Crim lecture 3 Flashcards
Confession evidence is admissable under what section of PACE?
Where is it defined?
Unless excluded due to how it was obtained - s.76(1).
‘Confession’ is defined s.82(1) PACE
Good defence lawyer does what?
Thinks about:
What evidence is there?
What is admissable?
What gaps?
What might be the prosecution case?
Right to legal advice?
s.58 PACE and COP CNFG 6D (sol’s role at police station)
What are the three options for tactics at interview?
Answer qs..
Prepared statement…
No comment…
What section of what act = right to draw inferences?
What are the three types of inference that can be drawn?
s.34 Criminal Justice and Public Order Act 1994
- Recent fabrication
- Fear of scrutiny
- No reasonable explanation
Briefly describe ss.34- 38 of CJPOA 1994.
s. 34 - right to draw adverse inferences from failure to mention facts later rely on at trial
s. 35 - right to draw AIs from failure to give evidence at trial, or refusal to answer qs w/o ‘good cause’ (e.g. entitled due to enactment or privilege or court’s discretion)
s. 36 - failure to account for an object
s. 37 - failure to account for being in a certain place
n. b. ss.36 and 36 not same as s.34 in that not beholden to mention, just if questioned should account for….(i.e. following the principle that the prosecution must gather evidence not defendant provide it!)
s. 38 - ‘safeguarding’ - adverse inferences cannot alone be grounds upon which to transfer case to Crown Court, refuse grants of applications or deny right of evidence being inadmissable due to operation of provisions which provide for this.
What are the conditions that must be met before s.34 applies?
- There must have been a caution (b/c w/o this the suspect cannot be said to have been given notice of the importance of disclosing relevant facts if will choose to rely on at trial).
- Facts later relied upon - if do not rely upon at court then immaterial to AI. If no trial due to no defence/ pleaded guilty also immaterial.
Must balance likelihood of trial actually going ahead against risk of AIs.
- Reasonable to mention at interview - R v Argent circumstances = ‘circs at the time should be widely interpreted’ Law Soc guidance states can inc:
- what disclosure had been made from po
- what can prosecution demonstrate the suspect knew at the time
- condition and circs of the suspect
- any legal advice they received
Code C para. 10.5. gives the wording for what? Which then gives rise to what?
Caution - it may harm your defence if you do not mention when questioned something you later rely on in court
This is the fundamental requirement upon which a s.34 inference can be drawn. e.g. that a caution has been given prior to questioning. If not = exempt evidence derived.
COP C 2.4?
COP D 3.1?
Right of suspect to see custody record.
Right of suspect to see record of eye-witness 1st description.
What did R v Roble establish?
That it is not proper to draw a s.34 inference where there has been so little disclosure that the sol could not properly advise their client.
D.E.A.D advice structure. Describe E.
Describe D.
Disclosure - COP C 2.4 and D 3.1. R v Roble.
Evidence - if so little evidence that police’s qs are effectively fishing/ eliciting the suspect to incriminate themselves then best advice is to give no comment?
Argent factors - anything circumstantial that reduces reasonableness of expecting suspect to mention facts.
Defence - mention those that refute prosecution case, also entitled to mention new facts at trial not reasonable to be within knowledge at the time of the interview.
Cannot hide behind legal advice to remain silent. Discuss.
Must be genuine.
Sound reasons for advice - e.g. did not merely hide behind right to silence b/c no good defence - how would jury know this? D must waive privilege so sol can give reasons for legal advice…but then both can be cross-examined!
