CONDUCT • Conclusion:
o 1) May act for client who admits guilt
• B) S23 Misuse of Drugs Act 1971 Power to stop + search for drugs
o Criteria: S23(2) Reasonable grounds to suspect possession of controlled drug
§ May make admissions in interview / answer “no comment” /
• 1) Identify issue: Misleading the court, conflict of interest, confidentiality, disclosure § Para 4.5.2 LSPN on CrPR (LSPNCrPR) Entitled to plead not guilty, sit through trial + put • C) S60 CJPOA 1994 Powers to stop + search if anticipates serious violence
• 2) Principles prosecution to proof o Criteria: Inspector authorises constables if reasonably believes –
• 3) Outcomes o 2) Can’t act for client who lies/will lie / call witnesses who will lie § Incidents w/ serious violence occur in area /
• 4) Indicative behaviours § Para 3.6 LSPNCrPR + O(4.1) Court/police ≠ require reasons for withdrawal, b/c info sought = § Persons carrying dangerous articles/offensive weapons in his area w/o good reason
o “No IBs give guidance on the issue”, e.g. not bringing omitted convictions to court’s attention = misleading court? privileged o Unlike s1 PACE:
• 5) Advice? Use LSPN § ≠ Require ‘reasonable grounds’, b/c inspector did reasonableness test
Civil
C1: DUTY TO CLIENT à P4 § 24 hours, but extended by superintendent > s1 permanent power
• O(5.4) Do not place yourself in contempt of court
• O(1.9) Inform client of complaints procedure • IB(5.4) If during proceedings, solicitor aware he’s inadvertently misled court = immediately inform court HOW TO CARRY OUT ALL SEARCHES? A3.2 – 3.8, otherwise breaches = evidence may be excluded at trial
• O(1.12) Advise client properly on all available options w/ client’s consent BEFORE SEARCH
• O(1.13) At outset, advise client on possible fees o If ≠ consent, cease to act • A 3.8 Before search, reasonable steps to tell suspect –
3 rd party instructions o Detained for search
CRIMINAL PROCEDURE RULES *If ≠ comply w/ order o Officer’s name
• IB(1.25) Cannot act, unless satisfied 3 rd party has authority to act on client’s behalf ∴ confirm X wishes you to act Failure to comply o Legal search power being exercised, e.g. s1 PACE, s1(7) MDA, s60 CJPOA
• C Annex B Cannot delay access to solicitor b/c solicitor asked by someone else • 1.1 CrPR Overriding objective = deal w/ cases justly, considering interests of all involved o Purpose of search + grounds for suspicion
C3: CONFLICT OF INTEREST *O(3.6) – (3.7) exceptions ≠ apply to criminal litigation • 1.2 Duty of participants = further overriding objective + comply w/ rules/PDs/directions o Right to copy of search record
à Conflict of interest: P3, 4, 5 o (c) Inform court of delay/failure to comply w/ court direction
§ E.g. Client disappears + doesn’t provide instructions = cannot comply w/ directions + cease to act LOCATION
Conflict checks § Para 3.6 + 4.2 LSPNCrPR Cite “professional duties” • S1(1) PACE Public place / place where public has access
• O(3.1), O(3.2) + (3.3) § Para 4.4 Stating you’re unable to comply w/ directions ≠ breach client’s right to o S1(4) + (5) If garden / private dwelling’s yard, only search if ≠ live there + no occupier’s consent
silence / legal professional privilege • A 3.4 At/near place person/vehicle was first detained
Own interest conflict
• O(3.4) Actual/significant risk of client’s interests conflicting w/ own interests • 3.2 + 3.3 Active case management – CLOTHING
o (a) Early indication of real issues
• A 3.5 No power to remove clothing in public, except coat/jacket/cloves / feel outer pockets/inside collars
Client conflict § E.g. Consent for theft, property didn’t belong to another, challenge admissibility of confession
o ↑ Thorough search = in police van/station by officer of same sex
• O(3.5) Cannot act if conflict / significant risk *If already a conflict before seeing 2 nd client = don’t see 2 nd client o (b) Early indication of needs of witnesses
• S117 Reasonable force, e.g. remove face coverings
o O(3.6) Exception: “substantially common interest” o (e) Present evidence in shortest + clearest way
o A 3.2 Only if person ≠ willing to cooperate / resists + last resort
§ 1) Clear common purpose o (f) Discourage delay + avoid unnecessary hearings
§ 2) Strong consensus on how to achieve it RECORDING SEARCH
Sanctions
§ 3) Client conflict = peripheral • A 4.3 Search info to be recorded
• 3.5(6) If ≠ comply w/ directions = sanctions, e.g. exclude evidence
§ IB(3.5) Cannot act even-handedly between parties
• 3.6 To avoid sanctions, apply to court to vary directions POWERS OF ARREST
• IB(3.2) Decline to act for clients whose interests = directly conflict
• IB(3.11) Cannot act if clients’ interests in end result ≠ same • 3.7 Parties may agree to vary time limit • S24 PACE Arrest w/o warrant
o But if same story, but disagree on value of stolen goods. If ≠ central significance, may act in both client’s • 3.9 If D’s absent, enter plea + set timetable • Criteria: To be lawful –
o 1) Constable
best interests Witnesses *****
o 2) Reasonable grounds to suspect involvement +
• 3.10(2) o 3) Reasonable grounds to believe arrest is necessary
• 2.1 – 2.4 LSPN on Conflicts of Interest (LSPNC)
o (b) Reasonable steps to ensure witness attends
o Examples of potential conflicts § S24(5) / Code G 2.9 Necessity criteria –
o (d) Inform promptly if non-attendance affects trial date/significantly affects progress of case
§ 2.1 X implicates Y / in X’s best interest to blame Y ∴ contrary to Y’s best interests § Obtain person’s name/address
• 3.11(c) § Prevent person causing/suffering physical injury
§ 2.3.1 Inequality between parties, esp. 1 party influencing another
o (iii) Order compelling witness to attend § Prevent damaging property
§ 2.3.2 Despite both have same story from start, if both convicted = in X’s best interests to blame Y (w/
o (v) Arrangements to facilitate a witness giving evidence, e.g. video, wheelchair access § Protect child/vulnerable person
many convictions + older) to get lighter sentence
o 2.2 PUBLIC FUNDING *Just b/c minor ≠ necessary to arrest to protect child, e.g. suspended from school,
§ Never let police deter you from seeing 2 nd client b/c they think conflict, decision must be yours • Apply for representation order at earliest opportunity unless he said “I’m going to get her”
§ Conflict check: Firm may act for another D / info obtained at police station = relevant to another § Allow prompt + effective investigation of offence
• To be eligible, must pass both –
client on unrelated matter § E.g. Test drugs/fingerprints, interview X about offences
o Means test: If D = < 18 / unemployment benefits / salary < certain threshold
o 2.3 Despite no immediate/apparent conflict, keep situation under review b/c conflict may arise in future o Merits test: Show it’s in interests of justice for D to have legal representation, e.g. trace witnesses + § NFG 2G Arrests on voluntary arrival if new info comes to light = makes arrest
o 2.4 After ceasing to act for X, continues acting for Y cross-examination, complex Q of law (admissibility of ID evidence) necessary
§ Prevent prosecution being prevented by person’s disappearance
To avoid conflict • If fails, consult duty solicitor
o If charged w/ imprisonable offence, represents for them once • Once arrested, suspect must be –
• 1) Take X’s instructions + state you’ve also been asked to act for Y if no conflict
o 1) C 10.4 Cautioned
• 2) Ask X if aware of conflict. If yes, ask for details o 2) S28 Informed he’s under arrest + reasons for arrest
o If conflict = cannot act for Y o 3) S117 Reasonable force
o If ≠ conflict, inform X that you’re acting for Y
o Inform X that confidential info relevant to Y = requires consent to disclose
3) Take Y’s instructions + state you’re also acting for X. Repeat step (2).
POLICE POWERS *Most Qs answered by COP (for every section, check if NFG applies) LEWIS
- If unlawful arrest b/c procedural irregularity = may rectify later
C4: CONFIDENTIALITY à Confidentiality + disclosure: P2, P4, P5, P6 • (Detective) Chief Superintendent à Superintendent à Chief inspector à DI Inspector à DS Sergeant à DC Constable DETENTION
• O(4.1) Keep client’s affairs confidential, unless client consents to disclosure *Mention if X is likely to consent • Custody Officer (CO) = SERGEANT #2
o Applies to everyone at firm EXAM STRUCTURE FOR POLICE POWERS Q o S37 Sufficient evidence to charge?
o ‘Client’ incl. former clients ∴ duty of confidentiality lasts forever • 1) Legal authority for power? § Yes: Charges detainee +/ decides bail
• 2) Criteria met? § No: Authorises detention to secure / obtain evidence via questioning
• O(4.2) Disclose all material info to your client *Declined 2 nd client b/c conflict, but can’t disclose material info to 1st
client = decline both • 3) Procedure: COP o C 2.1 Open Custody Record
• 4) Exercised correctly? § Reason, circumstances, why arrest was necessary, comments by arrested person
• O(4.3) Confidentiality overrides disclosure
o C 3.1 Inform detainee of their rights
o If cannot disclose = breaches P4 ∴ cease to act STOP + SEARCH o C 3.6 – 3.8 Perform risk assessment
• O(4.4) Exception: “information barriers” protect confidential client info LEGAL AUTHORITY + CRITERIA o C 3.12 Arrange for interpreters
C5: DUTY TO COURT à Misleading the court: P1, 2, 6 • A) S1 PACE 1984 Police power to search for stolen/prohibited articles *No power to search for drugs
• Criteria: 1) DETENTION PERIODS
• O(5.1) Don’t knowingly/recklessly mislead the court
o 1) Constable • S40 Detention periodically reviewed by an Inspector rank or ↑
• O(5.2) Complicit in someone else deceiving/misleading the court o Start when detention is authorised > arrival time
o 2) In public place à Search vehicles too
• “Mislead the court” o First review = 6 hours à 9 hours à 9 hours
o Submit inaccurate info to court o 3) For stolen/prohibited articles
§ S1(7) Incl. offensive weapons / articles made/adapted for use under s1(8) offences o C 9.3 Detainees should be visited at least every hour
§ E.g. If client says court omitted convictions ≠ breach O(5.1), unless states it’s accurate info / refer in
mitigation o 4) Code A 2.2-2.6 Reasonable suspicion > “routine” stop • S41 Suspect held for max. 24 hours *”X can be held for 24 hours w/o charge until [time], unless delay authorised”
o IB(5.9) Call witness whose evidence you know ≠ true, incl. D = witness § A 2.2 Genuine + objective basis for suspicion o Clock starts when suspect arrives at police station
§ Duty starts when first instructed, e.g. if guilty, can’t say it wasn’t me in police interview / at court § Never personal factors, e.g. age/race/sex/previous convictions/stereotypes *Check arrival time on custody record + calculate his release
o IB(5.10) Influence witness’ statement § A 2.4 Based on accurate + current intelligence, e.g. reports describe person carrying article • S42 Extend up to max. 36 hours after 2nd review, but before 24 hours expires
o IB(5.11) Tamper w/ evidence § Depends on specificness of description o 1) Indictable offence
§ A 2.6 Reliable info that gang habitually carry weapons/controlled drugs + wear distinctive o 2) Superintendent authorises
• IB(5.5) Cease to act for client if becomes aware client committed perjury / (attempted to/) misled the court in o 3) Reasonable grounds to believe –
clothing to identify themselves as members
any material matter, unless client agrees to disclose truth to court § Original grounds exist
§ Person’s behaviour, e.g. on street at night hiding smth > hunch
o If client admits guilt + says it wasn’t me / falsely accuses someone = cease to act § Investigation conducted diligently + expeditiously
• Otherwise, breaches O(5.2) § “If DC ready for interview = no reason to delay”
• S43 + 44 Apply to magistrate for warrant of further detention = extended up to max. 96 hours
