SGS 3: Case analysis, police station advice, and inferences from silence Flashcards
1. analyse offences you will regularly encounter in criminal practice; 2. understand what issues the prosecution has to prove in order to provide a realistic prospect of a conviction; 3. evaluate the nature and strength of potential evidence and defences; and 4. advise a client in relation to adverse inferences and the options available in a police interview and the potential consequences of each option
Can self defence be a defence to an affray?
- Yes, it can
What are three types of offensive weapons? Provide examples of each.
simpson categories
- Offensive per-se
- Adapted for causing injury
- Not made or adapted for causing injury, but carried with the intention of causing serious physical harm
How might the prosecution prove the elements of an offence of s47 ABH?
- The prosecution will need to prove that there is a lack of consent
- The threat needs to be perceived by the victim.
What are the elements of ABH and where is this found?
- S47 OAPA
- Assault / battery causing bodily harm
- Intentionally reckless
What are the defences to ABH?
- Prosecution needs to prove that there is a lack of consent. Not a defence if there is no good reasons.
- Self defence of property / others or preventing crime is a defence.
What are the elements of Affray and where is it found in the statute?
- S3 POA 1986
- Using unlawful violence towards another, causing a person of reasonable firmness to fear for safety intentionally
What are the defences to Affray under s3 POA?
- Self defence
What are the characteristics of possession of an offensive weapon and where is this found?
- S1 POCA 1953
- Without lawful authority.. Having an offensive weapon.
- 3 categories under simpson:
- Offensive per se, adapted for causing injury, or not made/adapted for causing injury, but carried with the intention of causing serious physical harm.
What are the defences for possession of an offensive weapon?
- Self defence: if in fear of imminent attack
- Innocent motive (Houghton)
- Lawful authority
What is the offence of theft?
- Dishonestly appropriating the property belonging to another
- With the intention to permanently deprive
What is the defence for theft offence?
- Consent of the owner
- Believe property to be abandoned
What are the advantages of silence at interview?
- Useful where no defence.
- Sus controls info supplied to police so protected from self-incrimination
- Do not give a poor account.
Is the fact that D is advised by solicitor to stay silent preventing the risk of adverse information?
- No
What are the case laws surrounding Silence option at interview?
- Howell & Hoare
- Hoare: D cannot rely on legal advice to avoid adverse inf. There must be genuine reason for doing so.
- Howell: there must be soundly based objective reasons for silence. Such as Argent factors, lack of disclosure / evidence.
What are the disadvantages of silence at interview?
What are the relevant statutes?
- There is a risk of inferences at trial
- If it would have been reasonable to mention at the police station.
S34 CJPOA - if mention in trial, rely on a defence not mentioned - will be risk adverse inference
S36 CJPOA - if there is a mark and D fails to five account for it, AI may be drawn.
S37 CJPOA - AI may be drawn if there is presence at the scene and D fails to account for this
S36 / 37 - apply even if the D does not give evidence at trial
S34: only applies if D gives evidence @ trial
What are the advantages of answering questions at interview?
- More likely to avoid adverse inferences if facts to be relied on @ trial are raised.
- Admissions made = cooperation at interview might mitigate - e.g. get a caution.
- Questions are useful if there a strong defence.
What is the disadvantage for the suspect answering questions at interview?
- Burden of proof = on the prosecution. So the less information that they have, the better.
- Can be used as evidence against D
- Could give poor / damaging account
- Loss of control of information
What are the advantages of a prepared statement at interview?
- Defendant controls info supplied, which protects from self-incrimination
- Does not give a poor account
- Useful for defence also
What are the disadvantages of a prepared statement at interview?
- R v Knight
- Adverse inference could be still be drawn.
- BUT, if there is no AI at trial, if D maintains written statement is truth
- But, it might be necessary to make further statements if more information arises.
What is the role of the solicitor in formulating advice? Where is it set out?
- COP C
- NFG 6D
- Might be required to leave the interview under COP C 6.9 and 6.10
What is the first step of formulating advice?
- Setting out the three options
- Silence, answering questions, written statement
What is the second step of formulating advice? What are the DEAD factors?
- Analysis of the DEAD factors and apply the facts under each of these factors
D isclosure
E vidence
A rgent
D efence
What is the third step of formulating advice?
- Defence
- Only facts reasonable to mention at interview need to be put forward
DEAD factors: explain DISCLOSURE?
- Background of offence and why D is involved
- Have to see if there is enough disclosure, to warrant an explanation from D.
- There is no automatic right
- Apart from to see the custody record - the police are under no legal obligation
- COP 2.4
- Right to see description of identification of witness under COP D 3.1
Explain the case law surrounding disclosure?
- R v Roble
- Held that had been so little disclosure, that a solicitor could not usefully advise suspect
- So not proper to draw s34 CJPOA adverse inferences.
DEAD factors: explain EVIDENCE?
- Focus on how the evidence relates to the elements of the offence under investigation.
- Howell case: absence of evidence from victim is not necessarily a good reason for silence.
- No obligation on D to provide evidence
- More evidence - more likely advice will be able to answer questions
What are the types of evidence?
- Witness
- Identification
- Real evidence - like CCTV
- Forensic & medical
- Circumstantial
- Confessions
DEAD factors:
Explain ARGENT?
- The court of appeal: court should not be restrictive in interpretation of “circumstances existing at the time”
What should ARGENT (of the DEAD factors) include?
- Age
- Experience
- Mental capacity
- State of health
- Sobriety / intoxication
- Tiredness
Explain the DEAD factor, DEFENCE?
- Only the facts that are reasonable to mention at interview need to be put forward
- No AI if new facts mentioned in defence at trial were not in defendant knowledge at time of interview
- Involve self incrimination - e.g. presence / self-defence
