Case analysis, Police station advice & inference from silence-
In practice, whilst academic arguments as to dishonesty or recklessness do occur, most cases turn upon
the evidence. If there is a lot of evidence then a defendant tends to plead guilty. Where the evidence is
less conclusive or there is a defence (e.g. self-defence to an assault) the matter may well progress to trial
and then it is for the court (the magistrates or the jury) to decide whether the defendant is guilty.
This process of assessing the nature and strength of the evidence is a crucial one when examining the
significance of the police questioning of a suspect and the advice given by the solicitor at that stage.
-
Offences- Police investigation & gathering evidence-
Constructed of Actus Reus & Mens Rea (unless strict liability)
To convict, the prosecution must prove each points beyond reasonable doubt
Defendant is innocent until proven guilty & burden is on the prosecution to gather sufficient evidence. If
they do this, then the defendant has the evidential burden of raising a defence
--
Police investigation & gathering evidence-
Evidence comes in many forms - (non exhaustive list):
Witnesses
Identification
o By witness
o Forensically
o CCTV
Real evidence
o Drugs found on the suspect
o Stolen goods in the suspects car
Forensic & medical evidence
o Eg: seriousness of injuries
o The class of drugs found
Circumstantial evidence
o Piecing together a picture leading to a conclusion that the def is guilty – so the evidence
gives an inference
Confessions
--
The police interview-
s.37 PACE sets out the grounds for detention. It allows a custody officer to authorise detention in order
to secure and preserve evidence and/or to obtain evidence by way of questioning.
, If the matter progresses to trial, the transcript of the interview is read out to the court
Police adopt an interview technique designed to obtain evidence from a suspect
S58 PACE – all suspects are entitled to consult with a solicitor – who will examine the
circumstances of the suspects arrest & provide the suspect with appropriate advice
--
The solicitor’s role at the police station-
Solicitor has a duty to protect the legal rights of the detainee at the police station
Including insuring his welfare is being respected
The role of the solicitor is set out in COP C NFG 6D:
‘The solicitor’s only role in the police station is to protect and advance the legal rights of their
client. On occasions this may require the solicitor to give advice which has the effect of the
client avoiding giving evidence which strengthens a prosecution case. The 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.’
The importance of a solicitor’s proactive role in a police interview was stressed in the case of - (R v
Paris)
If the police consider that the solicitor has conducted himself in such a way that the police cannot
properly conduct the interview, that solicitor may be required to leave the interview (COP C 6.9).
Examples of improper behaviour by the solicitor might include:
Writing down answers for the client to give in response to those asked by the interviewing
officer; or
Answering questions on the client’s behalf
The decision to exclude a solicitor from the interview is a serious one and should only be made by a
superintendent.
--
Legal representation at the police station-
Any person, regardless of their means, is entitled to free legal advice when being questioned by the
police
Where the suspected offence is of a certain type (warrants, non-imprisonable offences etc.) there will be
a referral to Criminal Defence Direct (‘CDD’).
A call centre which will give telephone advice to people detained at the police station who will
not then be able to consult a solicitor of their choice unless they pay privately.
In practice, whilst academic arguments as to dishonesty or recklessness do occur, most cases turn upon
the evidence. If there is a lot of evidence then a defendant tends to plead guilty. Where the evidence is
less conclusive or there is a defence (e.g. self-defence to an assault) the matter may well progress to trial
and then it is for the court (the magistrates or the jury) to decide whether the defendant is guilty.
This process of assessing the nature and strength of the evidence is a crucial one when examining the
significance of the police questioning of a suspect and the advice given by the solicitor at that stage.
-
Offences- Police investigation & gathering evidence-
Constructed of Actus Reus & Mens Rea (unless strict liability)
To convict, the prosecution must prove each points beyond reasonable doubt
Defendant is innocent until proven guilty & burden is on the prosecution to gather sufficient evidence. If
they do this, then the defendant has the evidential burden of raising a defence
--
Police investigation & gathering evidence-
Evidence comes in many forms - (non exhaustive list):
Witnesses
Identification
o By witness
o Forensically
o CCTV
Real evidence
o Drugs found on the suspect
o Stolen goods in the suspects car
Forensic & medical evidence
o Eg: seriousness of injuries
o The class of drugs found
Circumstantial evidence
o Piecing together a picture leading to a conclusion that the def is guilty – so the evidence
gives an inference
Confessions
--
The police interview-
s.37 PACE sets out the grounds for detention. It allows a custody officer to authorise detention in order
to secure and preserve evidence and/or to obtain evidence by way of questioning.
, If the matter progresses to trial, the transcript of the interview is read out to the court
Police adopt an interview technique designed to obtain evidence from a suspect
S58 PACE – all suspects are entitled to consult with a solicitor – who will examine the
circumstances of the suspects arrest & provide the suspect with appropriate advice
--
The solicitor’s role at the police station-
Solicitor has a duty to protect the legal rights of the detainee at the police station
Including insuring his welfare is being respected
The role of the solicitor is set out in COP C NFG 6D:
‘The solicitor’s only role in the police station is to protect and advance the legal rights of their
client. On occasions this may require the solicitor to give advice which has the effect of the
client avoiding giving evidence which strengthens a prosecution case. The 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.’
The importance of a solicitor’s proactive role in a police interview was stressed in the case of - (R v
Paris)
If the police consider that the solicitor has conducted himself in such a way that the police cannot
properly conduct the interview, that solicitor may be required to leave the interview (COP C 6.9).
Examples of improper behaviour by the solicitor might include:
Writing down answers for the client to give in response to those asked by the interviewing
officer; or
Answering questions on the client’s behalf
The decision to exclude a solicitor from the interview is a serious one and should only be made by a
superintendent.
--
Legal representation at the police station-
Any person, regardless of their means, is entitled to free legal advice when being questioned by the
police
Where the suspected offence is of a certain type (warrants, non-imprisonable offences etc.) there will be
a referral to Criminal Defence Direct (‘CDD’).
A call centre which will give telephone advice to people detained at the police station who will
not then be able to consult a solicitor of their choice unless they pay privately.
