Preliminaries to prosecution II (interviews, adverse inferences and identification)

Question 1

What does it mean for a solicitor to actively defend and promote their client’s interest?

Answer 1

• Obtain as much info from police as possible
• Advise client fully on issues arising during police investigation
• Attending and advising during interview

Question 2

Should solicitor confront officers during interview if they breach PACE or refuse reasonable request?

Answer 2

No - make note and speak to CO and ask them to make a note in custody record

Question 3

What is a vulnerable suspect? What is not a vulnerable suspect?

Answer 3

• Vulnerable suspect = any person because of mental health condition/disorder has difficulty understanding or communicating effectively about full implications of situations or becomes prone to becoming confused or providing unreliable information unintentionally
• Not an intoxicated person

Question 4

What happens when a suspect is suspected as vulnerable?

Answer 4

• Risk assessment by CO to identify if vulnerable (behaviour, mental health, information from records) - will be treated as vulnerable unless evidence to contrary
• If so = provided access to appropriate adult who should attend police station ASAP

Question 5

What are the 3 options for the client in a client interview?

Answer 5

1. Answer Qs
2. Go no comment (do not answer Qs)
3. Provide written statement (and go no comment)

Consequences of silence may be adverse inference!

Question 6

If a suspect goes ‘no comment’, can a transcript be read out in court?

Answer 6

No

Question 7

Why should a prepared written statement not be used?

Answer 7

Difficult to ensure sufficient information and any fact relied upon later which is not mentioned could attract adverse inference

Question 8

Why should mixed interviews (answer some Qs and no comment to others) not be advised?

Answer 8

• Transcript of interview will be read out in court (unlike no comment interview) so jury knows suspect avoiding Qs
• Interviewing officers can push suspect into talking about matters they intended not to
• Suspect can become confused

Question 9

When considering whether to answer questions in an interview, what 6 factors should be considered?

Answer 9

1. Amount of disclosure
2. Admissibility/strength of evidence
3. Client’s instructions
4. State of client
5. Significant statements
6. Possible adverse inferences

Question 10

How will amount of disclosure impact the decision as to whether a client answers questions?

Answer 10

A lack of disclosure can be a good reason for solicitor to advise silence and courts reluctant to draw adverse inferences where disclosure was insufficient

Remember sufficient information should be given to solicitor, not full

Question 11

How will admissibility/strength of evidence impact the decision as to whether a client answers questions?

Answer 11

• If evidence is less admissible (e.g. witnesses not compellable) = should not answer Qs
• If evidence is not strong = matter unlikely to go to trial (so little risk of inferences being drawn)

But consider if further evidnece is to be obtained!

Question 12

How will client’s defence impact the decision as to whether a client answers questions?

I.e. a defence

Answer 12

If defence not put forward until trial, risks of adverse inferences and losing credibility

So should put forward ASAP!

Question 13

How will the state of the client impact the decision as to whether a client answers questions?

Answer 13

Court should not draw inferences from silence where suspect’s condition (ill-[mental]health, confusion, intoxication) gives lawyer cause for concern (Argent factors) - check custody record to see if medical examiner has certified as fit for interview

Question 14

How will significant statements impact the decision as to whether a client answers questions?

Answer 14

As they are capable of being used in evidence, suspect will be asked to confirm/deny earlier statement

Question 15

How will adverse inferences impact the decision as to whether a client answers questions?

Answer 15

Remaining silent always runs risk of adverse inferences being drawn!!!

Question 16

In an interview, what can a solicitor do and not do?

Answer 16

• Can seek clarification, challenge improper Q, challenge manner in which Q put, give further legal advice
• Cannot answer Qs for them, help them to answer by providing replies, interrupt to extent that IO unable to conduct interview

Question 17

Do suspects truly have a right to silence?

Answer 17

• No obligation to answer Qs in police interview
• But court can draw inferences at later trial if statutory conditions are met

Question 18

What is an adverse inference?

Answer 18

A common sense conclusion that is adverse to the interests of a party in proceedings

Question 19

What are the 3 different types of adverse inferences?

Under Criminal Justice and Public Order Act 1994

Answer 19

• S34 - fact relied on at trial and it would have been reasonable to mention now
• S36 - failure to account for a mark, object or substance (e.g. bruising, hammer in rucksack)
• S37 - failure to account for presence at the scene (failure to explain why they were found on burglary victim’s driveway)

Question 20

What are the 6 formal conditions that must be satisfied before adverse inference can be drawn?

Under R v Argent

Answer 20

1. Proceedings against person for offence
2. Alleged failure to mention a fact at trial must have occurred before/on charge
3. Alleged failure must have occurred during questioning under caution
4. Questioning must have been directed to trying to discover whether or by whom alleged offence was committed
5. Alleged failure of accused must have been to mention any fact relied on in their defence in those proceedings
6. Alleged failure must have been to mention a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned

Question 21

Under s34, when and by whom can an adverse inference be drawn?

Answer 21

• When D later relies on fact in defence that was not offered at time of questioning
• Drawn by jury/magistrates

Question 22

Does the court have to draw an inference?

Answer 22

No

Question 23

If the court does draw an inference, what must it be?

Answer 23

Proper - can range from…

• Acceptance that defence as presented in court is true but D chose not to reveal in interview; to
• D’s account in court is untrue and they are guilty

Question 24

What must the suspect be for an inference to be drawn under s34?

Answer 24

Cautioned i.e. given words of caution explain to suspect the consequences of not mentioning a fact later relied on

• ‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’

Question 25

What must the fact not mentioned by the D (which adverse inference is drawn from) be?

Answer 25

Reasonable to have mentioned at time bearing in mind circumstances existing at the time

Question 26

What does ‘circumstances existing at the time’ mean in terms of what facts should have been mentioned by the D?

Answer 26

Widely interpreted, can include…

• Disclosure made to suspect/lawyer by police
• Information suspect knew at time of questioning/charge
• Conditions/circumstances of suspect
• Legal advice received by suspect

Question 27

What is the ultimate effect of an adverse inference and what will the jury/magistrates effectively be saying?

Answer 27

• Ultimate effect of adverse inference being drawn at trial from D’s silence = undermines defence
• Effectively saying that: explanation fabricated since interview/D withheld account as knew it would not stand up to police questioning/D had no explanation which would refute prosecution case at time of questioning

Question 28

What is the difference between s34 and s36&37?

Answer 28

Ability to draw inference under s36/37 arises as soon as there is a failure by D to account for mark/possession of object or presence

Cf s34 - must be a failure to mention something later relied on

Question 29

What must D be given for an inference to be drawn under s36/37?

Answer 29

An ordinary language caution; special warning

Question 30

What are the requirements of a special warning?

Answer 30

The fact they are being asked to account for, that a court may draw proper inference and the interview may be given as evidence

Must be told:

• Offence being investigated
• Fact they are being asked to account for
• That fact may be due to them taking part in offence
• That a court may draw proper inference if they fail/refuse to account for fact; and
• A record is being made of interview and may be given as evidence

Question 31

What is the safeguard for adverse inferences?

Answer 31

No defendant may be convicted solely based on an adverse inference

Question 32

Is legal advice (or lack thereof) always a safeguard for adverse inferences?

Answer 32

• No access to legal advice = no adverse inference can be drawn
• Reliance on legal advice = adverse inference can still be drawn

Question 33

What is the only time adverse inferences will be relevant and what is the impact of this on advising pre-interview?

Answer 33

• Only relevant if D has a trial
• Pre-interview; lawyer must balance likelihood of trial happening v risk of inference if it does

Question 34

What must the prosecution prove beyond reasonabe doubt in every criminal trial?

Answer 34

That person in the dock is responsible for committing the crime

Question 35

Will someone only be an eye-witness if they have never seen the person before?

Answer 35

No, an eye-witness may:

• Recognise suspect as someone they have seen before (friend, someone who gets same bus everyday)
• Have never seen suspect before but can give police description/recognise if they saw them again

Question 36

What should visual identification evidence not be confused with?

Answer 36

Other evidence capable of supporting prosecution’s case e.g. description of clothing/vehicle, description of suspect (“5’7 with dark hair), suspect’s connection to particular place (“Maria is always at the cafe on Saturdays”)

Question 37

What are the safeguards at the investigation and trial stage for identification evidence?

NB confident identification no more likely to be reliable than a hesitant one

Answer 37

• Investigation stage - PACE Codes of Practice
• Trial stage - Turnbull guidelines; judge gives caution to jury where case against accused depends wholly/substantially on correctness of one or more identifications of accused which defence alleges to be mistaken

Question 38

When is PACE Code D adopted by police?

Answer 38

Where witness purports to identify suspect/expresses ability to make visual identification

To protect innocent suspect and make successful identification challenge-proof as possible

Question 39

Where suspect’s identity is not known to police, what will happen?

Answer 39

Eye-witness taken to particular place to see if they can identify person / shown photographs

Question 40

Where the identity of a suspect is known (by the police), when will an identification procedure be held?

I.e. police have a suspect, they are now bringing witnesses in to see if they can pick them out

Answer 40

Where:

1. Offence has been witnessed and an eye-witness has (purported to have) identified suspect or expresses ability/has a reasonable chance to identify suspect; and
2. The suspect disputes being the person the eye-witness claims to have seen

Question 41

When does an identification procedure not need to be held?

Answer 41

Where it is not pracitcable/would serve no useful purpose in (dis)proving suspect was involved in offence e.g. suspect already known to eye-witness

Question 42

What are the 3 types of identification procedure that may be used where the identity of the suspect is known to police and they are available?

Answer 42

1. Video identification - moving images of a known suspect together with similar images of others who resemble suspect
2. Identification parade - suspect in line of others who resemble suspect
3. Group identification - suspect in an informal group of people

Question 43

Which officer conducts identification procedure, what must they not be involved in and what rank must they be?

Answer 43

• Identification officer (cannot be involved with investigation)
• Not below inspector rank

Investigating officer cannot play part in identification procedure

Question 44

When will a video identification procedure be used cf identification parade?

Answer 44

Video identification used in first instance unless not practical or identification parade more sustainable

Question 45

Does the suspect have to consent to/cooperate with a video identification procedure? What may the impact of refusing consent or cooperation be?

Answer 45

• Do not have to consent/cooperate - but alternative procedures can be considered if suspect refuses (or covert procedure can go ahead)
• Refusal may be given in evidence and an adverse inference drawn

Question 46

When can covert procedures be used at the identification stage? What needs to happen?

Answer 46

• Only as a last resort and if other procedures have been considered and refused
• Suspect should be told that police may proceed covertly without consent

Question 47

What must be explained in the notice given to the suspect before the video identification procedure?

Answer 47

• Purpose of procedure
• Entitlement to free legal advi e
• Procedures for holding it and right to have solicitor/friend present
• That they do not have to consent/cooperate
• If they do not consent, may be given in evidence
• That covert procedure may be conducted in absence of consent

Question 48

What are the detailed arrangements for a video identification procedure in Code D?

How is it carried out? What power does the suspect have? What is the suspect told? How is the procedure documented?

Answer 48

• Identification officer, suspect and legal rep select lookalikes from over 10,000 video clips
• Video clip produced with suspect placed amongst at least 8 other individuals who resemble suspect in age, appearance and position in life (subject to reasonable objections from suspect)
• Unusual physical features are concealed/replicated
• Eyewitness told that person they saw on specified earlier occasion may or may not appear in images
• Recorded on video with sound showing all persons present, what eyewitness says, and what is said to eyewitness by officer/any other person present

Question 49

Can the suspect’s soicitor be present at video identification procedure?

Answer 49

With prior agreement from identification officer

Question 50

What should the investigating officer/any other person not do? What should eyewitnesses not do? How mabny eyewitnesses can see the images at one time?

Answer 50

• Should not direct eye witness’ attention to any one image/identity
• Eyewitnesses cannot communicate with one another
• Only one eyewitness can see set of images at one time

Question 51

Once an identification parade has formed, what persons must everything afterwards take place in the presence and hearing of?

Answer 51

Suspect, any interpreter, solicitor, friend or appropriate adult present

Question 52

Does the suspect have to give consent for an identification parade?

Answer 52

Yes - without them it could not go ahead

Question 53

What will the identification parade consist of? What can the suspect do?

Answer 53

• At least 8 people (resembling suspect) + suspect
• Unusual features concealed or replicated
• Suspect can select own position in the line

Question 54

What are witnesses not able to do in an identification parade? What can they request of a member in the parade?

Answer 54

• Cannot: communicate with one another; overhear witness who has already seen parade; see any member of identification parade; see suspect before/after identification parade
• Can: request that a member speak, adopt any posture, or move

Question 55

Must a suspect consent to a group identification?

Answer 55

No, can happen with their consent/cooperation or covertly without their consent

Question 56

What should the location for group identification be?

Answer 56

One where other people passing by/waiting around informally - suspect should be able to join them and be capable of being seen by witness at same time as others in group

E.g. people leaving escalators, pedestrians walking in shopping vcentre, passengers on railway

Question 57

In confrontation by an eyewitness, where should this happen? What should eyewitness be told before?

Answer 57

• Normally in a police station, either in normal room or one equipped with screen permitting eyewitness to see suspect without being seen
• Eyewitness must be told before that person they saw on earlier occasion may or may not be the person they are to confront

Question 58

If there is a breach in Code D (identification procedures), what should D do?

Answer 58

Apply to exclude evidence obtained in breach of code under s78

Voir dire sometimes required

Question 59

Will a breach of Code D (and application under s78) automatically mean evidence is excluded?

Answer 59

No - judge must decide whether there has been any significant prejudice to the accused, and if so decide whether admission of evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it

Question 60

When will identification evidence usually be excluded?

Answer 60

Where important safeguards have been flouted e.g. right to formal identification procedure

Question 61

Where identification evidence is admitted into evidence in spite of a breach of Code D, what is the defence permitted to do and what ought the trial judge do?

Answer 61

• Defence permitted to comment on the breach in closing speech
• Trial judge ought to draw jury’s attention to breach and invite them to consider reasons the code has been drawn in the way it has