police station advice Flashcards
types of evidence
- witness
- identification (witness, forensic, CCTV)
- real evidence (drugs found on suspect)
- forensic/medical evidence
- Circumstantial (only infers D did it) - admissible unless excluded (can be persuasive) - s.76(1) PACE
- Confessions (s.82(1))
exam structure
- STATE 3 OPTIONS
- ANALYSE DEAD
- STATE WHICH OPTION BEST
- and - of the option by ref to facts
- conclude
3 options at interview
silence (no comment)
written statement (prepared statement)
answer questions
why is it ok to use written statement to deal with 1 offence and no comment others? (not in solution - tutor said this)
solicitor provides the written statement
- other side won’t call solicitor to justify what the solicitor wrote and why they didn’t address everything
- not for suspect to justify what solicitor wrote either
no comment - when?
if evidence is weak
Prosecution must prove elements of the case before charge
answer questions - when?
if want to
ONE - persuade police to administer a caution only
TWO - persuade police to take no further action
THREE - suspect has a good defence
written statement - when?
- raise defence without stress of interview
2. control evidence supplied
s.34 inference
if accused “failed to mention any fact relied on in his defence” in circumstances existing at the time where accused could reasonably have been expected to mention when so questioned, the court or jury “may draw such inferences from the failure as appear proper.”
if accused does not state a fact now whilst questioned under caution but then later relies on it in court later in his defence, the court or jury may draw an adverse inference
NOT immediate inference
NO inference if D never charged or if D pleads guilty
DOES NOT STOP D relying on it later
NO INFERENCE IF NO CAUTION (COP C 10.5)
special warning
required to be given for s.36 + s.37
- cop c 10.11
- IF NOT GIVEN no adverse inference
DEAD
Disclosure
Evidence
Argent
Defence
DEAD - DISCLOSURE
“We have sufficient disclosure UPON WHICH WE CAN ADVISE. If there had been no or insufficient disclosure, this can justify an option of not answering questions (Roble)”
NO MARKS if you don’t say ‘upon which we can advise’
DEAD - EVIDENCE
go through each element of the offence
- which ones are problematic and prosecution may not be able to prove
- do easy ones then contentious parts
consider:
- strength of evidence
- what left to prove?
- what evidence needed? can they get it?
- where does evidence have to come from?
- is there evidence police not disclose?
IDENTIFY HOLES IN PROSECUTION CASE and note what evidence is required to prove elements of the offence
STRENGTHS AND WEAKNESSES OF THE CASE
DEAD - ARGENT
say no Argent factors apply and state why (i.e. state the Argent factors + say they don’t apply)
sobriety, experience, age, mental capacity, state of health, tiredness
Usually 1 mark for argent factors and one to say they don’t apply
DEAD - DEFENCE?
Does Client have defence?
state you’ve tested the client on the strength of his defence and are satisfied it is true - continue as though the defence is truth
if self-defence
- raise = admit offence (actus reus), likely to be charged
- not raise = s.34 inference VERY strong later (prosecution will hold onto this)
advantages/disadvantages of each option - general tips
give proper reasons
relate to facts of the case
E.g. self-incrimination by revealing she was at the scene (police don’t know this)
E.g. self-incriminate by saying who X was (police don’t know this)
E.g. s.34 - state exactly what D may want to rely on later in court
remaining silent - advantages
- if prosecution cannot (and will not be able to - e.g. bc witness won’t give statement) prove elements of the offence, cannot charge
- avoid incrimination
Answering questions can:
- add strength to prosecution case
- disclose matters police were unaware
- make admissions
- suspect’s version may not stand up to scrutiny
remaining silent - advantages
- s.34 inference avoided - weigh up inference with likelihood of prosecution proving elements of the offence
- possible s.36 inference (immediate - accused does not need to go to trial/give evidence at trial)
- possible s.37 inference (immediate too)
NB. Safeguard s.38
s.36 inference
if accused is arrested for an offence and
there is on his person an object, substance, or mark,
an officer, having formed the reasonable view that this may be attributable to participation in offence, can ask the accused account for the presence of the object, substance or mark
if accused fails to account for object/substance/mark = adverse inference immediatly
s.37 inference
accused is arrested for an offence at a time and place when offence was committed;
an officer, having formed the reasonable view that his presence at the scene may be attributable to his participation in offence, can ask the accused about his presence at the scene
If accused fails to account for presence, an adverse inference = IMMEDIATLY DRAWN
answering questions - advantages
- avoid adverse inferences
2. co-operation can be raised as mitigation point
answering questions - disadvantages
- can be used against accused as evidence
- accused may give poor/damaging account
- loss of control over how much information is supplied to police/prosecution (+ selective silence will create a poor impression with judge/jury)
written statement - advantages
- suspect controls information supplied to police
- protected from self-incrimination
- suspect does not give poor/damaging account that can be used against him
written statement - disadvantages
- R v Knight - inferences can be drawn (pre-prepared statement is not an ‘inevitable antidote’ to later adverse inferences - BUT if D maintains at trial his account in prepared statement, no adverse inferences can be drawn)
- might need to give another prepared statement as more evidence is disclosed
solicitor’s role at police station
protect legal rights of detained client (COP C NFG 6D) - incl. welfare respected, disclosure obtained as much as possible advising client
BUT solicitor may be required to leave interview if police think solicitor prevented police properly conducting interview
- writing down answers
- answering Q on client behalf
R v Paris, Abdullai and Miller (Cardiff Three Cases)
Accused was bullied, sworn, and shouted at and threatened by police officers during interview
Legal representative severely criticised by CA for not intervening
Non-intervention of solicitor may even led police to believe behaviour was acceptable
prior to interview, legal rep should
- Examine custody report
- Speak with investigating or interviewing officer
- Obtain disclosure
- Consult with client
R v Hoare
the fact lawyer recommended to stay silent does NOT prevent inferences being drawn
- D cannot rely on legal advise to avoid adverse inferences
R v Howell
there must be soundly based objective reasons for silence
e.g. Argent factors, lack of disclosure, lack of evidence
how can court decide if D genuinely relied on advice to remain silent
D waives privilege and solicitor gives evidence for advice given (and can be cross-examined on all info re: consultation, not just for advice given)
COP C 6G
solicitor can advise more than 1 client in an investigation if they wish (subject to Annex B constraints)
Q of conflict of interest is for solicitor under their professional code of conduct
COP C 6J
if detainee exercises right to legal advice they must be able to consult/communicate with their solicitor in private
when s.34 adverse inference drawn, jury is effectively saying:
Explanation is a RECENT FABRICATION
D withheld account out of FEAR OF POLICE QUESTIONING (knew it would not stand up to it)
D had NO REASONABLE EXPLANATION at the time
