SGS 3- Criminal: Analysing cases and police station advice and inferences
POLICE INTERVIEWS AND ADVISING AT POLICE STATION
Types of evidence: Legal representation at police station:
- Witness 1. Any person is entitled to legal advice and assistance if questioned by the
- Identification- CCTV or witness or police.
forensic 2. If suspect is arrested for warrants/non-imprisonable offences there will be a
- Real evidence- things found on referral to CDD (CRIMINAL DEFENCE DIRECT) where they will give advice over
suspect the phone to detainees at the police station.
- Forensic and medical- seriousness 3. If D requests a solicitor, the CDD will contacts the DSCC (defence solicitor call
of injuries caused centre) who will contact them.
- Circumstantial- evidence inferring 4. If D does not request, DSCC will call duty solicitor.
that something happened 5. To be paid by legal aid, solicitors must be accredited by the SRA (don’t need to
- Confessions- admissible unless be a solicitor can be paralegal etc).
exempt due to the way it was 6. Duty solicitors have to be 12 months qualified of experience in the Mags to be
collected (s.76(1) PACE). duty accredited.
Interviews
Solicitors role on arrival COP C NFG 6D
- Protect and advance the legal rights of the client
- Examine his client’s custody record and speaking with the investigating or interviewing officer, obtain pre-interview disclosure
and then consult with their client.
What the solicitor cannot do:
- Improper conduct can result in the solicitor being removed from the interview COP C 6.9, this can only be done by a
superintendent and constitutes conduct such as:
o Writing down answers for the client to give
o Answering questions on the client’s behalf
Protecting the client’s rights and inferences from silence
- If a suspect remains silent, if statutory provisions are met, inferences can be drawn later at trial. This will undermine his defence.
- s.34 CJPOA provides inferences can be drawn by the jury or mags where the defendant later relies on a fact in his defence that
he did not offer at the time of questioning.
- A court can only draw ‘proper’ inferences s.34 CJPOA.
-
Types of inference:
- s.34 CJPOA provides inferences can be drawn by the jury or mags where the defendant later relies on a fact in his defence that
he did not offer at the time of questioning.
- Inferences can also be drawn when he fails to account for an object or mark found on him at the time of arrest such as blood
spatters (s.36 CJPOA).
- Inferences can also be drawn when he fails to account for his presence at a particular place where the offence was allegedly
committed (s.37 CJPOA).
- Inferences can also be drawn if a suspect changes his version of events at trial which he gave at the police station.
- However, you cannot be convicted solely on inferences (s.38 CJPOA) and inferences cannot be drawn where the suspect has not
been allowed access to legal advice (COP C para 6.6 Annex C).
Inferences
To draw an adverse inferences there must have been
1. A caution (s.34 CJPOA), if there is no caution then no inference can be drawn.
2. Defendant must rely on the fact in his defence.
3. There must be at a trial
4. Must be reasonable for D to mention at the time of interview considering all the circumstances existing at the time (R v Argent)
o circumstances existing at the time means:
what disclosure had bene made to the suspect or their lawyer by the police?
What information the prosecution can demonstrate the suspect knew at the time of questioning or charge
The condition and circumstances of the suspect and
Any legal advice the suspect has received.
1
, SGS 3- Criminal: Analysing cases and police station advice and inferences
5. CANNOT BE CONVICTED SOLELY BASED ON ADVERSE INFERENCES.
DEAD acronym for formulating advice
1. Disclosure- has there been sufficient disclosure to enable the solicitor to advise?
- Suspect does not have an automatic right to disclosure while at the police station apart from looking at the custody
record COP C 2.4 and to see the first description of any identification witness COP D 3.1
- However, interviewing officers should give enough for D and his solicitor to have an idea about what their case and why D
is a suspect 3.4(a) and 10.3.
- As a minimum, before the person is interviewed, they and their solicitor must be given sufficient information to enable
them to understand the nature of the offence and why they are suspected of committing it.
- The decision of what is to be disclosed is that of the investigating officer. They will usually provide enough so that the
defendant cannot rely on the right to remain silent due to inadequate information (R v Roble 1997).
2. Evidence
- No obligation for D to provide evidence
- But absence of evidence against you isn’t a good reason to remain silent R v Howell
- Having received disclosure, it is necessary to assess the evidence to form a view of how strong the case is against the
suspect.
- There is no obligation on the defendant to provide evidence to the police so where the police have lacking evidence, it
may be better to remain silent rather than incriminating himself.
3. Argent factors- condition and circumstances of the suspect
- S.34 refers to whether it was reasonable for D to mention a fact ‘in the circumstances existing at the time’
- Argent factors analyse the state of the suspect at the time of the interview.
- Can the D be reasonably expected to mention relevant issues, this is a subjective test of circumstances existing at the time
such as :
- A subjective test is whether D could reasonably have been expected to mention relevant issues and if D remains silent,
the jury can consider why on the following grounds:
Was D of a good age to answer questions
Was D of good enough experience to answer questions
Did/Does D have mental capacity to ask questions?
What is the state of D’s health?
Was D sober at the time?
Was D tired at the time?
- If these are appropriate and the client is not fit to be interviewed, the solicitor should get him checked by a FME.
-
4. Defence- does the suspect have one?
- If the suspect has a defence, should he give that information? What would be the repercussions of failing to disclose this
information?
- Suspect only has to put forward facts that would have been reasonable in the circumstances for him to mention at the
time of interview.
- No inferences unless it was in the suspect’s knowledge at the time of interview
- Does D have a defence?
- Would be best to mention a defence at interview.
- D only has to put forward facts that it would have been reasonable in the circumstances for him to mention at the time of
interview.
- No adverse inferences against something mentioned at interview and then elaborated on at trial if he couldn’t have
known about it in interview.
- Advantages/Disadvantages of giving a defence.
Option
Advising a suspect at the police station
- A suspect has three options at interview
a) Answer questions in the interview
2
POLICE INTERVIEWS AND ADVISING AT POLICE STATION
Types of evidence: Legal representation at police station:
- Witness 1. Any person is entitled to legal advice and assistance if questioned by the
- Identification- CCTV or witness or police.
forensic 2. If suspect is arrested for warrants/non-imprisonable offences there will be a
- Real evidence- things found on referral to CDD (CRIMINAL DEFENCE DIRECT) where they will give advice over
suspect the phone to detainees at the police station.
- Forensic and medical- seriousness 3. If D requests a solicitor, the CDD will contacts the DSCC (defence solicitor call
of injuries caused centre) who will contact them.
- Circumstantial- evidence inferring 4. If D does not request, DSCC will call duty solicitor.
that something happened 5. To be paid by legal aid, solicitors must be accredited by the SRA (don’t need to
- Confessions- admissible unless be a solicitor can be paralegal etc).
exempt due to the way it was 6. Duty solicitors have to be 12 months qualified of experience in the Mags to be
collected (s.76(1) PACE). duty accredited.
Interviews
Solicitors role on arrival COP C NFG 6D
- Protect and advance the legal rights of the client
- Examine his client’s custody record and speaking with the investigating or interviewing officer, obtain pre-interview disclosure
and then consult with their client.
What the solicitor cannot do:
- Improper conduct can result in the solicitor being removed from the interview COP C 6.9, this can only be done by a
superintendent and constitutes conduct such as:
o Writing down answers for the client to give
o Answering questions on the client’s behalf
Protecting the client’s rights and inferences from silence
- If a suspect remains silent, if statutory provisions are met, inferences can be drawn later at trial. This will undermine his defence.
- s.34 CJPOA provides inferences can be drawn by the jury or mags where the defendant later relies on a fact in his defence that
he did not offer at the time of questioning.
- A court can only draw ‘proper’ inferences s.34 CJPOA.
-
Types of inference:
- s.34 CJPOA provides inferences can be drawn by the jury or mags where the defendant later relies on a fact in his defence that
he did not offer at the time of questioning.
- Inferences can also be drawn when he fails to account for an object or mark found on him at the time of arrest such as blood
spatters (s.36 CJPOA).
- Inferences can also be drawn when he fails to account for his presence at a particular place where the offence was allegedly
committed (s.37 CJPOA).
- Inferences can also be drawn if a suspect changes his version of events at trial which he gave at the police station.
- However, you cannot be convicted solely on inferences (s.38 CJPOA) and inferences cannot be drawn where the suspect has not
been allowed access to legal advice (COP C para 6.6 Annex C).
Inferences
To draw an adverse inferences there must have been
1. A caution (s.34 CJPOA), if there is no caution then no inference can be drawn.
2. Defendant must rely on the fact in his defence.
3. There must be at a trial
4. Must be reasonable for D to mention at the time of interview considering all the circumstances existing at the time (R v Argent)
o circumstances existing at the time means:
what disclosure had bene made to the suspect or their lawyer by the police?
What information the prosecution can demonstrate the suspect knew at the time of questioning or charge
The condition and circumstances of the suspect and
Any legal advice the suspect has received.
1
, SGS 3- Criminal: Analysing cases and police station advice and inferences
5. CANNOT BE CONVICTED SOLELY BASED ON ADVERSE INFERENCES.
DEAD acronym for formulating advice
1. Disclosure- has there been sufficient disclosure to enable the solicitor to advise?
- Suspect does not have an automatic right to disclosure while at the police station apart from looking at the custody
record COP C 2.4 and to see the first description of any identification witness COP D 3.1
- However, interviewing officers should give enough for D and his solicitor to have an idea about what their case and why D
is a suspect 3.4(a) and 10.3.
- As a minimum, before the person is interviewed, they and their solicitor must be given sufficient information to enable
them to understand the nature of the offence and why they are suspected of committing it.
- The decision of what is to be disclosed is that of the investigating officer. They will usually provide enough so that the
defendant cannot rely on the right to remain silent due to inadequate information (R v Roble 1997).
2. Evidence
- No obligation for D to provide evidence
- But absence of evidence against you isn’t a good reason to remain silent R v Howell
- Having received disclosure, it is necessary to assess the evidence to form a view of how strong the case is against the
suspect.
- There is no obligation on the defendant to provide evidence to the police so where the police have lacking evidence, it
may be better to remain silent rather than incriminating himself.
3. Argent factors- condition and circumstances of the suspect
- S.34 refers to whether it was reasonable for D to mention a fact ‘in the circumstances existing at the time’
- Argent factors analyse the state of the suspect at the time of the interview.
- Can the D be reasonably expected to mention relevant issues, this is a subjective test of circumstances existing at the time
such as :
- A subjective test is whether D could reasonably have been expected to mention relevant issues and if D remains silent,
the jury can consider why on the following grounds:
Was D of a good age to answer questions
Was D of good enough experience to answer questions
Did/Does D have mental capacity to ask questions?
What is the state of D’s health?
Was D sober at the time?
Was D tired at the time?
- If these are appropriate and the client is not fit to be interviewed, the solicitor should get him checked by a FME.
-
4. Defence- does the suspect have one?
- If the suspect has a defence, should he give that information? What would be the repercussions of failing to disclose this
information?
- Suspect only has to put forward facts that would have been reasonable in the circumstances for him to mention at the
time of interview.
- No inferences unless it was in the suspect’s knowledge at the time of interview
- Does D have a defence?
- Would be best to mention a defence at interview.
- D only has to put forward facts that it would have been reasonable in the circumstances for him to mention at the time of
interview.
- No adverse inferences against something mentioned at interview and then elaborated on at trial if he couldn’t have
known about it in interview.
- Advantages/Disadvantages of giving a defence.
Option
Advising a suspect at the police station
- A suspect has three options at interview
a) Answer questions in the interview
2
