Criminal Practice (Police Advice)

Question 1

What is the role of a solicitor in an active defense?

Answer 1

Protect and advance legal rights of the client, advise, and intervene during interviews.

Question 2

What should a solicitor take during interviews?

Answer 2

Comprehensive contemporaneous records.

Question 3

How should a solicitor interact with officers?

Answer 3

Avoid confrontation and speak to the custody officer if requests are refused.

Question 4

Who is considered vulnerable under COP C 1.13(d)?

Answer 4

A person with mental health conditions or mental disorders who may struggle to understand procedures. They may appear to be prone to becoming confused, providing unreliable or misleading information without knowing or wishing to do so

Question 5

Are individuals under the influence of drugs or alcohol automatically considered vulnerable?

Answer 5

No, they are not vulnerable without more evidence.

Question 6

What should officers do if they suspect someone is vulnerable?

Answer 6

Treat them as vulnerable unless clear evidence suggests otherwise.

Question 7

What must a custody officer do if a suspect is identified as vulnerable?

Answer 7

Conduct a risk assessment and provide access to an appropriate adult.

Question 8

Who cannot be an appropriate adult?

Answer 8

A solicitor attending the polcie station, police officer, victim, or someone with low IQ, among others (e.g estranged parent that the individual protests against).

Question 9

What is the role of the appropriate adult?

Answer 9

Ensure the suspect understands what is happening, support and assist the suspect, and observe police fairness.

Question 10

What is required for urgent interviews without an appropriate adult?

Answer 10

A superintendent must be satisfied that delay would harm evidence/persons; result in serious loss or damage to property or alert other suspects not arrested.

Question 11

What should a solicitor ensure for a vulnerable client?

Answer 11

The appropriate adult has been appointed and that the custody officer requests a medical assessment. In the interview, request regular breaks.

Question 12

What is the nature of a private confidential consultation?

Answer 12

Consultation should be in private and confidential; instructions should not breach conduct issues by taking instruction from a relative or third party unless the person giving instructions has authority to do so from the client

Question 13

What should a solicitor ask the client during the initial account?

Answer 13

Their version of events and whether they accept involvement/have a legal defence

Question 14

What options does a client have in a police interview?

Answer 14

Answer questions, don’t answer questions (‘no comment’), or provide a written statement.

Question 15

When should a prepared statement be used?

Answer 15

It is handed in at the beginning of the interview, setting out the defence in writing. Oftren used to avoid adverse interference where the lawyer thinks there are reasons why the client should not answer questions. However, avoiding adverse inferences using a statement is difficult - the client will still have to answer ‘no comment’ to questions put.

Question 16

What risk is associated with a client remaining silent?

Answer 16

The risk of adverse inferences being drawn in court.

Question 17

When might remaining silent be a good option for a client?

Answer 17

When police disclosure is insufficient or evidence against them is weak.

Question 18

What is important regarding the admissibility and strength of evidence?

Answer 18

Consider witness statements, compellability, and any unlawfully obtained statements.

Question 19

What should clients do if they have a potentially available defense?

Answer 19

Put forward the defense early in the interview to avoid adverse inferences.

Question 20

What should a solicitor consider about the client’s state during an interview?

Answer 20

Conditions like ill health, confusion, or intoxication should not lead to inferences from silence.

Question 21

What happens at the start of an interview regarding significant statements?

Answer 21

Officers will put any significant statements or silence to the suspect for confirmation.

Question 22

What is the consequence of remaining silent during an interview?

Answer 22

Inferences can be drawn under the Criminal Justice and Public Order Act: (1) if a fact is relied on at trial and it would have been reasonable to mention it in the interview; (2) if there is failure to account for a mark, object or substance; (3) If there is a failure to account for presence at the scene

Question 23

What does Section 34 of CJPOA state?

Answer 23

Allows for an inference to be drawn if the defendant relies on a fact not mentioned at the time of questioning.

Question 24

What is Section 36 of CJPOA about?

Answer 24

Failure to account for a mark, object, or substance found on the suspect at arrest.

Question 25

What does Section 37 of CJPOA address?

Answer 25

Failure to account for presence at the scene of the crime.

Question 26

What conditions must be met to draw a s.34 (late reliance on a defence) inference?

Answer 26

The suspect must be cautioned, and it must be reasonable to mention the fact at the time.

Question 27

What conditions must be met to draw a s.36 & 37 (failure to account for mark, substance or presence at scene) inference?

Answer 27

The defendant must be given a special warning which includes being told about the offence and what facts they are asked to account for + be told that a court may draw an inference.

Question 28

What does an adverse inference imply about the defendant’s explanation?

Answer 28

The jury may conclude the explanation is fabricated or that the defendant had no reasonable account.

Question 29

What is the safeguard in Section 38 regarding adverse inferences?

Answer 29

No conviction may solely rely on an adverse inference. If the case never gets to trial, or the client pleads guilty, adverse inferences are irrelevant.

No trial - No Inference

Question 30

What does PACE Code D aim to protect?

Answer 30

Innocent suspects from incorrect identification.

Question 31

What is an identification procedure when a suspect is not known?

Answer 31

The eyewitness may be (1) taken to identify the suspect at a neighborhood or (2) shown photographs.

Question 32

Where a suspect is known, when shall an identification procedure take place?

Answer 32

Where an eye witness:
(1) Has identified a suspect; or purported; or
(2) Is available who expresses an ability to identify the suspect; or
(3) Has a reasonable chance to be able to identify the suspect
It need not be held if not practicable or would serve no useful purpose.

Question 33

What is video identification?

Answer 33

The eyewitness is shown moving images of a known suspect alongside similar individuals (8 + suspect = 9 images)

Question 34

How to approach getting a video identification?

Answer 34

(1) Notice must be given to the suspect, explaining the purpose, procedure, and that they don’t have to consent or co-operate.

(2) Suspect must however be invited to participate unless (i) it is not practicable to host such a procedure; or (ii) identification parade is more suited. If the suspect refused, an alternative can be considered.

(3) The officers film the suspect asking them to face the camera and be filmed from right, left centre.

Once filmed, the officer chooses lookalines, edits and shows witness

Question 35

What must happen duirng the video identification?

Answer 35

It must be recorded on video with sound, showing all persons.

Question 36

What should be recorded in identification procedures?

Answer 36

Descriptions must be documented, and the suspect should be informed of their rights.

Question 37

What is an identification parade?

Answer 37

The eye-witness sees the suspect in a line of other

Question 38

What safeguards when conducting an identification parade?

Answer 38

(1) A suspect must be given reasonable opportunity to have a solicitor or friend present.

(2) Everything must take place in the presence of the suspect, solicitor, friend or appropriate adult.

(3) A video recording or colour photograph must be taken

(4) It should consist of 8 people and unusual features should be concealed or replicated

(5) The suspect may select their own position

(6) Witnesses must not communicate with each other.

Question 39

What is a group identification?

Answer 39

The eye-witness sees the suspect in an informal group of people. This can take place with the suspects co-operation; or covertly without consent

Question 40

How to conduct a group identification?

Answer 40

(1) The location should be one where people are passing informally such as pedestrians in a shopping centr

(2) A colour photograph or video should be taken to give impression of the scene

(3) Witnesses should not communicate with each other.

Question 41

Who makes the charging decision in criminal proceedings?

Answer 41

The Crown Prosecutor exercising the powers of the DPP.

Question 42

What forms can the commencement of criminal proceedings take?

Answer 42

Arrest and charge, written charge, requisition, or laying an information.

Question 43

When do the police retain charging discretion?

Answer 43

Road traffic offences (summary only) and criminal damage not exceeding £5,000.

Question 44

When can Police bail be imposed?

Answer 44

(1) Where there is insufficient evidence to charge and they are released pending further investigation

(2) Where police consider there is sufficient evidence to charge, but the matter must be referred to CPS for a charging decision

Question 45

What is the charging limit for summary-only offence in magistrates court?

Answer 45

6 months after event.

Answer 46

A public prosecutor may issye a requision (requring the individual to attend a magistrates court) with 6 months.

It is the magistrates who authorise a summons.

Question 47

What is the right to free legal advice at the police station?

Answer 47

Everyone detained has the right to free and independent advice from duty solicitors.

If a possibility of a custodial sentence, the suspect is entitled to face to face advice. If no possibility of custodial sentence (e.g. summary only), only entitled to telephone advice.

Question 48

What are the funding options for representation in magistrates court?

Answer 48

Private payment or legal aid (means and merit tested) with a representation order if eligible.

Question 49

What are the funding options for the Crown Court?

Answer 49

Private payment or legal aid with a representation order, which is means and merits tested - they may be asked to pay contribution by way of a monthly fee

Question 50

When could a solicitor be removed from a police interview?

Answer 50

Only if the solicitor’s approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or the suspect’s response being recorded. This would be very unusual

Examples of unacceptable conduct include answering questions on a suspect’s behalf or providing written replies for the suspect to quote.

An interuption reminding a client of advice to answer ‘no comment’ would not be a ground for removal

The decision must be taken by a superintendent. correct

Question 51

Can someone voluntarily giving an interview become subject to an adverse inference at trial?

Answer 51

The suspect must be under arrest.

A volunteer giving an interviee (who may later be charged and put on trial) cannot give rise to an adverse inference.

Question 52

When does a prepared statement prevent an adverse inference?

Answer 52

A prepared statement prevents an adverse inference from being drawn against a defendant at their later trial,** provided the facts disclosed in the written statement are consistent with the defence case at trial.**

Question 53

What level of disclosure must the police give a solicitor prior to an interview?

Answer 53

A suspect is entitled to see the custody record and the record of the first description by an eyewitness

Other than that, the disclosure ‘duties’ are fairly minimal and only require information so that the suspect can understand the nature of the allegation, and why they are suspected of committing it.

Question 54

What happens if the witnesses claim to know the suspect but the suspect denies knowing them?

Should there be an identification procedure?

Answer 54

Yes - the requirement to hold an identification procedure applies unless there is no dispute that the suspect is well known to the witness.

If the suspect denies being well known, a procedure should be had

Question 55

Should an identification procedure be held after street identification?

Answer 55

Yes - an identification procedure should be held even if there has been a firm street identification, unless the eyewitness insists that they cannot identify the person responsible or in a case of pure recognition of someone well-known to the eyewitness.

Question 56

If a suspect says “maybe” in response to an offence, is that a confession?

Answer 56

Yes - a ‘maybe’ response does amount to a confession because it is partly adverse to him