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Criminal Litigation > SGS 3: Case analysis, police station advice, and inferences from silence > Flashcards

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

1
Q

Can self defence be a defence to an affray?

A
  • Yes, it can
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2
Q

What are three types of offensive weapons? Provide examples of each.

A

simpson categories

  1. Offensive per-se
  2. Adapted for causing injury
  3. Not made or adapted for causing injury, but carried with the intention of causing serious physical harm
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3
Q

How might the prosecution prove the elements of an offence of s47 ABH?

A
  • The prosecution will need to prove that there is a lack of consent
  • The threat needs to be perceived by the victim.
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4
Q

What are the elements of ABH and where is this found?

A
  • S47 OAPA
  • Assault / battery causing bodily harm
  • Intentionally reckless
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5
Q

What are the defences to ABH?

A
  • 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.
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6
Q

What are the elements of Affray and where is it found in the statute?

A
  • S3 POA 1986

- Using unlawful violence towards another, causing a person of reasonable firmness to fear for safety intentionally

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7
Q

What are the defences to Affray under s3 POA?

A
  • Self defence
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8
Q

What are the characteristics of possession of an offensive weapon and where is this found?

A
  • 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.
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9
Q

What are the defences for possession of an offensive weapon?

A
  • Self defence: if in fear of imminent attack
  • Innocent motive (Houghton)
  • Lawful authority
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10
Q

What is the offence of theft?

A
  • Dishonestly appropriating the property belonging to another
  • With the intention to permanently deprive
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11
Q

What is the defence for theft offence?

A
  • Consent of the owner

- Believe property to be abandoned

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12
Q

What are the advantages of silence at interview?

A
  • Useful where no defence.
  • Sus controls info supplied to police so protected from self-incrimination
  • Do not give a poor account.
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13
Q

Is the fact that D is advised by solicitor to stay silent preventing the risk of adverse information?

A
  • No
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14
Q

What are the case laws surrounding Silence option at interview?

A
  • 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.
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15
Q

What are the disadvantages of silence at interview?

What are the relevant statutes?

A
  • 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

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16
Q

What are the advantages of answering questions at interview?

A
  • 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.
17
Q

What is the disadvantage for the suspect answering questions at interview?

A
  • 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
18
Q

What are the advantages of a prepared statement at interview?

A
  • Defendant controls info supplied, which protects from self-incrimination
  • Does not give a poor account
  • Useful for defence also
19
Q

What are the disadvantages of a prepared statement at interview?

A
  • 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.
20
Q

What is the role of the solicitor in formulating advice? Where is it set out?

A
  • COP C
  • NFG 6D
  • Might be required to leave the interview under COP C 6.9 and 6.10
21
Q

What is the first step of formulating advice?

A
  • Setting out the three options

- Silence, answering questions, written statement

22
Q

What is the second step of formulating advice? What are the DEAD factors?

A
  • Analysis of the DEAD factors and apply the facts under each of these factors

D isclosure
E vidence
A rgent
D efence

23
Q

What is the third step of formulating advice?

A
  • Defence

- Only facts reasonable to mention at interview need to be put forward

24
Q

DEAD factors: explain DISCLOSURE?

A
  • 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
25
Q

Explain the case law surrounding disclosure?

A
  • 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.
26
Q

DEAD factors: explain EVIDENCE?

A
  • 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
27
Q

What are the types of evidence?

A
  • Witness
  • Identification
  • Real evidence - like CCTV
  • Forensic & medical
  • Circumstantial
  • Confessions
28
Q

DEAD factors:

Explain ARGENT?

A
  • The court of appeal: court should not be restrictive in interpretation of “circumstances existing at the time”
29
Q

What should ARGENT (of the DEAD factors) include?

A
  • Age
  • Experience
  • Mental capacity
  • State of health
  • Sobriety / intoxication
  • Tiredness
30
Q

Explain the DEAD factor, DEFENCE?

A
  • 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

Criminal Litigation (6 decks)

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