Formulating Advice to Suspects Flashcards
How should a solicitor conduct a consultation with a client?
- The consultation should be private.
- The solicitor should not breach professional conduct rules.
When should a solicitor refuse to take instructions?
- If they are given by a relative or third party without proper authority.
- If representing two clients in the same matter where one might blame the other.
What must a solicitor do when advising a client?
- Assess the client’s fitness to be interviewed.
- Provide advice on the client’s legal position.
- Explain options in the interview and advise on the best approach.
- Explain the consequences of each option.
- Provide advice on samples (e.g., DNA, fingerprints).
What should a solicitor ask when obtaining the client’s account?
- Do they accept involvement in the offence?
- Do they have a legal defence?
What are the options available to a suspect in an interview?
- Answer questions.
- Remain silent (No comment).
- Provide a written statement and then remain silent.
What is the consequence of remaining silent in an interview?
- Silence may result in adverse inferences at trial.
What is a prepared written statement?
- A written statement handed in at the beginning of the interview.
- It helps avoid adverse inferences but is not a perfect solution.
- Any facts not included in the statement but later relied on may still attract an adverse inference.
What is a mixed interview?
- When a suspect answers some questions but not others.
- This is not advisable, as the jury will hear the transcript, and silence on key questions may look suspicious.
What factors should a solicitor consider before advising the client on answering questions?
- The amount of disclosure provided by the police.
- The admissibility and strength of the evidence.
- The client’s account and instructions.
- The client’s state of mind.
- Any significant statements made earlier.
- The risk of adverse inferences.
How does the amount of disclosure affect the interview strategy?
- If little disclosure is provided, it may be best to remain silent, as the solicitor has little information to base advice on.
How does the admissibility of evidence impact advice?
- Are there witness statements?
- Are the witnesses compellable?
- Was a significant statement unlawfully obtained?
- Will there be a Section 78 application to exclude evidence?
How does the strength of evidence impact the decision to remain silent?
- If little evidence exists, the case may not proceed to trial.
- Remaining silent avoids:
o Risk of incriminating the client.
o Risk of adverse inferences if the case does not proceed. - However, further evidence may emerge later.
Can a client remain silent if they have admitted guilt to the solicitor?
- Yes, especially if the evidence is weak.
What are the risks of not putting forward a defence during the interview?
- Adverse inference at trial.
- Loss of credibility.
How might the police influence a suspect during an interview?
- They may use tactics to make the conversation seem friendly.
What are ‘Argent factors’ and when do they apply?
- From R v Argent, these factors prevent the court from drawing adverse inferences if the suspect is:
o In bad condition.
o Confused, intoxicated, or in shock. - The solicitor should check the custody record to see if a medical examiner has deemed the suspect fit for interview.
What is a significant statement?
- A statement made before the interview that the suspect will be asked to confirm or deny.
What are adverse inferences under the Criminal Justice and Public Order Act 1984?
- Section 34 – Adverse inference if the suspect later relies on a fact at trial that they did not mention in interview.
- Section 36 – Adverse inference for failure to explain marks, objects, or substances found on them.
- Section 37 – Adverse inference for failure to explain their presence at the scene of the crime.
Why is reviewing the custody record important before an interview?
- Ensures the solicitor is aware of:
o Any significant statements already made.
o Any forensic evidence the suspect may need to account for.
o Any adverse inference risks.
