UNIT 1: PROCEDURE Flashcards

Question

Custody record?

Answer 1

 Likely first contact on arrival at police station o Can supply the solicitor with basic information about the circumstances of the client’s detention o CO should allow the solicitor to inspect the custody record and detention log (Code C, 2.4)  Solicitor should use the custody record to obtain (or confirm) the client’s basic details (name, address, DOB, etc), unless they already have this information o Solicitor needs to obtain (or confirm) from the CO and/or custody record: 1. the alleged offence(s) for which the client has been arrested; 2. the time at which the custody officer authorised the client’s detention and the reason such authorisation was given (ie was detention authorised to obtain or preserve evidence and/or to obtain such evidence by questioning); 3. any significant comments made by the client whilst at the police station (for example, an admission of guilt) (Code C, 3.4); 4. any samples, fingerprints or impressions of footwear which may already have been taken from the client; 5. any identification procedure which may already have taken place 6. any interview which may already have taken place at the police station (if, for example, the client has decided to obtain legal advice only after already having been interviewed by the police); 7. whether the client is under any form of physical or mental disability, or requires the attendance of an appropriate adult; 8. any illness which the client may be suffering from, or any indication that the client is in anyway vulnerable or requires medical treatment (or details of any medical treatment which the client has already received whilst at the police station). Similarly, the solicitor should find out if the client is suffering from the effects of drink and/or drugs; 9. any significant items found as a result of a search either of the client’s person, or of any premises owned, used or occupied by the client or premises where the client was arrested (for example, items it is alleged the client has stolen or used in the commission of the offence); and 10. if the client has already been at the police station for six hours or more, details of any detention reviews which have been carried out and the reason why the client’s continued detention has been authorised (see above). o Code C, 2.4: allows a legal representative or appropriate adult to request a copy of the custody report when a detainee leaves police detention or is taken before a court o Practice: solicitor will usually be provided with a printout of the custody record and detention log when they first arrive at the police station

Answer 2

* After obtaining basic info from CO, solicitor will need to speak to the officer dealing with the case to obtain information: 1. disclosure (the facts of the offence and the evidence supporting those facts); 2. significant statements and/or silence; and 3. the next steps the investigation officer proposes to take.

Answer 3

* Police are not obligated to provide the solicitor with evidence of the case against the client (subject to Code C, 11.1A), police normally provide the solicitor with some details * Investigating Officer will summarise orally the contents of the witness statements obtained, possibly allow the solicitor to view copies, or provide a typed disclosure statement summarising the evidence (latter most common) * If IO refuses to make any disclosure, or does so very limitedly, the solicitor should point out that in those circumstances they cannot properly advise the client as to the nature of the case against them, which may impact how they answer questions in interviews NEW TEST FOR DISCLOSURE “Before a person is interviewed, they and, if they are represented, their solicitor must be given sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it"

Answer 4

o Solicitor needs to make it clear to the client that they are there to provide the client with free, independent legal advice and that they have no connection with the police o Solicitor should point out to the client that their only role at the police station will be to protect and advance the client’s legal rights o Must also tell the client that anything they are told by the client will remain confidential (even after the solicitor has stopped acting for the client), although the solicitor is bound by certain rules of professional conduct which in certain circumstances may limit what they are able to do or say on the client’s behalf

Answer 5

2. Details of the alleged offence o Should tell the client information obtained from the IO about the offence o Should advise the client as to what the police will need to prove in order to obtain a conviction for the offence 3. The client’s instructions o Get the client’s version of events o Solicitor should try to take detailed instructions from the client o Recommended that solicitors make a note recording both their client’s instructions and the advice that has been given on essential issues 4. The next step in the police investigation o Advise on likely next steps – most cases: audibly recorded interview 5. Prepare the client for interview T

Answer 6

1. to give a ‘no comment interview’, but either during the interview or before being charged, hand a written statement to the police setting out facts the client will rely upon in their defence at trial. 2. to answer all the questions put to them; 3. to give a ‘no comment interview’; 4. selective silence, where the client answers some questions but not others;

Answer 7

 Client can put forward his version of events on records straight away – important if client is raising specific defence which imposes evidential burden on them – self-defence/alibi defence.  Credibility of evidence at trial boosted, consistent, early opportunity.  Likely to ensure that at trial the court or jury will not be allowed to draw adverse inferences against the client under ss 34, 36 or 37 of the Criminal Justice and Public Order Act (CJPOA) 1994  If client admits there guilt + has no convictions/cautions, police may caution rather than charge. If charged, may be raised when solicitor is giving plea in mitigation – co-operation benefits – reduction in sentence. Disadvantages  Suspect may something incriminating / undermine credibility, contradictory/untrue facts  Transcript of interview record is read out in court if suspect charged + pleads not guilty – making admissions/implausible account.  Vulnerable to confusion, especially young/immature/previous trouble clients.  Police often hold back particular piece of information – hazardous if off-guard.  Line of questioning may lead client to make attack on character of another – if prosecuted, may enable CPS to raise evidence of previous convictions.

Answer 8

Advantages  No danger of incrimination.  If case against client is weak – no sufficient evidence to charge. Disadvantages  Adverse inferences  If fails to answer in interview + at trial raises defence, details of which could reasonably have been given to police, defence sham and fabricated? When is this useful? 1. if the client is actually guilty to not give the police a strong case 2. if solicitor does not think the police provided adequate disclosure - creates a risk that the client may implicate themself answering in the interview – particularly important is a co-accused is also being interviewed 3. if solicitor thinks the police may attempt to ‘ambush’ the client with new evidence 4. if the client denies involvement and the police do not have sufficient evidence 5. if the client is physically or mentally unfit to be interviewed, or their interview performance may not be good due to emotions/distress/fatigue 6. if the client is likely to perform badly in interview due to: 1. age (young/elderly) 2. lack of maturity 3. psychological vulnerability 4. inexperience in detention and questioning 7. if the case is complex or incident occurred long ago 8. if the client does not have a viable case or defence 9. if the client has personal reasons for remaining silent (e.g. extreme embarrassment if they were to tell the police what actually happened) If a client decides to give a ‘no comment’ interview on the basis of the legal advice they have received, the solicitor must explain to the client that this will not necessarily prevent a court from drawing adverse inferences from this silence at any subsequent trial. If the solicitor has advised a client to remain silent, they should ensure that they make a full written note of the reasons for this advice. Such a record may have important evidential value at trial.

Answer 9

Disadvantages o Bad perception at trial when the interview transcript is read out or the recording of the interview is played to the court o Appears that defendant has something to hide and is refusing to reply to those difficult questions for which they have no satisfactory answer o Jury could draw adverse inferences from this method * Never advise client to go for selective silence

Answer 10

Advantages o puts the clients version of events on record - useful if the client wants to rely on that later, particularly on their defence o avoids client performing badly in interview (i.e. written statement + ‘no comment’ interview) o avoids adverse inferences * Disadvantages N/A? * Discuss with client when the appropriate time is to hand in this written statement; keep it on file and client will sign and date it – most often at the start of the interview, but sometimes at the end * Often the best advice for the client * Written statement contains: o clear and logical outline of the client’s account of events, in their own words o facts to be relied on in the client’s defence o cover matters which the police may ask in the interview to avoid adverse inferences * When to hand the written statement to the police: o during the interview, or o just before being charged, or o kept on the client’s file and not disclosed until later o usually: at the start of the interview o if the police case seems weak, giving the written statement early could help them, so holding it back might be helpful in that situation o solicitor may hold onto the statement if they are doubtful of the instructions received from the client, i.e. think they are weak or may ‘change’ at a later date

Answer 11

o If tape/disc, will be sealed in front of suspect at the end of the interview. The seal will only be broken at trial if there was any dispute about what was said. o One of the other tapes/discs will be a ‘working copy’ and will be used by the investigating officer to prepare a written summary or transcript

Answer 12

 an officer of the rank of inspector or above speaks to the suspect about their reasons for changing their mind, and makes, or directs the making of, reasonable efforts to ascertain the solicitor’s expected time of arrival and to inform the solicitor that the suspect has changed their mind and the reason for it; - the suspect’s reason for changing mind and the outcome of the efforts to contact the solicitor are recorded in the custody record  the suspect, after being informed about the outcome ^, confirms (in writing) that they want the interview to proceed without speaking to a solicitor, or without a solicitor being present, and do not wish to wait for a solicitor by signing an entry in the custody record

Answer 13

 If the solicitor has agreed to attend the police station but waiting for them would ‘cause unreasonable delay to the process of the investigation’ (Code C, para 6.6(b)(ii))  If the solicitor that the suspect has asked to speak to cannot be contacted or has declined to attend the station, and the suspect has declined the opportunity to consult the duty solicitor (Code C, para 6.6(c))  an officer of the rank of inspector or above is satisfied that it is proper for the interview to proceed in these circumstances and gives authority in writing for the interview to proceed; and if the authority is not recorded in the custody record, the officer must ensure that the custody record shows the date and time of the authority and where it is recorded, and takes or directs the taking of reasonable steps to inform the solicitor that the authority has been given and the time when the interview is expected to commence, and records the outcome of this action in the custody record

Answer 14

After cautioning, officer must also remind the suspect that they are entitled to free and independent legal advice, even if there is a solicitor at the interview (Code C para 11.2) * Interviewing officer must then put to the suspect ‘any significant statement or silence which occurred in the presence and hearing of a police officer … before the start of the interview’ (Code C para 11.4) o IO must ask whether the suspect confirms or denies that statement or silence, and if they want to add anything to it. * ‘significant statement’ (Code C para 11.4A) - a statement which appears capable of being used in evidence against the suspect at trial, in particular a direct admission of guilt * ‘significant silence’ (Code C para 11.4A) - a failure or refusal to answer a question or to answer satisfactorily when under caution, which might allow the court to draw adverse inferences from that silence at trial failure to comply with this step might result in the contents of the significant statement or the nature of the silence being ruled inadmissible at trial under s78 PACE 1984.

Answer 15

o raises their voice or shouts at the suspect o makes threatening gestures towards the suspect o leans towards the suspect so that they are ‘in the suspect’s face’ o stands over or behind the suspect o threatens to detain the suspect indefinitely unless they make a confession * Para 11.5 also says ‘no interviewer shall indicate, except to answer a direct question, what action will be taken by the police if the person being questioned answers questions, makes a statement, or refuses to do either.’ * IO shouldn’t make inducements to a suspect to admit their guilt

Answer 16

o When the officer in charge of the investigation is satisfied all the questions they consider relevant to obtaining accurate and reliable information about the offence have been put to the suspect;  this includes: allowing the suspect an opportunity to give an innocent explanation and asking questions to test if the explanation is accurate and reliable, eg to clear up ambiguities or clarify what the suspect said; or o the officer in charge of the investigation, or in the case of a detained suspect, the custody officer reasonably believes there is sufficient evidence to provide a realistic prospect of conviction for that offence

Answer 17

o If interviews take place over more than 1 day, in any period of 24 hours, the suspect must be given a continuous period of at least 8 hours for rest. (usually at night, free from questioning or any other interruption in connection with the offence) * Code C, para 12.8 o Breaks from interviews should be taken at recognised mealtimes, and short refreshment breaks at approx 2-hour intervals. * If interview conduct breaches any of these provisions, any admission or confession made by the defendant in that interview may be ruled inadmissible at any subsequent trial.

Answer 18

1. not passive 2. may be necessary to intervene to object to improper questioning or to give the client further advice 3. Para 6D Notes for Guidance to Code C - solicitor may intervene in order to seek clarification, challenge an improper question to their client or the manner in which it is put, advise their client not to reply to particular questions, or if they wish to give their client further legal advice. 4. Para 6D - solicitor may only be excluded from interview when they are deemed to be engaging in ‘unacceptable conduct’, e.g., answering questions on client’s behalf, or writing down answers for client to read out

Answer 19

* If they consider that: o the questioning techniques of the police are inappropriate or improper; o the police are behaving in an inappropriate manner; or o the client would benefit from further (private) legal advice. * Example situations: o The solicitor is unhappy about the seating arrangements for the interview. o The police are acting in an oppressive manner. o The police are asking inappropriate questions because they are:  irrelevant questions  making a statement/asserting facts  misrepresenting the law  misrepresenting the strength of the case against the client  ‘upgrading’ a response from the client/putting words in the client’s mouth/making assumption  hypothetical/speculative questions o the police make threats/give legal advice on the consequences of silence o The police offer inducements. o There is reference to a client’s previous convictions. o New information is introduced that was not disclosed earlier. o The police ask the client if they would be prepared to take part in further investigative procedures before the solicitor has been able to give the client advice on this. o The solicitor is concerned about the client’s behaviour or conduct. o The client is making comments that may have adverse consequences later in the case. o The police provide an inaccurate summary by the interviewing officer. o There is already sufficient evidence to charge

Answer 20

only if the solicitor’s approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect, or the suspect’s response being recorded. 1. e.g., answering questions on suspect’s behalf or providing written responses for the suspect to quote

Answer 21

4. If the conduct of the solicitor is preventing the IO from properly putting questions to the suspect, the IO must stop the interview and consult an officer of at least the rank of superintendent (Code C, para 6.10) 1. officer will speak to solicitor and decide if the interview should continue in their presence or not 2. if solicitor is to be excluded, the suspect must be given the opportunity to consult another solicitor before it continues 3. other solicitor must be given an opportunity to be present at the interview

Answer 22

o If client admits guilt to solicitor, solicitor must advise the client that they cannot attend an interview to represent the client if the client intends to deny having committed the offence. o Would otherwise be a breach of duty not to mislead the court (para 1.4 SRA Code) o NB if the client intends to give a ‘no comment’ interview, this would be fine as it doesn’t involve giving false information. o If client insists on giving false information in interview, solicitor should decline to act any further on the client’s behalf  but police cannot be told why the solicitor has withdrawn from acting (para 6.3 SRA Code)  can say withdrawing ‘for professional reasons’ o Solicitor should attempt to dissuade client from lying in interview. Benefits the client:  will be usually easy for police to disprove such lies  may result in client being charged with a more serious offence (e.g., perverting the course of justice) o Client should be advised that if they admit guilt in interview, they will receive credit (for sentence) from the court for cooperating with police

Answer 23

* No, unless: o other client’s consent (pref. in writing) has been obtained to disclose the information; o both clients are putting forward consistent instructions; and o solicitor considers it in client’s best interests for info to be disclosed * Solicitor must regard their overriding duty not to mislead the court * To guard against joint fabrication of events, the solicitor should ensure that before telling the second client what they have been told by the first client, they obtain an account of the second client’s version of events

Answer 24

* Solicitor representing client at police station may be asked for details of their client’s defence by another solicitor representing a co-accused who has been arrested in connection with the same offence. * Approach such requests with caution * Solicitors owe duty of confidentiality to their client and cannot release information upon such a request. * Exception - if the solicitor considers it is in their own client’s best interests for such information to be released (rare), and they first explain their reasoning to the client and obtain their authority (ideally in writing), then they can disclose the information

Answer 25

solicitor must make the client aware of all material information of which the solicitor has knowledge. * Exceptions such as where: o disclosure is prohibited by national security or the prevention of crime; o the client gives informed consent (in writing) to the information not being disclosed; o you have reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed; o the information is contained in a privileged document that has been mistakenly disclosed to you.

Answer 26

* explain to the client why they are no longer able to represent them; * tell the client that they are entitled to free legal advice from another solicitor of their choice or the duty solicitor; * tell the client that, although they are no longer to represent them, the solicitor still owes them an ongoing duty of confidentiality and will therefore not tell the police why they are unable to act; and * tell the custody officer that they are no longer able to act (for professional reasons), but not disclose the reason why (otherwise this would breach para 6.3 SRA Code).

Answer 27

* All arrested and detained suspects have a right to: o have a person informed of their arrest (s56) o receive free and independent legal advice from a solicitor (s58) * If a juvenile (J) has been arrested, the CO must find out the person responsible for their welfare if practicable (Code C para 3.13). o That person may be:  J’s parent or guardian;  if J is in local authority or voluntary organisation care, the person appointed by that authority or organisation to have responsibility for J’s welfare (Children and Young Persons Act 1933, s34(8));  any other person who has, for the time being, assumed responsibility for J’s welfare. o Person must be informed as soon as possible that J has been arrested, why they have been arrested and where they are being detained. o if J is known to be the subject of a court order under which a person or organisation has statutory responsibility to supervise or monitor them, reasonable steps must also be taken to notify that person or organisation.  The notified person - the ‘responsible officer’ - will usually be a member of a Youth Offending Team (Code C para 3.14)

Answer 28

* Meaning - person who attends the police station to provide support and assistance to a juvenile (or suspect with a mental health condition or mental disorder) * Order for police to follow when contacting appropriate adult for a juvenile: 1. Initially attempt to contact J’s parent or guardian (or representative from the local authority, if applicable) 2. If ^ unavailable, ask a social worker from the local authority 3. If ^ unavailable, contact another responsible adult who is aged 18 or over and not connected to the police (Code C para 1.7). Could be an aunt or uncle, or grandparent. * Appropriate adult for suspect with MH condition or mental disorder: o a relative, guardian or other person responsible for that person’s care or custody; o someone experienced in dealing with vulnerable people; or o some other responsible adult. * Solicitors should never be an appropriate adult, because AA support is in addition to any legal advice a suspect receives. * Other people who should NOT be appropriate adults: o police officers or persons employed by the police o any interested party such as the victim of the offence, another suspect, a potential witness, or anyone else involved in the investigation o a person, such as a parent or social worker, to whom J has made admissions prior to that person being asked to attend the police station to be an AA o an estranged parent (only when J expressly and specifically objects to their presence)

Answer 29

* AA has a ‘positive and important role’ and is not there to act as an observer, but to ensure that the suspect ‘understands what is happening to them and why’ * Key roles and responsibilities: 1. to support, advise and assist the suspect, particularly when the suspect is being questioned; 2. to ensure that the suspect understands their rights whilst at the police station, and the role played by the appropriate adult in protecting those rights; 3. to observe whether the police are acting properly, fairly and with respect for the rights of the suspect; and 4. to assist with communication between the suspect and the police. * AA should not provide the suspect with legal advice, and any conversations AA has with the suspect are not covered by legal privilege (Code C, Note for Guidance 1E) * Code C para 6.5A - an appropriate adult should consider whether legal advice from a solicitor is required. o Even if the juvenile or mentally vulnerable suspect indicates that they do not want legal advice, the appropriate adult has the right to ask for a solicitor to attend if this would be in the best interests of the suspect. o However, the suspect cannot be forced to see the solicitor if they are adamant that they do not wish to do so. * Code C para 3.17 - CO should explain J’s rights whilst at the police station in the presence of the AA, or repeat those rights in AA’s presence if they have already been explained to J before AA’s arrival.

Answer 30

AA’s approach or conduct prevents or unreasonably obstructed proper questions being put to suspect or the suspect’s responses from being recorded o If IO considers AA is acting in ^ way:  They will stop the interview and consult an officer not below superintendent rank, if one is readily available, and otherwise an officer not below inspector rank, not connected with the investigation.

Answer 31

Indictable- only offences will be referred to the CPS; first- time summary and either- way offences can be decided by the police; second and subsequent offences will be by a joint decision from the police, following assessment by the Youth Offending Team.

Answer 32

* primarily aimed at first-time offenders where: o there has been an admission of guilt o the victim’s views have been taken into account * will not form part of the offender’s criminal record retained by the police

Answer 33

caution can be offered where: 1. there is sufficient evidence to charge the offender with an offence; 2. the offender admits that they committed the offence; and 3. the police do not consider that the offender should prosecuted or given a youth conditional caution in respect of the offence, i.e., it is not in the public interest to deal with the matter in another way. * Youth caution given to a person 17 or under must be given in the presence of an AA * Police should also take into account the seriousness of the offence

Answer 34

1. there is sufficient evidence against the offender to provide a realistic prospect of conviction; 2. it must be determined that a youth conditional caution should be given to the offender; 3. the offender admits to having committed the offence; 4. the effect of the youth conditional caution must be explained to the offender and they must be warned that failure to comply with any of the conditions may result in prosecution for the original offence (where the young person is aged 16 years or under, the explanation and warning must be given in the presence of an appropriate adult); and 5. the offender must sign a document containing details of the offence, their admission, consent to be given to a youth conditional caution and details of the conditions attached. * Conditions attached to a YCC must have one or more of the following objectives in mind: o rehabilitation o reparation o punishment * All conditions must be capable of being completed within 16 weeks of the date of the original offence where it is a summary-only offence o A period of longer than 16 weeks from the date the conditional caution is administered may be suitable for an offence triable either way or an indictable-only offence, depending on the facts of the particular case, but it must not exceed 20 weeks.

Answer 35

o this avoids the client being charged with the offence and having to appear at the youth court; o such cautions are not criminal convictions.

Answer 36

o A record of such cautions will be retained by the police; this includes having fingerprints, photographs and DNA samples taken. o Although not a conviction, as an admission of guilt the caution will form part of the client’s criminal record retained by the police and may be referred to if an employer makes a Criminal Records Bureau check. In addition, the fact that a caution has already been issued will be taken into consideration before a decision is made regarding a future offending disposal. o It may also need, in certain circumstances, to be disclosed to an employer or prospective employer. o The police must refer the client to the appropriate Youth Offending Team who will assess the client and must arrange for them to participate in a rehabilitation programme (unless it is inappropriate to do so). o Failure to comply with any conditions imposed under a conditional youth caution can result in prosecution for the original offence. o Any youth cautions given and/or any report on a failure by a person to participate in a rehabilitation programme may be cited in criminal proceedings similar to how a conviction may be cited o If the offence is covered by Part 2 of the Sexual Offences Act 2003, the client will be placed on the sex offenders register.

Answer 37

* D will not be convicted of an offence if the only evidence against them is an adverse inference under ss 34, 36 or 37 CJPOA 1994 o D’s silence cannot prove guilt on its own (s38(3) CJPOA) o To ask for the drawing of adverse inferences, prosecution must have first adduced other evidence of D’s guilt:  showing that D has a case to answer, and  must call for an explanation from D.

Answer 38

o D’s silence cannot prove guilt on its own (s38(3) CJPOA) o To ask for the drawing of adverse inferences, prosecution must have first adduced other evidence of D’s guilt:  showing that D has a case to answer, and  must call for an explanation from D. * Court is not allowed to draw an adverse inference from D’s silence if that silence occurred at a time when D had not been allowed to consult a solicitor to obtain independent legal advice (s58 Youth Justice and Criminal Evidence Act 1999) o In ^ circumstances, D has an absolute right to remain silent

Answer 39

* Where D has remained silent when interviewed by the police AND: o has been given the opportunity to take independent legal advice and taken it OR o has been given the opportunity to take independent legal advice and declined it.

Answer 40

* The s34 rule - allows the court or jury to draw an AI from D’s silence when D was being questioned or charged at the police station. 1. Where in any proceedings against a person for an offence, evidence is given that the accused: 1. at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or 2. on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact … being a fact, which in the circumstances existing at the time the accused could reasonably have been expected to mention … the court or jury … may draw such inferences from the failure as appear proper. * Inferences that may be drawn against D need not necessarily arise out of a ‘no comment’ interview. * s34 is triggered even where D has answered every question put to them if they raise some other fact in their defence at trial that they did not mention, but could reasonably have been expected to mention when interviewed.

Answer 41

certain conditions had to be satisfied before adverse inferences could be drawn from D’s silence in police interview under s34(1)(a): o (a) the interview had to be an interview UNDER CAUTION; o (b) D had to fail to mention any fact later relied on in his defence at trial; o (c) [before charge] the failure to mention this fact had to occur BEFORE the defendant was charged; o (d) the questioning of the D at the interview in which the D failed to mention the fact had to be directed to trying to discover whether or by whom the alleged offence had been committed; and o (e) the fact which D failed to mention had to be a fact which, in the circumstances existing at the time, the defendant could reasonably have been expected to mention when questioned

Answer 42

* Condron v UK - ECtHR held that a jury should be directed that an adverse inference from D’s silence could be drawn only if the court was satisfied that the real reason for D’s silence was that they had no answer to the questions that were being put to them, or no answer that would stand up to scrutiny. * R v Betts and Hall - CoA stated that if D remained silent during their initial interview at the police station and then answered questions during a subsequent interview, inferences from their failure to answer questions in the first interview might still be drawn at trial. o i.e., failing to reveal information at questioning in initial interview but later revealing it in a subsequent interview is grounds for adverse inference at trial

Answer 43

- it is unlikely for a court to draw an adverse inference under s34(1)(b): o If D places their factual defence on record when interviewed by the police, a court will not then draw an adverse inference if the defendant says nothing when they are subsequently charged. o If, conversely, the defendant remains silent in interview and then raises a defence at trial, the court is very likely to draw an adverse inference under s 34(1)(a)

Answer 44

* As long as a written statement which is handed to the police contains all the facts which D later relies on in their defence at court, the court will not be able to draw an adverse inference under s34 if, having handed the statement in, D then refuses to answer questions from the police based on the contents of that written statement. * If the solicitor who prepares the written statement does not hand it in to the police: o it WILL prevent the court at trial from drawing the inference of recent fabrication; but o WILL NOT prevent them from inferring that D was not sufficiently confident about their defence to expose this to investigation by the police following the interview.

Answer 45

1. Level of disclosure given by the police – although the police are not under a general duty to disclose to the suspect’s solicitor all the details of the evidence which they have obtained against the suspect, the courts have held that if the absence of meaningful disclosure means that a solicitor is unable properly to advise their client, this may amount to a good reason for advising the client to remain silent (R v Argent; R v Roble) 2. Nature of the case - if the material the police have is particularly complex, or relates to events which occurred a long time ago, the solicitor may advise their client to remain silent when it would not be sensible to give an immediate response to the police (R v Roble; R v Howell) 3. Personal circumstances of the suspect - if the solicitor considers the suspect to be suffering from some form of ill health, the suspect is mentally disordered or vulnerable, is excessively tired or otherwise confused, shocked, or intoxicated, the solicitor would be justified in advising the suspect to remain silent (R v Howell

Answer 46

❗ CURRENT POSITION - the jury will be directed by the trial judge that adverse inferences should not be drawn under s34 (and ss36 and 37), if the jury believe that D genuinely and reasonably relied on the legal advice to remain silent. * If D claims their silence during interview was a result of legal advice received from their solicitor, this will not automatically prevent the court from drawing an adverse inference if they subsequently raise in their defence a fact that they failed to mention to the police. * ECtHR - accepted that this is not a breach to D’s right to a fair trial under Article 6 ECHR, but the fact that D was advised by the solicitor not to answer questions in the police station must be given appropriate weight at trial (Condron v UK) * R v Beckles - where D explained his reason for silence as being their reliance on legal advice, the ultimate question for the court or jury under s 34 was whether the facts relied on at trial were facts which the defendant could REASONABLY have been expected to mention in police interview. If they were not, then no adverse inference could be drawn o If it is considered that D genuinely relied on the advice received from their solicitor, it may still be unreasonable to have done so, or the advice may not have been the true explanation for their silence.

Answer 47

* Conversations between suspect and solicitor are protected by legal privilege: o Police cannot ask a suspect what advice they received from their solicitor o At trial, HOWEVER, D may give evidence which has the effect of waiving such privilege and allowing the prosecution to cross-examine them about the reasons for the legal advice they were given * If D tells the court that they remained silent on their solicitor’s advice, legal privilege is waived and should give reasons for why this advice was given. o This does not prevent D from being cross-examined by the prosecution as to any other reason for the solicitor’s decision to advise their client to remain silent. o The prosecution could also cross-examine D and their solicitor on the instructions which D gave to their solicitor whilst at the police station which led to the solicitor advising them to remain silent in interview. Denial of access to legal advice: ❗ s34(2A) CJPOA - An adverse inference CANNOT be drawn… Where an accused was at an authorised place of detention at the time of the failure, subsection (1) and (2) do not apply if he had not been allowed an opportunity to consult a solicitor prior to being questioned, charged …

Answer 48

* s36 - allows the court or jury to draw an adverse inference if, when interviewed by the police, D failed to account for the presence of an object, substance or mark. ❗ Section 36: 1. Where: 1. a person is arrested by a constable, and there is: 1. on his person; or 2. in or on his clothing or footwear; or 3. otherwise in his possession; or 4. in any place in which he is at the time of his arrest, any object, substance or mark, or there is any mark on any such object; and 2. that or another constable investigating the case reasonably believes that the presence of the object, substance or mark may be attributable to the participation of the person arrested in the commission of an offence specified by the constable; and 3. the constable informs the person arrested that he so believes, and requests him to account for the presence of the object, substance or mark; and 4. the person fails or refuses to do so, then … the court or jury … may draw such inferences from the failure or refusal as appear proper.

Answer 49

o s34 will only apply if D raises a fact at trial which they failed to mention at the police station o s36 will operate irrespective of any defence put forward, and even if no defence is raised at trial o (Code C, para 10.11 PACE) inferences under s36 can be drawn only if the police officer requesting the explanation for the object, substance or mark has told the suspect certain specified matters before requesting the explanation (this is referred to as a ‘special caution’). The suspect must be told:  what the offence under investigation is  what fact the suspect is being asked to account for  that the officer believes this fact may be due to the suspect taking part in the commission of the offence in question  that a court may draw an adverse inference from failure to comply with the request; and  that a record is being made of the interview and that it may be given in evidence if the suspect is brought to trial. * The adverse inference - D had no explanation for the presence of the object, substance or mark, or no explanation that would have stood up to police questioning.

Answer 50

Inferences under s37 CJPOA 1994 * s37 - allows the court to draw an adverse inference if, when questioned at the police station, the defendant failed to account for his presence at a particular place at or about the time the offence was committed. ❗ Section 37: 1. Where 1. a person arrested by a constable was found by him at a place at or about the time the offence for which he was arrested is alleged to have been committed; and 2. that or another constable investigating the offence reasonably believes that the presence of the person at that place and at that time may be attributed to his participation in the commission of the offence; and 3. the constable informs the person that he so believes, and requests him to account for that presence; and 4. the person fails or refuses to do so, then … the court or jury … may draw such inferences from the failure or refusal as appear proper. * s37 will operate irrespective of any defence put forward, even if no defence is raised at trial. * The adverse inference - that D has no explanation for their presence at that particular place at or about the time the offence was committed, or no explanation that would have stood up to police questioning. * Inferences under s37 can only be drawn if a suspect has been given the ‘special caution’.

Answer 51

* The procedures which the police need to follow when obtaining identification evidence are contained in Code D. Paragraph 1.2 of Code D provides: In this code, identification by an eye-witness arises when a witness who has seen the offender committing the crime and is given an opportunity to identify a person suspected of involvement in the offence in a video identification, identification parade or similar procedure. These eye-witness identification procedures ... are designed to: o test the witness’ ability to identify the suspect as the person they saw on a previous occasion o provide safeguards against mistaken identification. * If the police do not know the identity of the suspect, they are allowed to take a witness to a particular neighbourhood or place to see if that witness is able to identify the person they saw. * If the identity of the suspect is known to the police and the suspect has been arrested, the police may then use a form of identification procedure to see if the witness can identify the suspect. o The police must keep a record of the suspect’s description as first given to them by a potential witness (Code D, para 3.1). Before any form of identification procedure takes place, a copy of this record should be given to the suspect or their solicitor. This may prove useful at trial if there are discrepancies between this description and the actual appearance of the suspect.

Answer 52

1. Video identification Paragraph 3.14 of Code D provides that a suspect should initially be offered a video identification unless it is not practicable. 2. Identification parade If it is not practicable then the next procedure to use would be this. 3. Group identification If that is not practicable then the next procedure to use would be this 4. Confrontation Only ever used as a last resort 5. Covert identification This should not be used as it would only ever be an appropriate procedure where the suspect refuses to take part in an identification procedure.

Answer 53

2. a witness has identified or purported to have identified a suspect; or 3. a witness thinks they can identify the suspect, or there is a reasonable chance that the witness can identify the suspect, and the suspect disputes being the person the witness claims to have seen, o Identification procedure should be held if a witness to a crime has purported to identify the suspect in the street some time after the crime was committed - test the reliability o Identification procedure may also be held if the officer in charge of the investigation considers it would be useful (Code D, 3.13)

Answer 54

1. when the suspect admits being at the scene of a crime and gives an account which does not contradict what the witness saw; and 2. when it is not disputed that the suspect is already known to the witness.

Answer 55

unknown = need old history = need, suspect only vaguely knows them recent knowledge = no need, if suspect admits they know each other attending scene again and recognise = need

Answer 56

5. a video identification is not practicable; 6. an identification parade is both practicable and more suitable than a video identification; or 7. the OFFICER IN CHARGE of the investigation considers that a GROUP identification is more suitable than a video identification or identification parade, and the IDENTIFICATION OFFICER considers it practicable to arrange a GROUP identification (Code D, para 3.16)

Answer 57

o Before a witness is shown any photographs, that witness’ first description of the suspect must have been recorded (Code D, Annex E, para 2). o Witness must be shown at least 12 photographs at a time (Code D, Annex E, para 4) o As soon as a witness makes a positive identification from photographs, no other witnesses should be shown the photographs o The witness who made the identification and any other witnesses should then be asked to take part in one of the identification procedures (Code D, Annex E, para 6) o The suspect or his solicitor must be notified if a witness attending an identification procedure has previously been shown photographs, or a computerised or artist’s composite (Code D, Annex E, para 9) o If the case goes to trial, the witness cannot say that they originally identified the suspect from photographs shown to them by the police

Answer 58

 The witness is shown moving images of a known suspect, together with similar images of others who resemble the suspect  Images must include the suspect and ‘at least eight other people who, so far as possible, resemble the suspect in [height], age, general appearance and position in life’ (Code D, Annex A, para 2)  Where two suspects of roughly similar appearance are shown in the same images, they must be shown together with at least 12 other people (Code D, Annex A, para 2).  The images that are shown to the witness must show the suspect and the other people in the same positions or carrying out the same sequence of movements (Code D, Annex A, para 3).  The suspect or their solicitor must be given a reasonable opportunity to see the full set of images before they are shown to any witness  If there is a ‘reasonable objection’ to the images or to any of the other participants (such as one of the other participants not resembling the suspect), the police must take steps, if practicable, to remove the grounds for objection (Code D, Annex A, para 7) – e.g. not using the image objected to, or replacing it with another  If a suspect has any unusual features (such as a facial scar, a tattoo or distinctive hair style or colour) which do not appear on the images of the other people, the police may take steps to conceal those features on the video or to replicate those features on the images of the other people (Code D, Annex A, para 2A). Such concealment or replication may be done electronically.  A witness can choose to see the original image without the concealment/replication (Code D, Annex A, para 2C).  The suspect’s solicitor should be given reasonable notice of the time and place of the video identification so that they may attend to ensure that it is carried out properly (Code D, Annex A, para 9)  Only one witness may see the video at a time  Playback may be frozen  There is no time limit on the number of times the suspect may see the video (Code D, Annex A, para 11)  Before they see the set of images, witnesses must not be able to (Code D, Annex A, para 10): 1. communicate with each other about the case; 2. see any of the images which are to be shown; 3. see, or be reminded of, any photograph or description of the suspect, or be given any other indication as to the suspect’s identity; or 4. overhear a witness who has already seen the material  Police must not discuss with the witness the composition of the set of imagine  Witness must not be told whether a previous witness has made an identification  If a suspect refuses to consent to take part in a video identification, alternative procedures may be followed (see below), including a covert video identification

Answer 59

 When a witness sees the suspect in a line of other persons who resemble the suspect  Consists of at least 8 people (in addition to the suspect) who, so far as possible, resemble the suspect in age, height, general appearance and position in life (Code D, Annex B, para 9)  Unusual features – police can conceal/replicate (Code D, Annex B, para 10)  Code D, Annex B, para 14 – police must make appropriate arrangements to ensure that, before attending the parade, witnesses are not able to: 1. communicate with each other about the case, or overhear a witness who has already seen the identification parade; 2. see any member of the identification parade; 3. see, or be reminded of, any photograph or description of the suspect, or be given any other indication as to the suspect’s identity; or 4. see the suspect before or after the identification parade  Suspect can choose their position in the line, but cannot alter the order of others. Code D, Annex B, para 16: Witnesses shall be brought in one at a time. Immediately before the witness inspects the identification parade, they shall be told the person they saw on a specified earlier occasion may, or may not, be present and if they cannot make a positive identification, they should say so. The witness must also be told they should not make any decision about whether the person they saw is on the identification parade until they have looked at each member twice  Witness may ask a parade member to speak, move, or adopt certain posture  To make the request, they should first be asked whether they can identify the suspect on appearance only  A witness who asks a parade member to speak must be reminded that the participants in the parade have been chosen on the basis of physical appearance only  judges will warn the jury to exercise caution of identification based on speech  A colour photograph or video recording of the identification parade must always be taken (Code D, Annex B, para 23) to help guard against any later dispute  The police cannot compel a suspect to take part in an identification parade, but there are practical and evidential implications when this occurs

Answer 60

 The witness sees the suspect in an informal group of people. Group identifications may take place either with the consent and cooperation of the suspect, or covertly if the suspect does not consent (Code D, Annex C, para 2)  Place should be where other people are passing by or waiting around informally (e.g. on an escalator, or in a shopping centre or bus station)  Police must reasonably expect that the witness will see some people whose appearance is broadly similar to that of the suspect (Code D, Annex C, para 6)  Suspect should be able to join these people and be capable of being seen by the witness at the same time as others in the group (Code D, Annex C, para 4)  If a suspect refuses to consent to a group identification and such an identification is held covertly, the police will be required to take the witness to a place where the suspect is likely to be at a given time  E.g., if the suspect is in employment, the group identification could take place outside the suspect’s place of work at the time when the suspect is known to start or finish work, since it is likely that the suspect would then be in a group of fellow workers arriving or leaving work at the same time

Answer 61

 Witness is brought face-to-face with a suspect in the police station  Extremely rare and a last resort  Prior to a confrontation taking place, the witness must be told that the person they saw may, or may not, be the person they are to confront and that if they are not that person, the witness should say so (Code D, Annex D, para 1)  Usually take place in the presence of the suspect’s solicitor and usually occur where the suspect refuses to take part in any of the above alternative procedures

Answer 62

5. The identification officer  Officer not below the rank of inspector who is not involved in the investigation  In charge of the identification procedure  Must comply with requirements of Code D  Will be present throughout the procedure and must be uniform  Identification procedure must be held as soon as practicable (Code D, 3.11)  If the police decide to hold an identification procedure, the suspect will normally be released on police bail (see 3.3) with a requirement to re-attend the police station at a later date when the identification procedure will take place  The investigating officer will have no involvement in the conduct of the identification procedure

Answer 63

Before a video identification, identification parade or group identification is arranged, the identification officer must explain the following matters to the suspect (Code D, 3.17): 1. the purpose of the identification procedure to be used; 2. the suspect’s entitlement to free legal advice; 3. the procedure to be followed, including the suspect’s right to have a solicitor or friend present; 4. that if the suspect refuses to consent to the identification procedure taking place, such refusal may be given in evidence at trial, or the police may proceed covertly without the suspect’s consent (ie by holding a covert video or group identification), or make other arrangements to test whether a witness can identify the suspect (ie by arranging a confrontation); 5. that if the suspect has significantly altered their appearance between being offered an identification procedure and the time of the procedure, this may be given in evidence at trial and the identification officer may consider other forms of identification; 6. whether, before the suspect’s identity became known, the witness was shown photographs, or a computerised or artist’s composite likeness or image by the police; and 7. that the suspect or their solicitor will be provided with details of the description of the suspect as first given by any witnesses who are to attend the identification procedure before the procedure takes place

Answer 64

 Suspect’s consent is usually required for video identification (the most common) and identification parades  Advise the client to consent to the procedure - police may release without charge if the suspect isn’t identified  Advise that if they do not consent, warn them that police may hold a less satisfactory form of identification procedure, e.g. group identification or confrontation (or cover video identification), because they are more likely to be identified  Adverse inferences could be drawn at trial from refusal to take part (that the suspect refused to take part because they thought they would be recognised)  If suspect disputes their involvement and is willing to participate in identification procedures, and the witness believes they would identify the suspect, police must hold an identification procedure, or else it would be a breach of Code D, para 3.12  Solicitor can make representations to the investigating officer if they consider that the police should carry out an identification procedure in order to comply with Code D & ensure these representations are recorded in the custody record (solicitor could challenge admissibility of later visual identification evidence at trial)

Answer 65

 Solicitor is entitled to attend  Solicitor needs to obtain from the police details of the first description of the suspect given by the potential witness (Code D, 3.1)  Solicitor needs to check in advance that the images which are to be used resemble the suspect in age, height, general appearance and position in life  Solicitor should object if images are not compliant with these requirements and ensure the police obtain further images  Solicitor should ensure that distinctive features of the suspect are covered up in the suspect’s image and others  Solicitor should attend to ensure the witnesses are segregated from each other and no unauthorised persons (e.g. investigating officer) are present  Solicitor should check the number of witnesses who are to attend, where the witnesses will be kept before and after the procedure (ensuring they are not communicating beforehand), and the route they take to view and leave the procedure  If solicitor thinks the procedure has been contaminated, they should ask the witness if they have discussed the description of the offender with anyone, either before attending or whilst at the police station  Should ask that the identification take note of their concerns in the written record of the procedure

Answer 66

 Before: solicitor should ensure the police provide details of the first description of the suspect given by the potential witness (Code D, 3.1)  Solicitor should explain to the client what will happen at the parade  Tell the client that they can choose where they wish to stand, but should not speak or do anything to draw attention to themselves during the parade  Solicitor should check the other participants resemble their client in age, height, general appearance and position in life  If they do not: solicitor should make representations to the identification officer and ask either for the parade to be postponed, or for some form of disguise to be used to overcome any disparity in the appearance of the other participants  Solicitor should check that the witnesses are properly segregated before the parade; to not see either the client or the other participants in the parade before it takes place  e.g. check the route and whether they are in separate rooms to wait  Solicitor should ensure that there is no opportunity for a witness who has already attended the parade to speak to another witness before that witness has attended the parade  Solicitor should ensure the investigating officer is to play no part in the procedure  If solicitor thinks the procedure has been contaminated, they should ask the witness if they have discussed the description of the offender with anyone, either before attending or whilst at the police station  Should ask that the identification take note of their concerns in the written record of the procedure

Answer 67

 For any procedure, solicitor must keep a detailed record of what happens  Ensure identification officer complies with Code D when conducting the procedure  Solicitor should make sure their objections are recorded by the identification officer  Any comments made during the procedure (whether by witness, identification officer, or anyone) should also be recorded

Answer 68

Silence at trial and inferences under s35 CJPOA: * D is not obligated to give evidence on their own behalf at trial, nor raise any facts in their own defence. * D is entitled to remain silent at trial (Criminal Evidence Act s1(1)) and argue that CPS has failed to prove guilt beyond a reasonable doubt. o Since for D will not be raising any facts in his defence in such circumstances, no adverse inferences may be drawn under s34 BUT o under s35, if D fails to give evidence on his own behalf at trial, they may be subject to an adverse inference being drawn by the court or jury if prosecution raises issues which call for an explanation from D, should D then fail to give evidence, the court will be entitled to infer from that failure that D has either no explanation, or no explanation that will stand up to cross-examination. * As with ss 34, 36 and 37, a defendant will not be convicted of an offence if the only evidence against him is an adverse inference from his failure to give evidence in his defence at trial (CJPOA 1994, s 38(3)) * Unlike ss 34, 36 and 37, there is also a limited statutory exception to the drawing of adverse inferences which can be found at s 35(1)(b). o This provides the court with a discretion to direct that an adverse inference is not drawn where: it appears to the court that the physical or mental condition of the accused makes it undesirable for him to give evidence o But this exception will be applied strictly: