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.
What you should you advise if the client admits they made the statement and accepts its true
advise the client not to comment upon it unless they intend to admit the offence or wish to argue that the statement is consistent with innocence.
When you should you formulate a prepared statememnt
-When there are good reasons for informing the police of facts that are likely to be relied on by the defence at trial.
- There are reasons why the client should not be subjected to the risks associated with police questoining :
• the client is nervous
• the client may not respond well to police questioning
• the facts are complicated or police disclosure has been limited or partial
what should you implement when preparing a written statement
ensure that the statement accurately reflects the client instructions and that the client reads the statement or has it read out to them.
you should also include a declaration signed by the client such as This is my statement. I have read the statement, and I agree with its contents. I have not been told what to say
How much information should your statement include
R v McGarry, A statement that contained they key elements of the defence, without setting out full details is sufficient to avoid inferences.
inferences will be drawn from failure to mention facts in statement which are then relied upon at trial.
The statement should respond to any request to account under s36 or s37 at trial.
What should you do with a prepared statement when there is more than one interview or there is phased disclousre
The statement should be reviewed in light of any information disclosed by the police during the course of a prior interview or between interviews, you should consider handing in a supplementary statement.
When should you submit a statement
If you are satisfied with the disclosure submit the statement at the start of the interview. However in a more complex case or when the police have given no or limited disclosure, you should provide a statement at the end of an interview.
Before the interview is concluded you should tell the officer that you wish to have a private consultation with the client. If the police objects you should remind them that para 11.6 code c= they are obliged to give a suspect the opportunity to give an innocent explanation.
what should you advice be to your answering some questions and not others
It’s not an appropriate strategy because of the adverse effects on credibility of the defence at trial.
If the client indicates they are not willing to answer certain questions regarding certain matters. it is best to submit a prepared statement covering relevant facts.
Should you tell the police the reasons for advice in order to minimise inferences
The solicitor should not normally tell the police or state in the interview the reasons for advice given to the client as it will amount to privilege being waived.
However it can help miminise inferences in some cases as good reasons for advice to remain silent may persuade a court that it is not reasonable to expect the accused to have mentioned relevant facts
Would asking the interviewing officer whether they have disclosed all available evidence minimise inferences
Asking this may lead them to disclose further information, in which case you should want a further private consultation with cleint. If they do not give you information obtain your disclosure during the interview and then submit a prepared statment or ask for a another police interview.
Would handing in a statement in interview or at charge minimise inferences
submitting a prepared statement at charge will be useful if you believe that the police will not have enough evidence to charge. The police can only interview after charge for a number for reasons such as clearing ambiguity in the statement.
This may fail however if the defence put forward at trial goes beyond the facts set out in the statement.
