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| Ritualistic |
on Sun 14 Dec 08, 3:42 PM to Ritualistic's blog.
Below is a draft copy of Backlash's advice for anyone arrested under the CJIA (extreme porn) legislation. We are looking for comments on this, before we post it on the backlash site (www.backlash-uk.org.uk/), from:
1) Legal professionals.
2) Ordinary folk.
As we want to know if the advice is easy to read and understand (forgetting formatting, which is harder on IC).
The advice is below:
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YOUR RIGHTS UPON POLICE SEARCH, ARREST AND DETENTION
This guide is produced solely for the purposes of advising you of your rights if you are arrested, or your premises searched, in connection with an alleged offence under the CJIA 2008 (extreme pornography) legislation.
This guide is up to date at the time of publication. However, the law may change; and your rights may also be different for other alleged offences. Therefore:
IF YOU ARE ARRESTED SEEK PROFESSIONAL LEGAL ADVICE IMMEDIATELY.
POLICE SEARCHING YOUR HOME FOR EVIDENCE
The police can either search your premises with your consent; with a warrant; or after you have been arrested.
The police can only search the section of the premises that you occupy and any communal areas of the premises.
A warrant can be obtained by the police from Magistrates to search your premises for evidence of certain crimes. In these circumstances:
- The police can use reasonable force to gain entry. - You are entitled to see a copy of any search warrant. - The police should give you information about their powers to search. - A record of the search must be kept by the police. - You or a friend should be allowed to be present during the search but this right can be refused if it is thought that this might hinder investigations.
HOWEVER – The police may enter WITHOUT a search warrant if you have already been arrested (and under certain other circumstances).
COMPUTER EVIDENCE
The police may require computer information to be produced in a form that allows them to remove it. The police have limited rights to photograph or copy any document or other article they have the power to seize.
This includes seizing or copying computers, internal hard-drives, portable-drives, CDs, DVDs or other storage devices.
YOUR RIGHTS AT THE POLICE STATION
If you are arrested you will be conveyed to a Custody Suite at a Police Station. Your rights in Police Custody include include:
MOST IMPORTANTLY - the right to free, independent and confidential legal advice.
YOU ARE STRONGLY ADVISED NOT TO TALK TO THE POLICE ABOUT THE ALLEGED OFFENCE UNTIL YOUR SOLICITOR ADVISES YOU TO.
You are strongly advised to exercise this right and ask for a solicitor immediately upon arrival in the Custody Suite. Asking for a Solicitor is NOT an admission of guilt and cannot be held against you by the Police. If you do not know the name of an individual solicitor, you can ask the Custody Sargent for the DUTY SOLICITOR, who is completely independent of the police; and will be able to represent you for free.
You may consult with your Solicitor on the phone at ANY TIME whilst you are in Custody; and your Solicitor MUST be able attend the Police Station to advise and represent you in person within 45 minutes of the Police being ready to interview you.
Therefore, do not sign a police officer's pocket book or any other document regarding the alleged offence until your Solicitor arrives and advises you to.
You may sign the Custody Record to confirm your state of well being and to confirm any property that has been taken from you.
You also have the right:
To be treated humanely and with respect. To see a copy of PACE and the Codes of Practice which govern your rights and how must be treated (your Solicitor should know these rights). To speak to the Custody Sargent at any time (the officer responsible for your welfare). To know why you have been arrested. To have someone outside the Police Station notified that you have been arrested (you may not be able to make this phone call yourself).
To have an APPROPRIATE ADULT with you in Custody and when you are in interview if you are vulnerable (this includes having learning difficulties such as reading difficulties or certain Mental Health issues). The appropriate adult's role is to ensure your welfare and assist with communication; NOT to give you legal advice.
To request the police medical examiner (doctor) to attend you if you feel unwell or need prescribed medication. You SHOULD inform the Custody Sargent at the earliest opportunity if you are on prescribed medication. You MAY be permitted to take, or negotiate for the collection and administration of your medication. PRACTICAL PROCEEDURE IN CUSTODY
STAY CALM. You may have to wait in your cell for some time before you see your solicitor in person. You can be kept in custody for up to 24 hours (which can be extended by 12 more hours by an officer of the rank of superintendent or above).
Anything you say to the police whilst in Police Custody may be recorded and read back to you in tape-recorded interview. There is no such thing as an “off the record chat” beforehand. Therefore talking “informally” to the Police at this stage may harm your case significantly. Wait for your Solicitor to arrive and advise you, before you discuss the alleged offence with the Police.
Ensure all your details that have been entered on the custody record are correct. Read it before signing. Especially important are the reasons for your arrest; and your times of: arrest; arrival at the Police Station; and detention.
If you request something whilst in Custody (book, blanket, phone call etc) and it is refused, ENSURE that you see the reasons for the refusal are is recorded on your custody record.
YOUR SOLICITOR
DO NOT be dissuaded from seeing a solicitor because the police tell you that it will take longer for a solicitor to arrive; that it will make things more complicated; or it will be held against you. It is your fundamental RIGHT, it is FREE and CANNOT be held against you by the police or, at a later date, by a Court.
Before you are interviewed, your Solicitor must be given “Disclosure” by the Police. This disclosure should contain the reasons for your arrest; the offence(s) you are suspected of committing; any evidence the police are prepared to admit to having against you and; therefore, that you are to be formally interviewed to obtain further evidence. This disclosure may vary in detail depending on the circumstances. It is often basic information that the police wish to “flesh out” by asking you further questions in interview.
You have a right to consult with you solicitor in private; without a member of the police being present. Your solicitor should advise you as to your rights and entitlements at the Police Station, check your welfare concerns (health, childcare, appropriate adult, treatment whilst in custody etc); advise you regarding the law, disclosure and the strength of the evidence against you; before then taking your instructions – which are your version of events.
REMEMBER – it is essential that you listen to your solicitor. You do not have to follow their advice; but remember that they are trained and experienced professionals whose role is to advise and represent your interests.
Despite the nature of CJIA Extreme Pornography offences, do not be embarrassed to talk to your Solicitor in detail about the allegations. Failure to do so may significantly harm your defence.
Once your solicitor has taken all necessary instructions from you, he should be in a position to advise you regarding your best legal interests in interview. Essentially your options are:
1) To answer all the police's questions. 2) To answer “No Comment” to ALL questions. 3) To give a written statement and then answer “No Comment” to ALL questions.
Your solicitor should advise you as to which of these options appears to be in your best legal interests, given the information that both you and the police have provided.
Do NOT assume you know what your best option is before you discuss it fully with your solicitor. Therefore, do not assume that a “No Comment” interview is in your best legal interests, as YOU MAY HAVE A DEFENCE at law, or vice versa.
IN INTERVIEW
Once you have had time to consult with your solicitor, you should be formally interviewed by the police. This interview should be tape-recorded. Your Solicitor (and appropriate adult, or interpreter if you need one) should be present throughout your interview. You are entitled to ask for the interview to be terminated at any time if you require further legal advice from your solicitor. This means that the tapes must be turned off and that you be given as much time as you need to consult with your solicitor in private, so that you are fully advised; and then the taped interview with the police may resume.
CHARGE OR BAIL FOR FURTHER ENQUIRIES
Once the interview process has concluded the police must make a decision. If they have enough evidence against you they must charge (formally accuse you) you with the offence and bail you to attend a Court to answer those charges.
An immediate charge is unlikely in CJIA Extreme Pornography cases as the Police will HAVE to forensically examine your computer and electronic storage equipment. This may take up to 6 months. Therefore you are more likely to be released from custody on bail. This means you will have to return to the Police Station at a later date (eg in 6 months time), either to be charged; interviewed again based on any further (computer or other) evidence the police have against you; or bailed yet again for the Police to make more enquiries.
During this period it is essential that you stay in contact with your Solicitor for updates and further advice regarding the procedures you face.
For further advice consult a legal professional.
For further detailed advice regarding your rights:
www.yourrights.org.uk/yourrights/the-rights-of-s....
Copyright Backlash 2008
| 16 Dec 08, 4:54 PM Arbuthnot UK(E), 7 yrs |
I don't agree about "no comment" interviews. Making no comment does nor preclude any defence you may later wish to run, and the words of the police caution about "may harm your defence" are nonsense. At least, they are in this sort of case. There are only two reasons the police wish to interview anyone after arrest; 1. They don't have enough evidence to charge you with anything. 2. They hope that during the interview you will provide them with evidence they can use. Interviews aren't always carried out or the police may try to arrange one at a later date. If met with a strict "no comment", police often resort to citing things you allegedly said to them in the van on the way to the station or somewhere else (i.e. when there is no recording). So the best policy is to absolutely shut up. Don't talk to them about anything at all, not even football or the weather. "Lost your tongue, have you?" they may say or try to provoke you. Just say nothing. Don't give them anything. Don't make their job easier. Whatever they say, they're not sympathetic and not trying to help you. I'm also not sure about the advice on duty solicitors being "completely independent of the police". Some are. Some are good, conscientious, criminal solicitors. Others are rubbish and may be the cops' drinking pals or their boss's "brother" down the freemasons lodge. Duty solicitors are a right bran-tub. You never know what you'll get. The new rules about telephone-only advice (from someone who may be an ex-cop and not legally qualified) instead of the duty solicitor scheme aren't mentioned. I'm afraid I'm not fully up to date with these either, but I believe they're simply being ignored in some police stations. The best advice is to know the details of a sympathetic criminal solicitor and to insist that they be called. It would be good if there was a list of BDSM-friendly criminal solicitors here or elsewhere. But then, appearance on such a list might not endear a junior solicitor to the firm's partners or the firm itself to the Law Society. Edited 16 Dec 08, 4:56 PM by Arbuthnot | |
| 16 Dec 08, 10:41 PM aspiejon UK, 5 yrs |
There is another website for activist legal http://www.freebeagles.org/articles/Legal_Bookle... I will be shortly be making an announcement to a large conference that will be held in late January which covers our constitution rights against the Treasonous government. There are many other groups that have the same problem "the government eu laws" and they are starting to join forces. It may come as a bit of a shock to most people but the new CJIA legislation may not actually be legal under the British constitution and there are ways around it. All will be reveled. Jon Edited 16 Dec 08, 11:04 PM by aspiejon | |
| 17 Dec 08, 5:33 PM topscore UK(NN), 4 yrs |
There is a possible caveat here. A solicitor will not be able to enter a positive defence on behalf of a person accused of a crime if that person has admitted the crime to them in consultation. In other words, if someone arrested admits to the attending solicitor that they were looking at images they knew to be pornographic and extreme then neither the solicitor, nor another member of his or her firm or any independent advocate instructed (barrister), can subsequently argue on that person's behalf that they did not know that the images were pornographic and extreme or in their possession. A negative defence is possible (that is, simply putting the Crown to proof that the images were in fact pornographic and extreme and possessed) but no officer of the court (such as a solicitor) can be party to a known lie before a judge. In the event that an admission is made to the solicitor and the arrested person wishes to mount a positive defence then the solicitor will have to withdraw and new solicitors appointed. This may seem like an escape route but in reality a new solicitor may struggle with a defence where they were not advising at the investigations (interview) stage. You may wish to consider adding something along the lines of: "It is important to ask the solicitor to explain his or her role clearly to you and the consequences of any discussions you may have. The solicitor may not pass on to the police any information you give (unless you specifically ask them to) but, equally, they will not be able to lie for you or assist you in lying. It is important to weigh carefully what you say to your solicitor but you should not be afraid to seek their professional advice as to the options available to you nor to rely on their judgement if issues of law arise. Questions of guilt or innocence are for the individual facing charge. A solicitor is only there to act as a guide."
Top of the world, Ma Edited 17 Dec 08, 5:45 PM by topscore | |
| 18 Dec 08, 10:19 PM Arbuthnot UK(E), 7 yrs |
Interesting that freebeagles was mentioned above. Lots of good stuff there, but it was originally, as you'd guess, intended to help animal rights activists, broadening out to other folks who sit in roads, occupy offices etc. I didn't have the new(ish) rules on "telephone only" advice after arrest in place of duty solicitors to hand when I posted before. Here they are now; Our old pals the Legal Services Commission explain the plan here; http://www.legalservices.gov.uk/criminal/police_... leading to the phone mob here; http://www.legalservices.gov.uk/criminal/cds_dir... The new codes of practice for the cops are at; http://police.homeoffice.gov.uk/operational-poli... It's code C in the above which is likely to be relevant. I'm told these new procedures are still being widely (but not universally) ignored. Have we got any criminal practitioners on here? It's likely to be criminal solicitors, rather than barristers, who'd be best able to help with these issues of arrest process, codes of practice etc. Just don't put your firm's name at the bottom of your post, eh, and we promise not to grass you to the Law Society. Edited 18 Dec 08, 10:28 PM by Arbuthnot | |
| 18 Dec 08, 10:38 PM Arbuthnot UK(E), 7 yrs |
Don't let the above make you paranoid! I don't think there's actually going to be many cases of responsible BDSM folks being bust and there's unlikely to be any serious police resources devoted to it. Any charges are much more likely arise when they've failed to get someone for something else. "Oh bugger, we're not going to be able to do this Green Party councillor for terrorism after all...but wot's this? Ah-ha! Extreme pornography!" | |
| 20 Dec 08, 2:31 AM Arbuthnot UK(E), 7 yrs |
Sorry to be blunt, but that's crap.
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| 20 Dec 08, 4:28 PM Fidelio9 UK(N), 3 yrs |
Arbuthnot - I do not agree with your comments about "no comment". Adverse inferences are drawn, defence case statements can be read out in court and often are. In addition we practitioners often feared that juries looked disfavourably in the old days on a no-comment interview despite a judge´s instructions. This is a very complicated area and one where we cannot offer legal advice in a forum. My two-cents are that legal aid lawyers are increasingly overworked and if you can afford a good lawyer on privates fees it is worth the money in the long run. | |
| 23 Dec 08, 12:18 PM estarriol UK(S), 6 yrs |
If they seize your computer, but do not immediately charge you, what are your rights on having it returned if you need it for working purposes? | |
| 23 Dec 08, 5:08 PM Willie_Winkie UK(HP), 5 yrs |
I think, Topscore you probably meant
....they will not be able to KNOWINGLY lie for you or KNOWINGLY assist you in lying....
Most criminal practitioners will tell you they frequently think their client MAY be lying, but as they don't KNOW for sure continued representation is no problem.
Useful...If only... | |
| 24 Dec 08, 3:18 PM Bi_sub UK(BN), 5 yrs |
Getting a new comp and hiding one seems very seedy to me. Yes I do have S/m porn and images on my comp but I think hiding it would only make matters worse. Just out of curiosity what do they mean by extreme? |
