure
and retention of property
Seizure
6.1 Subject
to paragraph 6.2 below, an officer who is searching any premises under any
statutory power or with the consent of the occupier may seize:
(a) anything
covered by a warrant; and
(b) anything
which the officer has reasonable grounds for believing is evidence of an
offence or has been obtained in consequence of the commission of an offence.
Items under (b) may only be seized where this is necessary to
prevent their concealment, alteration, loss, damage or destruction.
6.2 No
item may be seized which an officer has reasonable grounds for believing to be
subject to legal privilege (as defined in Article 5 of the Police Procedures
and Criminal Evidence (Jersey) Law 2003).
6.3 An
officer who decides that it is not appropriate to seize property because of an
explanation given by the person holding it, but who has reasonable grounds for
believing that it has been obtained in consequence of the commission of an
offence by some person, shall inform the holder of his or her suspicions and
shall explain that, if the holder disposes, destroys or alters the property, he
or she may be liable to civil or criminal proceedings.
6.4 An
officer may photograph or copy, or have photographed or copied, any document or
other article which the officer has power to seize in accordance with paragraph
6.1 above.
6.5 If
an officer considers information stored in any electronic form and accessible
from the premises could be used in evidence, the officer may require the
information to be produced in a form:
• which
can be taken away and in which it is visible and legible; or
• from
which it can readily be produced in a visible and legible form
Retention
6.6 Subject
to paragraph 6.7 below, anything which has been seized in accordance with the
above provisions may be retained only for as long as is necessary in the circumstances.
It may be retained, among other purposes:
(i) for
use as evidence at a trial for an offence;
(ii) for
forensic examination or for other investigation in connection with an offence;
or
(iii) where
there are reasonable grounds for believing that it has been stolen or obtained
by the commission of an offence, in order to establish its lawful owner.
6.7 Property
shall not be retained in accordance with 6.6(i) and (ii) (i.e. for use as
evidence or for the purposes of investigation) if a photograph or copy would
suffice for those purposes.
Rights of owners etc
6.8 If
property is retained the person who had custody or control of it immediately
prior to its seizure must on request be provided with a list or description of
the property within a reasonable time.
6.9 The
person who had custody or control or his or her representative must be allowed
supervised access to the property to examine it or have it photographed or
copied, or must be provided with a photograph or copy, in either case within a
reasonable time of any request and at the person’s own expense, unless
the officer in charge of an investigation has reasonable grounds for believing
that this would prejudice the investigation of an offence or any criminal
proceedings, or lead to the commission of an offence by providing access to
unlawful matters such as child pornography. In this case a record of the
grounds must be made.
7 Action
to be taken after searches
7.1 If
premises are searched in circumstances where this Code applies, unless the
exceptions in paragraph 1.3(a) apply, on arrival at a police station the
officer in charge of the search shall make or have made a record of the search,
to include:
(i) the
address of the searched premises;
(ii) the
date, time and duration of the search;
(iii) the
authority used for the search:
· if
the search was made in exercise of a statutory power to search premises without
warrant, the power which was used for the search:
· if
the search was made under a warrant or with written consent, a copy of the warrant
and the written authority to apply for it, or the written consent, shall be
appended to the record or the record shall show the location of the copy
warrant or consent.
(iv) subject
to paragraph 1.8, the names of:
· the
officer(s) in charge of the search;
· all
other officers who conducted the search;
(v) the
names of any people on the premises if they are known;
(vi) any
grounds for refusing the occupier’s request to have someone present
during the search, see paragraph 5.11;
(vii) a list
of any articles seized or the location of a list and, if not covered by a
warrant, the grounds for their seizure;
(viii) whether
force was used, and the reason;
(viii) details of
any damage caused during the search, and the circumstances;
(x) if
applicable, the reason it was not practicable –
(a) to give the occupier a
copy of the Notice of Powers and Rights (see paragraph 5.7);
(b) before the search to
give the occupier a copy of the Notice (see paragraph 5.8);
(xi) when
the occupier was not present, the place where copies of the Notice of Powers
and Rights and search warrant were left on the premises (see paragraph 5.8).
7.2 When
premises are searched under warrant, the warrant shall be endorsed to
show –
(i) if
any articles specified in the warrant were found;
(ii) if
any other articles were seized;
(iii) the
date and time it was executed;
(iv) subject
to paragraph 1.8, the names of the officers who executed it;
(v) if
a copy, together with a copy of the Notice of Powers and Rights was:
· handed
to the occupier; or
· endorsed
as required by paragraph 6.8; and left on the premises and, if so, where.
7.3 Any
warrant which has been executed or which has not been executed within one
calendar month of its issue shall be returned, if it was issued by the Bailiff
or a Jurat, to the appropriate officer of the court from which it was issued.
8 Search
Register
8.1 A
search register shall be maintained at the police station. All records which
are required to be made by this Code shall be made, copied, or referred to in
the register.
CODE C
A Code of Practice for the Detention,
Treatment and Questioning of Persons by Police officers
Meaning of Terms
Police Detention
A person is in police detention for the purposes of the Code
if he or she –
(a) has
been arrested and taken to a police station; or
(b) has
voluntarily attended at a police station and whilst there is arrested,
Note – A
person arrested for an offence is in police detention from the time the person
arrives at the police station, or if arrested at the police station from the
time of the person’s arrest, i.e. the time spent at the police station
prior to arrest is not police detention.
police station
References to a police station other than Rouge Bouillon police
station will include –
Summerland
Police Headquarters Building
Town police station
Western Sub-Station
Offices used by Police officers at the Airport
Offices used by Police officers at St. Helier Harbour
Offices used by Police officers at Gorey Harbour
Any other premises temporarily used by Police officers and approved
by the Chief Officer for that purpose.
Designated police station
Rouge Bouillon police station is the only designated police station
in Jersey.
Note –
Code C permits arrested persons to be taken to police stations other than the
designated one providing certain specific conditions apply.
1 General
1.1. All
persons in custody must be dealt with expeditiously, and released as soon as
the need for detention has ceased to apply. (See Note
1A)
1.1A A custody officer is
required to perform the functions specified in this Code as soon as is
practicable. A custody officer shall not be in breach of this Code in the event
of delay provided that the delay is justifiable and that every reasonable step
is taken to prevent unnecessary delay. The custody record shall indicate where
the delay has occurred and the reason why. (See note
1J)
1.2 This
Code of Practice must be readily available at all police stations for
consultation by police officers, detained persons and members of the public.
1.3 The
notes for guidance included are not provisions of this Code, but are guidance
to police officers and others about its application and interpretation.
Provisions in the Annexes to this Code are provisions of this Code.
1.4 If
an officer has any suspicion, or is told in good faith, that a person of any
age may be mentally disordered or mentally vulnerable, or mentally incapable of
understanding the significance of questions put to the person or his or her replies,
then that person shall be treated as a mentally disordered or mentally
vulnerable person for the purposes of this Code. (See
note 1I)
1.5 If
anyone appears to be under the age of 17 then he or she shall be treated as a
juvenile for the purposes of this Code in the absence of clear evidence that he
or she is older.
1.6 If
a person appears to be blind or seriously visually impaired, deaf or seriously
hearing impaired, unable to read or unable to communicate orally with the
officer dealing with him at the time, that person should be treated as such for
the purposes of this Code in the absence of clear evidence to the contrary.
1.7 In this
Code, “the appropriate adult” means –
(a) in
the case of a juvenile –
(i) the juvenile’s
parent or guardian (or, if the juvenile is in care, the care authority or
organisation);
(ii) a social worker,
Children’s Officer; Probation Officer; or
(iii) failing either of the
above, some other responsible adult of 18 years or over who is not a police
officer or employed by the police.
(b) in
the case of a person who is mentally disordered or mentally
vulnerable –
(i) a relative,
guardian or other person responsible for the person’s care or custody;
(ii) someone who has
experience of dealing with mentally disordered or mentally vulnerable persons
but is not a police officer or employed by the police; or
(iii) failing either of the
above, some other responsible adult of 18 years or over, who is not a police
officer or employed by the police. (See Note 1D)
1.8 Whenever
this Code requires a person to be given certain information the person does not
have to be given it if he or she is incapable at the time of understanding what
is said to him or her or is violent or likely to become violent or is in urgent
need of medical attention, but the person must be given it as soon as
practicable.
1.9 Any
reference to a custody officer in this Code includes an officer who is
performing the functions of a custody officer.
1.10 In its
application to persons who are in custody at police stations, this Code applies
whether or not they have been arrested for an offence, and to those who have
been removed to a police station as a place of safety under the Mental Health
(Jersey) Law 1969, except section 16 (review of detention) which applies solely
to persons in police detention, i.e. those brought to the police station under
arrest or arrested at a police station.
1.11 Persons in
police detention include persons taken to a police station after being arrested
under the Terrorism (Jersey) Law 2002.
1.12 This Code of
Practice (except for the provisions outlined under section 16 –
review of detention) will also apply to the following detained
persons –
(1) Persons
remanded by a Court into police custody, having been ordered to be bound over
to leave Jersey and awaiting transport from Jersey.
(2) Persons
arrested on execution of a Bailiff’s Warrant, on behalf of a police force
in England and Wales or on behalf of the District Judge sitting at Bow Street
awaiting transport from Jersey.
(3) Persons
arrested on execution of a Bailiff’s Warrant, on behalf of a police force
in Scotland awaiting transport from Jersey.
(4) Persons
brought to a police station from a court, for refreshments purposes only.
(5) Persons
brought to a police station and awaiting transport from Jersey under a
deportation order.
(6) Persons
detained by Immigration Officers pursuant to the Immigration Act 1971 as
extended by the Immigration (Jersey) Order 1993 and brought to a police
station.
1.13 Notwithstanding
the above paragraph 1.12 the provisions of this Code of Practice including section
16 will also apply to the following detained persons –
(1) Persons
brought to a police station under a permit issued under Article 16 Prison
(Jersey) Law 1957, for interview.
(2) Persons
remanded by a court into police custody, for a specified period of time, in
order to be questioned regarding further offences.
(3) Persons
detained by Custom Officers and brought to a police station to be accommodated
prior to interview / further interview.
Notes for Guidance
1A A
person arrested for an offence shall not be kept in police detention except in
accordance with the provisions of this Code.
If at any time a custody officer –
(a) becomes
aware, in relation to any person in police detention, that the grounds for the
detention of that person have ceased to apply; and
(b) is
not aware of any other grounds on which the continued detention of that person
could be justified under the provisions of this Code;
it is the duty of the custody officer to
arrange the person’s immediate release from custody.
1B Although
certain sections of this Code (e.g. section 9 - Treatment of Detained Persons)
apply specifically to persons in custody at police stations, those there
voluntarily to assist with an investigation should be treated with no less
consideration (e.g. offered refreshments at appropriate times) and enjoy an
absolute right to obtain legal advice or communicate with anyone outside the police
station.
1C This
Code does not affect the principle that in addition to their legal
responsibilities all citizens have a civic duty to help police officers to
prevent crime and discover offenders. Therefore when a police officer is trying
to discover whether, or by whom, an offence has been committed, the officer is
entitled to question any person from whom the officer thinks useful information can be
obtained, subject to the restrictions imposed by this Code. A person’s
declaration that he or she is unwilling to reply does not alter this
entitlement.
1D The
parent or guardian of a juvenile should be the appropriate adult unless he or
she is suspected of involvement in the offence, is the victim, is a witness, is
involved in the investigation or has received admissions prior to attending at
a police station to act as an appropriate adult. In such circumstances it will
be desirable for the appropriate adult to be some other person. If the parent
of a juvenile is estranged from the juvenile, that parent should not be asked
to act as the appropriate adult if the juvenile expressly and specifically
objects to his or her presence.
1E If
a juvenile admits an offence to, or in the presence of a social worker other
than during the time that the social worker is acting as the appropriate adult
for that juvenile, another social worker should be the appropriate adult in the
interests of fairness.
1F In
the case of persons who are mentally disordered or mentally vulnerable, it may
in certain circumstances be more satisfactory for all concerned if the
appropriate adult is someone who has experience or training in their care
rather than a relative lacking such qualifications. But if the person prefers a
relative to a better qualified stranger, or objects to a particular person as
the appropriate adult the person’s wishes should if practicable be
respected.
1G A
person should always be given the opportunity, when an appropriate adult is
called to a police station to consult privately with a legal adviser in the
absence of the appropriate adult if he or she wishes to do so.
1H A
legal adviser, who is present at the station in a professional capacity may not
act as the appropriate adult.
1I “Mentally
vulnerable” applies to any detainee, who, because of his or her mental
state or capacity, may not understand the significance of what is said or his
or her replies. “Mental disorder” is defined in the Mental Health
(Jersey)Law 1969 Article 1 as – “mental illness, arrested or
incomplete development of the mind and any other disability or disorder of the
mind.”
Where the custody officer has any doubt
about the mental capacity of a detainee, the detainee should be treated as
mentally vulnerable and an appropriate adult called.
1J Paragraph
1.1A is intended to cover the kinds of delays which may occur in the processing
of detained persons because, for example, a large number of suspects are
brought into the police station simultaneously to be placed in custody, or
interview rooms are all being used, or where there are difficulties in
contacting an appropriate adult, legal adviser or interpreter.
1K It
is important that the custody officer reminds the appropriate adult and the
detained person of the right to legal advice and records any reasons for
waiving it in accordance with section 6 of this Code.
2 Custody
Custody Officer
2.1 The
Custody Officer will be a Sergeant appointed to the role except –
(a) An
officer of the Force of any rank may perform the functions of a custody officer
if the custody officer is not readily available to perform them;
(b) Subject
to (d) and (e) below, none of the functions of a custody officer shall be
performed by an officer who, at the time when the function falls to be
performed, is involved in the investigation of an offence for which that person
is in police detention at that time.
(c) Nothing
in paragraph (b) above is to be taken to prevent a custody officer –
(i) performing any
function assigned to a custody officer by this or any other Code of Practice,
(ii) carrying out the
duty imposed on custody officers by this Code concerning the responsibilities of
a custody officer in relation to persons detained,
(iii) doing anything in
connection with the identification of a suspect, or
(iv) doing anything under
Article 16, as amended, of the Road Traffic (Jersey) Law 1956.
(d) Where
an arrested person is taken to a police station which is not a designated
police station, the functions in relation to the arrested person which would be
the functions of a custody officer will be performed by –
(i) an officer who is
not involved in the investigation, if such an officer is readily available; or
(ii) if no such
officer is readily available, by the officer who took the person to the police
station.
(e) Where
(d)(ii) above applies, that officer shall inform the Duty Officer at Rouge
Bouillon Station of the circumstances as soon as it is practicable to do so.
2.2
(a) Subject
to paragraph (b) below, it shall be the duty of the custody officer at a police
station to ensure –
(i) that all persons
in police detention at that station are treated in accordance with this Code, and
(ii) that all matters
relating to such persons which are required by this Code to be recorded, are
recorded in the custody records relating to such persons.
(b) If
the custody officer transfers or permits the transfer of any person in police
detention –
(i) to the custody of
a police officer investigating an offence for which that person is in police
detention, or
(ii) to the custody of
a person who has charge of that person outside the police station;
the custody officer shall cease to be subject to the duties imposed
upon that officer by this Code of Practice, and it shall be the duty of the
officer or person to whom the transfer is made, to ensure that the person
detained is treated in accordance with the provisions of this Code.
(c) If
the person detained is subsequently returned to the custody of the custody
officer, it shall be the duty of the officer investigating the offence to
report to the custody officer as to the manner in which the Code of Practice
has been complied with while the person was in custody.
2.3 Where
an officer of higher rank than the custody officer gives directions relating to
a person in police detention and the directions are at variance –
(a) with
any decision made or action taken by the custody officer in the performance of a
duty imposed by this Code; or
(b) with
any decision or action which should, but for the directions, have been made or
taken by him or her in the performance of such a duty,
the custody officer shall immediately refer the matter to an officer
of the rank of Chief Inspector or above.
Custody Records
2.4
(a) A
separate custody record must be opened as soon as practicable for each person
who is brought to a police station under arrest or arrested at the police
station having attended there voluntarily. All information which has to be
recorded under this Code must be recorded as soon as practicable in the custody
record, unless otherwise specified. Any audio or video recording made in the
custody area is not part of the custody record.
(b) In
the case of any action requiring the authority of an officer of a specified
rank, the officer’s name and rank must be noted in the custody record.
The recording of names does not apply to officers dealing with persons detained
under the Terrorism (Jersey)Law 2002. Instead, the record shall state a unique
electronic reference number.
(c) The
custody officer is responsible for the accuracy and completeness of the custody
record and for ensuring that an extract of the record or a copy of the record
accompanies a detained person if he or she is transferred to another police
station. The record shall show the time of and reason for transfer and the time
a person is released from detention.
(d) A
legal representative or an appropriate adult must be permitted to consult the
custody record as soon as practicable after his or her arrival at a police
station. When a person leaves police detention or is taken before a court, the
person’s legal representative or appropriate adult shall be supplied on
request with a copy of the custody record as soon as practicable. This
entitlement lasts for 12 months after the person’s release. The person
who has been detained, the appropriate adult, or legal representative who gives
reasonable notice of a request to inspect the original custody record after the
person has left police detention should be allowed to do so. A note of any such
inspection shall be made in the custody record.
(e) All
entries in custody records must be timed and signed by the maker. In the case
of a record entered on a computer this should be timed and contain the operator’s
identification. Computerised employee pay code numbers should be used rather
than names in the case of detention under the Terrorism (Jersey) Law 2002.
(f) The
fact and time of any refusal by a person to sign a custody record when asked to
do so in accordance with the provisions of this Code must itself be recorded.
Notes for Guidance
2A A
person who has been transferred to court is no longer in police detention, and
custody records will terminate on his or her transfer.
2B If
a person is remanded back into police custody by the court for the purpose of
questioning/interview/further enquiries, a new custody record in respect of
that person will be opened.
2C All
information and matters which are required to be recorded by this Code must be
recorded in the custody record unless otherwise specified. The fact and time of
any refusal by a person to sign a custody record when asked to do so in
accordance with the provisions of this Code, must itself be recorded.
3 Treatment
of Detained Persons
Initial Action
Detained Persons - Normal
Procedure
3.1 When
a person is brought to a police station under arrest, or is arrested at the police
station having attended there voluntarily and a decision is taken that the
person would not be permitted to leave the station if he or she sought to, the
custody officer must inform the person of the following rights and of the fact
that they are continuing rights which may be exercised at any stage during the
period in custody –
(a) the
right to have someone informed of his or her arrest in accordance with section
5;
(b) the
right to consult privately with a legal adviser in accordance with section 6;
and
(c) the
right to consult this and any other Codes of Practice currently in force.
3.2 The
custody officer must also give the detained person a written notice which sets
out the above three rights and the rights to have a copy of the custody record
in accordance with paragraph 2.3 The notice must also explain the arrangements
for obtaining legal advice and set out the detained person’s entitlements
while in custody. The custody officer shall ask the person to sign the custody
record to acknowledge receipt of these notices and any refusal to sign must be
recorded in the custody record. [See Note 3F] A
citizen of an independent Commonwealth country or a national of a foreign
country (including the Republic of Ireland) must be informed as soon as
practicable of his or her rights of communication with his or her High
Commission, Embassy or Consulate.
3.3 If
the custody officer authorises a person’s detention the officer must
inform the detained person of the grounds as soon as practicable and in any
case before that person is then questioned about any offence.
3.4 The
custody officer shall note on the custody record any comment the person may
make in relation to the arresting officer’s account but shall not invite
comment. If the custody officer authorises a person’s detention the
officer must inform the detained person of the grounds as soon as practicable
and in any case before that person is then questioned about any offence. The
custody officer shall note any comment the person may make in respect of the
decision to detain the person, but, again, shall not invite comment. The
custody officer shall not put specific questions to the person regarding his or
her involvement in any offence, nor in respect of any comments he or she may
make in response to the arresting officer’s account or the decision to
place the person in detention. Such an exchange is likely to constitute an
interview as defined by paragraph 11A and would require the associated
safeguards included in section 11. (See also paragraph 12.13 in respect of
unsolicited comments.)
3.5 The
person shall be asked to sign on the custody record to signify on the custody
record whether or not at this point he or she wishes to be afforded facilities
to consult a legal representative in private, either by telephone, in writing
or in person. The custody officer is responsible for ensuring that the person
signs the custody record in the correct place to give effect to his or her
decision. Where a private facility to consult a legal representative is
requested (and unless Annex B applies) the custody officer must act without
delay to secure the provision of such a facility to the person concerned. [See Note 3I]
3.6 If
video cameras are installed in the custody area, notices which indicate that
cameras are in use shall be prominently displayed. Any request by a detained
person or other person to have video cameras switched off shall be refused.
Detained Persons: Special
Groups
3.7 If
the person appears to be deaf or there is doubt about the person’s
hearing or speaking ability or ability to understand English, and the custody
officer cannot establish effective communication, the custody officer must as
soon as practicable call an interpreter and ask him or her to provide the
information required above.
3.8 If
the person is a juvenile, the custody officer must, if it is practicable,
ascertain the identity of a person responsible for the juvenile’s
welfare. That person, his or her parent or guardian or, if the juvenile is in
care, the care authority or voluntary organisation, or any other person who
has, for the time being, assumed responsibility for the juvenile’s
welfare, must be informed as soon as practicable that the juvenile has been
arrested, why he or she has been arrested and where he or she is detained. This
right is in addition to the juvenile’s right not to be held incommunicado.
[See Note 3C]
3.9 In
the case of a juvenile who is known to be subject to a supervision order,
reasonable steps must be taken to notify the person supervising the juvenile.
3.10 If the person
is a juvenile, is mentally vulnerable or is suffering from mental disorder then
the custody officer must as soon as practicable inform the appropriate adult of
the grounds for his or her detention and his or her whereabouts, and ask the
adult to come to the police station. When information is given to the person as
required in paragraphs 3.1 to 3.5, then the information must be given to the
detained person in his or her presence. If the appropriate adult is not at the police
station when the information is given then the information must be given to the
detained person again in the presence of the appropriate adult once that person
arrives.
3.11 It is
imperative that a mentally disordered or mentally vulnerable person who has
been detained under of the Mental Health (Jersey) Law 1969 shall be assessed as
soon as possible. If that assessment is to take place at the police station, a
suitably qualified medical practitioner shall be called to the police station
as soon as possible in order to interview and examine the person. Once the
person has been interviewed and examined and suitable arrangements have been
made for his or her treatment or care, the person can no longer be detained.
The person should not be released until he or she has been seen by a suitably
qualified medical practitioner
3.12 The person
should be advised by the custody officer that the appropriate adult (where
applicable) is there to assist and advise the person and that he or she can
consult privately with the appropriate adult at any time.
3.13 If, having
been informed of the right to be afforded facilities to consult a legal
representative in private under paragraph 3.10 above, either the appropriate
adult or the detained person considers that legal advice should be taken, then
the provisions of section 6 of this Code apply. (See
Note 3H)
3.14 If the person
is blind or seriously visually impaired or is unable to read, the custody
officer should ensure that the person’s legal representative, relative,
the appropriate adult or some other person likely to take an interest in him or
her is available to help in checking any documentation. Where this Code
requires written consent or signification, then the person who is assisting may
be asked to sign instead if the detained person so wishes.
Persons Attending at a police
station Voluntarily
3.15 Any person
attending at a police station voluntarily for the purpose of assisting with an
investigation may leave at will unless placed under arrest. If it is decided
that the person should not be allowed to do so then he or she must be informed
at once that he or she is under arrest and brought before the custody officer,
who is responsible for ensuring that the person is notified of his or her
rights in the same way as other detained persons. If the person is not placed
under arrest but is cautioned the officer who gives the caution must at the
same time inform the person that he or she is not under arrest, that he or she
is not obliged to remain at the police station but that if he or she remains at
the police station he may be afforded facilities to consult a legal
representative in private.
3.16 If a person
who is attending at the police station voluntarily (in accordance with
paragraph 3.15) asks about legal advice, the person should be given a copy of
the notice explaining the arrangements for being afforded facilities to consult
a legal representative in private. (See paragraph 3.2) Due regard should be
taken of Note 3I.
Documentation
3.17 The grounds
for a person’s detention shall be recorded, in his or her presence if
practicable.
3.18 Action taken
under Paragraphs 3.7 to 3.14 shall be recorded in the custody record.
Notes for Guidance
3A The
notice of entitlements is intended to provide detained persons with brief
details of their entitlements over and above the statutory rights which are set
out in the notice of rights. The notice of entitlements should list the
entitlements contained in this Code, including visits and contact with outside
parties (including special provisions for Commonwealth Citizens and foreign
nationals), reasonable standards of physical comfort, adequate food and drink,
access to toilets and washing facilities, clothing, medical attention, and
exercise where practicable. It should also mention the provisions relating to
the conduct of interviews, the circumstances in which an appropriate adult
should be available to assist the detained person and his or her statutory
rights to make representation whenever the period of his or her detention is reviewed.
3B In
addition to the notices in English, translations should be available in French,
the main ethnic languages and the principle European languages, whenever they
are likely to be helpful.
3C If
the juvenile is in the care of an authority or other organisation but is living
with his or her parents or other adults responsible for the juvenile’s
welfare, then, although there is no legal obligation on the police to inform
them, they as well as the authority or organisation should normally be
contacted unless suspected of involvement in the offence concerned. Even if a
juvenile in care is not living with his or her parents, consideration should be
given to informing them as well.
3D Section
7 of this Code contains special additional provisions for Commonwealth citizens
and foreign nationals.
3E The
right to consult the Codes of Practice under paragraph 3.1 above does not
entitle the person concerned to delay unreasonably necessary investigative or
administrative action while he or she does so. Procedures requiring the
provision of breath, blood or urine specimens under the terms of the Road
Traffic (Jersey) Law 1956 (as amended) need not be delayed.
3F When
the custody officer gives the person a copy of the notice referred to in
paragraph 3.2, the officer should if requested also give the person a copy of a
notice explaining the arrangements for being afforded facilities to consult a
legal representative in private.
3G Blind
or seriously visually impaired persons may be unwilling to sign police
documents. The alternative of their representative signing on their behalf
seeks to protect the interests of both police and detained persons and
suspects.
3H The
purpose of paragraph 3.13 is to protect the rights of a juvenile, mentally
disordered or mentally vulnerable person who may not understand the
significance of what is being said to him or her. If such a person wishes to
exercise the right to be afforded facilities to consult with a legal
representative in private the appropriate action should be taken straight away
and not delayed until the appropriate adult arrives.
3I In
seeking to provide facilities for a detained person to consult with a legal
representative in private the custody officer shall comply with any arrangements
put in place by the acting batonnier with regard to the provision of legal aid.
This may include not contacting the duty Advocate outside of office hours for
matters concerned with arrests for some types of offence.
4 Searches
of Detained Persons
Action
4.1 The
custody officer is responsible for –
(a) ascertaining –
(i) what property a
detained person has with him or her when he or she comes to the police station
(whether on arrest, re-detention on answering to bail, commitment to prison
custody on the order or sentence of a court, on lodgement at the police station
with a view to the person’s production in court from such custody, or on
arrival at a police station on transfer from detention at another station or
from hospital),
(ii) what property a
detained person might have acquired for an unlawful or harmful purpose while in
custody.
(b) the
safekeeping of any property which is taken from a detained person and which
remains at the police station. To these ends the custody officer may search the
person or authorise the person’s being searched to the extent that he or
she considers necessary (provided that a search of intimate parts of the body
or involving the removal of more than outer clothing may only be made in
accordance with Annex A to this Code). A search may only be carried out by an officer
of the same sex as the person searched. [See Note 4A]
4.2 A
detained person may retain clothing and personal effects at his or her own risk
unless the custody officer considers that the person may use them to cause harm
to himself or herself or others, interfere with evidence, damage property or
effect an escape or they are needed as evidence. In this event the custody
officer can withhold such articles as the officer considers necessary. If the
officer does so he or she must tell the person why.
4.3 Personal
effects are those items which a person may lawfully need to use or refer to
while in detention but do not include cash and other items of value.
Documentation
4.4 The
custody officer is responsible for recording all property brought to the police
station that a detained person had with him or her, or that were taken from the
detained person on arrest. The detained person shall be allowed to check and
sign the record of property as correct. Any refusal to sign shall be recorded.
4.5 If
a detained person is not allowed to keep any article of clothing or personal
effects the reason must be recorded.
Notes for Guidance
4A Paragraph
4.1 is not to be taken as requiring each detained person to be searched. Where
for example a person is to be detained for only a short period and is not to be
placed in a cell, the custody officer may at his or her discretion decide not
to search the person. In such a case the custody record will be endorsed
“not searched”, paragraph 4.4 will not apply, and the person will be
invited to sign the entry. Where the person detained refused to sign, the
custody officer will be obliged to ascertain what property he or she has on him
in accordance with paragraph 4.1.
4B Paragraph
4.4 does not require the custody officer to record on the custody record
property in the possession of the person on arrest, if by virtue of its nature,
quantity or size it is not practicable to remove it to the police station.
4C Paragraph
4.1 above is not to be taken as requiring that items of clothing worn by the
person be recorded unless withheld by the custody officer in accordance with
paragraph 4.2.
5 Right
to have someone informed when arrested
(Right not to be held incommunicado)
Action
5.1 Any
person arrested and held in custody at a police station or other premises may
on request have one person known to him or her or who is likely to take an
interest in his or her welfare informed at public expense as soon as
practicable of his or her whereabouts. If the person cannot be contacted the
person who has made the request may choose up to two alternatives. If they too
cannot be contacted the custody officer has discretion to allow further
attempts until the information has been conveyed. [See
Notes 5C and 5D]
5.2 The
exercise of the above right in respect of each of the persons nominated may be
delayed only in accordance with Annex B to this Code.
5.3 The
above right may be exercised on each occasion that a person is taken to another
police station.
5.4 The
person may receive visits at the custody officer’s discretion. [See Note 5B]
5.5 Where
an enquiry as to the whereabouts of the person is made by a friend, relative or
person with an interest in the person’s welfare, this information shall
be given, if the person agrees and if Annex B does not apply [See Note 5D]
5.6 The
person shall be supplied on request with writing materials. Any letter or other
message shall be sent as soon as practicable unless Annex B applies.
5.7 The
person is permitted to use the telephone once for a reasonable time to one person
unless Annex B applies. [See Note 5E]
5.8 Before
any letter or message is sent, or telephone call made, the person shall be
informed that what he or she says in any letter, call or message (other than in
the case of a communication to a legal adviser) may be read or listened to as
appropriate and may be given in evidence. In the case of a foreign national who
does not speak English, that person shall be advised that the call will be
monitored by an interpreter and may be given in evidence. A telephone call may
be terminated if it is being abused. The costs can be at public expense at the
discretion of the custody officer.
Documentation
5.9 A
record must be kept of –
(a) any
request made under this section and the action taken on it;
(b) any
letters or messages sent, or telephone calls made or visits received; and
(c) any
refusal on the part of a person to have information about himself or herself or
his or her whereabouts given to an outside enquirer. The person must be asked
to countersign the record accordingly and any refusal to sign should be
recorded.
Notes for Guidance
5A An
interpreter may make a telephone call or write a letter on the person’s
behalf.
5B In
the exercise of his or her discretion the custody officer should allow visits
where possible in the light of the availability of sufficient resources to
supervise a visit and any possible hindrance to the investigation.
5C If
the person does not know of anyone to contact for advice or support or cannot
contact a friend or relative, the custody officer should bear in mind any local
voluntary bodies or other organisations who might be able to offer help in such
cases. But if it is specifically legal advice that is wanted, then paragraph
6.1 below will apply.
5D In
some circumstances it may not be appropriate to use the telephone to disclose
information under paragraphs 5.1 and 5.5 above.
5E The
telephone call at paragraph 5.7 is in addition to any communication under
paragraphs 5.1 and 6.1.
6 Access
to Legal Advice
Action
6.1 CODE C –Access to Legal Advice
6.1 Subject
to paragraph 6.2, any person may be afforded facilities to (subject to
restrictions imposed by the acting batonnier) consult and communicate
privately, whether in person, in writing or on the telephone with a legal
representative [See Note 6B]
6.2 The
exercise of the above right to be afforded such facilities may be delayed only
in accordance with Annex B to this Code. Whenever access to facilities to
consult a legal representative has been requested (and unless Annex B applies)
the custody officer must act without delay to secure the provisions of such
advice to the person concerned.
6.3 A
poster advertising the right to be afforded facilities to consult a legal
representative in private must be prominently displayed in the charging area of
every police station. In addition to the poster in English a poster or posters
containing translations into French should be displayed, the main minority
languages and the principle European languages should be displayed wherever
they are likely to be helpful and it is practicable to do so.
6.4 No police
officer shall at any time do or say anything with the intention of dissuading a
person in detention from requesting that he or she be afforded the facilities
to consult a legal representative in private.
6.5 If,
on being informed or reminded of the right to be afforded facilities to consult
a legal representative in private at any time whether by telephone, in writing
or in person and the person declines, this shall be recorded on the custody
record or the interview record as appropriate. Reminders of the right to be
afforded such facilities must be given in accordance with paragraphs 3.5, 12.2,
16.8, 17.4 and 17.5 of this Code. [See Note 6C and paragraphs 3.20 and 6.3 of Code D]
6.6 A
person who asks to be afforded facilities to consult a legal representative in
private may not interviewed or continue to be interviewed until he or she has
been afforded such facilities unless –
(a) Annex
B applies; or
(b) an
officer of the rank of Chief Inspector or above has reasonable grounds for
believing that –
(i) delay will
involve an immediate risk of harm to persons or serious loss of, or damage to,
property, or
(ii) where a legal
representative, including a duty legal representative has been contacted and has
agreed to attend, awaiting the representative’s arrival would cause
unreasonable delay to the processes of investigation; or
(c) the
legal representative nominated by the person, or selected by the person from a
list –
(i) cannot be
contacted, or
(ii) has previously
indicated that he or she does not wish to be contacted, or
(iii) having been contacted,
has declined to attend,
and the person has been advised of the Duty Legal Representative
Scheme (if one is in operation) but has declined to ask for facilities to
consult the duty legal representative in private, or such facilities are
unavailable the interview may be started or continued without further delay
provided that an officer of the rank of Inspector or above has given agreement
for the interview to proceed in those circumstances [See
Note 6B] or the person who requested the facilities to consult a legal
representative changes his or her mind.
(d) In
these circumstances the interview may be started or continued without further
delay.
6.7 Where
paragraph 6.6(b)(i) applies, once sufficient information to avert the risk has
been obtained, questioning must cease until the person has been afforded
facilities to consult a legal representative in private or paragraphs 6.6(a),
(b)(ii), (c) or (d) apply.
6.8 Where
a person has consulted a legal representative who has indicated that he or she
has been instructed to be present at the interview and the legal representative
is available at the time the interview begins or is in progress, the person
must be allowed to have his or her legal representative present while he or she
is interviewed.
6.9 The
legal representative may only be required to leave the interview if his or her
conduct is such that the investigating officer is unable properly to put
questions to the suspect. [See Notes 6E and 6F]
6.10 If the
investigating officer considers that a legal representative is acting in such a
way, he or she will stop the interview and consult an officer not below the
rank of Chief Inspector, if one is readily available, and otherwise an officer
not below the rank of Inspector who is not connected with the investigation.
After speaking to the legal representative, the officer who has been consulted
will decide whether or not the interview should continue in the presence of
that legal representative. If he or she decides that it should not, the suspect
will be given the opportunity to consult another legal representative before
the interview continues and that legal representative will be given an opportunity
to be present at the interview.
6.11 The removal of
a legal representative from an interview is a serious step and if it occurs,
the officer who took the decision will consider whether the incident should be
reported to the Jersey Law Society. If the decision to remove the legal
representative has been taken by an officer below the rank of Chief Inspector,
the facts must be reported to an officer of Chief Inspector rank or above who
will similarly consider whether a report to the Jersey Law Society would be
appropriate.
6.12 If a legal
representative arrives at the station to see a particular person, that person
must (unless Annex B applies) be informed of the legal representative’s
arrival whether or not he or she is being interviewed and asked whether he or
she would like to see the representative. This applies even if the person
concerned has instructed a legal representative to be present at the interview
then subsequently agrees to be interviewed without the legal representative
being present. The legal representative’s attendance and the detained
person’s decision must be noted in the custody record.
Documentation
6.13 Any request to
be afforded facilities to consult a legal representative, in private and the
action taken on it shall be recorded.
6.14 If a person
has asked to be afforded facilities to consult a legal representative in
private and an interview is commenced without such facilities being afforded a
record shall be made in the interview record. If a legal representative attends
the interview and has subsequently been instructed to leave a record shall be
made in the interview record.
Notes for Guidance
6A In
considering whether paragraph 6.6(b)(ii) applies, the officer should where
practicable ask the legal representative for an estimate of the time that he or
she is likely to take in coming to the station, and relate this information to
the time for which detention is permitted, the time of day (i.e. whether the
period of rest required by paragraph 11.2 is imminent) and the requirements of
other investigations in progress. If it appears that it will be necessary to
begin an interview before the legal representative’s arrival the
representative should be given an indication of how long the police would be
able to wait before paragraphs 6.6 (b)(i) and (ii) apply so that he or she has
an opportunity to make arrangements for another legal representative to attend.
6B A
person who has been afforded the facility to consult a legal representative in
private may instruct his or her own legal representative (or one known to him
or her) or the duty legal representative if a Duty Legal Representative Scheme
is in operation. If the person cannot contact the legal representative of his or
her choice having been afforded the facilities to do so and the person does not
wish to be afforded the facilities to contact the duty legal representative,
the person should be afforded the facilities to consult another legal
representative of his or her choosing.
6C A
person requesting legal advice shall be informed that the Duty Legal
Representative Scheme operates between specified hours (as agreed by the Law
Society) other than in exceptional circumstances where the subject has been
arrested for a serious offence (for example, murder or rape). A copy of the specific hours will be
provided by the custody officer on request. The duty legal representative will
only be called with the authorisation of the duty Inspector or in his or her
absence, the custody officer. However, this does not prevent the person from
contacting his or her own legal representative between those times at his or
her own expense.
6D Procedures
undertaken under Articles 16 or 16A of the Road Traffic (Jersey) Law 1956 do
not constitute interviewing for the purposes of this Code.
6E The
legal representative’s only role in the police station is to protect and
advance the legal rights of his or her client. On occasions this may require
the legal representative to give advice which has the effect of his or her client
avoiding giving evidence which strengthens a prosecution case. The legal
representative may intervene in order to seek clarification or to challenge an
improper question to his or her client or the manner in which it is put, or to
advise his or her client not to reply to particular questions, or if the
representative wishes to give his or her client further legal advice. Paragraph
6.9 will only apply if the legal representative’s approach or conduct
prevents or unreasonably obstructs proper questions being put to the subject or
the suspect’s response being recorded. Examples of unacceptable conduct
include answering questions on a suspect’s behalf or providing written
replies for the suspect to quote.
6F In
a case where an officer takes the decision to exclude a legal representative, the
officer must be in a position to satisfy the Court that the decision was
properly made. In order to do this the officer may need to witness what is
happening personally.
6G If
an officer of at least the rank of Inspector considers that a particular legal
representative or a particular law firm is persistently sending representatives
who are unsuited to provide legal advice, the officer should inform an officer
of at least the rank of Chief Inspector, who may wish to take the matter up
with the Law Society.
6H Subject
to the constraints of Annex B, a legal representative may advise more than one
client in an investigation if he or she wishes. Any question of a conflict of
interest is for the legal representative under his or her professional code of
conduct. If, however, waiting for a legal representative to give advice to one
client may lead to unreasonable delay to the interview of another, the
provisions of paragraph 6.6(b) may
apply.
6I In
addition to the poster in English, a poster or posters containing translations
into French, the main minority ethnic languages and the principal European
languages should be displayed, wherever they are likely to be helpful and it is
practicable to do so.
6J Paragraph
6.6(d) requires the authorisation of an officer of the rank of Inspector or
above, to the continuation of an interview, where a person who wanted to be
afforded the facilities to consult a legal representative changes his or her mind.
It is permissible for such authorisation to be given over the telephone, if the
authorising officer is able to satisfy himself or herself as to the reason for
the person’s change of mind and is satisfied that it is proper to
continue the interview in those circumstances.
6K A
person is not obliged to give reasons for declining the facilities offered to
consult a legal representative and should not be pressed if he or she does not
wish to do so.
7 Additional
Rights of Citizens of Independent commonwealth Countries or Foreign Nationals
Action
7.1 A
citizen of an independent Commonwealth country or a national of a foreign
country (including the Republic of Ireland) may communicate at any time with
his or her High Commission, Embassy or Consulate. The person must be informed
of this right as soon as possible. The person must also be informed as soon as
practicable of his or her right, upon request to have his or her High
Commission, Embassy or Consulate told of his or her arrest and whereabouts and
the grounds for his or her detention. Such a request should be acted upon as
soon as practicable
7.2 If
a person who is detained is a citizen of an independent Commonwealth Country or
foreign country with which a consular convention or agreement is in force
requiring notification of arrest the appropriate High Commission, Embassy or Consulate
shall be contacted as soon as practicable, subject to paragraph 7.4 below.
7.3 Consular
officers may visit one of their nationals who is in police detention to talk to
that person and, if required, to arrange for legal advice. Such visits shall
take place out of the hearing of a police officer.
7.4 Notwithstanding
the provisions of consular conventions, where the person is a political refugee
(whether for reasons of race, nationality, political opinion or religion) or is
seeking political asylum, a consular officer shall not be informed of the
arrest of one of his or her nationals or given access to or information about that
person except at the person’s express request.
Documentation
7.5 A
record shall be made when a person is informed of his or her rights under this
section and of any communications with a High Commission, Embassy or Consulate.
Such communications may be made by telephone or facsimile.
Notes for Guidance
7A The
exercise of the rights in this section may not be interfered with even though
Annex B applies.
7B A
list of countries with which consular convention is in force is set out in
Annex F of Code C.
7C Where
any person is seeking political asylum as in paragraph 7.4 above, an officer of the Immigration
and Nationality Department should be notified as soon as practicable of the
request.
8 Conditions
of Detention
Action
8.1 So
far as is practicable, not more than one person shall be detained in each cell
nor shall any persons of the opposite sex be detained in the same cell.
8.2 Cells
in use must be adequately heated, cleaned and ventilated. They must be
adequately lit, subject to such dimming as is compatible with safety and
security to allow persons detained overnight to sleep. No additional restraints
should be used within a locked cell unless absolutely necessary, and then only
approved handcuffs. In the case of a mentally vulnerable person or mentally
disordered person, particular care must be taken when deciding whether to use
handcuffs. See Annex E paragraph 13.
8.3 Blankets,
mattresses, pillows and other bedding supplied should be of a reasonable
standard and in a clean and sanitary condition. [See
Note 8B]
8.4 Access
to a toilet and washing facilities must be provided.
8.5 If
it is necessary to remove a person’s clothing for the purposes of
investigation, for hygiene or health reasons or for cleaning, replacement
clothing of a reasonable standard of comfort and cleanliness shall be provided.
A person may not be interviewed unless adequate clothing has been offered to the
person.
8.6 At
least two light meals and one main meal shall be offered in any period of 24
hours. Whenever possible these meals should be at recognised meal times. Drinks
should be provided at meal times and upon reasonable request between mealtimes.
Whenever necessary, advice shall be sought from a suitably qualified medical
practitioner on medical or dietary matters. As far as practicable, meals
provided shall offer a varied diet and meet any special needs or religious
beliefs that the person may have. The person may also have meals supplied by
his or her family or friends at his or her or their own expense. [See Note 8B]
8.7 Brief
(outdoor) exercise shall be offered daily if practicable.
8.8 A
juvenile shall not be placed in a police cell unless no other secure
accommodation is available and the custody officer considers that it is not
practicable to supervise the juvenile if he or she is not placed in a cell or
the custody officer considers that a cell provides more comfortable
accommodation than other secure accommodation in the police station. A juvenile
may not be placed in a cell with a detained adult.
8.9 Reasonable
force may be used if necessary for the following purposes –
(i) to
secure compliance with reasonable instructions, including instructions given in
pursuance of the provisions of a Code of Practice; or
(ii) to
prevent escape, injury, damage to property or the destruction of evidence.
8.10 Persons
detained should be visited every hour, and those who are drunk at least every
half hour. A person who is drunk shall be roused and spoken to on each visit.
Should the custody officer feel in any way concerned about the person’s
condition, for example because the person fails to respond adequately when
roused then the officer shall arrange for medical treatment in accordance with
paragraph 9.2 of this Code.
Documentation
8.11 A record must
be kept of replacement clothing and meals offered.
8.12 If a juvenile
is placed in a cell, the reason must be recorded.
Notes for Guidance
8A Whenever
possible juveniles and other persons at risk should be visited more frequently.
8B The
provisions in paragraphs 8.3 and 8.6 respectively regarding bedding and a
varied diet are of particular importance in the case of someone detained under
the Terrorism (Jersey) Law 2002. This is because such a person may well remain
in police custody for some time.
9 General
9.1 If
a complaint is made by or on behalf of a detained person about the person’s
treatment since his or her arrest, or it comes to the notice of any officer
that the person may have been treated improperly, a report must be made as soon
as practicable to an officer of the rank of Inspector or above who is not
connected with the investigation. If the matter concerns a possible assault or
the possibility of the unnecessary or unreasonable use of force then a suitably
qualified medical practitioner must also be called as soon as practicable.
9.2 The
custody officer must immediately call a suitably qualified medical practitioner
(or, in urgent cases – for example where a person does not show signs
of sensibility or awareness – send the person to hospital) if a
person brought to a police station or already detained there –
(a) appears
to be suffering from physical or mental illness; or
(b) is
injured; or
(c) fails
to respond normally to questions or conversation (other than through
drunkenness alone); or
(d) otherwise
appears to need medical attention.
This applies even if the person makes no request for medical
attention and whether or not the person has recently had medical treatment
elsewhere (unless brought to the police station direct from the hospital). [See Note 9A]
9.3 If
it appears to the custody officer, or he or she is told, that a person brought
to the police station under arrest may be suffering from an infectious disease
of any significance the officer must take steps to isolate the person and his
or her property until the officer has obtained medical directions as to where
the person should be taken, whether fumigation should take place and what
precautions should be taken by officers who have been or will be in contact
with the person.
9.4 If
a detained person requests a medical examination a suitably qualified medical
practitioner must be called as soon as practicable. The person may in addition
be examined by a medical practitioner of his or her own choice at his or her own
expense.
9.5 If
a person is required to take or apply any medication in compliance with medical
directions but prescribed before the person’s detention, the custody
officer should consult a suitably qualified medical practitioner prior to the
use of the medication. The custody officer is responsible for the safekeeping
of any medication and for ensuring that the person is given the opportunity to
take or apply medication which the medical practitioner has approved. However
no police officer may administer medicines which are controlled drugs subject
to the Misuse of Drugs (Jersey) Law 1978 for this purpose. A person may administer
a controlled drug to himself or herself only under the personal supervision of
a suitably qualified medical practitioner. The requirement for personal
supervision will have been satisfied if the custody officer consults a suitably
qualified medical practitioner (this may be done by telephone) and both the
medical practitioner and the custody officer are satisfied that in all the
circumstances self administration of the controlled drug will not expose the
detained person, police officers or anyone to the risk of harm or injury. If so
satisfied the medical practitioner may authorise the custody officer to permit
the detained person to administer the controlled drug. If the custody officer
is in any doubt the medical practitioner should be asked to attend. Such
consultations in relation to the above must be noted in the custody record.
9.6 If
a detained person has in his or her possession or claims to need medication
relating to a heart condition, diabetes, epilepsy or a condition of a
comparable potential seriousness then, even though paragraph 9.2 may not apply,
the advice of a suitably qualified medical practitioner must be obtained.
Documentation
9.7 A
record must be made of any arrangements made for an examination by a suitably
qualified medical practitioner under paragraph 9.1 above and of any complaint
reported under that paragraph, together with any relevant remarks by the
custody officer.
9.8 A
record must be kept of any request for a medical examination under paragraph
9.4, of the arrangements for any examination made, and of any medical
directions to the police.
9.9 Subject
to the requirements of section 4 above the custody record shall include not
only a record of all medication that a detained person has in his or her possession
on arrival at the police station but also a note of any such medication the
person claims he or she needs but does not have with him or her.
Notes for Guidance
9A The
need to call a suitably qualified medical practitioner need not apply to minor
ailments, which do not need attention. However all such ailments or injuries
must be recorded in the custody record and any doubt must be resolved in favour
of calling a suitably qualified medical practitioner.
9B It
is important to remember that a person who appears to be drunk or behaving
abnormally may be suffering from illness or the effect of drugs, or may have
sustained injury (particularly head injury) which is not apparent and that
someone needing or addicted to certain drugs may experience harmful effects
within a short time of being deprived of their supply. Police should therefore
always call a suitably qualified medical practitioner when in any doubt, and
act with all due speed.
9C If
a medical practitioner does not record his or her clinical findings in the
custody record, the record must show where they are recorded.
9D All
officers dealing with detained persons are of course under a duty to observe
not only the above provisions but also those set out in the Police Discipline
Code.
9E In
all cases when the provisions of paragraph 9.5 occur, the official prisoner
medical form will be endorsed and attached to the custody record.
10 Cautions
10.1 When a police
officer is trying to discover whether, or by whom, an offence has been
committed, the officer is entitled to question any person, whether suspected or
not, from whom the officer thinks that useful information may be obtained. This
is so whether or not the person in question has been taken into custody so long
as the person has not been charged with the offence or informed that he or she may
be prosecuted for it.
10.2 As soon as a police
officer has evidence which would afford reasonable grounds for suspecting that
a person has committed an offence, the officer shall caution that person or
cause that person to be cautioned before putting to him or her any questions or
further questions, relating to that offence. The person therefore need not be cautioned
if questions are put for other purposes, for example, solely to establish the
person’s identity or his or
her ownership of any motor vehicle. The caution shall be in the following
terms:
“You are not obliged to say anything
unless you wish to do so, but what you say may be put into writing and given in
evidence.”
A person must be cautioned upon arrest for an offence
unless –
(a) it
is impractical to do so by reason of the person’s condition or behaviour;
or
(b) the
person has already been cautioned immediately prior to arrest in accordance
with paragraph 10.2 above.
When after being cautioned a person is being questioned, or elects
to make a statement, a record shall be kept of the time and place at which any
such questioning or statement began and ended and of the persons present.
10.3 Where a person
is charged with or informed that he or she may be prosecuted for an offence the
person shall be cautioned in the following terms –
“Do you wish to say anything? You are
not obliged to say anything unless you wish to do so but whatever you say will
be taken down in writing and may be given in evidence.”
10.4 It is only in
exceptional cases that questions relating to the offence should be put to the
accused person after he or she has been charged or informed that he or she may
be prosecuted. Such questions may be put where they are necessary for the
purpose of preventing or minimising harm or loss to some other person or to the
public or for clearing up an ambiguity in a previous answer or statement.
Before any such questions are put the accused should be cautioned in the
following terms –
“I wish to put some questions to you
about the offence with which you have been charged (or about the offence for
which you may be prosecuted). You are not obliged to answer any of these
questions, but if you do, the questions and answers will be taken down in
writing and may be given in evidence.”
· Where
a person is to be interviewed under caution and the interview is being recorded
on tape, any reference to taken down in writing etc., shall be altered to tape
recorded.
When such a person is being questioned, or elects to make a statement,
a record shall be kept of the time and place at which any questioning or
statement began and ended and of the persons present.
10.5 When there is
a break in questioning under caution the interviewing officer must ensure that
the person being questioned is aware that he or she remains under caution. If
there is any doubt the caution should be given again in full when the interview
resumes.
10.6 If a juvenile
or a person who is mentally vulnerable is cautioned in the absence of an
appropriate adult, the caution must be repeated in the adult’s presence.
10.7 A record shall
be made when a caution is given under this section, either in the officer’s
pocket book or in the interview record as appropriate.
Notes for Guidance
10A In
considering whether or not to caution again after a break, the officer should
bear in mind that he or she may have to satisfy a court that the person
understood that he or she was still under caution when the interview resumed.
10B It
is not necessary to repeat a caution when informing a person who is not under
arrest that he or she may be prosecuted for an offence.
10C If
it appears that a person does not understand what the caution means, the
officer who has given it should go on to explain it in his or her own words.
10D In
case anyone who is given a caution is unclear about its significance, the
officer concerned should explain that the caution is given in pursuance of the
general principle of Jersey law that a person need not answer any questions or
provide any information which might tend to incriminate the person, and that no
adverse inferences from this silence may be drawn at any trial that takes
place. The person should not, however, be left with a false impression that
non-co-operation will have no effect on his or her immediate treatment as, for
example, the person’s refusal to provide his or her name and address when
charged with an offence may render the person liable to detention.
11 Interviewing
and Questioning of Suspects
Action
11.1 If a police
officer wishes to interview, or conduct enquiries which require the presence of,
a detained person, the custody officer is responsible for deciding whether to
deliver the person into the police officer’s custody.
11.2 In any period
of 24 hours a detained person must be allowed a continuous period of at least 8
hours for rest, free from questioning, travel or any interruption arising out
of the investigation concerned. This period should normally be at night. The
period of rest may not be interrupted or delayed unless there are reasonable
grounds for believing that it would –
(i) involve
a risk of harm to persons or serious loss of, or damage to, property;
(ii) delay
unnecessarily the person’s release from custody; or
iii) otherwise
prejudice the outcome of the investigation.
If a person is arrested at a police station after going there
voluntarily, the period of 24 hours runs from the time of his or her arrest,
and not the time of the person’s arrival at the police station.
11.3 A detained
person may not be supplied with intoxicating liquor except on medical
directions. No person who is unfit through drink or drugs to the extent that he
or she is unable to appreciate the significance of questions put to him or her,
may be questioned about an alleged offence in that condition, except in
accordance with Annex C. [See Note 11C]
11.4 As far as
practicable interviews shall take place in interview rooms which must be
adequately heated, lit and ventilated.
11.5 Persons being
questioned or making statements shall not be required to stand.
11.6 Before the
commencement of an interview each interviewing officer shall identify himself or
herself and any other officers present by name and rank to the person being
interviewed, except in the case of persons detained under the Terrorism
(Jersey) Law 2002, when each officer shall identify himself or herself by his or
her unique electronic reference number.
11.7 Breaks from
interviewing shall be made at recognised meal times. Short breaks for
refreshment shall also be provided at intervals of approximately two hours,
subject to the interviewing officer’s discretion to delay a break if
there are reasonable grounds for believing it would –
(i) involve
a risk of harm to persons or serious loss of, or damage to, property;
(ii) delay
unnecessarily the person’s release from custody; or
(iii) otherwise
prejudice the outcome of the investigation.
11.8 If in the
course of the interview a complaint is made by the person being questioned, or
on the person’s behalf, concerning the provisions of this Code, then the
interviewing officer shall –
(i) record
it in the interviewing record; and
(ii) inform
the custody officer, who is then responsible for dealing with it in accordance
with section 9 of this Code.
Documentation
11.9 A record must
be made of the times at which a detained person is not in the custody of the
custody officer, and why, and of the reason for any refusal to deliver the
person out of that custody.
11.10 A record must be
made of any intoxicating liquor supplied to a detained person, in accordance
with paragraph 11.3 above.
11.11 Any decision to
delay a break in an interview must be recorded, with grounds, in the interview
record.
11.12 Where the person
interviewed is in the police station at the time that a written record of the
interview is made, the person shall be given the opportunity to read it and to
sign it as correct or to indicate the respects in which the person considers it
inaccurate, but no person shall be kept in custody for this sole purpose. If
the interview is tape recorded the arrangements set out in relevant Code of
Practice apply. [See Note 11B]
11.13 All written
statements made at police stations under caution shall be written on the forms
provided for the purpose.
11.14 Where the
appropriate adult or another third party is present at an interview and is
still in the police station at the time that a written record of the interview
is made, that person shall be asked to read it (or any written statement taken
down by a police officer) and sign it as correct or to indicate the respects in
which he or she considers it inaccurate. If the person refuses to read or sign
the record as accurate or to indicate the respects in which he or she considers
it inaccurate, the senior officer present shall record on the record itself, in
the presence of the person concerned, what has happened. If the interview is
tape recorded the arrangements set out in the relevant Code of Practice apply.
Notes for Guidance
11A An
interview is the questioning of a person regarding his or her involvement or
suspected involvement in a criminal offence or offences which by virtue of
paragraph 10.2 of this Code is required to be carried out under caution.
Procedures undertaken under Article 16 and 16A Road Traffic (Jersey) Law 1956
do not constitute interviewing for the purposes of this Code.
11B If
the interview has been contemporaneously recorded and the record signed by the
person interviewed in accordance with paragraph 11.12 above, or has been tape
recorded, it is normally unnecessary to ask for a written statement. Statements
under caution should normally be taken in these circumstances only at the
person’s express wish. An officer may, however, ask the person whether or
not he or she wants to make such a statement.
11C A
suitably qualified medical practitioner can give advice about whether or not a
person is fit to be interviewed in accordance with paragraph 11.3 above.
12 Interviews
General
12.1 Following a
decision to arrest a suspect, the suspect must not be interviewed about the
relevant offence except at a police station (or other authorised place of
detention) unless the consequent delay would be likely –
(a) to
lead to interference with or harm to evidence connected with an offence or
interference with or physical harm to other persons; or
(b) to
lead to the alerting of other persons suspected of having committed an offence
but not yet arrested for it; or
(c) to
hinder the recovery of property obtained in consequence of the commission of an
offence.
Interviewing in any of these circumstances should cease once the
relevant risk has been averted or the necessary questions have been put in
order to attempt to avert that risk. For the definition of an interview see Note 11A.
12.2 Immediately
prior to the commencement or recommencement of any interview at a police
station or other authorised place of detention, the interviewing officer should
remind the suspect of his or her entitlement to be afforded facilities to
consult a legal representative in private whether by telephone, in writing or
in person. It is the responsibility of the interviewing officer to ensure that
all such reminders are noted in the record of interview
12.3 No police
officer may try to obtain answers to questions or to elicit a statement by the
use of oppression or shall indicate, except in answer to a direct question,
what action will be taken on the part of the police if the person being
interviewed answers questions, makes a statement or refuses to do either. If
the person asks the officer directly what action will be taken in the event of the
person answering questions, making a statement or refusing to do either, then
the officer may inform the person what action the police propose to take in
that event provided that that action is itself proper and warranted.
12.4 As soon as a police
officer who is making enquiries of any person about an offence believes that a
prosecution should be brought against the person and that there is sufficient
evidence for it to succeed, the officer should ask the person if he or she has
anything further to say. If the person indicates that he or she has nothing
more to say the officer shall without delay cease to question the person about
that offence. This should not, however, be taken to prevent officers in revenue
cases or acting under the confiscation provision of the Drug Trafficking
Offences (Jersey) Law 1988 from inviting suspects to complete a formal question
and answer record after the interview is concluded.
12.5 An accurate
record must be made of each interview with a person suspected of an offence,
whether or not the interview takes place at a police station. The record must
state the place of the interview, the time it begins and ends, the time the
record is made (if different), any breaks in the interview, and the names of
all those present; and must be made on the forms provided for this purpose or
in the officer’s pocket notebook or in accordance with the Code of
Practice on the Tape Recording of Interviews with Suspects (Code E). The record
must be made during the course of the interview, unless in the investigating
officer’s view this would not be practicable or would interfere with the
conduct of the interview, and must constitute either a verbatim record of what
has been said or, failing this, an account of the interview which adequately
and accurately summarises it.
12.6 The
requirement to record the names of all those present at an interview does not
apply to police officers interviewing persons detained under the Terrorism
(Jersey) Law 2002. Instead the record shall state the computerised employee pay
code number and duty station of such officers.
12.7 If an
interview record is not made during the course of the interview it must be made
as soon as practicable after its completion.
12.8 Written
interview records must be timed and signed by the maker.
12.9 If an
interview record is not completed in the course of the interview the reason
must be recorded in the officer’s pocket notebook.
12.10 Unless it is
impracticable the person interviewed shall be given the opportunity to read the
interview record and to sign it as correct or to indicate the respects in which
he or she considers it inaccurate. If the interview is tape recorded the
arrangements set out in the relevant Code of Practice apply. If the person
concerned cannot read or refuses to read the record or sign it, the senior police
officer present shall read it over to the person and ask the person whether he or
she would like to sign it as correct (or make his or her mark) or to indicate
the respects in which he or she considers it inaccurate. The police officer
shall then certify on the interview record itself what has occurred.
12.11 If the appropriate
adult or the person’s legal representative is present during the
interview, that person should also be given an opportunity to read and sign the
interview record (or any written statement taken down by a police officer).
12.12 Any refusal by a
person to sign an interview record when asked to do so in accordance with the
provisions of this Code must itself be recorded.
12.13 A written record
should also be made of any comments made by a suspected person, including
unsolicited comments, which are outside the context of an interview but which
might be relevant to the offence. Any such record must be timed and signed by
the maker. Where practicable the person shall be given the opportunity to read
that record and to sign it as correct or to indicate the respects in which he or
she considers it inaccurate. Any refusal to sign should be recorded.
13 Persons
at Risk: Juveniles & those who are Mentally Disordered or Mentally
Vulnerable
13.1 A juvenile or
a person who is mentally disordered or mentally vulnerable, whether suspected
or not, must not be interviewed or asked to provide or sign a written statement
in the absence of the appropriate adult unless Annex C applies. If the person
is cautioned in the absence of the appropriate adult, the caution must be
repeated in the adult’s presence (unless the interview is by then already
finished).
13.2 If, having
been informed of the right to be afforded facilities to consult a legal
representative in private, the appropriate adult considers that these
facilities should be utilised, then the provisions of section 6 of this Code
apply.
13.3 Juveniles may
only be interviewed at their places of education in exceptional circumstances
and then only where the principal or his or her nominee agrees. Every effort
should be made to notify the parent(s) or other person responsible for the
juvenile’s welfare and the appropriate adult (if this is a different
person) that the police want to interview the juvenile and reasonable time
should be allowed to enable the appropriate adult to be present at the
interview. Where awaiting the appropriate adult would cause unreasonable delay
and unless the interviewee is suspected of an offence against the educational
establishment, the principal or his or her nominee can act as the appropriate
adult for the purposes of the interview.
Notes for Guidance
13A Where
the parents or guardians of a person at risk are themselves suspected of
involvement in the offence concerned, or are the victims of it, it is desirable
for the appropriate adult to be some other person.
13B It
is important to bear in mind that, although juveniles or persons who are
mentally disordered or mentally vulnerable are often capable of providing
reliable evidence, they may, without knowing or wishing to do so, be
particularly prone in certain circumstances, to provide information which is
unreliable, misleading or self-incriminating. Special care should therefore
always be exercised in questioning such a person, and the appropriate adult
involved, if there is any doubt about a person’s age, mental state or
capacity. Because of the risk of unreliable evidence it is also important to
obtain corroboration of any facts admitted whenever possible.
13C The
appropriate adult should be informed that he or she is not expected to act
simply as an observer. The purposes of the adult’s presence are, first to
advise the person being questioned and to observe whether or not the interview
is being conducted properly and fairly; and secondly, to facilitate
communication with the person being interviewed.
13D A
juvenile should not be arrested at his or her place of education unless this is
unavoidable. In this case the principal or his or her nominee must be informed.
14 Interpreters
Foreign Languages
14.1 Unless Annex C
applies, a person must not be interviewed in the absence of a person capable of
acting as an interpreter if –
(a) the
person has difficulty in understanding English;
(b) the
interviewing officer cannot personally speak the person’s own language;
and
(c) the
person wishes an interpreter to be present.
14.2 The
interviewing officer shall ensure that the interpreter makes a record of the
interview at the time in the language of the person being interviewed for use
in the event of his or her being called to give evidence, and certifies its
accuracy. The person shall be given an opportunity to read it, and sign it as
correct or to indicate the respects in which he or she considers it inaccurate.
If the person concerned cannot read or refuses to read the record or sign it,
the interpreter shall read it over to the person and ask the person whether he or
she would like to sign it as correct (or make his or her mark) or to indicate
the respects in which he or she considers it inaccurate. The interpreter shall
then certify on the interview record itself what has occurred. If the interview
is tape recorded the arrangement set out in the relevant Code of Practice
apply.
14.3 In the case of
a person making a statement in a language other than English –
(a) the
interpreter shall take down the statement in the language in which it is made;
(b) the
person making the statement shall be invited to sign it; and
(c) an
official English translation shall be made in due course.
The Deaf or Hard of
Hearing
14.4 If
a person is deaf or there is doubt about a person’s hearing ability, the
person must not be interviewed in the absence of an interpreter unless he or
she agrees in writing to be interviewed without one or paragraph 12.1 or
Annex C applies.
14.5 An interpreter
shall also be called if a juvenile is interviewed and the parent or guardian
present as the appropriate adult appears to be deaf or cannot speak English or
there is some doubt about the adult’s hearing or speaking ability, unless
he or she agrees in writing that the interview should proceed without one or
paragraph 12.1 or Annex C applies.
14.6 The
interviewing officer shall ensure that the interpreter makes a note of the
interview at the time for use in the event of his or her being called to give
evidence and certifies its accuracy. The person shall be given an opportunity
to read it and sign it as correct or to indicate the respects in which he or
she considers it inaccurate.
Additional Rules for
Detained Persons
14.7 All reasonable
attempts should be made to make clear to the detained person that interpreters
will be provided at public expense.
14.8 Where
paragraph 6.1 applies and the person concerned cannot communicate with the
legal representative, whether because of language or hearing difficulties, an
interpreter must be called. The interpreter may not be a police officer when
interpretation is needed for the purposes of obtaining legal advice. In all
other cases a police officer may only interpret if he or she first obtains the
detained person’s (or the appropriate adult’s) agreement in writing
or if the interview is tape recorded in accordance with the relevant Code of
Practice. [See Note 14B]
14.9 When a person
who has difficulty in understanding English is charged with an offence, and the
charging officer cannot personally speak the person’s language,
arrangements must also be made for an interpreter to explain as soon as
practicable the offence concerned and any other information given by the charge
officer.
Documentation
14.10 Action taken to
call an interpreter under this section and any agreement to be interviewed in
the absence of an interpreter must be recorded.
Notes for Guidance
14A If the interpreter is needed as a
prosecution witness at the person’s trial a second interpreter must act
as the court interpreter.
14B Where
an interpreter is used, in accordance with paragraph 14.8, the interpreter
should tell the legal representative whether there is a likelihood that he or
she may be used to interpret at the subsequent interview.. It maybe appropriate
that a different interpreter is used during the interview.
15 Questioning
Special Restrictions
15.1 If a person
has been arrested outside Jersey on behalf of the States of Jersey Police, no
questions may be put to the person about the offence while he or she is in
transit between the forces except in order to clarify any voluntary statement
made by the person.
15.2 If a person is
in police detention at a hospital the person may not be questioned without the
agreement of a responsible doctor. [See Note 15A]
Notes for Guidance
15A If
questioning takes place at a hospital under paragraph 15.2 (or on the way
to or from a hospital) the period concerned counts towards the total period of
detention.
16 Review
and Maximum Periods of Detention
Police Detention
16.1 A person who
has been arrested and taken to a police station or has voluntarily attended at
a police station and whilst there is arrested is in police detention.
Detention commencement
16.2 The period of
police detention commences as follows –
(a) in
the case of a person who attends a police station voluntarily and is
subsequently arrested at a police station: the period of 24 hours starts
from the time of the arrest, not the person’s time of arrival;
(b) in
the case of a person arrested and brought to a Police Station: the period of 24
hours starts from the person’s arrival at a police station.
Action
16.3 The review
officer is responsible under Article 38 of the Police Procedures and
Criminal Evidence (Jersey) Law 2003, or in terrorist cases under the Terrorism
(Jersey) Law 2002, for determining whether or not a person’s detention
continues to be necessary. In reaching a decision the officer shall provide an
opportunity to the detained person himself or herself to make representations
(unless the person is unfit to do so because of his or her condition or behaviour)
or to the detained person’s legal representative, or the appropriate
adult if available at the time. Other persons having an interest in the person’s
welfare may make representations at the review officer’s discretion.
16.3A Should a detained person
make representations to any officer, other than the review officer, these
representations should be recorded and the review officer notified as soon as
practicable.
Review Limits
16.4 An
officer not below the rank of Inspector will formally review the circumstances
of the detention of all persons held in custody without charge within 6 hours
of their detention. He or she will endorse the custody record and may authorise
further detention up to a maximum of 9 hours from the time of the review where
appropriate. Further reviews may be conducted by a review officer extending
periods of detention to a maximum of 24 hours from commencement of
detention. An Inspector may, in addition, informally review the circumstances
of the detention of all persons in custody at least once during their tour of
duty, endorsing the custody record.
16.5 The detention
of any person for a period in excess of 24 hours must be authorised by an
officer of the rank of Chief Inspector or above, and the custody record will be
endorsed to that effect. The officer conducting that review will endorse the
custody record and may authorise further detention up to a further 12 hours
from the time of the review. [See Note 16E]
16.6 * * * * *
Warrants of Further
Detention
16.7 * * * * *
Documentation
16.8 Before
conducting a review, the review officer must ensure that the detained person is
reminded of his or her entitlement to be afforded facilities to consult a legal
representative in private. It is the responsibility of the review officer to
ensure that all such reminders are noted in the custody record.
16.9 After hearing
any representations, the review officer or officer determining whether further
detention should be authorised shall note any comment the person may make if
the decision is to keep the person in detention. The officer shall not put
specific questions to the suspect regarding his or her involvement in any
offence, nor in respect of any comments the suspect may make in response to the
decision to keep him or her in detention. Such an exchange is likely to
constitute an interview as defined by paragraph 11A and would require the
associated safeguards.
16.10 The grounds for and
extent of any delay in conducting a review shall be recorded.
16.11 Any written
representations shall be retained.
16.12 A record shall be
made as soon as practicable of the outcome of each review.
Review after Charge
16.13 *
* * * *
16.14 Where the custody
officer believes that the original grounds for detention after charge has
ceased to exist and it does not appear to the officer that there are any other
grounds to justify that person’s further detention, the custody officer
shall contact the review officer and request that he or she review the person’s
detention.
16.15 * * * * *
Postponement of Reviews
16.16 An officer of the
rank of Chief Inspector or above may only authorise further detention where the
case being investigated is a serious offence and the officer believes that
further detention is necessary in order to secure or preserve evidence, or
obtain that evidence by questioning and that the investigation is being
conducted diligently and expeditiously. At the end of that period any further
detention must be authorised based on the same criteria.
Notes for Guidance
16A If
the detained person is likely to be asleep at the time when a review of
detention or an authorisation of continued detention may take place, the
appropriate officer should bring it forward so that the detained person may
make representation without being woken up. When a detained person is asleep
during a review, upon waking he or she shall be informed of the decision to
detain him or her and the reason for the decision.
16B *
* * * *
16C Reviews
of the detention of each person in police custody in connection with the investigation
of an offence shall be carried out periodically by the custody officer
regardless of the action of the Inspector or Chief Inspector.
16D The
review officer may refuse to hear oral representation from the person whose
detention is under review, if the officer considers that the person is unfit to make representation by reason
of his or her condition or behaviour.
16E If
in the circumstances the only practicable way of conducting a review is over
the telephone then this is permissible, provided that the requirements of this
Code of Practice or the Terrorism (Jersey) Law 2002 are observed.
16F For
classification of serious offences officers should refer to Schedule 1
Parts 1 and 2 of the Police Procedures and Criminal Evidence (Jersey) Law 2003.
* * * * *
17 Charging/Bailing
of Detained Persons
Action
17.1 When an officer
considers that there is sufficient evidence to prosecute a detained person, and
that there is sufficient evidence for a prosecution to succeed, and that the
person has said all that he or she wishes to say about the offence, the person
should without delay (and subject to the following qualification) be brought
before the custody officer who shall then be responsible for considering
whether or not there is sufficient evidence to provide a realistic prospect of
conviction. If the custody Sergeant is of the opinion that there is sufficient
evidence, he or she shall without delay arrange for the Connétable or a
Centenier to attend the police station. The Connétable or the Centenier
shall attend the police station as soon as reasonably practicable and shall be
responsible for considering whether the detainee should be charged. When a
person is detained in respect of more than one offence it is permissible to
delay bringing the person before the custody officer until the above conditions
are satisfied in respect of all the offences, (but see paragraph 12.4). Any
resulting action should be taken in the presence of the appropriate adult if
the person is a juvenile, or mentally disordered or mentally vulnerable. [See Note 17H]
17.2 When a
detained person is charged with, or informed that he or she will be prosecuted
for, an offence, the person shall be cautioned in the following
terms –
“Do you wish to say anything? You are
not obliged to say anything unless you wish to do so but whatever you say will
be taken down in writing and may be given in evidence.”
17.3 At the time a
person is charged he or she shall be given a written notice showing particulars
of the offence with which he or she is charged and including the name of the
officer in the case (or in terrorism cases, the officer’s computerised
employee pay code number) and the name and the Parish of the Connétable
or Centenier who charges the person. So far as possible the particulars of the
charge shall be stated in simple terms, but they shall also show the precise
offence in law with which the person is charged. The notice shall begin with
the following words –
“You are charged with the offence(s)
shown below. Do you wish to say anything? You are not obliged to say anything
unless you wish to do so, but whatever you say will be taken down in writing
and may be given in evidence.”
If the person is a juvenile or is mentally disordered or mentally
vulnerable the notice shall be given to the appropriate adult.
17.4 If at any time
after a person has been charged with or informed he or she may be prosecuted for an offence, a police
officer wishes to bring to the notice of that person any written statement made
by another person or the content of an interview with another person, who in
respect of the same offence has also been charged or informed that he or she may
be prosecuted, the officer shall hand to that person a true copy of any such
written statement or bring to his or her attention the content of the interview
record, but shall say or do nothing to invite any reply or comment save to
caution that person in the terms of paragraph 10.3 above and to remind that
person that he or she is entitled to be afforded facilities to consult a legal
representative in private, if he or she so requests. If the person cannot read
then the officer may read it to the person. If the person is a juvenile or
mentally disordered or mentally vulnerable the copy shall also be given to, or
the interview record brought to the attention of, the appropriate adult.
17.5 Questions
relating to an offence may not be put to a person after he or she has been
charged with that offence, or informed that he or she may be prosecuted for it,
unless they are necessary for the purpose of preventing or minimising harm or
loss to some other person or to the public or for clearing up an ambiguity in a
previous answer or statement. Before any such questions are put the person
shall be cautioned in the terms of paragraph 10.4 above to remind the
person that he or she is entitled to legal advice now that he or she has been
charged with an offence.
17.6 Where a
juvenile is charged with an offence and is not granted bail, or otherwise
released, the custody officer must try to make arrangements for the juvenile to
be taken into care to be detained pending appearance in court. [See Note 17F]
Documentation
17.7 Any entry
shall be made in the custody record of anything a detained person says when
charged at a police station.
17.8 Any questions
put after charge and answers given relating to the offence shall be
contemporaneously recorded in full and the record signed by that person or, if
he or she refuses, by the interviewing officer and any third parties present.
If the questions are tape-recorded the arrangements set out in the relevant Code
of Practice apply.
Bail
17.9 * * * * *
Notes for Guidance
17A * * * * *
17B * * * * *
17C * * * * *
17D * * * * *
17E Where
a person has been released without charge or on bail is arrested because new
evidence has come to light, a new detention period will commence.
17F Neither
a juvenile’s unruliness nor the nature of the offence with which he or
she is charged provides grounds for
the custody officer to retain the juvenile in police custody rather than seek
to arrange for his or her transfer into care.
17G
(a) If
the custody officer determines that there is before him or her sufficient
evidence for a charge to be preferred against the person arrested, for the
offence for which he was arrested, the relevant Connétable or Centenier
shall be invited to consider that the person arrested –
(i) shall
be charged; or
(ii) shall
be released without charge, with or without bail.
(b) Where
a person is released under Note 17G(a)(ii) above and at the time of the person’s
release a decision whether he or she should be prosecuted for the offence for
which he or she was arrested has not been taken, it shall be the duty of the
custody officer to so inform the person.
(c) If
the person arrested is not in a fit state to be dealt with under Note 17G(a)
above, the person may be kept in police detention until he or she is in a fit
state.
17H Where
a person is charged with an offence, he or she should be released from custody,
on bail or otherwise, unless –
(a) If
the person is not a juvenile –
(i) his
or her name or address cannot be ascertained, or there are reasonable grounds
for doubting whether a name or address furnished by the person is his or her real
name or address;
(ii) there
are reasonable grounds for believing that the detention of that person is
necessary for his or her own protection, or to prevent the person from causing
physical injury to any other person, or from causing loss of, or damage to,
property; or
(iii) there
are reasonable grounds for believing that the person arrested will fail to
appear in court to answer bail, or that his or her detention is necessary to
prevent the person from interfering with the administration of justice or with
the investigation of offences or of a particular offence;
(b) If
the person is an arrested juvenile –
(i) any
requirements of paragraph (a) above are satisfied; or
(ii) there
are reasonable grounds for believing that the juvenile ought to be detained in
his or her own interests.
17 I
(a) Where
a Connétable or Centenier is unavailable to charge a person in police
detention, an officer not below the rank of Inspector will authorise the
release of the person in police detention, without charge, unless the
provisions of paragraph 17H (a) or (b) above apply.
(b) Where
such person is further detained the custody officer will make a written record
of the grounds for detention in the custody record.
(c) The
written record shall be made in the presence of that person who will at the same
time be informed by the custody officer of the grounds.
(d) Paragraph
17I(c) will not apply where that person is, at that time –
(i) incapable
of understanding what is said to him or her;
(ii) violent,
or likely to become violent;
(iii) in
urgent need of medical attention.
17J
(a) Where
a person has been charged with an offence and he or she is not released from custody in
accordance with paragraph 17H or otherwise, or having been granted bail is
unable or unwilling to comply with it, the custody officer shall record in the
custody record the reason(s) for the persons continued detention.
(b) Where
a person’s detention is continued as at paragraph 17J, above, that
person shall be brought before a court as soon as practicable and in any event
not later than the first sitting after he or she is charged. Where it is not
practicable to bring that person before a court the same day –
(i) in
the case of an adult, he or she should be committed into the custody of the
States of Jersey Prison at La Moye pending his or her court appearance;
(ii) in
the case of a juvenile, he or she should be taken into care pending his or her court
appearance.
(c) *
* * * *
CODE C
– ANNEX A
Intimate
and Strip Searches
A. INTIMATE
SEARCH
1. An
intimate search is a search which consists of physical examination of a person’s
body orifices other than mouth.
Action
2. Body
orifices other than the mouth may be searched only if an officer of the rank of
Inspector or above has reasonable grounds for believing:
(a) that
an article which could cause physical injury to a detained person or others at
the police station has been concealed; or
(b) that
the person has concealed a controlled drug (as defined in the Misuse of Drugs
(Jersey) Law) 1978 which he or she intended to supply to another, or to export,
or has imported; and
(c) that
in either case an intimate search is the only practicable means of removing it.
The reasons why an intimate search is considered necessary shall be
explained to the person before the search takes place.
3. An
intimate search may only be carried out by a registered medical practitioner,
unless an officer of at least the rank of Inspector considers that this is not
practicable and the search is to take place under paragraph 2(a) above,
providing that –
(a) consent
has been obtained from the detained person; and
(b) consent
has been obtained from a person acting as an appropriate adult for a juvenile,
mentally disordered or mentally vulnerable person.
4. An
intimate search under paragraph 1 above may take place only at a hospital,
surgery, other medical premises or police station. An intimate search which is
only a drug offence search may not be carried out at a police station. If such
a search is to be conducted at a police station, the search will take place in
a room where CCTV recording is not in operation.
5. An
intimate search at a police station of a juvenile or a mentally disordered or
mentally vulnerable person may take place only in the presence of the
appropriate adult of the same sex. In the case of a juvenile, the search may
take place in the absence of the appropriate adult only if the juvenile
signifies in the presence of the appropriate adult that he or she prefers the
search to be done in the adult’s absence and the appropriate adult
agrees. A record shall be made of the juvenile’s decision and signed by
the appropriate adult.
6. Where
an intimate search under paragraph 2 above or a strip search is carried out by
a police officer, the officer must be of the same sex as the person searched.
No person of the opposite sex who is not a medical practitioner or nurse shall
be present, nor shall anyone whose presence is unnecessary but a minimum of two
people, other than the person being searched, must be present during the
search. The search shall be conducted with proper regard to the sensitivity and
vulnerability of the person in these circumstances.
Documentation
7. In
the case of an intimate search the custody officer shall as soon as practicable
record which parts of the person’s body were searched, who carried out
the search, who was present, the reasons for the search and its result.
8. If
an intimate search is carried out by a police officer, the reason why it is
impracticable for a suitably qualified person to conduct it must be recorded.
B. STRIP
SEARCH
9. A
strip search is a search involving the removal of more than outer clothing.
Action
10. A
strip search may take place only if the custody officer considers it to be
necessary to remove an article which the detained person would not be allowed
to keep, and the officer reasonably considers that the person might have
concealed such an article. Strip searches shall not be routinely carried out
where there is no reason to consider that articles have been concealed.
The conduct of strip
searches
11. The
following procedures shall be observed when strip searches are
conducted –
(a) a
police officer carrying out a strip search must be of the same sex as the
person searched;
(b) the
search shall take place in an area where the person being searched cannot be
seen by anyone who does not need to be present, nor by a member of the opposite
sex (except an appropriate adult who has been specifically requested by the
person being searched). No strip search will be conducted in a room where CCTV
recording is in operation;
(c) except
in cases of urgency, where there is a risk of serious harm to the person
detained or to others, whenever a strip search involves exposure of intimate
parts of the body, there must be at least two people present other than the
person searched, and if the search is of a juvenile or a mentally disordered or
mentally vulnerable person, one of the people must be the appropriate adult.
Except in urgent cases as above, a search of a juvenile may take place in the
absence of the appropriate adult only if the juvenile signifies in the presence
of the appropriate adult that he or she prefers the search to be done in the
adult’s absence and the appropriate adult agrees. A record shall be made
of the juvenile’s decision and signed by the appropriate adult. The
presence of more than two people, other than an appropriate adult, shall be
permitted only in the most exceptional circumstances;
(d) the
search shall be conducted with proper regard to the sensitivity and
vulnerability of the person in these circumstances and every reasonable effort
shall be made to secure the person’s co-operation and minimise
embarrassment. People who are searched should not normally be required to have
all their clothes removed at the same time, for example, a man shall be allowed
to put on his shirt before removing his trousers, and a woman shall be allowed
to put on her blouse and upper garments before further clothing is removed;
(e) where
necessary to assist the search, the person may be required to hold his or her
arms in the air or to stand with his or her legs apart and to bend forward so
that a visual examination may be made of the genital and anal area provided no
physical contact is made with any body orifice;
(f) if,
during a search, articles are found, the person shall be asked to hand them
over. If articles are found within any body orifice other than the mouth, and
the person refuses to hand them over, their removal would constitute an
intimate search, which must be carried out in accordance with the provisions of
Part A of this Annex;
(g) a
strip search shall be conducted as quickly as possible, and the person searched
allowed to dress as soon as the procedure is complete.
Documentation
12. A
record shall be made on the custody record of a strip search, including the
reason it was considered necessary to undertake it, those present and any
result.
CODE C
– ANNEX B
Delay
in Notifying Arrest
Persons Detained: General
Action
1. The
rights set out in sections 5 or 6 of the Code (or both) may be delayed if the person
is in police detention in connection with a serious offence, has not yet been
charged with an offence and an officer of the rank of Inspector or above, in
the case of the right to have someone informed and Chief Inspector or above in
the case of the right to be afforded facilities to consult a legal
representative in private, has reasonable grounds for believing that the
exercise of either right –
(i) will
lead to interference with or harm to evidence connected with a serious offence
or interference with or physical harm to other persons; or
(ii) will
lead to the alerting of other persons suspected of having committed such an
offence but not yet arrested for it; or
(iii) will
hinder the recovery of property obtained in consequence of the commission of
such an offence. [See Note B3]
2. These
rights may also be delayed where the offence is a drug trafficking offence and
the officer has reasonable ground for believing that the detained person has
benefited from drug trafficking, and that the recovery of the value of that
person’s proceeds of drug trafficking will be hindered by the exercise of
either right.
3. Access
to facilities to consult a legal representative in private may not be delayed
on the grounds that if legal advice is given a legal representative might
advise the person not to answer any questions or because the legal
representative has been instructed by someone else to attend the police
station, provided that the person himself or herself then wishes to see the
legal representative.
4. Subject
to paragraph 7 below, these rights may be delayed only for as long as is
necessary. If the above grounds cease to apply within this time, the person
must as soon as is practicable be asked if he or she wishes to exercise either
right and action must be taken in accordance with the relevant section of the
Code.
5. A
detained person who has been charged must be permitted to consult a legal
adviser for a reasonable time before any court hearing.
Documentation
6. The
grounds for action under this Annex shall be recorded and the person informed
of them as soon as practicable.
Persons
Detained under the Terrorism (Jersey) Law 2002.
Action
7. The
rights set out in sections 5 or 6 of this Code (or both) may be delayed if
paragraph 1 above applies or if an officer of the rank of Chief Inspector or
above has reasonable grounds for believing that the exercise of either
right –
(a) will
lead to interference with the gathering of information about the commission,
preparation or instigation of acts of terrorism; or
(a) by
alerting any person, will make it more difficult to prevent an act of terrorism
or to secure the apprehension, prosecution or conviction of any person in
connection with the commission, preparation or instigation of an act of
terrorism.
8. These
rights may be delayed only for as long as is necessary and in no case beyond 48
hours from the time of arrest. If the above grounds cease to apply within this
time, the person must as soon as practicable be asked if he or she wishes to
exercise either right and action must be taken in accordance with the relevant
section of this Code.
Documentation
9. Paragraph
6 above applies.
10. Any
reply given by a person under paragraph 8 above must be recorded and the person
asked to endorse the record in relation to whether he or she wishes to be
afforded facilities to consult a legal representative at this point.
Notes for Guidance
B1 Even
if Annex B applies in the case of a juvenile, or a person who is mentally
disordered or mentally vulnerable, action to inform the appropriate adult must
nevertheless be taken in accordance with paragraph 3.8 of the Code.
B2 In
the case of Commonwealth citizens and foreign nationals, see Note 7A.
B3 Police
detention is defined in the introduction to Code C.
B4 The
effect of paragraph 1 above is that the officer may authorise delaying access
to a specific legal representative only if he or she has reasonable grounds to
believe that that specific legal representative will, inadvertently or
otherwise, pass on a message from the detained person or act in some other way
which will lead to any of the three results in paragraph 1 coming about. In
these circumstances the officer should offer the detained person access to a
legal representative (who is not the specific legal representative referred to
above).
B5 The
fact that the grounds for delaying notification of arrest under paragraph 1
above may be satisfied does not automatically mean that the grounds for
delaying access to facilities to consult a legal representative will also be
satisfied.
CODE C
– ANNEX C
Vulnerable
Suspects Urgent Interviews
1. If,
and only if, an officer of the rank of Inspector or above considers that delay
will involve an immediate risk of harm to persons or serious loss of or serious
damage to property –
(a) a person
heavily under the influence of drinks or drugs may be interviewed in that
state; or
(b) an
arrested juvenile or a person who is mentally disordered or mentally vulnerable
may be interviewed in the absence of the appropriate adult; or
(c) a
person who has difficulty understanding English or who has a hearing disability
may be interviewed in the absence of an interpreter.
2. Questioning
in these circumstances may not continue once sufficient information to avert
the immediate risk has been obtained.
3. A
record shall be made of the grounds for any decision to interview a person
under paragraph 1 above.
Notes for Guidance
C1 The
special groups referred to in Annex C are all particularly vulnerable. The
provisions of the Annex, which override safeguards designed to protect them and
to minimise the risk of interviews producing unreliable evidence, should be
applied only in exceptional cases of need.
CODE C
– ANNEX D
Written
Statements Under Caution
1. All
written statements made after caution shall be taken in the following
manner:–
If a person says that he or she wants to make a statement the person
shall be told that it is intended to make a written record of what he or she
says. The person shall always be asked whether he or she wishes to write down
personally what he or she wants to say. If the person says that he or she
cannot write or that he or she would like someone to write it for him or her, a
police officer may offer to write the statement for the person. If the person
accepts the offer the police officer shall, before starting, ask the person
making the statement to sign, or make his or her mark to, the following:–
“I, ......................., wish to
make a statement. I want someone to write down what I say. I have been told
that I need not say anything unless I wish to do so and that whatever I say may
be given in evidence.”
2. Any
person writing his or her own statement shall be allowed to do so without any
prompting as distinct from indicating to the person what matters are material.
3. The
person making the statement, if he or she is going to write it personally,
shall be asked to write out and sign, before writing what he or she wants to
say, the following:–
“I make this statement of my own free
will. I have been told that I need not say anything unless I wish to do so and
that whatever I say may be given in evidence.”
4. Whenever
a police officer writes the statement, the officer shall take down the exact
words spoken by the person making the statement without putting any question
other than such as may be needed to make the statement coherent, intelligible
and relevant to the material matters; the officer shall not prompt the person.
5. When
the writing of a statement by a police officer is finished the person making it
shall be asked to read it and to make any corrections, alterations or additions
he wishes. When the person has finished reading it he or she shall be asked to
write and sign or make his or her mark on the following certificate at the end
of the statement:–
“I have read the above statement and
I have been told that I can correct, alter or add anything I wish. This
statement is true. I have made it of my own free will.”
6. If
the person who has made a statement refuses to read it or to write the above
mentioned certificate at the end of it or sign it, the senior police officer
present shall record on the statement itself and in the presence of the person
making it, what has happened. If the person making the statement cannot read,
or refuses to read it, the officer who has taken it down shall read it over to
the person and ask the person whether he or she would like to correct, alter or
add anything and to put his or her signature or make his or her mark at the
end. The police officer shall then certify on the statement itself what he or
she has done.
7. Persons
other than police officers charged with the duty of investigating offences or
charging offenders shall, so far as may be practicable, comply with these
rules.
8. If,
at any time a person has been charged with, or has been informed that he or she
may be prosecuted for an offence, a police officer wishes to bring to the
notice of that person any written statement made by another person who, in
respect of the same offence, has also been charged or informed that he or she
may be prosecuted, the officer shall hand to that person a true copy of such
written statement, but nothing shall be said or done to invite any reply or
comment. If that person says that he or she would like to make a statement in
reply, or starts to say something, that person shall at once be cautioned or
further cautioned as prescribed by 10.3 of this Code.
CODE C
– ANNEX E
Summary
of Provisions Relating to Mentally Disordered and Vulnerable Persons
1. If
an officer has any suspicion or is told in good faith that a person of any age,
whether or not in custody, may be mentally disordered or mentally vulnerable,
or cannot understand the significance of questions put to the person or his or
her replies, then the person shall be treated as a mentally disordered or
mentally vulnerable person (paragraph 1.4).
2. In
the case of a person who is mentally disordered or mentally vulnerable,
“the appropriate adult” means –
(a) a
relative, guardian or some other person responsible for his or her care or
custody;
(b) someone
who has experience of dealing with mentally disordered or mentally vulnerable
persons but is not a police officer or employed by the police; or
(c) failing
either of the above, some other responsible adult who is not a police officer
or employed by the police.
3. If
the custody officer authorises the detention of a person who is mentally
vulnerable or is suffering from a mental disorder the officer must as soon as
practicable inform the appropriate adult of the grounds for the person’s
detention and his or her whereabouts, and ask the adult to come to the police
station to see the person. If the appropriate adult is already at the police
station when information is given as required in paragraphs 3.1 to 3.5 the
information must be given to the detained person in his or her presence. If the
appropriate adult is not at the police station when the information is given
then the information must be given to the detained person again in the presence
of the appropriate adult once that person arrives. (paragraph 3.8)
4. If
the appropriate adult, having been informed of the right to be afforded
facilities to consult a legal representative in private, considers that this
right should be exercised, the provisions of section 6 of the code apply as if
the mentally disordered or mentally vulnerable person had requested access to
facilities to consult a legal representative in private. (paragraph 13.2)
5. If
a person brought to a police station appears to be suffering from a mental
disorder, or is incoherent other than through drunkenness alone, or if a
detained person subsequently appears to be mentally disordered, the custody
officer must immediately call a suitably qualified medical practitioner.
6. It
is imperative that a mentally disordered or mentally vulnerable person who has
been detained under the Mental Health (Jersey) Law 1969 should be assessed as
soon as possible. A suitably qualified medical practitioner shall be called to
the police station as soon as possible in order to examine the person. Once the
person has been examined and suitable arrangements have been made for his or
her treatment or care, the person can no longer be detained in police custody.
7. If
a mentally disordered or mentally vulnerable person is cautioned in the absence
of the appropriate adult, the caution must be repeated in the appropriate adult’s
presence.
8. A
mentally disordered or mentally vulnerable person must not be interviewed or
asked to provide or sign a written statement in the absence of the appropriate
adult unless an officer of the rank of Inspector or above considers that delay
will involve an immediate risk of harm to persons or serious loss or serious
damage to property. Questioning in these circumstances may not continue in the
absence of the appropriate adult once sufficient information to avert the risk
has been obtained. A record shall be made of the grounds for any decision to
begin an interview in these circumstances. (paragraph 13.1 and Annex C)
9. The
appropriate adult should be informed that he or she is not expected to act
simply as an observer. The purposes of the adult’s presence are, first,
to advise the person being interviewed and to observe whether or not the
interview is being conducted properly and fairly; and, secondly, to facilitate
communication with the person being interviewed. [See
Note 13C]
10. If
the detention of a mentally disordered or mentally vulnerable person is
reviewed by a review officer or a Chief Inspector, the appropriate adult must,
if available at the time, be given an opportunity to make representations to
the officer about the need for continuing detention. (paragraph 16.3, 16.3(a)
and 16.4)
11. Where
a mentally disordered or mentally vulnerable person is charged with an offence,
or such other action as is appropriate is taken when there is sufficient
evidence for a prosecution, this must be done in the presence of the
appropriate adult. The written notice embodying any charge must be given to the
appropriate adult. (paragraph 17.1 to 17.3)
12. An
intimate search of a mentally disordered or mentally vulnerable person may take
place only in the presence of the appropriate adult of the same sex. (Annex A,
paragraph 5)
13. Particular
care must be taken when deciding whether to use handcuffs to restrain a
mentally disordered or mentally vulnerable person in a locked cell. (See
paragraph 8.2)
Notes for Guidance
E1 In
the case of persons who are mentally disordered or mentally vulnerable, it may
in certain circumstances be more satisfactory for all concerned if the
appropriate adult is someone who has experience or training in their care
rather than a relative lacking such qualifications. But if the person himself or
herself prefers a relative to a better qualified stranger the person’s
wishes should if practicable be respected. (Note 1F)
E2 The
purpose of the provision at paragraph 3.13 is to protect the rights of a
mentally disordered or mentally vulnerable person who does not understand the
significance of what is being said to him or her. If the person wishes to
exercise the right to facilities to consult a legal representative in private,
the appropriate action should be taken and not delayed until the appropriate
adult arrives. [See Note 3H] A mentally disordered or mentally vulnerable
person should always be given an opportunity, when an appropriate adult is
called to the police station, to consult privately with a legal representative
in the absence of the appropriate adult if he or she wishes to do so.
E3 It
is important to bear in mind that although persons who are mentally disordered
or mentally vulnerable are often capable of providing reliable evidence, they
may, without knowing or wishing to do so, be particularly prone in certain
circumstances to provide information which is unreliable, misleading or
self-incriminating. Special care should therefore always be exercised in
questioning such a person and the appropriate adult involved, if there is any
doubt about a person’s mental state or capacity. Because of the risk of
unreliable evidence, it is important to obtain corroboration of any facts
admitted whenever possible. [Note 13B]
E4 Because
of the risks referred to in Note E1, which the presence of the appropriate
adult is intended to minimise, officers of the rank of Inspector or above
should exercise their discretion to authorise the commencement of an interview
in the adult’s absence only in exceptional cases, where it is necessary
to avert an immediate risk of serious harm. (Annex C, sub-paragraph 1(b) and
Note C1).
CODE C
– ANNEX F
Countries
with which Bilateral Consular Conventions or Agreements Requiring Notification
of the Arrest of their Nationals are in force, as of 1st January 1995
|
Armenia
|
Kyrgyzstan
|
|
Austria
|
Macedonia
|
|
Azerbaijan
|
Mexico
|
|
Belarus
|
Moldova
|
|
Belgium
|
Mongolia
|
|
Bosnia-Herzegovina
|
Norway
|
|
Bulgaria
|
Poland
|
|
China
|
Romania
|
|
Croatia
|
Russia
|
|
Cuba
|
Slovak Republic
|
|
Czech Republic
|
Slovenia
|
|
Denmark
|
Spain
|
|
Egypt
|
Sweden
|
|
France
|
Tajikistan
|
|
Georgia
|
Turkmenistan
|
|
German Federal Republic
|
Ukraine
|
|
Greece
|
USA
|
|
Hungry
|
Uzbekistan
|
|
Italy
|
Yugoslavia
|
|
Japan
|
|
|
Kazakhstan
|
|
CODE C
– ANNEX G
Fitness
to be Interviewed
1. This
Annex contains general guidance to help police officers and suitably qualified
medical practitioners assess whether a detainee might be at risk in an
interview.
2. A
detained person may be at risk in an interview if it is considered that:
(a) conducting
the interview could significantly harm the detainee’s physical or mental
state;
(b) anything
the detainee says in the interview about his or her involvement or suspected
involvement in the offence about which the detainee is being interviewed might
be considered unreliable in subsequent court proceedings because of his or her
physical or mental state.
3. In
assessing whether the detainee should be interviewed, the following must be
considered –
(a) how
the detainee’s physical or mental state might affect his or her ability
to understand the nature and purpose of the interview, to comprehend what is
being asked and to appreciate the significance of any answers given and make
rational decisions about whether he or she wants to say anything;
(b) the
extent to which the detainee’s replies may be affected by his or her
physical or mental condition rather than representing a rational and accurate
explanation of the detainee’s involvement in the offence;
(c) how
the nature of the interview, which could include particularly probing
questions, might affect the detainee.
4. It
is essential that suitably qualified medical practitioners who are consulted,
consider the functional ability of the detainee rather than simply relying on a
medical diagnosis, e.g. it is possible for a person with severe mental illness
to be fit for interview.
5. Suitably
qualified medical practitioners should advise on the need for an appropriate
adult to be present, whether reassessment of the person’s fitness for
interview may be necessary if the interview lasts beyond a specified time, and
whether a further specialist opinion may be required.
6. When
suitably qualified medical practitioners identify risks they should be asked to
quantify the risks. They should inform the custody officer:
· whether
the person’s condition:
– is
likely to improve
– require
or be amenable to treatment; and
· indicate
how long it may take for such improvement to take effect
7. The
role of the medical practitioner is to consider the risks and advise the
custody officer of the outcome of that consideration. The medical practitioner’s
determination and any advice or recommendations should be made in writing and
form part of the custody record.
8. Once
the medical practitioner has provided that information, it is a matter for the
custody officer to decide whether or not to allow the interview to go ahead and
if the interview is to proceed, to determine what safeguards are needed.
Nothing prevents safeguards being provided in addition to those required under
the Code. An example might be to have an appropriate health care professional
present during the interview, in addition to an appropriate adult, in order
constantly to monitor the person’s condition and how it is being affected
by the interview.
CODE C
– ANNEX H
Detained
Persons: Observation List
1. If
any detainee fails to meet any of the following criteria, a suitably qualified
medical practitioner or an ambulance must be called.
2. When
assessing the level of rousability, consider:
Rousability – can the detainee be woken?
· go
into the cell
· call
the person’s name
· shake
gently
Response to questions – can the detainee give appropriate
answers to questions such as:
· What’s
your name?
· Where
do you live?
· Where
do you think you are?
Response to commands – can the detainee respond
appropriately to commands such as:
· Open
your eyes!
· Lift
one arm, now the other arm!
3. Remember
to take into account the possibility or presence of other illnesses, injury, or
mental condition, a person who is drowsy and smells of alcohol may also have
the following:
· Diabetes
· Epilepsy
· Head
injury
· Drug
intoxication or overdose
· Stroke
CODE D
A Code of Practice for the Identification
of Persons by Police officers
1 Introduction
1.1 This
Code concerns the principal methods used by police for identifying persons in
connection with the investigation of offences and the keeping of accurate and
reliable criminal records.
1.2 Identification
by witnesses arises, for example, if the offender is seen committing the crime
and a witness is given an opportunity to identify the suspect in a video
identification, identification parade or similar procedure. The procedures are
designed to test the ability of the witness to identify the person he or she
saw on a previous occasion and to provide safeguards against mistaken
identification.
1.3 Identification
by fingerprints applies when a person’s fingerprints are taken to compare
with fingerprints found at the scene of a crime or to check and prove
convictions or help to ascertain a person’s identity.
1.4 Identification
by body samples and impressions includes when samples such as blood or hair are
taken to generate a DNA profile for comparison with material obtained from the
scene of a crime, or from a victim.
1.5 Taking
photographs of arrested persons provides for recording and checking identity
and locating and tracing persons who are wanted for offences or who fail to
answer their bail.
1.6 Another
method of identification involves searching and examining detained suspects to
find, for example, marks such as tattoos or scars which may help establish
their identity or whether they have been involved in committing an offence.
1.7 The
provisions of the Police Procedures and Criminal Evidence (Jersey) Law 2003 and
this Code are designed to ensure that fingerprints, samples, impressions and
photographs are taken, used and retained, and identification procedures carried
out, only when justified and necessary for the purpose of preventing, detecting
or investigating crime. If these provisions are not observed, the application
of the relevant procedures in particular cases may be drawn into question.
2 General
2.1 This
Code of Practice must be readily available at all police stations and Parish
Halls for consultation by police officers, detained persons and members of the
public.
2.2 The
notes for guidance included are not provisions of this Code, but are guidance
to police officers and others about its application and interpretation.
Provisions in the Annexes to the Code are provisions of this Code.
2.3 The
provisions of paragraph 1.4 of Code C (in respect of a person who may be
mentally disordered or otherwise mentally vulnerable) and the Notes for
Guidance applicable to those provisions shall also apply to this Code.
2.4 The
provisions of paragraph 1.5 of Code C (in respect of a person who appears to be
under the age of 17) shall also apply to this Code.
2.5 If
a person appears to be blind or seriously visually impaired, deaf, unable to
read, unable to speak or has difficulty orally because of a speech impediment
then, in the absence of clear evidence to the contrary, that person shall be
treated as such for the purposes of this Code.
2.6 In this
Code the term ‘appropriate adult’ has the same meaning as in
paragraph 1.7 of Code C.
2.7 Any
reference to a custody officer in this Code includes an officer who is
performing the functions of a custody officer.
2.8 Where
a record is made under this Code of any action requiring the authority of an
officer of a specified rank, subject to paragraph 2.3b of Code C, the officer’s
name and rank must be included in the record.
2.9 Subject
to paragraph 2.17, all records must be timed and signed by the maker.
2.10 In the case of
a detained person, records are to be made in the detained person’s
custody record unless otherwise specified. References to ‘pocket book’
in this Code include any official report book issued to police officers or
civilian support staff.
2.11 In the case of
any procedure requiring a person’s consent, the consent of a person who
is mentally disordered or otherwise mentally vulnerable is only valid if given
in the presence of the appropriate adult. In the case of a juvenile, the
consent of his or her parent or guardian is required as well as that of the
juvenile (unless the juvenile is under 14, in which case the consent of the
parent or guardian is sufficient in its own right). Where the only obstacle to
an identification procedure in section 3 of this Code is that the consent of a
juvenile’s parent or guardian is either refused or reasonable efforts to
obtain that consent have failed, the identification officer may proceed if he
or she considers that doing so is justified in all the circumstances. [See Note 2A]
2.12 In the case of
a person who is blind or seriously visually impaired or unable to read, the
custody officer, or identification officer in the case of identification
procedures for which that officer is responsible, shall ensure that the person’s
legal representative, relative, appropriate adult or some other person likely
to take an interest in the person (and not involved in the investigation) is
available to help in checking any documentation. Where this Code requires
written consent or signification, then the person who is assisting may be asked
to sign instead if the person he or she is assisting so wishes. [See Note 2B]
2.13 In the case of
any procedure requiring information to be given to or sought from a suspect, it
must be given or sought in the presence of the appropriate adult if the suspect
is mentally disordered, or otherwise mentally vulnerable or a juvenile. If the
appropriate adult is not present when the information is first given or sought,
the procedure must be repeated in the presence of the appropriate adult when he
or she arrives. If the suspect appears to be deaf or there is doubt about the
suspect’s hearing or speaking ability or ability to understand English,
and effective communication cannot be established, the information must be
given or sought through an interpreter.
2.14 Any procedure
in this Code involving the participation of a person (whether as a suspect or a
witness) who is mentally disordered, or otherwise mentally vulnerable or a
juvenile must take place in the presence of the appropriate adult, but the
adult must not be allowed to prompt any identification of a suspect by a
witness.
2.15 In this Code,
references to taking a photograph, include the use of any process by means of
which a single still visual image may be produced and references to
photographing a person shall be construed accordingly. References to
photographs, films, negatives and copies include relevant visual images
recorded, stored, or reproduced through any medium and references to
destruction include the deletion of computer data relating to such images or
making access to that data impossible.
2.16 Except as
described, nothing in this Code affects the powers and procedures –
(i) under
Article 16 or 16A of the Road Traffic (Jersey) Law 1956 requiring and taking
samples of breath, blood and urine in relation to offences of driving etc. when
under the influence of drink or drugs or with excess alcohol;
(ii) under
paragraph 18 of Schedule 2 to the Immigration Act 1971 as extended to
Jersey under the Immigration (Jersey) Order 1993, for taking photographs and fingerprints
from persons detained under paragraph 16 of Schedule 2 to the
Immigration Act 1971 (Administrative Controls as to Control on Entry etc.); for
taking fingerprints in accordance with sections 141 and 142(3) of the
Immigration and Asylum Act 1999 as extended to Jersey under the Immigration
(Jersey) Order 2003; or other methods for collecting information about a person’s
external physical characteristics provided for by regulations made under
section 144 of that Act;
(iii) under
paragraphs 2 or 11 of the Ninth Schedule to the Terrorism (Jersey) Law 2002 for
taking photographs, fingerprints, skin impressions, body samples or impressions
from persons arrested under Article 37 of the Terrorism (Jersey) Law 2002, or
detained for the purposes of examination under Schedule 8 to that Law. [See Note 2C]; or
2.17 Paragraphs 2.8
and 2.10 do not require the name of a police officer or approved person to be
shown on the custody record or any other record required to be made under this
Code in the case of enquiries linked to the investigation of terrorism or
otherwise where the officer or approved person reasonably believes that
recording his or her name might put the person in danger. In these cases, the
record shall state the warrant or other identification number and the police station
or Parish Hall of such persons.
2.18 Nothing in this
Code prevents the custody officer, or other officer given custody of the
detainee, from allowing civilian support staff to carry out individual
procedures or tasks at the police station where the law allows this. However,
the officer remains responsible for ensuring that the procedures and tasks are
carried out correctly in accordance with this and any other Code of Practice.
Any such civilian must, in the discharge of these duties, have regard to any
relevant provision of this and any other Code
Notes for Guidance
2A For
the purposes of paragraph 2.11 above, the consent required to be given by a
parent or guardian may, in the case of a juvenile in the care of the Childrens
Service or a voluntary organisation, be given by that authority or
organisation. In the case of a juvenile, nothing in paragraph 2.11
requires the parent or guardian or (as the case may be) representative of the
Childrens Service or voluntary
organisation to be present to give his or her consent unless he or she is
acting as the appropriate adult for the purposes of paragraph 2.13 or 2.14.
However, it is important that a parent or guardian who is not present is fully
informed before being asked to consent. The parent or guardian must be provided
with the same information about the procedure and the juvenile’s
suspected involvement in the offence as provided to the juvenile and
appropriate adult). The parent or guardian must also be allowed to speak to the
juvenile and the appropriate adult if he or she wishes. Provided that the
consent is fully informed and is not withdrawn, it may be obtained at any time
before the procedure takes place.
2B People
who are seriously visually impaired or unable to read may be unwilling to sign
police documents. The alternative of their representative signing on their
behalf seeks to protect the interests of both police and suspects. Paragraph 2.12
does not require an appropriate adult to be called to assist in checking and
signing documentation for a person who is not a juvenile, or mentally
disordered or otherwise mentally vulnerable. An appropriate adult should be
called only when required by virtue of paragraphs 2.3 or 2.4.
2C Photographs,
fingerprints, samples and impressions may be taken from a person detained under
the terrorism provisions to help determine whether he or she is or has been
involved in terrorism, as well as when there are reasonable grounds for
suspecting the person’s involvement in a particular offence.
2D The
reason why paragraph 2.17 extends beyond terrorism investigations is to protect
those involved in serious organised crime investigations or arrests of
particularly violent suspects when there is reliable information that those
arrested or their associates may threaten or cause harm to those involved. In
the cases of doubt, an officer of Inspector rank or above should be consulted.
3 Identification
by witnesses
3.1 A
record shall be made of the description of the suspect as first given by a
potential witness. This record must –
(a) be
made and kept in a form which enables details of that description to be
accurately produced from it in a visible and legible form which can be given to
the suspect or the suspect’s legal representative in accordance with this
Code; and
(b) where
practicable, be made before the witness takes part in any identification
procedure under this section of this Code.
A copy of the record shall be provided to the suspect or the suspect’s
legal representative before any procedures under paragraphs 3.5 to 3.12 of this
Code are carried out. [See Note 3E].
CASES WHERE THE IDENTITY OF THE SUSPECT IS NOT KNOWN
3.2 In
cases where the identity of the suspect is not known, a witness may be taken to
a particular neighbourhood or place to see whether he or she can identify the
person whom he or she saw. Although the number, age, sex, race and general
description and style of clothing of other people present at the location and
the way in which any identification is made cannot be controlled, the principles
applicable to the formal procedures under paragraphs 3.5 to 3.12 shall be
followed so far as is practicable in the circumstances. For
example –
(a) Before
asking the witness to make an identification, where practicable, a record shall
be made of any description given by the witness of the suspect in the form
described by paragraph 3.1(a).
(b) Care
should be taken not to direct the witness’s attention to any individual
unless, having regard to all the circumstances, this cannot be avoided.
However, this does not prevent a witness being asked to look carefully at the
people who are around at the time or to look towards a group or in a particular
direction if this appears to be necessary to ensure that the witness does not
overlook a possible suspect simply because the witness is looking in the
opposite direction and also to enable the witness to make comparisons between
any suspect and others who are in the area at the time. [See Note 3F]
(c) Where
there is more than one witness, every effort should be made to keep them
separate and where practicable, witnesses should be taken to see whether they
can identify a person independently.
(d) Once
there is sufficient information to justify the arrest of a particular
individual for suspected involvement in the offence, for example after a
witness makes a positive identification, the formal identification procedures
set out in paragraphs 3.5 to 3.12 below must be adopted for any other witnesses
in relation to that individual. Subject to paragraphs 3.14 and 3.15, it is not
necessary for the witness who makes such a positive identification to take part
in a further procedure.
(e) The
officer accompanying the witness shall make a record in his or her pocket book
of the action taken as soon as practicable and in as much detail as possible.
The record should include: the date, time and place of the relevant occasion
the witness claims to have previously seen the suspect; where any
identification was made; how it was made and the conditions at the time (for
example, the distance the witness was from the suspect, the weather and light);
if the witness’s attention was drawn to the suspect; the reason for this;
and anything said by the witness or the suspect about the identification or the
conduct of the procedure.
3.3 A witness
must not be shown photographs, computerised or artist’s composite
likenesses or similar likenesses or pictures (including “E-fit”
images) if the identity of the suspect is known to the police and the suspect
is available to take part in a video identification, an identification parade
or a group identification. If the identity of the suspect is not known, the
showing of such images to a witness to obtain identification evidence must be
done in accordance with Annex E.
CASES WHERE THE SUSPECT IS KNOWN AND AVAILABLE
3.4 In
a case where identification is disputed, and where the identity of the suspect
is known to the police and he or she is available, the following identification
procedures may be used. References in this section to a suspect being “known”
mean that there is sufficient information known to the police to justify the
arrest of a particular person for suspected involvement in the offence. A
suspect being “available” means that he or she is immediately
available and willing to take an effective part in at least one of a video
identification, an identification parade or a group identification (or at least
one of whichever of those options is practicable) or will become available
within a reasonably short time.
Video
identification
3.5 A
video identification is where the witness is shown moving images of a known
suspect together with similar images of other people who resemble the suspect.
3.6 Video
identifications must be carried out in accordance with Annex A.
Identification
parade
3.7 An
identification parade is where the witness sees the suspect in a line of other
people who resemble the suspect.
3.8 Identification
parades must be carried out in accordance with Annex B.
Group
identification
3.9 A
group identification is where the witness sees the suspect in an informal group
of people.
3.10 Group
identifications must be carried out in accordance with Annex C.
Confrontation
3.11 A
confrontation is where the suspect is directly confronted by the witness. This
procedure may be used when it is not possible to arrange a video
identification, identification parade, or group identification.
3.12 Confrontations
must be carried out in accordance with Annex D.
Arranging
identification procedures
3.13 Except as
provided for in paragraph 3.22 below, the arrangements for, and conduct of
these types of identification procedures shall be the responsibility of an
officer not below the rank of Inspector who is not involved with the
investigation (“the identification officer”) other than for the
purposes of these procedures. No officer or any other person involved with the
investigation of the case against the suspect, beyond the extent required by
these procedures, may take any part in these procedures or act as the
identification officer. This does not prevent the identification officer from
consulting the officer in charge of the investigation in order to determine
which procedure to use.
Circumstances
in which an identification procedure must be held
3.14 Whenever –
(i) a
witness has identified a suspect or purported to have identified a suspect
prior to any identification procedure set out in paragraphs 3.5 to 3.10 having
been held; or
(ii) there
is a witness available, who expresses an ability to identify the suspect, or
where there is a reasonable chance of the witness being able to do so, and the
witness has not been given an opportunity to identify the suspect in any of the
procedures set out in paragraphs 3.5 to 3.10,
and the suspect disputes being the person the witness claims to have
seen, an identification procedure shall be held unless it is not practicable or
it would serve no useful purpose in proving or disproving whether the suspect
was involved in committing the offence. For example, when it is not disputed
that the suspect is already well known to the witness who claims to have seen
the suspect commit the crime.
3.15 Such a
procedure may also be held if the officer in charge of the investigation
considers that it would be useful. When an identification procedure is required
to be held, in the interests of fairness to suspects and witnesses, it must be
held as soon as practicable.
Selecting
an identification procedure
3.16 If, as a
consequence of paragraph 3.14, it is proposed to hold an identification
procedure, the suspect shall initially be offered a video identification unless –
(a) a
video identification is not practicable;
(b) an
identification parade is both practicable and more suitable than a video identification;
or
(c) paragraph
3.18 applies.
The identification officer and the officer in charge of the
investigation shall consult each other to determine which option should be
offered. An identification parade may not be practicable because of factors
relating to the witnesses such as their number, state of health, availability
and travelling requirements. A video identification would normally be more
suitable if, in a particular case, it could be arranged and completed sooner
than an identification parade.
3.17 A suspect who
refuses the identification procedure which is first offered shall be asked to
state his or her reason for refusing and may obtain advice from his or her legal
representative if present (and/or appropriate adult, if one is required) The
suspect, legal representative (and/or appropriate adult) shall be allowed to
make representations as to why another procedure should be used. A record shall
be made of the reasons for the suspect’s refusal and of any
representations made. After considering any reasons given and representations
made the identification officer shall, if appropriate, arrange for the suspect
to be offered an alternative which the officer considers is suitable and
practicable in that particular case. If the officer decides that it is not
suitable and practicable to offer an alternative identification procedure, the
reasons for that decision shall be recorded.
3.18 A group
identification may initially be offered where the officer in charge of the
investigation considers that in the particular circumstances it is more
suitable than a video identification or an identification parade and the
identification officer considers it is practicable to arrange.
3.19 If none of the
options referred to above are practicable, the identification officer may
arrange for the suspect to be confronted by the witness. A confrontation does
not require the suspect’s consent.
Notice
to suspect
3.20 Unless
paragraph 3.23 applies, before a video identification, an identification
parade or group identification is arranged the following shall be explained to
the suspect –
(i) the
purposes of the video identification or identification parade or group
identification;
(ii) the
suspect’s entitlement to be afforded facilities to consult a legal
representative in private; (see paragraph 6.1 of Code C)
(iii) the
procedures for holding it (including the suspect’s right to have a friend
present);
(iv) that
the suspect does not have to take part in a video identification,
identification parade or group identification;
(v) whether,
for the purposes of the video identification procedure, images of the suspect
have previously been obtained (see paragraph 3.23) and if so, that he or
she may co-operate in providing further suitable images which shall be used in
place of those previously taken;
(vi) where
appropriate the special arrangements for juveniles;
(vii) where
appropriate the special arrangements for mentally disordered or otherwise
mentally vulnerable people;
(viii) that if the
suspect does not consent to, and take part in, a video identification,
identification parade or group identification, the suspect’s refusal may
be given in evidence in any subsequent trial and the police may proceed
covertly without the suspect’s consent or make other arrangements to test
whether a witness can identify the suspect (see paragraph 3.24);
(ix) that
if the suspect should significantly alter his or her appearance between being
offered an identification procedure and any attempt to hold an identification
procedure, this may be given in evidence if the case comes to trial, and the
identification officer may then consider other forms of identification (see
paragraph 3.24 and Note 3C);
(x) that
a moving image or photograph may be taken of the suspect when he or she attends
for any identification procedure;
(xi) whether
before the identity of the suspect became known the witness had been shown
photographs by the police, or had been shown by the police or provided to the
police a computerised or artist’s composite likeness or similar likeness
or image; [See Note 3B]
(xii) that if
the suspect changes his or her appearance before a identification parade it may
not be practicable to arrange one on the day in question or subsequently and,
because of the change of appearance, the identification officer may then
consider alternative methods of identification; [See
Note 3C]
(xiii) that the
suspect or his or her legal representative (if in attendance) will be provided
with details of the description of the suspect as first given by any witnesses
who are to attend the video identification, identification parade, group
identification or confrontation.
3.21 This
information must also be contained in a written notice which must be handed to
the suspect. The suspect must be given a reasonable opportunity to read the
notice, after which he or she shall be asked to sign a second copy of the
notice to indicate whether or not he or she is willing to co-operate with the
making of a video or take part in the identification parade or group
identification. The signed copy shall be retained by the identification
officer.
3.22 The duties of
the identification officer under paragraphs 3.20 and 3.21 may be performed by
the custody officer or any other officer not involved in the investigation of the
case against the suspect if –
(a) it
is proposed to hold an identification procedure at a later date (for example if
the suspect is to be bailed to attend an identification parade); and
(b) an
Inspector is not available to act as the identification officer before the suspect
leaves the station where he or she is detained.
The officer concerned shall inform the identification officer of the
action taken and give that officer the signed copy of the notice. [See Note 3C]
3.23 If the
identification officer and the officer in charge of the investigation have
reasonable grounds to suspect that if the suspect was given the information and
notice in accordance with paragraphs 3.20 and 3.21, the suspect would
thereafter take steps to avoid being seen by a witness in any identification
procedure which it would otherwise be practicable to arrange, the
identification officer has discretion to arrange for images of the suspect to
be obtained for use in a video identification procedure before the information
and notice in paragraphs 3.20 and 3.21 is given. If images of the suspect are
obtained in these circumstances, the suspect may, for the purposes of a video
identification procedure, co-operate in providing suitable images which shall
be used in place of those previously taken (see paragraph 3.20(v)).
CASES WHERE THE SUSPECT IS KNOWN BUT IS NOT AVAILABLE
3.24 Where a known
suspect is not available or has ceased to be available for any reason (see
paragraph 3.4), the identification officer has discretion to make arrangements
for a video identification to be conducted. Also, and only in circumstances
where the suspect is known but not available, the identification officer may
conduct an identification procedure following the relevant requirements of
Annex A but using still images. Any moving or still images required in these
circumstances may be obtained covertly if necessary. Alternatively the
identification officer has discretion to make arrangements for a covert group
identification.
3.25 Any covert
activity should be strictly limited to that which is necessary to obtain
identification of the suspect.
3.26 Requirements
for information to be given to, or sought from, a suspect or for the suspect to
be given the opportunity to view images before they are shown to a witness, do
not apply if the suspect’s lack of co-operation prevents the necessary
action.
Documentation
3.27 A record shall
be made of the video identification, identification parade, group
identification or confrontation on forms provided for the purpose.
3.28 If the identification
officer considers that it is not practicable to hold a video identification or
identification parade when either is requested by the suspect, the reasons
shall be recorded and explained to the suspect.
3.29 A record shall
be made of a person’s failure or refusal to co-operate in a video
identification, identification parade or group identification and, if
applicable, of the grounds for obtaining images in accordance with paragraph
3.23.
SHOWING FILMS AND PHOTOGRAPHS OF INCIDENTS AND INFORMATION RELEASED
TO THE MEDIA
3.30 Nothing in this
Code inhibits the showing of videos or photographs to the public at large
through the national or local media, or to police officers for the purposes of
recognition and tracing suspects. However when such material is shown to
potential witnesses (including police officers) [see
Note 3A] for the purpose of obtaining identification evidence, it shall
be shown on an individual basis so as to avoid any possibility of collusion,
and the showing shall, as far as possible, follow the principles for video
identification if the suspect is known (see Annex A) or identification by
photographs if the suspect is not known (see Annex E).
3.31 Where a
broadcast or publication is made, as in paragraph 3.30, a copy of the relevant
material released by the police to the media for the purposes of recognising or
tracing the suspect shall be kept and the suspect or his or her legal
representative (if in attendance) shall be allowed to view such material before
any procedures under paragraphs 3.5 to 3.12 of this Code are carried out
provided it is practicable to do so and would not unreasonably delay the
investigation. Each witness who is involved in the procedure shall be asked
after he or she has taken part whether he or she has seen any broadcast or
published films or photographs relating to the offence or seen any description
of any person suspected of the offence and his or her replies shall be recorded.
PHOTOGRAPHS
3.32 The photograph
of a person who has been arrested may be taken at a police station only with
his or her written consent. In which case the person must be informed of the
reason for taking it and that the photograph will be destroyed if paragraph
3.35 applies. The person must be told that should he or she significantly alter
his or her appearance between the taking of the photograph and any attempt to
hold an identification procedure this may be given in evidence if the case goes
to court. The person must be told that he or she may witness the destruction of
the photograph or be provided with a certificate confirming its destruction if
he or she applies within five days of being cleared or informed that he or she will
not be prosecuted.
3.33 * * * * *
3.34 Subject to
paragraph 3.36, the photographs (and all negatives and copies) of suspects not
detained and any moving images (and copies) of suspects, where or not they have
been detained, which are taken for the purposes of or in connection with the
identification procedures in paragraphs 3.5 to 3.11 must be destroyed
unless the suspect –
(a) is
charged with, or informed that he or she may be prosecuted for, a recordable
offence;
(b) is
prosecuted for a recordable offence;
(c) is
cautioned for a recordable offence or given a warning for a recordable offence;
or
(d) gives
informed consent, in writing, for photographs or images to be retained for the
purposes described in paragraph 3.33.
3.35 When
paragraph 3.34 requires the destruction of any photograph or images, the
person must be given the opportunity to witness the destruction or to have a
certificate confirming the destruction if he or she requests one within 5 days
of being informed that the destruction is required.
Nothing in paragraph 3.34 affects any separate requirement to
retain unused material in connection with criminal investigations.
DESTRUCTION AND RETENTION OF
PHOTOGRAPHS AND IMAGES TAKEN OR USED IN IDENTIFICATION PROCEDURES
3.36 Where a person’s
photograph has been taken in accordance with this section the photograph,
negatives and all copies taken in that particular case must be destroyed if he
or she is prosecuted for the offence and cleared unless he or she has a
previous conviction for a relevant offence. An opportunity of witnessing the
destruction, or a certificate confirming the destruction must be given to the
person if he or she so requests, provided that, in accordance with paragraph
3.32, the person applies within five days of being cleared or informed that he or
she will not be prosecuted.
DOCUMENTATION
3.37 * * * * *
Notes for Guidance
3A Except for the
provisions of Annex E paragraph 1, a police officer who is a witness for the
purposes of this part of the Code is subject to the same principles and
procedures as a civilian witness.
3B Where
a witness attending an identification procedure has previously been shown
photographs, or been shown or provided computerised or artist’s composite
likenesses, or similar likenesses or pictures, it is the responsibility of the
officer in charge of the investigation to make the identification officer aware
that this is the case.
3C The
purpose of paragraph 3.22 is to avoid or reduce delay in arranging identification
procedures by enabling the required information and warnings (see paragraphs
3.20(ix) and 3.20(xii)) to be given at the earliest opportunity.
3D Paragraph
3.24 would apply where a known suspect deliberately makes himself or herself ‘unavailable’
in order to delay or frustrate arrangements being made for obtaining
identification evidence. It enables any suitable images of the suspect (moving
or still) which are available or can be obtained to be used in an
identification procedure.
3E Where
it is proposed to show photographs to a witness in accordance with Annex E,
it is the responsibility of the officer in charge of the investigation to
confirm to the officer responsible for supervising and directing the showing
that the first description of the suspect given by that witness has been
recorded. If this description has not been recorded, the procedure under
Annex E must be postponed. (See Annex E paragraph 2)
3F The
admissibility and value of identification evidence obtained when carrying out
the procedure under paragraph 3.2 may be compromised if –
(a) before
a person is identified, the witness’s attention is specifically drawn to
that person; or
(b) the
identity of the suspect has become known before the procedure takes place.
4 Identification
by fingerprints
TAKING FINGERPRINTS IN
CONNECTION WITH A CRIMINAL INVESTIGATION
General
4.1 References
to fingerprints in relation to a person means a record (in any form and
produced by any method) of the skin pattern and other physical characteristics
or features of –
(i) any
of that person’s fingers; or
(ii) either
of his or her palms.
Action
4.2 A
person’s fingerprints may be taken in connection with the investigation
of an offence only with his or her consent or if paragraph 4.3 applies. If the
person is at a police station consent must be in writing.
4.3 Powers
to take fingerprints without consent from any person over the age of ten years
are provided by Articles 49 and 55 of the Police Procedures and Criminal
Evidence (Jersey) Law 2003 as follows –
(a) under
Article 55(3)(a) from a person detained at a police station if an officer of at
least the rank of Inspector has reasonable grounds for suspecting the
involvement of that person in a criminal offence and for believing that his or
her fingerprints will tend to confirm or disprove that involvement, or assist
in establishing the person’s identity (including showing that he or she
is not a particular person), or both, and the officer authorises the
fingerprints to be taken. However, an authorisation may not be given solely for
the purpose of establishing the person’s identity unless the person has
either refused to identify himself or herself or the authorising officer has
reasonable grounds to suspect the person is not who he or she claims to be;
(b) under
Article 55 from a person detained at a police station who has been charged with
a relevant offence [see Note 4A] or informed
that he or she will be reported for such an offence if in the course of the
investigation of that offence –
(i) the person has
not had his or her fingerprints taken, Article 55(3)(b), or
(ii) the fingerprints
that were taken from the person do not constitute a complete set of his or her
fingerprints or some or all of the fingerprints are not of sufficient quality
to allow satisfactory analysis, comparison or matching, Article 55(4);
(c) under
Article 55(6) from a person who has answered to bail at a court or police
station if –
(i) the person has
answered to bail for a person whose fingerprints were taken on a previous
occasion and there are reasonable grounds for believing that they are not the
same person, or
(ii) the person who
has answered to bail claims to be a different person from a person whose
fingerprints were taken on a previous occasion; and in either case, the court
or an officer of the rank of Inspector or above authorises the fingerprints to
be taken at the court or the police station;
(d) under
Article 55(9) from a person who has been convicted of a relevant offence;
4.4 Article
49 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 provides power
to –
(a) require
the person mentioned in paragraph 4.3(d) above to attend a police station for
the purposes of having his or her fingerprints taken if –
(i) the person has
not been in police detention for the offence and has not had his or her
fingerprints taken in the course of the investigation of that offence, or
(ii) the fingerprints
that were taken from the person in the course of the investigation of that
offence do not constitute a complete set of his or her fingerprints or some or
all of the fingerprints are not of sufficient quality to allow satisfactory
analysis, comparison or matching; and
(b) arrest
without warrant a person who fails to comply with the requirement.
4.5 A
person’s fingerprints may be taken as above electronically. The Home
Affairs Committee may require the use of methods or devices approved by them
for that purpose.
4.6 Reasonable
force may be used if necessary to take a person’s fingerprints without his
or her consent under the powers mentioned in paragraph 4.3 and 4.4.
4.7 Before
any fingerprints are taken with or without consent as above, the person must be
informed of the following –
(a) the
reason his or her fingerprints are to be taken;
(b) where
the powers mentioned in paragraph 4.3(a) or (c) apply, the grounds on which the
relevant authority has been given;
(c) that
his or her fingerprints may be retained and may be subject of a speculative
search against other fingerprints [See Note 4B]
unless destruction of the fingerprints is required in accordance with paragraph
1 of Annex F; and
(d) that
if his or her fingerprints are required to be destroyed, the person may witness
their destruction as provided for in paragraph 1 of Annex F.
Documentation
4.8 A
record must be made as soon as possible of the reason for taking a person’s
fingerprints without consent. If force is used a record shall be made of the
circumstances and those present.
4.9 A
record shall be made when a person has been informed under the terms of
paragraph 4.7(c) of the possibility that his or her fingerprints may be subject
of a speculative search.
TAKING FINGERPRINTS IN
CONNECTION WITH IMMIGRATION ENQUIRIES
Action
4.10 A person’s
fingerprints may be taken for the purposes of Immigration Service enquiries in
accordance with powers and procedures other than under the Police Procedures
and Criminal Evidence (Jersey) Law 2003 and for which the Immigration Service
(not police) are responsible, only with the person’s consent in writing
or if paragraph 4.11 applies.
4.11 Powers to take
fingerprints for these purposes without consent are given to police and
immigration officers under paragraph 18(2) of Schedule 2 to the Immigration Act
1971, as extended to Jersey under the Immigration (Jersey) Order1993 and
section 141 of the Immigration and Asylum Act 1999, as follows –
(a) under
paragraph 18(2) of Schedule 2 to the Immigrations Act 1971 when it is
reasonably necessary for the purposes of identifying a person who is detained
under paragraph 16 of Schedule 2 to the Immigration Act 1971 (Detention of
person liable to examination or removal);
(b) under
section 141(7)(a) of the Immigration and Asylum Act 1999 from a person who
fails to produce on arrival a valid passport with photograph or some other
document satisfactorily establishing his or her identity and nationality and an
immigration officer does not consider that the person has a reasonable excuse
for the failure;
(c) under
section 141(7)(b) of the Immigration and Asylum Act 1999 from a person who has
been refused entry to the United Kingdom but has been temporarily admitted and
an immigration officer reasonably suspects that the person might break a
condition imposed on the person relating to residence or reporting to a police
or immigration officer and this decision has been confirmed by a chief
immigration officer;
(d) under
section 141(7)(c) of the Immigration and Asylum Act 1999 when directions to
remove a person as an illegal entrant, a person liable to removal under section
10 of the Immigration and Asylum Act 1999 or a person who is the subject of a
deportation order from Jersey or the United Kingdom have been given;
(e) under
section 141(7)(d) of the Immigration and Asylum Act 1999 from a person who has
been arrested under paragraph 17 of Schedule 2 to the Immigration Act
1971;
(f) under
section 141(7)(e) of the Immigration and Asylum Act 1999 from a person who has
made a claim for asylum or a claim under Article 3 of the European Convention
on Human Rights; or
(g) under
section 141(7)(f) of the Immigration and Asylum Act 1999 from a person who is a
dependant of someone who falls into (b) to (f) above.
4.12 Section 142(3)
of the Immigration and Asylum Act 1999 gives a police officer (and immigration
officer) power to arrest without warrant a person who fails to comply with a
requirement imposed by the Lieutenant Governor to attend a specified place for
fingerprinting.
4.13 Before any
fingerprints are taken with or without consent as above, the person must be
informed of the following –
(a) the
reason his or her fingerprints are to taken;
(b) that
the fingerprints and all copies of them will be destroyed in accordance with
Part 5 of Annex F.
4.14 Reasonable
force may be used if necessary to take a person’s fingerprints without his
or her consent under the powers mentioned in paragraph 4.11.
4.15 Paragraphs 4.1
and 4.8 apply.
Notes for Guidance
4A References to relevant
offences in this Code relate to those offences which have been specified by the
Home Affairs Committee
4B Fingerprints
or a DNA sample (and the information derived from it) taken from a person who
has been arrested on suspicion of being involved in a relevant offence or has
been charged with such an offence or has been informed that he or she will be
reported for such an offence may be subject of a speculative search. This means
that the fingerprints may be checked against other fingerprints and DNA records
held by or on behalf of the police and other law enforcement authorities in the
United Kingdom or outside the United Kingdom or held in connection with or as a
result of an investigation of an offence inside and outside the United Kingdom.
Fingerprints and samples taken from any other person, for example a person
suspected of committing a relevant offence but who has not been arrested,
charged or informed that he or she will be reported for it, may be subject to a
speculative search only if the person consents in writing to his or her
fingerprints being subject of such a search (although they may be). The
following is an example of a basic form of words;
"I consent to my [fingerprints] [and]
[DNA sample and information derived from it] being retained and used only for
purposes related to the prevention and detection of a crime, the investigation
of an offence or the conduct of a prosecution either nationally or
internationally.
I understand that this sample may be
checked against other [fingerprint] [and] DNA records held by or on behalf of
relevant law enforcement authorities, either nationally or internationally.
I understand that once I have given my
consent for the sample to be retained and used I cannot withdraw this
consent."
[See Annex F regarding the retention and
use of fingerprints taken with consent for elimination purposes.]
5 Actions
to ascertain identity
PERSONS DETAINED UNDER
ARTICLE 37 OF OR SCHEDULE 8 TO THE TERRORISM (JERSEY) LAW 2002
Searching
or examination of persons detained
5.1 Paragraph
2 of Schedule 9 to the Terrorism (Jersey) Law 2002 allows an authorised officer
to take any steps which are reasonably necessary, in order to –
(a) photograph
the detained person;
(b) measure
the detained person; or
(c) identify
the detained person.
5.2 Under
this Law an “authorised officer” means any of the following –
(a) a
police officer;
(b) a
prison officer;
(c) a
person authorised by the Committee;
(d) in
the case of a person detained under Schedule 8, an examining officer (as
defined within that Schedule).
Notes for Guidance
5A There
is no authority under the Police Procedures and Criminal Evidence (Jersey) Law
2003 to search or examine a detained person –
(a) for
the purpose of establishing whether he or she has a mark, feature or injuries
that would tend to identify him or her as a person involved in the commission
of an offence and to photograph any identifying mark; or
(b) to
photograph the person in order to establish his or her identity.
6 Identification
by body samples and impressions
General
6.1 References
to –
(a) an ‘intimate
sample’ means a dental impression or a sample of blood, semen or any
other tissue fluid, urine, or pubic hair, or a dental impression, or a swab
taken from a person’s body orifice other than the mouth;
(b) a ‘non-intimate
sample’ means –
(i) a sample of hair
other than pubic [See Note 6A];
(ii) a sample taken
from a nail or from under a nail;
(iii) a swab taken from any
part of a person’s body including the mouth but not any other body
orifice;
(iv) saliva;
(v) a
skin impression.
Action
Intimate
samples
6.2 Article
56 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 provides
that intimate samples may be taken –
(a) under
Article 56(1) from a person in police detention only –
(i) if a police
officer of the rank of Inspector or above has reasonable grounds to believe
that such an impression or sample will tend to confirm or disprove the suspect’s
involvement in a relevant offence [see Note 4A]
and gives authorisation for a sample to be taken; and
(ii) with the suspect’s
written consent;
(b) under
Article 56(2) from a person who is not in police detention but from whom
two or more non-intimate samples have been taken in the course of an
investigation of an offence and the samples, though suitable, have proved
insufficient if –
(i) a police officer
of the rank of Inspector or above authorises it to be taken; and
(ii) the person
concerned gives his or her written consent. [See Notes
6B and 6C]
6.3 Before
a suspect is asked to provide an intimate sample the suspect must be warned
that if he or she refuses without good cause, in any proceedings against the
suspect for an offence, a court in determining whether there is a case to
answer and a court or jury, in determining whether he or she is guilty of the
offence charged, may draw such inferences from the refusal as appears proper. [See Note 6D] If the suspect is in police detention
and not legally represented, the suspect must also be reminded of his or her
entitlement to be afforded facilities to consult a legal representative in
private (see paragraph 6.1 of Code C) and the reminder must be noted in the
custody record. If paragraph 6.2(b) above applies and the person is attending a
police station voluntarily, his or her entitlement to be afforded facilities to
consult a legal representative in private as provided for in accordance with
paragraph 3.15 of Code C shall be explained to the person.
6.4 Dental
impressions may only be taken by a registered dentist. Other intimate samples
(except for samples of urine) may only be taken by a registered medical
practitioner or a registered nurse.
Non-intimate
samples
6.5 A
non-intimate sample may be taken from a detained person only with the person’s
written consent or if paragraph 6.6 applies.
6.6 A
non-intimate sample may be taken from a person without consent in accordance
with the Police Procedures and Criminal Evidence (Jersey) Law 2003. The
principal circumstances provided for are as follows –
(a) under
Article 57(3) from a person in police detention, or police custody on the
authority of a court, if a police officer of the rank of Inspector or above has
reasonable grounds to believe that the sample will tend to confirm or disprove
the suspect’s involvement in a relevant offence [see Note 4A] and gives authorisation for a
sample to be taken.
This is subject to the proviso that the officer may not give a
further authorisation to take a non-intimate sample consisting of a skin
impression, if a skin impression of the same part of the body has already been
taken from that person in the course of the investigation of the offence and
the impression previously taken was insufficient for the purpose it was taken.
(b) under
Article 57(4) from a person who has been charged with a relevant offence or
informed that he or she will be reported for such an offence; and
(i) that person has
not had a non-intimate sample taken in the course of the investigation; or
(ii) if the person has
had a sample taken, it has proved unsuitable or insufficient for the same form
of analysis [See Note 6B]; or
(c) under
Article 57(5) from a person who has been convicted of a relevant offence after
the date on which that provision came into effect. Article 58 of the Police
Procedures and Criminal Evidence (Jersey) Law 2003 describes the circumstances
in which a police officer may require a person convicted of a relevant offence
to attend a police station in order that a non-intimate sample may be taken.
6.7 Reasonable
force may be used if necessary to take a non-intimate sample from a person
without his or her consent under the powers mentioned in paragraph 6.6.
6.8 Before
any intimate sample is taken with consent or non intimate sample is taken with
or without consent, the person must be informed of the following –
(a) the
reason for taking the sample;
(b) the
grounds on which the relevant authority has been given, including where appropriate
the nature of the suspected offence;
(c) that
the sample or information derived from the sample may be retained and may be
subject of a speculative search [See Note 6E]
unless their destruction is required in accordance with paragraph 1 of
Annex F.
6.9 Where
clothing needs to be removed in circumstances likely to cause embarrassment to
the person, no person of the opposite sex who is not a medical practitioner or
nurse shall be present, (unless in the case of a juvenile or a mentally
disordered or mentally vulnerable person, that person specifically requests the
presence of an appropriate adult of the opposite sex who is readily available)
nor shall anyone whose presence is unnecessary. However, in the case of a
juvenile this is subject to the overriding proviso that such a removal of
clothing may take place in the absence of the appropriate adult only if the
juvenile signifies in the presence of the appropriate adult that the juvenile
prefer the adult’s absence and the appropriate adult agrees.
Documentation
6.10 A record must
be made as soon as practicable of the reasons for taking a sample or impression
and, where applicable, of its destruction. If force is used a record shall be
made of the circumstances and those present. If written consent is given to the
taking of a sample or impression, the fact must be recorded in writing.
6.11 A record must
be made of the giving of a warning required by paragraph 6.3 above.
6.12 A record shall
be made of the fact that a person has been informed under the terms of
paragraph 6.8(c) that samples may be subject of a speculative search.
Notes for Guidance
6A Where
hair samples are taken for the purpose of DNA analysis (rather than for other
purposes such as making a visual match) the suspect should be permitted a
reasonable choice as to what part of the body he or she wishes the hairs to be
taken from. When hairs are plucked they should be plucked individually unless
the suspect prefers otherwise and no more should be plucked than the person
taking them reasonably considers necessary for a sufficient sample.
6B
(a) An
insufficient sample is one which is not sufficient either in quantity or
quality for the purpose of enabling information to be provided for the purpose
of a particular form of analysis, such as DNA analysis. A sample may also be
insufficient if sufficient information cannot be obtained from it by analysis
because of loss, destruction, damage or contamination of the sample or as a
result of an earlier unsuccessful attempt at analysis.
(b) An
unsuitable sample is one which, by its nature, is not suitable for a particular
form of analysis.
6C Nothing
in paragraph 6.2 prevents intimate samples being taken for elimination
purposes with the consent of the person concerned but the provisions of paragraph
2.11 relating to the role of the appropriate adult should be applied.
6D In
warning a person who is asked to provide an intimate sample in accordance with
paragraph 6.3, the following form of words may be used:
‘You do not have to [provide this
sample] [allow this swab or impression to be taken], but I must warn you that
if you refuse without good cause, in any proceedings against you for an
offence, a court in determining whether there is a case to answer and a court
or jury, in determining whether you are guilty of the offence charged, may draw
such inferences from your refusal as appears proper’.
6E Fingerprints
or a DNA sample (and the information derived from it) taken from a person who
has been arrested on suspicion of being involved in a relevant offence or has
been charged with such an offence or has been informed that he or she will be
reported for such an offence may be the subject of a speculative search. This
means that they may be checked against other fingerprints and DNA records held
by or on behalf of the police and other law enforcement authorities in the
United Kingdom or outside the United Kingdom or held in connection with or as a
result of an investigation of an offence inside and outside the United Kingdom.
Fingerprints and samples taken from any other person, for example a person
suspected of committing a relevant offence but who has not been arrested,
charged or informed that he or she will be reported for it, may be subject to a
speculative search only if the person consents in writing to his or her
fingerprints being subject of such a search. The following is an example of a
basic form of words;
“I consent to my [fingerprints] [and]
[DNA sample and information derived from it] being retained and used only for
purposes related to the prevention and detection of a crime, the investigation
of an offence or the conduct of a prosecution either nationally or
internationally.
I understand that this sample may be
checked against other [fingerprint] [and] DNA records held by or on behalf of relevant
law enforcement authorities, either nationally or internationally.
I understand that once I have given my
consent for the sample to be retained and used I cannot withdraw this
consent.”
[See Annex F regarding the retention and
use of fingerprints taken with consent for elimination purposes.]
CODE D - ANNEX A
VIDEO IDENTIFICATION
General
1. The
arrangements for obtaining and ensuring the availability of a suitable set of
images to be used in a video identification must be the responsibility of an
identification officer or identification officers who have no direct
involvement with the relevant case.
2. The
set of images must include the suspect and at least eight other people who so
far as possible resemble the suspect in age, height, general appearance and
position in life. Only one suspect shall appear in any set unless there are two
suspects of roughly similar appearance in which case they may be shown together
with at least twelve other people.
3. The
images used to conduct a video identification shall, as far as possible, show
the suspect and other people in the same positions or carrying out the same
sequence of movements. They shall also show the suspect and other people under
identical conditions unless the identification officer reasonably believes –
(a) that
because of the suspect’s failure or refusal to co-operate or other
reasons, it is not practicable for the conditions to be identical; and
(b) that
any difference in the conditions would not direct a witness’s attention
to any individual image.
4. The
reasons why identical conditions are not practicable shall be recorded on forms
provided for the purpose.
5. Provision
must be made for each person shown to be identified by number.
6. If
police officers are shown, any numerals or other identifying badges must be
concealed. If a prison inmate is shown, either as a suspect or not, then either
all or none of the people shown should be in prison clothing.
7. The
suspect or his or her legal representative (if in attendance), friend, or
appropriate adult must be given a reasonable opportunity to see the complete
set of images before it is shown to any witness. If the suspect has a
reasonable objection to the set of images or any of the participants the
suspect shall be asked to state the reasons for the objection. Steps shall, if
practicable, be taken to remove the grounds for objection. If this is not
practicable the suspect and/or his or her representative shall be told why his
or her objection cannot be met and the objection, the reason given for it and
why it cannot be met shall be recorded on forms provided for the purpose.
8. Before
the images are shown in accordance with paragraph 7 the suspect or his or her
legal representative (if in attendance) shall be provided with details of the
first description of the suspect by any witnesses who are to attend the video
identification. Where a broadcast or publication is made, as in paragraph 3.30,
the suspect or his or her legal representative (if in attendance) must also be
allowed to view any material released to the media by the police for the
purpose of recognising or tracing the suspect provided it is practicable to do
so and would not unreasonably delay the investigation.
9. The
suspect’s legal representative (if instructed at this stage), where practicable,
shall be given reasonable notification of the time and place that it is
intended to conduct the video identification in order that a representative may
attend on behalf of the suspect. If a legal representative has not been
instructed, then this information shall be given to the suspect. The suspect
may not be present when the images are shown to the witness(es). In the absence
of a person representing the suspect the viewing itself shall be recorded on
video. No unauthorised people may be present.
Conducting
the video identification
10. The
identification officer is responsible for making the appropriate arrangements
to ensure that, before they see the set of images, witnesses are not able to
communicate with each other about the case or overhear a witness who has
already seen the material. There must be no discussion with the witness about
the composition of the set of images and they must not be told whether a
previous witness has made any identification.
11. Only
one witness may see the set of images at a time. Immediately before the images
are shown the witness shall be told that the person he or she saw on an earlier
relevant occasion may or may not appear in the images he or she is shown and
that if the witness cannot make a positive identification he or she should say
so. The witness shall be advised that at any point he or she may ask to see a
particular part of the set of images or to have a particular image frozen for
the witness to study. Furthermore, it should be pointed out to the witness that
there is no limit on how many times he or she can view the whole set of images
or any part of them. However, the witness should be asked not to make any
decision as to whether the person he or she saw is on the set of images until
he or she has seen the whole set at least twice.
12. Once
the witness has seen the whole set of images at least twice and has indicated
that he or she does not want to view the images or any part of them again, the
witness shall be asked to say whether the individual he or she saw in person on
an earlier occasion has been shown and, if so, to identify him or her by number
of the image. The witness will then be shown that image to confirm the
identification (see paragraph 17).
13. Care
must be taken not to direct the witness’s attention to any one individual
image or to give any indication to the suspect’s identity. Where a
witness has previously made an identification by photographs, or a computerised
or artist’s composite likeness or similar likeness, the witness must not
be reminded of such a photograph or composite likeness once a suspect is
available for identification by other means in accordance with this Code.
Neither must the witness be reminded of any description of the suspect.
14. After
the procedure each witness shall be asked whether he or she has seen any
broadcast or published films or photographs or any descriptions of suspects
relating to the offence and his or her reply shall be recorded.
Image
security and destruction
15. Arrangements
shall be made for all relevant material containing sets of images used for
specific identification procedures to be kept securely and their movements
accounted for. In particular, no-one involved in the investigation against the
suspect shall be permitted to view the material prior to it being shown to any
witness.
All videos used in identification purposes should be destroyed
unless the suspect –
(a) is
charged with, or informed he or she may be prosecuted for a relevant offence;
(b) is
prosecuted for a relevant offence;
(c) gives
informed consent in writing for the images to be retained.
Documentation
17. A
record must be made of all those participating in or seeing the set of images
whose names are known to the police.
18. A
record of the conduct of the video identification must be made on forms
provided for the purpose. This shall include anything said by the witness about
any identifications or the conduct of the procedure and any reasons why it was
not practicable to comply with any of the provisions of this Code governing the
conduct of video identifications.
CODE D – ANNEX B
IDENTIFICATION PARADES
General
1. A
suspect must be given a reasonable opportunity to have a legal representative
(if instructed) or friend present, and the suspect shall be asked to indicate
on a second copy of the notice whether or not he or she wishes to do so.
2. An
identification parade may take place either in a normal room or in one equipped
with a screen permitting witnesses to see members of the identification parade
without being seen. The procedures for the composition and conduct of the
identification parade are the same in both cases, subject to paragraph 8 below
(except that an identification parade involving a screen may take place only
when the suspect’s legal representative, friend or appropriate adult is
present or the identification parade is recorded on video).
3. Before
the identification parade takes place the suspect or his or her legal
representative (if instructed) shall be provided with details of the first
description of the suspect by any witnesses who are to attend the
identification parade. Where a broadcast or publication is made as in paragraph
3.30, the suspect or his or her legal representative should also be allowed to
view any material released to the media by the police for the purpose of recognising
or tracing the suspect, provided it is practicable to do so and would not
unreasonably delay the investigation.
Identification
parades involving prison inmates
4. If
a prison inmate is required for identification, and there are no security
problems about the person leaving the establishment, the inmate may be asked to
participate in an identification parade or video identification.
5. An
identification parade may be held in a Prison Department establishment but
shall be conducted as far as practicable under normal identification parade
rules. Members of the public shall make up the identification parade unless
there are serious security or control objections to their admission to the
establishment. In such cases, or if a group or video identification is arranged
within the establishment, other inmates may participate. If an inmate is the
suspect, he or she shall not be required to wear prison clothing for the
identification parade unless the other people taking part are other inmates in
similar clothing or are members of the public who are prepared to wear prison
clothing for the occasion.
Conduct
of the identification parade
6. Immediately
before the identification parade the suspect must be reminded of the procedures
governing its conduct and cautioned in the terms of paragraphs 10.2 or 10.4, as
appropriate, of Code C.
7. All
unauthorised people must be excluded from the place where the identification
parade is held.
8. Once
the identification parade has been formed everything afterwards in respect of
it shall take place in the presence and hearing of the suspect and of any
interpreter, legal representative, friend or appropriate adult who is present
(unless the identification parade involves a screen, in which case everything
said to or by any witness at the place where the identification parade is held
must be said in the hearing and presence of the suspect’s legal
representative, friend or appropriate adult or be recorded on video).
9. The
identification parade shall consist of at least eight people (in addition to
the suspect) who so far as possible resemble the suspect in age, height,
general appearance and position in life. One suspect only shall be included in
an identification parade unless there are two suspects of roughly similar appearance,
in which case they may be paraded together with at least twelve other people.
In no circumstances shall more than two suspects be included in one
identification parade and where there are separate identification parades they
shall be made up of different people.
10. Where
the suspect has an unusual physical feature, for example, a facial scar or
tattoo or distinctive hairstyle or hair colour which cannot be replicated on
other members of the identification parade steps may be taken to conceal the location
of that feature on the suspect and the other members of the identification
parade if the suspect and his or her legal representative (if instructed) or
appropriate adult agree. For example, by use of a plaster or a hat, so that all
members of the identification parade resemble each other in general appearance.
11. Where
all members of a similar group are possible suspects separate identification
parades shall be held for each member of the group unless there are two
suspects of similar appearance when they may appear on the same identification
parade with at least twelve other members of the group who are not suspects.
Where police officers in uniform form an identification parade any numerals or
other identifying badges shall be concealed.
12. When
the suspect is brought to the place where the identification parade is to be
held the suspect shall be asked whether he or she has any objection to the
arrangements for the identification parade or to any of the other participants
in it and to state the reasons for the objection. The suspect may obtain advice
from his or her legal representative or friend, if present, before the
identification parade proceeds. If the suspect has a reasonable objection to
the arrangements or any of the participants steps shall, where practicable, be
taken to remove the grounds for objection. Where it is not practicable to do
so, the suspect shall be told why his or her objections cannot be met and the
objection, the reason given for it and why it cannot be met shall be recorded
on forms provided for the purpose.
13. The
suspect may select his or her own position in the line, but may not otherwise
interfere with the order of the people forming the line. Where there is more
than one witness the suspect must be told, after each witness has left the
room, that he or she can, if he or she wishes, change position in the line.
Each position in the line must be clearly numbered, whether by means of a
numeral laid on the floor in front of each identification parade member or by
other means.
14. Appropriate
arrangements must be made to ensure that, before witnesses attend the
identification parade, they are not able to –
(i) communicate
with each other about the case or overhear a witness who has already seen the
identification parade;
(ii) see
any member of the identification parade;
(iii) see
or be reminded of any photograph or description of the suspect or be given any
other indication to the suspect’s identity; or
(iv) see
the suspect either before or after the identification parade.
15. The
person conducting a witness to an identification parade must not discuss with
the witness the composition of the identification parade and, in particular,
must not disclose whether a previous witness has made any identification.
Witnesses shall be brought in one at a time. Immediately before the
witness inspects the identification parade, the witness shall be told that the
person he or she saw on an earlier relevant occasion specified by the
identification officer or approved person (see paragraph 1.7) conducting the
procedure may or may not be on the identification parade and that if the
witness cannot make a positive identification he or she should say so. The
witness must also be told that he or she should not make any decision as to
whether the person the witness saw is on the identification parade until he or
she has looked at each member of the identification parade at least twice.
17. When
the identification officer conducting the identification procedure is satisfied
that the witness has properly looked at each member of the identification
parade, the officer shall ask the witness whether the person he or she saw on
an earlier relevant occasion is on the identification parade and, if so, to
indicate the number of the person concerned (see paragraph 28).
18. If
the witness wishes to hear any identification parade member speak, adopt any
specified posture or see an identification parade member move, the witness
shall first be asked whether he or she can identify any person(s) on the
identification parade on the basis of appearance only. When the request is to
hear members of the identification parade speak, the witness shall be reminded
that the participants in the identification parade have been chosen on the
basis of physical appearance only. Members of the identification parade may
then be asked to comply with the witness’s request to hear them speak, to
see them move or to adopt any specified posture.
19. If
the witness requests that the person he or she has indicated remove anything
used for the purposes of paragraph 10 to conceal the location of an unusual
physical feature, that person may be asked to remove it.
20. If
the witness makes an identification after the identification parade has ended
the suspect and, if present, his or her legal representative, interpreter or
friend shall be informed. Where this occurs consideration should be given to
allowing the witness a second opportunity to identify the suspect.
21 After
the procedure each witness shall be asked whether he or she has seen any
broadcast or published films or photographs or any descriptions of suspects
relating to the offence and his or her reply shall be recorded.
22. When
the last witness has left the suspect shall be asked whether he or she wishes
to make any comments on the conduct of the identification parade.
Documentation
23. A
video recording must normally be taken of the identification parade. Where that
is impracticable a colour photograph must be taken. A copy of the video
recording or photograph shall be supplied on request to the suspect or his or
her legal representative within a reasonable time.
24. All
videos used in identification purposes should be destroyed unless the
suspect –
(d) is
charged with, or informed he or she may be prosecuted for a relevant offence;
(e) is
prosecuted for a relevant offence;
(f) gives
informed consent in writing for the images to be retained.
25. If
the identification officer asks any person to leave an identification parade
because the person is interfering with its conduct, the circumstances shall be
recorded.
26. A
record must be made of all those present at an identification parade whose
names are known to the police.
27. If
prison inmates make up an identification parade the circumstances must be
recorded.
28. A
record of the conduct of any identification parade must be made on forms
provided for the purpose. This shall include anything said by the witness or
the suspect about any identifications or the conduct of the procedure, and any
reasons why it was not practicable to comply with any of the provisions of this
Code.
CODE D – ANNEX C
GROUP IDENTIFICATION
General
1. The
purpose of the provisions of this Annex is to ensure that, as far as possible,
group identifications follow the principles and procedures for identification
parades so that the conditions are fair to the suspect in the way they test the
witness’s ability to make an identification.
2. Group
identifications may take place either with the suspect’s consent and
co-operation or covertly without the suspect’s consent.
3. The
location of the group identification is a matter for the identification
officer, although the officer may take into account any representations made by
the suspect, appropriate adult, his or her legal representative or friend.
4. The
place where the group identification is held should be one where other people
are either passing by or waiting around informally, in groups such that the
suspect is able to join them and be capable of being seen by the witness at the
same time as others in the group. Examples include people leaving an escalator,
pedestrians walking through a shopping centre, passengers at bus stations,
waiting in queues or groups or where people are standing or sitting in groups
in other public places.
5. If
the group identification is to be held covertly the choice of locations will be
limited by the places where the suspect can be found and the number of other
people present at that time. In these cases suitable locations might be along
regular routes travelled by the suspect, including buses or public places
frequented by the suspect.
6. Although
the number, age, sex, race and general description and style of clothing of
other people present at the location cannot be controlled by the identification
officer, in selecting the location the officer must consider the general
appearance and numbers of people likely to be present. In particular, the
officer must reasonably expect that over the period the witness observes the
group, he or she will be able to see, from time to time, a number of others (in
addition to the suspect) whose appearance is broadly similar to that of the
suspect.
7. A
group identification need not be held if the identification officer believes
that because of the unusual appearance of the suspect none of the locations
which it would be practicable to use satisfy the requirements of paragraph 5
necessary to make the identification fair.
8. Immediately
after a group identification procedure has taken place (with or without the
suspect’s consent) a colour photograph or a video should be taken of the
general scene, where this is practicable, so as to give a general impression of
the scene and the number of people present. Alternatively, if it is
practicable, the group identification may be video recorded.
9. If
it is not practicable to take the photograph or video in accordance with
paragraph 8 a photograph or film of the scene should be taken later at a time
determined by the identification officer if the officer considers that it is
practicable to do so.
10. An
identification carried out in accordance with this Code remains a group
identification notwithstanding that at the time of being seen by the witness
the suspect was on his or her own rather than in a group.
11. Before
the group identification takes place the suspect or his or her legal
representative (if in attendance) should be provided with details of the first
description of the suspect by any witnesses who are to attend the
identification. Where a broadcast or publication is made, as in paragraph 3.30,
the suspect or his or her legal representative should also be allowed to view
any material released by the police to the media for the purposes of
recognising or tracing the suspect provided that it is practicable to do so and
would not unreasonably delay the investigation.
12. After
the procedure each witness shall be asked whether he or she has seen any
broadcast or published films or photographs or any descriptions of suspects
relating to the offence and his or her reply shall be recorded.
Identification
with the consent of the suspect
13. A
suspect must be given a reasonable opportunity to have a legal representative
(if instructed) or friend present. The suspect shall be asked to indicate on a
second copy of the notice whether or not he or she wishes to do so.
14. The
witness, the person carrying out the procedure and the suspect’s legal
representative, appropriate adult, friend or any interpreter for the witness
may be concealed from the sight of the individuals in the group which they are
observing if the person carrying out the procedure considers that this
facilitates the conduct of the identification.
15. The
person conducting a witness to a group identification must not discuss with the
witness the forthcoming group identification and, in particular, must not
disclose whether a previous witness has made any identification.
16. Anything
said to or by the witness during the procedure regarding the identification
should be said in the presence and hearing of those present at the procedure.
17. Appropriate
arrangements must be made to ensure that, before witnesses attend the group
identification, they are not able to –
(i) communicate
with each other about the case or overhear a witness who has already been given
an opportunity to see the suspect in the group;
(ii) see
the suspect; or
(iii) see
or be reminded of any photographs or description of the suspect or be given any
other indication of the suspect’s identity.
18. Witnesses
shall be brought to the place where they are to observe the group one at a
time. Immediately before the witness is asked to look at the group the person
conducting the procedure shall tell the witness that the person he or she saw
may or may not be in the group and that if the witness cannot make a positive
identification he or she should say so. The witness shall then be asked to
observe the group in which the suspect is to appear. The way in which the
witness should do this will depend on whether the group is moving or
stationary.
Moving
group
19. When
the group in which the suspect is to appear is moving, for example leaving an
escalator, the provisions of paragraphs 20 to 24 below should be followed.
20. If
two or more suspects consent to a group identification each should be the
subject of separate identification procedures. These may however be conducted
consecutively on the same occasion.
21. The
person conducting the procedure shall tell the witness to observe the group and
ask the witness to point out any person the witness thinks he or she saw on the
earlier relevant occasion.
22. Once
the witness has been informed in accordance with paragraph 21 the suspect
should be allowed to take whatever position in the group that he or she wishes.
23. When
the witness points out a person in accordance with paragraph 21 the witness
shall, if it is practicable, be asked to take a closer look at the person to
confirm the identification. If this is not practicable, or the witness is
unable to confirm the identification, the witness shall be asked how sure he or
she is that the person he or she has indicated is the relevant person.
24. The
witness should continue to observe the group for the period which the person
conducting the procedure reasonably believes is necessary in the circumstances
for the witness to be able to make comparisons between the suspect and other
individuals of broadly similar appearance to the suspect in accordance with
paragraph 5.
Stationary
groups
25. When
the group in which the suspect is to appear is stationary, for example people
waiting in a queue, the provisions of paragraphs 26 to 29 below should be
followed.
26. If
two or more suspects consent to a group identification each should be the
subject of separate identification procedures unless they are of broadly
similar appearance when they may appear in the same group. Where separate group
identifications are held the groups must be made up of different persons.
27. The
suspect may take whatever position in the group that he or she wishes. Where
there is more than one witness the suspect must be told, out of the sight and
hearing of any witness, that the suspect can, if he or she wishes, change his
or her position in the group.
28. The
witness shall be asked to pass along or amongst the group and to look at each
person in the group at least twice, taking as much care and time as is possible
according to the circumstances, before making an identification. Once the
witness has done this he or she shall be asked whether the person the witness
saw on an earlier relevant occasion is in the group and to indicate any such
person by whatever means the person conducting the procedure considers
appropriate in the circumstances. If this is not practicable the witness shall
be asked to point out any person the witness thinks he or she saw on the
earlier relevant occasion.
29. When
the witness makes an indication in accordance with paragraph 28 arrangements
shall be made, if it is practicable, for the witness to take a closer look at
the person to confirm the identification. If this is not practicable, or the
witness is unable to confirm the identification, the witness shall be asked how
sure he or she is that the person he or she has indicated is the relevant
person.
All
cases
30. If
the suspect unreasonably delays joining the group, or having joined the group,
deliberately conceals himself or herself from the sight of the witness, this
may be treated as a refusal to co-operate in a group identification.
31. If
the witness identifies a person other than the suspect that person should be
informed what has happened and asked if he or she is prepared to give his or
her name and address. There is no obligation upon any member of the public to
give these details. There shall be no duty to record any details of any other
member of the public present in the group or at the place where the procedure
is conducted.
32. When
the group identification has been completed the suspect shall be asked whether
he or she wishes to make any comments on the conduct of the procedure.
33. If
the suspect has not been previously informed he or she shall be told of any
identifications made by the witnesses.
Identification
without suspect’s consent
34. Group
identifications held covertly without the suspect’s consent should, so
far as is practicable, follow the rules for conduct of group identification by
consent.
35. A
legal representative, appropriate adult or friend shall not be present as the
identification will, of necessity, take place without the knowledge of the
suspect.
36. Any
number of suspects may be identified at the same time.
Identifications
in police stations
37. Group
identifications should only take place in police stations for reasons of
safety, security or because it is impracticable to hold them elsewhere.
38. The
group identification may take place either in a room equipped with a screen
permitting witnesses to see members of the group without being seen, or
anywhere else in the police station that the identification officer considers
appropriate.
39. Any
of the additional safeguards applicable to identification parades should be
followed if the identification officer considers it is practicable to do so in
the circumstances.
Identifications
involving prison inmates
40. A
group identification involving a prison inmate may only be arranged in the
prison or at a police station.
41. Where
a group identification takes place involving a prison inmate, whether in a
prison or in a police station, the arrangements should follow those in
paragraphs 37 to 39 of this Annex. If a group identification takes place within
a prison other inmates may participate. If an inmate is the suspect he or she
should not be required to wear prison clothing for the group identification
unless the other persons taking part are wearing the same clothing.
Documentation
42. Where
a photograph or video is taken in accordance with paragraph 8 or 9 a copy of
the photograph or video shall be supplied on request to the suspect or his or
her legal representative within a reasonable time.
43. A
record of the conduct of any group identification must be made on forms
provided for the purpose. This shall include anything said by the witness or
the suspect about any identifications or the conduct of the procedure and any
reasons why it was not practicable to comply with any of the provisions of this
Code governing the conduct of group identifications.
CODE D - ANNEX D
CONFRONTATION BY A WITNESS
1. Before
the confrontation takes place the witness must be told that the person he or
she saw may or may not be the person the witness is to confront and that if he
or she is not that person then the witness should say so.
2. Before
the confrontation takes place the suspect or his or her legal representative
(if in attendance) shall be provided with details of the first description of
the suspect given by any witness who is to attend the confrontation. Where a
broadcast or publication is made, as in paragraph 3.30, the suspect or his
or her legal representative (if in attendance) should also be allowed to view
any material released by the police to the media for the purposes of
recognising or tracing the suspect provided that it is practicable to do so and
would not unreasonably delay the investigation.
3. Force
may not be used to make the face of the suspect visible to the witness.
4. Confrontation
must take place in the presence of the suspect’s legal representative,
interpreter or friend unless this would cause unreasonable delay.
5. The
suspect shall be confronted independently by each witness, who shall be asked
"Is this the person?". If the witness identifies the person but is
unable to confirm the identification, the witness shall be asked how sure he or
she is that the suspect is the person the witness saw on the earlier relevant
occasion.
6. The
confrontation should normally take place in the police station, either in a
normal room or in one equipped with a screen permitting a witness to see the
suspect without being seen. In both cases the procedures are the same except
that a room equipped with a screen may be used only when the suspect’s
legal representative, friend or appropriate adult is present or the
confrontation is recorded on video.
After the procedure each witness shall be asked whether he or she
has seen any broadcast or published films or photographs or any descriptions of
suspects relating to the offence and his or her reply shall be recorded.
CODE D – ANNEX E
SHOWING OF PHOTOGRAPHS
Action
1. An
officer of the rank of Sergeant or above shall be responsible for supervising
and directing the showing of photographs. The actual showing may be done by
another officer or civilian support staff (see paragraph 3.13).
2. The
supervising officer must confirm that the first description of the suspect
given by the witness has been recorded before the witness is shown the
photographs. If the supervising officer is unable to confirm that the
description has been recorded the officer shall postpone the showing.
3. Only
one witness shall be shown photographs at any one time. Each witness shall be
given as much privacy as practicable and shall not be allowed to communicate
with any other witness in the case.
4. The
witness shall be shown not less than twelve photographs at a time, which shall,
as far as possible, all be of a similar type.
5. When
the witness is shown the photographs he or she shall be told that the
photograph of the person the witness saw may or may not be amongst them and that
if the witness cannot make a positive identification he or she should say so.
The witness shall also be told that he or she should not make a decision until
he or she has viewed at least twelve photographs. The witness shall not be
prompted or guided in any way but shall be left to make any selection without
help.
6. If
a witness makes a positive identification from photographs then, unless the
person identified is otherwise eliminated from enquiries or is not available,
other witnesses shall not be shown photographs. But both they and the witness
who has made the identification shall be asked to attend a video
identification, an identification parade or group identification unless there
is no dispute about the identification of the suspect.
7. If
the witness makes a selection but is unable to confirm the identification, the
person showing the photographs shall ask the witness how sure he or she is that
the photograph he or she has indicated is the person that the witness saw on
the earlier relevant occasion.
8. Where
the use of a computerised or artist’s composite likeness or similar
likeness has led to there being a known suspect who can be asked to participate
in a video identification, appear on an identification parade or participate in
a group identification, that likeness shall not be shown to other potential
witnesses.
9. Where
a witness attending a video identification, an identification parade or group
identification has previously been shown photographs or computerised or artist’s
composite likeness or similar likeness (and it is the responsibility of the
officer in charge of the investigation to make the identification officer aware
that this is the case), then the suspect and his or her legal representative
(if at that stage instructed) must be informed of this fact before the video
identification, identification parade, or group identification takes place.
10. None
of the photographs shown shall be destroyed, whether or not an identification
is made, since they may be required for production in court. The photographs
shall be numbered and a separate photograph taken of the frame or part of the
album from which the witness made an identification as an aid to reconstituting
it.
Documentation
11. Whether
or not an identification is made, a record shall be kept of the showing of
photographs on forms provided for the purpose. This shall include anything said
by the witness about any identification or the conduct of the procedure, any
reasons why it was not practicable to comply with any of the provisions of this
Code governing the showing of photographs and the name and rank of the
supervising officer.
12. The
supervising officer shall inspect and sign the record as soon as practicable.
CODE D – ANNEX F
FINGERPRINTS AND SAMPLES
TAKEN IN CONNECTION WITH A CRIMINAL INVESTIGATION
1. When
fingerprints or DNA samples are taken from a person in connection with the
investigation of an offence and the person is not suspected of having committed
the offence [See Note F1], they must be
destroyed as soon as they have fulfilled the purpose for which they were taken
unless –
(a) they
were taken for the purposes of an investigation of an offence of which a person
has been convicted; and
(b) fingerprints
or samples were also taken from the convicted person for the purposes of that
investigation.
However, subject to paragraph 2, the fingerprints and samples
(and the information derived from samples) may not be used in the investigation
of any offence or in evidence against the person who is or would be entitled to
the destruction of the fingerprints and samples. [See
Note F2]
For the purpose of the Police Procedures and Criminal Evidence
(Jersey) Law 2003 a person who is cautioned or fined for any relevant offence
following a Parish Hall enquiry, shall not be regarded as having been cleared
of that offence, therefore any fingerprints or DNA sample taken from that
person in pursuance of the investigation of that offence need not be destroyed.
2. The
requirement to destroy fingerprints and DNA samples (and information derived
from samples) and restrictions on their retention and use in paragraph 1 do not
apply if the person gives his or her written consent for his or her
fingerprints or sample to be retained and used after those fingerprints or
sample have fulfilled the purpose for which they were taken. [see Note F1].
3. When
a person’s fingerprints or sample are required to be
destroyed –
(a) any
copies of the fingerprints must also be destroyed;
(b) the
person may witness the destruction of his or her fingerprints or copies if the
person asks to do so within five days of being informed that destruction is
required;
(c) access
to relevant computer fingerprint data shall be made impossible as soon as it is
practicable to do so and the person shall, within three months of asking, be
given a certificate to this effect; and
(d) neither
the fingerprints nor the sample nor any information derived from the sample may
be used in the investigation of any offence or in evidence against the person
who is or would be entitled to its destruction.
Fingerprints or samples (and the information derived from samples)
taken in connection with the investigation of an offence which are not required
to be destroyed may be retained after they have fulfilled the purposes for
which they are taken but may be used only for purposes related to the
prevention or detection of crime, the investigation of an offence or the
conduct of a prosecution in Jersey as well as outside Jersey and may also be
subject to a speculative search. This includes checking them against other
fingerprints and DNA records held by or on behalf of police and other law
enforcement authorities in Jersey or the United Kingdom as well as outside
Jersey or the United Kingdom.
FINGERPRINTS TAKEN IN
CONNECTION WITH IMMIGRATION SERVICE ENQUIRIES
5. Fingerprints
taken for the purposes of Immigration Service enquiries in accordance with
powers and procedures other than under the Police Procedures and Criminal
Evidence (Jersey) Law 2003 and for which the Immigration Service (not police)
are responsible, must be destroyed as follows –
(a) Fingerprints
and all copies must be destroyed as soon as reasonably practicable if the
person from whom they were taken proves that he or she is a British citizen or
a Commonwealth citizen who has the right of abode in the United Kingdom under
section 2(1)(b) of the Immigration Act 1971;
(b) Fingerprints
taken under the power mentioned in paragraph 4.11(g) from a dependant of a
person in 4.11 (b) to (f) must be destroyed when the fingerprints of the person
whose dependant he or she is are required to be destroyed;
(c) Fingerprints
taken from a person under any power mentioned in paragraph 4.11 or with
the person’s consent which have not already been destroyed as above, must
be destroyed within ten years of being taken or within such period specified by
the Lieutenant Governor as under section 143(5) of the Immigration and
Asylum Act 1999 as extended by the Immigration and Asylum (Jersey) Order 2003.
Notes for Guidance
F1 Fingerprints
and samples given voluntarily for the purposes of elimination play an important
part in many police investigations. It is therefore important to ensure that
innocent volunteers are not deterred from participating and that their consent
to their fingerprints and DNA being used for the purposes of a specific
investigation is fully informed and voluntary. In circumstances where the
police or the volunteer seek to have the sample or fingerprints retained for
use after the specific investigation ends, it is important that the volunteer’s
consent to this is also fully informed and voluntary.
The following are examples of consent in
respect of –
· DNA/Fingerprints
to be used only for the purposes of a specific investigation
· DNA/Fingerprints
to be used in the specific investigation and retained by the police for future
use.
To minimise the risk of confusion, the
consents should be physically separate and the volunteer should be asked to
sign one or the other, not both.
DNA
(1) DNA sample taken for
the purposes of elimination or as part of an intelligence-led screen and to be
used only for the purposes of that investigation and destroyed afterwards.
“I consent to my DNA/mouth swab being
taken for forensic analysis. I understand that the sample will be destroyed at
the end of the case and that my profile will only be compared to the crime
stain profile from this enquiry. I have been advised that the person taking the
sample may be required to give evidence and/or provide a written statement to
the police in relation to the taking of it”.
(2) DNA
sample to be retained on the National DNA database and used in the future.
“I consent to my DNA sample and
information derived from it being retained and used only for purposes related
to the prevention and detection of a crime, the investigation of an offence or
the conduct of a prosecution either nationally or internationally.”
“I understand that this sample may be
checked against other DNA records held by or on behalf of relevant law
enforcement authorities, either nationally or internationally”.
“I understand that once I have given
my consent for the sample to be retained and used I cannot withdraw this
consent.”
Fingerprints
(1) Fingerprints
taken for the purposes of elimination or as part of an intelligence-led screen
and to be used only for the purposes of that investigation and destroyed
afterwards.
“I consent to my fingerprints being
taken for elimination purposes. I understand that the sample will be destroyed
at the end of the case and that my fingerprints will only be compared to the
fingerprints from this enquiry. I have been advised that the person taking the
fingerprints may be required to give evidence and/or provide a written
statement to the police in relation to the taking of it.”
(2) Fingerprints
to be retained for future use –
“I consent to my fingerprints being
retained and used only for purposes related to the prevention and detection of
a crime, the investigation of an offence or the conduct of a prosecution either
nationally or internationally”.
“I understand that my fingerprints
may be checked against other records held by or on behalf of relevant law
enforcement authorities, either nationally or internationally.”
“I understand that once I have given
my consent for my fingerprints to be retained and used I cannot withdraw this
consent.”
F2 The
provisions for the retention of fingerprints and samples in paragraph 2 allow
for all fingerprints and samples in a case to be available for any subsequent
miscarriage of justice investigation.
CODE E
a Code of Practice on Tape Recording of
Interviews with Suspects
1 General
1.1 This
Code of Practice must be readily available for consultation by police officers,
detained persons and members of the public at every police station and Parish
Hall to which an Order made under Article 61(1)(b) of the Police Procedures and
Criminal Evidence (Jersey) Law 2003 applies.
1.2 The
notes for guidance included are not provisions of this Code. They form guidance
to police officers and others about its application and interpretation.
1.3 Nothing
in this Code shall be taken as detracting in any way from the requirements of
the Code of Practice for the Detention, Treatment and Questioning of Persons by
Police Officers (Code C). [See Note 1A].
1.4 In this
Code the term ‘appropriate adult’ has the same meaning as in
paragraph 1.7 of Code C; and the term ‘legal representative’ has
the same meaning as in Article 1(1) of the Police Procedures and Criminal
Evidence (Jersey) Law 2003.
Note
for Guidance
1A As
in Code C, references to custody officers include those carrying out the
functions of a custody officer.
2 Recording
and the sealing of master tapes
2.1 Tape
recording of interviews shall be carried out openly to instil confidence in its
reliability as an impartial and accurate record of the interview. [See Note 2A]
2.2 One
tape, referred to in this Code as the master tape, will be sealed before it
leaves the presence of the suspect. A second tape will be used as a working
copy. The master tape is either one of the tapes used in a twin or triple deck
machine or the only tape used in a single deck machine. The working copy is
either the second tape used in a twin or triple deck machine or a copy of the
master tape made by a single deck machine. [See Notes
2A and 2B]
2.3 Nothing
in this Code requires the identity of officers conducting interviews to be
recorded or disclosed –
(a) in
the case of enquiries linked to the investigation of terrorism; or
(b) if
the interviewer reasonably believes recording or disclosing his or her name
might put the officer in danger.
In these cases interviewers should use warrant or other
identification numbers and the name of their police station. [See Note 2C]
Notes for guidance
2A The
purpose of sealing the master tape in the suspect’s presence is to show
the tape’s integrity is preserved. If a single deck machine is used the
working copy of the master tape must be made in the suspect’s presence
and without the master tape leaving his or her sight. The working copy shall be
used for making further copies if needed.
2B Reference
to ‘tapes’ includes ‘tape’, if a single deck machine is
used.
2C The
purpose of paragraph 2.3(b) is to protect those involved in serious organised
crime investigations or arrests of particularly violent suspects when there is
reliable information that those arrested or their associates may threaten or
cause harm to those involved. In cases of doubt, an officer of Inspector rank
or above should be consulted.
3 Interviews
to be tape recorded
3.1 Subject
to paragraph 3.2 below, tape recording shall be used at police stations for any
interview with a person who has been cautioned in accordance with section 10 of
Code C in respect of persons suspected of the commission of criminal offences,
or of specified descriptions of criminal offences.
3.2 Tape
recording of interviews with persons:
(a) arrested
or detained under Article 37 of or Schedule 8 to the Terrorism (Jersey) Law
2002 is covered in Schedule 9 to the 2002 Law, as these powers of arrest or
detention are subject to their own Code of Practice. ‘Terrorism’ has
the meaning given by Article 2 of the Terrorism (Jersey) Law 2002 .
(b) is
required in respect of an interview with a person suspected on reasonable
grounds of an offence under Article 3 of the Official Secrets (Jersey) Law
1952.
3.3 The
custody officer may authorise the interviewing officer not to tape record the
interview –
(a) where
it is not reasonably practicable to do so because of failure of the equipment
or the non-availability of a suitable interview room or recorder and the authorising
officer considers on reasonable grounds that the interview should not be
delayed until the failure has been rectified or a suitable room or recorder
becomes available [see Note 3E]; or
(b) where
it is clear from the outset that no prosecution will ensue. In such cases the
interview shall be recorded in writing and in accordance with section 11 of
Code C. In all cases the custody officer shall make a note in specific terms of
the reasons for not tape recording. [See Note 3F].
3.4 Where
an interview takes place with a person voluntarily attending the police station
and the police officer has grounds to believe that person has become a suspect
(i.e. the point at which he or she should be cautioned in accordance with
paragraph 10.2 of Code C) the continuation of the interview shall be tape
recorded, unless the custody officer gives authority in accordance with the
provisions of paragraph 3.3 above for the continuation of the interview
not to be recorded.
3.5 The
whole of each interview shall be tape recorded, including the taking and
reading back of any statement.
Notes for Guidance
3A Nothing
in this Code is intended to preclude tape recording, at police discretion, of
interviews at police stations with people cautioned in respect of offences not
covered by paragraph 3.1, or responses made by interviewees after they have
been charged with, or informed they may be prosecuted for, an offence, provided
that this Code is complied with.
3B Attention
is drawn to the restrictions in paragraph 11.3 of Code C on the questioning of
people unfit through drink or drugs to the extent that they are unable to
appreciate the significance of questions put to them or of their answers.
3C Circumstances
in which a suspect may be questioned about an offence after being charged with
it are set out in paragraph 17.5 of Code C.
3D Procedures
to be followed when a person’s attention is drawn after charge to a
statement made by another person are set out in paragraph 17.4 of Code C.
One method of bringing the content of an interview with another person to the
notice of a suspect may be to play the suspect a tape recording of that
interview.
3E Where
practicable, priority should be given to tape recording interviews with people
who are suspected of more serious offences.
3F A
decision not to tape record an interview for any reason may be the subject of
comment in court. The authorising officer should therefore be prepared to
justify his or her decision in each case.
4 The
interview
Commencement
of interviews
4.1 When
the suspect is brought into the interview room the police officer shall without
delay, but in the sight of the suspect, load the tape recorder with clean tapes
and set it to record. The tapes must be unwrapped or otherwise opened in the
presence of the suspect. [See Note 4A].
4.2 The
police officer shall then tell the suspect formally about the tape recording.
The officer shall say –
(a) that
the interview is being tape recorded;
(b) his
or her name and rank and the name and rank of any other police officer present
except in the case of enquiries linked to the investigation of terrorism or
otherwise where an officer reasonably believes that recording names might
endanger the officers. In such cases the record must show the officers’
warrant or other identification numbers rather than names;
(c) the
name of the suspect and any other party present (e.g. a legal representative);
(d) the
date, time of commencement and place of the interview; and
(e) that
the suspect will be given a notice about what will happen to the tapes. [See Note 4B].
4.3 The
police officer shall then caution the suspect in the following
terms –
“You are not obliged to say anything
unless you wish to do so, but what you say may be put into writing and given in
evidence.”
Minor deviations do not constitute a breach of this requirement
provided that the sense of the caution is preserved. [See
Note 4C].
4.4 The
police officer shall remind the suspect of his or her right to be afforded
facilities to consult a legal representative in private in accordance with
paragraph 6.5 of Code C.
4.5 The
police officer shall then put to the suspect any significant statement or
silence which occurred before the start of the tape recorded interview, and
shall ask the suspect whether he or she confirms or denies that earlier
statement or silence or whether he or she wishes to add anything. A ‘significant’
statement or silence means one which appears capable of being used in evidence
against the suspect, in particular a direct admission of guilt.
4.6 Where,
despite the fact that a person has been cautioned, failure to co-operate may
have an effect on his or her immediate treatment, the person should be informed
of any relevant consequences and that they are not affected by the caution.
Examples are when the person’s refusal to provide his or her name and
address when charged may render the person liable to detention, or when his or
her refusal to provide particulars and information in accordance with a
statutory requirement, for example, under the Road Traffic (Jersey) Law 1956,
may amount to an offence or may make the person liable to arrest.
Interviews with the deaf
4.7 If
the suspect is deaf or there is doubt about his or her hearing ability, the police
officer shall take a contemporaneous note of the interview in accordance with
the requirements of Code C, as well as tape record it in accordance with the
provisions of this Code. [See Notes 4D and 4E].
Objections and complaints
by the suspect
4.8 If
the suspect raises objections to the interview being tape recorded either at
the outset or during the interview or during a break in the interview, the police
officer shall explain the fact that the interview is being tape recorded and
that the provisions of this Code require that the suspect’s objections
shall be recorded on tape. When any objections have been recorded on tape or
the suspect has refused to have his or her objections recorded, the police
officer may turn off the recorder. In this eventuality the officer shall say
that he or she is turning off the recorder and give his or her reasons for
doing so and then turn it off. The police officer shall then make a written
record of the interview in accordance with section 11 of Code C. If, however,
the police officer reasonably considers that he or she may proceed to put
questions to the suspect with the tape recorder still on, the officer may do
so. [See Note 4F].
4.9 If
in the course of an interview a complaint is made by the person being
questioned, or on his or her behalf, concerning the provisions of this Code or
of Code C, then the officer shall act in accordance with paragraph 11.8 of Code
C. [See Notes 4G and 4H].
4.10 If the suspect
indicates that he or she wishes to tell the police officer about matters not
directly connected with the offence of which he or she is suspected and that he
or she is unwilling for these matters to be recorded on tape, the suspect shall
be given the opportunity to tell the police officer about these matters after
the conclusion of the formal interview.
Changing tapes
4.10 When the
recorder indicates that the tapes have only a short time left to run, the police
officer shall tell the suspect that the tapes are coming to an end and round
off that part of the interview. If the police officer wishes to continue the
interview but does not already have a second set of tapes, he or she shall
obtain a set. The suspect shall not be left unattended in the interview room.
The police officer will remove the tapes from the tape recorder and insert the
new tapes which shall be unwrapped or otherwise opened in the suspect’s
presence. The tape recorder shall then be set to record on the new tapes. Care
must be taken, particularly when a number of sets of tapes have been used, to
ensure that there is no confusion between the tapes. This may be done by
marking the tapes with an identification number immediately they are removed
from the tape recorder.
Taking a break during
interview
4.12 When a break
is to be taken during the course of an interview and the interview room is to
be vacated by the suspect, the fact that a break is to be taken, the reason for
it and the time shall be recorded on tape. The tapes shall then be removed from
the tape recorder and the procedures for the conclusion of an interview set out
in paragraph 4.17 below, followed.
4.13 When a break
is to be a short one and both the suspect and a police officer are to remain in
the interview room the fact that a break is to be taken, the reasons for it and
the time shall be recorded on tape. The tape recorder may be turned off; there
is, however, no need to remove the tapes and when the interview is recommenced
the tape recording shall be continued on the same tapes. The time at which the
interview recommences shall be recorded on tape.
4.14 When there is
a break in questioning under caution the interviewing officer must ensure that
the person being questioned is aware that he or she remains under caution and
of his or her right to be afforded facilities to consult a legal representative
in private. If there is any doubt the caution must be given again in full when
the interview resumes. [See Notes 4I and 4J].
Failure of recording
equipment
4.15 If there is a
failure of equipment which can be rectified quickly, for example by inserting
new tapes, the appropriate procedures set out in paragraph 4.11 shall be
followed, and when the recording is resumed the officer shall explain what has
happened and record the time the interview recommences. If, however, it will
not be possible to continue recording on that particular tape recorder and no
replacement recorder or recorder in another interview room is readily
available, the interview may continue without being tape recorded. In such
circumstances the procedures in paragraphs 3.3 above for seeking the authority
of the custody officer will be followed. [See Note 4K].
Removing tapes from the
recorder
4.16 Where tapes
are removed from the recorder in the course of an interview, they shall be
retained and the procedures set out in paragraph 4.18 below followed.
Conclusion of interview
4.17 At the
conclusion of the interview, the suspect shall be offered the opportunity to
clarify anything he or she has said and to add anything he or she may wish.
4.18 At the
conclusion of the interview, including the taking and reading back of any
written statement, the time shall be recorded and the tape recorder switched
off. The master tape shall be sealed with a master tape label and treated as an
exhibit in accordance with the Force standing orders. The police officer shall
sign the label and ask the suspect and any third party present to sign it also.
If the suspect or third party refuses to sign the label, an officer of at least
the rank of Inspector, or if one is not available the custody officer, shall be
called into the interview room and asked to sign it. In the case of enquiries
linked to the investigation of terrorism or otherwise where an officer
reasonably believes that recording names might endanger the officers, such an
officer who signs the label shall use his or her warrant or other
identification number.
4.19 The suspect
shall be handed a notice which explains the use which will be made of the tape
recording and the arrangements for access to it and that a copy of the tape
shall be supplied as soon as practicable if the person is charged or informed
that he or she will be prosecuted.
Notes for Guidance
4A The
police officer should attempt to estimate the likely length of the interview
and ensure that the appropriate number of clean tapes and labels with which to
seal the master copies are available in the interview room.
4B For
the purpose of voice identification the interviewing office should ask the
suspect and any other people present to identify themselves.
4C If
it appears that a person does not understand what the caution means, the
officer who has given it should go on to explain it in his or her own words.
4D This
provision is intended to give the deaf equivalent rights of first hand access
to the full interview record as other suspects.
4E The
provisions of paragraphs 14.1, 14.4 and 14.8 of Code C on interpreters for the
deaf or for interviews with suspects who have difficulty in understanding
English continue to apply. In a tape recorded interview there is no requirement
on the interviewing officer to ensure that the interpreter makes a separate
note of the interview as prescribed in section 14 of Code C.
4F The
officer should bear in mind that a decision to continue recording against the
wishes of the suspect may be the subject of comment in court.
4G Where
the custody officer is called immediately to deal with the complaint, wherever
possible the tape recorder should be left to run until the custody officer has
entered the interview room and spoken to the person being interviewed.
Continuation or termination of the interview should be at the discretion of the
interviewing officer pending action by an Inspector under paragraph 9.1 of Code
C.
4H Where
the complaint is about a matter not connected with this Code of Practice or
Code C, the decision to continue with the interview is at the discretion of the
interviewing officer. Where the interviewing officer decides to continue with
the interview the person being interviewed shall be told that the complaint
will be brought to the attention of the custody officer at the conclusion of
the interview. When the interview is concluded the interviewing officer must,
as soon as practicable, inform the custody officer of the existence and nature
of the complaint made.
4I In
considering whether to caution again after a break, the officer should bear in
mind that he or she may have to satisfy a court that the person understood that
he or she was still under caution when the interview resumed.
4J The
officer should bear in mind that it may be necessary to show to the court that
nothing occurred during a break in an interview or between interviews which
influenced the suspect’s recorded evidence. The officer should consider,
therefore, after a break in an interview or at the beginning of a subsequent
interview summarising on tape the reason for the break and confirming this with
the suspect.
4K If
one of the tapes breaks during the interview it should be sealed as a master
tape in the presence of the suspect and the interview resumed where it left
off. The unbroken tape should be copied and the original sealed as a master
tape in the suspect’s presence, if necessary after the interview. If
equipment for copying the unbroken tape is not readily available, both tapes
should be sealed in the suspect’s presence and the interview begun again.
If the tape breaks when a single deck machine is being used and the machine is
one where a broken tape cannot be copied on available equipment, the tape
should be sealed as a master tape in the suspect’s presence and the
interview begun again.
5 After
the interview
5.1 The
police officer shall make a note in his or her notebook of the fact that the
interview has taken place and has been recorded on tape, its time, duration and
date and the identification number of the master tape.
5.2 Where
no proceedings follow in respect of the person whose interview was recorded,
the tapes must nevertheless be kept securely in accordance with paragraph 6.1
and Note 6A.
Note for Guidance
5A Any
written record of a tape recorded interview shall be made in accordance with
guidelines approved by the Home Affairs Committee.
6 Tape
security
6.1 The
officer in charge of each police station at which interviews with suspects are
recorded shall make arrangements for master tapes to be kept securely and their
movements accounted for on the same basis as other material which may be used
for evidential purposes, in accordance with force standing orders. [See Note 6A]
6.2 A police
officer has no authority to break the seal on a master tape which is required
for criminal proceedings. If it is necessary to gain access to the master tape,
the police officer shall arrange for its seal to be broken in the presence of a
representative of the Law Officers. The defendant or his or her legal
representative shall be informed and given a reasonable opportunity to be
present. If the defendant or his or her legal representative is present he or
she shall be invited to reseal and sign the master tape. If either refuses or
neither is present this shall be done by the representative of the Law Officers.
[See Notes 6B and 6C]
6.3 Where
no criminal proceedings result it is the responsibility of the Chief Officer of
police to establish arrangements for the breaking of the seal on the master
tape, where this becomes necessary.
Notes for Guidance
6A This
section is concerned with the security of the master tape which will have been
sealed at the conclusion of the interview. Care should, however, be taken of
working copies of tapes since their loss or destruction may lead unnecessarily
to the need to have access to master tapes.
6B If
the tape has been delivered to the Royal Court for their keeping after
committal for trial the Crown Advocate will apply to the Judicial Greffier for
the release of the tape for unsealing by the Crown Advocate.
6C Reference
to the Law Officers or to the Crown Advocate in this part of the Code shall be
taken to include any other body or person with a responsibility for prosecution
for whom the police conduct any tape recorded interviews.
7 Transcribing
summaries of tape recorded interviews
Short Descriptive Notes
(SDN)
7.1 When
an expedited file is prepared only a Short Descriptive Note is required. This
will usually consist of a few lines summarising the interview, in particular
covering the putting of the allegation, the response and any defence or
mitigation. A SDN is completed on Form CJU 15.1.
Record of Taped Interviews
(ROTI)
7.2 Where
there is a Not Guilty plea the file will require the inclusion of evidence of
tape recorded interview(s) with the defendant(s), therefore ROTI’s will
be prepared in such circumstances. They must include the following –
(a) the
time, date and duration of the interview;
(b) the
full name of the defendant and the names and status of all persons present;
(c) the
fact that a caution was given;
(d) the
fact that the suspect was reminded of his or her entitlement to free
independent legal advice;
(e) the
fact that the suspect was reminded of the offence(s) under investigation;
(f) the
fact that any significant statement, or relevant comment before the interview
was put to the suspect;
(g) verbatim,
all admissions made to the offence(s) under investigation and questions and
answers leading up to them;
(h) statement
or questions of fact about –
(i) intent,
dishonesty or possible defences,
(ii) knowledge of key
facts,
(iii) presence at the scene
of the crime on other occasions (where relevant);
(i) assertions
that others were involved;
(j) ambiguous
admissions;
(k) any
questions and answers dealing with the issues of bail and or alternative pleas
/ charges.
7.3 The
ROTI must also include the fact that at the conclusion of the interview, the
person being interviewed was offered the opportunity to clarify anything he or
she has said and to add anything he or she wishes.
7.4 Questions
and answers dealing with mitigating circumstances or aggravating features can
be summarised in the third person. When direct speech is referred to in the
ROTI, the identity of the speaker and the tape counter time must be noted in
the margin.
7.5 Where
reported (i.e. third party) speech is used, the time of the salient points,
such as mitigating circumstances or aggravating factors, must be noted in the
margin.
Full Transcript
7.6 A
full transcript will only be completed in serious cases or at the request of
the Law Officers’ Department.
Notes for Guidance
7A It
is imperative that an SDN or a ROTI accurately describes the interview and that
all relevant details are recorded correctly.
CODE F
A Code of Practice on the Testing for the
Presence of Class A Drugs
1 General
1.1 This
Code of Practice must be readily available for consultation by police officers,
detained persons and members of the public at every police station to which an
Order made under Article 59 of the Police Procedures and Criminal Evidence
(Jersey) Law 2003 applies.
1.2 The
notes for guidance included are not provisions of this Code. They form guidance
to police officers and others about its application and interpretation.
1.3 Powers
to take a sample from a person to ascertain whether the person has any
specified Class A drug in his or her body, only apply to a person who is 18
years or older, who –
(a) has
been charged with –
(i) larceny,
including robbery,
(ii) breaking and
entry or illegal entry,
(iii) any offence under
Article 28 of the Road Traffic (Jersey) Law 1956,
(iv) any offence under
Article 5 or 6(1) or (2) of the Misuse of Drugs (Jersey) Law 1978, or any
offence under Article 33 or 61(2) of the Customs and Excise (Jersey)
Law 1999, if committed in respect of a specified Class A drug; or
(b) has
been charged with any offence, and an officer of the Force of at least the rank
of Inspector, has reasonable grounds to suspect that the misuse of any
specified Class A drug by that person, caused or contributed to the offence. [See Note 1A]
Notes for Guidance
1A. The
following factors, either singly or in combination, could provide reasonable
grounds for such suspicion –
(a) known
drug habit involving specified Class A drugs;
(b) admits
to a Class A drug habit;
(c) previously
tested positive for a specified Class A drug;
(d) intelligence
reports suggest Class A drug use;
(e) asked
to see a doctor while in custody because of drug withdrawal or associated
problems;
(f) possesses
drugs paraphernalia;
(g) previously
convicted for a Class A drug offence;
(h) nature
of offending.
2 Procedure
Request for a sample
2.1 The
legislation requires that the request for a sample be made by a police officer
and that before requesting a sample, an officer must warn the detainee that if
he or she fails without good cause to provide a sample when requested to do so,
the detainee could be liable to prosecution. Where an Inspector has authorised
the taking of a sample, the officer must inform the detainee of that fact and
the grounds for the authorisation.
2.2 Where
an officer of the rank of Inspector or above gives authorisation it may be
orally or in writing. If it is given orally it must be confirmed in writing as
soon as is practicable.
2.3 A
sample may only be taken under the Police Procedures and Criminal Evidence
(Jersey) Law 2003 by a person specified by the Home Affairs Committee.
Appropriate Adult
2.4 While
persons under the age of 18 years may not be tested for drugs there is no
specific restriction on tests being undertaken in the case of persons who are
mentally disordered, or mentally vulnerable. In circumstances where an
appropriate adult is required at the police station during the interviewing or
charging process, he or she should be asked to remain with the detainee
throughout the drug testing procedure as well. In most cases, this procedure
should be completed in less than half an hour. The role of the appropriate
adult is to assist and advise the detainee. In the event that the appropriate
adult advises the detainee not to consent to the provision of a sample for
analysis, the detainee will still commit the offence of failure to provide.
Medication
2.5 It
is important that detainees to be tested are asked about any medication they
have taken within the last 24 hours and details of any medication must be
recorded in the pro-forma. Certain types of medicines, including some available
from a chemist without prescription, such as codeine and other over the counter
medicines, may cause the test to register for opiates.
2.6 If
the detainee has taken any medication during the relevant period and the
screening test is positive, the sample must be forwarded to the States Analyst
Department for further testing. The results produced at the police station
cannot be relied upon in these circumstances, therefore the detained person
should be informed that this is not the end of the matter and the sample will
be subject of further testing.
Handling and retention of
Samples
2.7 If
the test result is positive and accepted by the detainee, the sample should be
kept in a tamper proof container and stored in a refrigerator.
2.8 If
the test is disputed or the detainee has disclosed the use of any medication
within 24 hours of the test, the sample must be sent for confirmatory
testing.
Failure to provide a
sample
2.9 A
detainee who fails without good cause to give any sample which may be taken
from the detainee commits an offence. The pro-forma includes a second request
for a sample in cases where he or she either directly refuses to provide one or
fails to answer. Similarly a second request is included to cover circumstances
where a detainee, having agreed to provide a sample, then fails to do so.
2.10 Before
charging with this offence, officers should consider carefully any medical
reason advanced by the detainee for failure to provide a sample. Any comments
or explanations for the failure to provide a sample should be noted on the
pro-forma. While it is not intended that anyone genuinely unable to provide a
specimen be prosecuted, ultimately it will be for the court to decide what is a
“good cause”.
3 Use
of test results
Disclosure
3.1 The
information obtained from a sample may be disclosed for the following
purposes –
(a) to
assist a court in deciding whether to grant bail in criminal proceedings;
(b) informing
any person responsible for supervising the person, (either while he or she is
in custody or on bail);
(c) helping
a court decide on the appropriate sentence following conviction; and any
decision about his or her supervision or release;
(d) ensuring
that appropriate advice and treatment is made available to the person
concerned.
Documentation
3.2 The
pro-forma is part of the custody record, but the original should always be
submitted with the case papers as either evidence of a failure to provide a sample,
or evidence of a positive or negative test. A record of the request for a
sample, the actions taken and the result of the test should be recorded in the
custody record.