Advising a Client Flashcards
If the the advice to the client is not to answer the police questions or if the client does not want to accept the advice given by the lawyer, what you should do?
you should ensure the client understands any advice you give but also the reason as to why the advice is given.
You should make a careful note of the advice given and the reasons why the advice is given.
you should consider whether to ask the client to sign a statement that the client has received and understood the advice.
What are the consequences of lying to the police
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this may be used not only to attack the defendants credibility but also as evidence supportive of guilt
Inference may also be drawn under CJ POA 1994 s34
what does Advice on the Client’s Legal position involve
1) The offence which the client is suspected of
2) The strength of evidence
3) The defences that may be available
4) police powers and the possible outcomes of detention at the police station
What should you consider in relation to the suspected offence
What the prosecution have to prove in terms of the Actus reus and Mens Reas.
What you should you consider when analysing the strength of evidence
1) Whether witnesses have been interviewed, have you seen the witness statements and what is the status of the witness e.g are they likely to be co defendants
2) Do the police have evidence resulting from searches or samples e.g finger prints or DNA. What evidence they have from a scene of investigation
3) Which witness are the likely to interview, what samples are the likely to take, communication records
4) Are the police likely to have relied on information from an informant; or are they relying on surveillance
5) is the evidence likely to be admitted during trial
What should you consider when analysing the available defences
1)Whether the prosecution can prove the offence beyond reasonable doubt
2) Whether your client can claim a defence based upon common law or statutory rule.
You should consider where the burden of proof lies., the general rule is that the legal burden of proof rests with the prosecution, in order to secure a conviction.
What you should consider and advise the client about the powers of the police and possible outcomes.
1) The powers that the police have to gather evidence e.g fingerprints, searches, samples and fingerprints.
2) The length of time the police can detain without charge
3) The powers of the police to detain or release following a charge
4) The likelyhood of them realising without charge.
5) possible sentences
You should consider asking the police to pursue a particular line of enquiry per Criminal procedure and Investigations Act 1996 code of practice the investigator should peruse all reasonable lines of in enquiry whether they point towards or away from the suspect.
Advice on whether to answer police questions
a) You should consider consider all 3 sections of the Criminal Justice Public Order Act 1994.. s34,36 and 37.
b) consider whether the client has allegedly made a ‘significant statement’ at any prior time and what impact this may have
What are significant statements?
Per Code C para 11.4A and Code H para 11.5
’ one which appears capable of being used in evidence against the suspect, in particular a direct admission of guilt’.
What are the police obliged to with significant statements
they are obliged to put forward significant statement to the suspect whether it occurred before arrival at the police station or at the police station but outside the context of an interview.
What should you advise a client when they deny making a significant statement
If the client denies making such statement you should advise them to make this clear even if they are not going to answer the questions generally in interview.
This is because if the defendant mentions he not make the alleged statement but failed to do so in interview then will lead to adverse inference per s34 of CJ POA 1994
What should you do if you are concerned that the client would find it difficult to comment on the alleged statement and to remain silent for an the interview.
You should indicate to the police that the client does not accept that the statment was made, or include a denial in a prepared statement.
a comment on alleged statement would normally be appropriate even if you believe it was made in the context of an interview that should not have been conducted.
What should you do if the client if the client accepts that they made the significant statement the police said they made
•Whether the statement was made in the context of an interview that should not have been conducted. If it was made in that context, you should advise the client to go no comment and indicate that you believe the street interview was unlawfully conducted
When a suspect Is arrested they must not be interviewed about the offence expect at the police station or other authorised place of detention per Code C para 11.1 , this only applies once a decision to arrest has been made.
What exceptions are there for the client not to be interviewed at
There are exceptions to this rule, if delay would likely to:
• lead to interference with or harm to evidence, or physical harm to other people, or damage to property
• Lead to the altering of other people, or serious loss of, or damage to, property
• leading to the alerting of other people suspected of committing an offence
• hinder the recovery of property obtained in consequence of the commission of the offence
What should you do if the Significant statement was not made in the context of an unlawfully conducted interview and client admits they said it be deny its true
if the client accepts that they said but denies it is true, it would normally be appropriate to state this as it would be difficult to challenge at trial.
