Police Station: Options during Interviews and Adverse Inferences Flashcards
1
Q
what are the 3 options to answer in the interview?
A
- answer police questions
- no comment to every question –> adverse inferences can be drawn
- provide a written statement and say no comment during interview
2
Q
answering questions during interview - advantages (3) vs disadvantages (4)?
A
advantages =
- likely to avoid adverse inferences if all facts of a defence are raised that they later rely on at trial
- if suspect plans to admit, cooperation in interview can mitigate sentence
- suspect has a defence they are planning on relying on
- could dissuade further action by police if info undermines prosecution case
disadvantages =
- answers can be used as evidence against the accused
- suspect gives poor and damaging account
- a jury can still reject a defence put forth
- loss of control over how much information is supplied to the police/prosecution
3
Q
no comment interview - advantages (8) and disadvantages (1)?
A
advantages =
- fear or embarrassment, too upset or overwrought
- wants to protect someone else
- difficulty in remembering
- they have no explanation to give
- they are guilty
- protected from self-incrimination or providing damaging evidence
- more control over info given to police / prosecution
- police does not disclose before interview = courts are relctant to draw adverse inferences from a no comment interview here
disadvantages =
ADVERSE INFERENCES MAY BE DRAWN FROM SILENCE - ONLY IF THE MATTER PROCEEDS TO TRIAL
4
Q
giving written statement before interview and answering no comment during interview - advantages (4) and disadvantages (2)?
A
advantages =
- control of information supplied
- no poor or damaging account that can be used against them or incriminate them
- MAY prevent adverse inferences being drawn at court after a ‘no comment’ interview
- Appropriate if a suspect is vulnerable or not able to withstand pressure of interview
disadvantages =
- does not completely prevent adverse inferences being drawn
- difficult to ensure that sufficient information is contained in the statement because any fact D seeks to rely on later that is not mentioned in the statement could still attract an adverse inference
5
Q
what are mixed interviews?
A
NOT AN OPTION
- mixed interview = suspect states no comment so some questions but answers others
- advise clients against this before interview because transcript of interview will be read in court (unlike a fully no comment interview)
- jury will see what questions were answered and which ones were not and can draw adverse inferences
6
Q
what are the considerations in deciding whether client should answer questions in the interview? (7)
A
balancing exercise between:
- Amount of disclosure = if police disclose nothing or less than what they were supposed to, this is a good reason to advise client to remain silent (courts reluctant to draw adverse inferences where disclosure is insufficient)
- Admissibility of evidence = what witnesses are compellable? are significant statements unlawfully obtained? will any s76 or s 78 applications be made?
- Strength of evidence = remain silent if evidence is weak and case is unlikely to go to trial as it prevents self-incrimination and no adverse inferences are drawn if there is no trial
- Client’s account/instructions = if client admits offence to you, then remain silent; if client has defence, then answer questions to rely on defence in court without adverse inferences being drawn
- State of the client = fitness of client for interview –> ARGENT FACTORS = court cannot draw adverse inferences from silence where D’s condition, ill=health, mental health, confusion, intoxication, or shock gives the lawyer cause for concern
- Significant statements = statements capable of being used in evidence against suspects - interviewing officer will tell them to suspect after giving caution and ask them to confirm or deny
- Adverse inferences = s34, s36, s 37
7
Q
what are the Argent factors?
A
- It would not have been reasonable for D to have mentioned something later relied on at trial - so court/jury must not draw an adverse inference under s 34 - where the condition of the defendant at the time of the interview was cause for concern
- Argent factors = D’s condition, ill-health, mental health, confusion, intoxication, shock, sleep deprived
8
Q
what is the right to silence? how does this impact adverse inferences?
A
- right to silence = NO obligation to answer questions in a police interview
- adverse inferences = common sense conclusion can be drawn that is adverse to the interests of a party who exercises their right to remain silent in a police interview
- ADVERSE INFERENCES ARE IRRELEVANT IF THE CASE DOES NOT GO TO TRIAL
- the court or jury have discretion to draw AI - it is not certain that they will
==> solicitor must balance:
- the likelihood of trial actually happening against the risk of an adverse inference if it does
- the benefit of not answering questions against the downside of adverse inferences
9
Q
what are the types of adverse inferences that a court/jury may draw? (3)
A
ADVERSE INFERENCES =
- s34 = if a fact is later relied on at trial that D did not mention during interview where it would have been reasonable to ==> D must have been cautioned
- s36 = D failed to account for a mark, object or substance ==> D must have been given a special warning
- s37 = D failed to account for his presence at the scene ==> D must have been given a special warning
10
Q
what are the safeguards for the defendant from adverse inferences? (6)
A
- D cannot be convicted solely based on adverse inferences alone
- no adverse inferences can be drawn where the suspect was not allowed to access legal advice
- judge will direct the jury when jury decides if it is fair and proper to draw adverse inferences + ask the jury whether D could reasonably have been expected to mention facts in the interview which they now rely on at trial
- A solicitor can make representations and give evidence eg, explaining why he advised D not to answer questions
- Adverse inferences cannot be drawn where the solicitor was concerned that Argent factors existed = ill health, mental health, confusion, shock, or intoxication
- The suspect must have been cautioned for AI to be drawn (normal or special caution)
11
Q
when can s34 adverse inferences be drawn?
A
- An inference can be drawn by the jury/ magistrates when D later relies on a fact in their defence that they did not offer at the time of questioning and it is something that would have been reasonable to mention
- example: denying involvement, self-defence
- any inference the court draws must be PROPER
- Court CANNOT draw adverse inference UNLESS D was CAUTIONED
in considering what would have been reasonable to mention during interview =
- disclosure of police
- condition and circumstances of D at the time (Argent)
- age of D
- inability of D to remember facts at the time
- the legal advice D received –> ‘because my lawyer told me to say no comment’: does not prevent adverse inferences from being drawn but is a factor the court considers in deciding whether to draw one
12
Q
in considering whether to draw an adverse inference under s 34, how does the court assess whether it would have been reasonable to mention the fact in question during the interview?
A
- It must have been reasonable to have said the fact in the interview considering circumstances existing at the time
- The court may choose to not draw an inference if they think it was not reasonable to mention the fact/defence
- that ‘circumstances existing at the time’ must be widely interpreted
- case law has shown that it is not proper to draw AI where D’s condition was cause for concern (ill health, intoxication)
Law Society Guidance says that ‘circumstances existing at the time’ can include:
- what disclosure the police made to the suspect or their lawyer
- what info P can show D knew the suspect knew at the time of questioning
- D’s condition and circumstances (intoxication, sleep deprived, mentally vulnerable)
- any legal advice the suspect received – but ‘because my lawyer told me to say no comment’: does not prevent adverse inferences being drawn – but can help the court in considering whether to draw one
13
Q
when can s36 adverse inferences be drawn?
A
- When the suspect fails to account for an object, substance, or mark found on them at the time of arrest.
- Example: police ask why suspect has a blood stain on his clothes and he fails to provide an answer and account for this
- Court CANNOT draw an adverse inference UNLESS D was given a SPECIAL WARNING before
- the ability to draw an inference under s 36 arises AS SOON AS THERE IS A FAILURE by D to account for their possession of the object/mark/substance (does not require a failure to mention something later relied on)
14
Q
when can s37 adverse inferences be drawn?
A
- When the suspect fails to account for their presence on arrest at a particular place at or about the time the offence was allegedly committed.
- Example: police ask why they were found on a burglary victim’s driveway and failure to provide an answer and account for this.
- Court CANNOT draw an adverse inference UNLESS D was given a SPECIAL WARNING before
- the ability to draw an inference under s 37 arises AS SOON AS THERE IS A FAILURE by D to account for their presence (does not require a failure to mention something later relied on)
15
Q
what are the contents of a special warning (required to draw s36 and s37 adverse inferences)? (5)
A
Requirements of a special warning:
- what offence is being investigated
- what fact they are being asked to account for
- this fact may be due to them taking part in the commission of the offence
- a court may draw a PROPER inference if they fail or refuse to account for this fact
- a record is being made and it may be given in evidence if they are brought to trial
