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LPC Dispute resolution and civil litigation full notes distinction achieved ulaw
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LPC Dispute resolution and civil litigation full notes distinction achieved ulaw
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LPC Dispute resolution and civil litigation full notes distinction achieved ulaw
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LPC Dispute resolution and civil litigation
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CONTENTS1. Role of the Solicitor when Attending the Police Station
2. Role of the Solicitor when Attending the Police Station
3. Examination of Custody Log
4. Examination of Custody Log
5. Responses to Interview Questions
6. Responses to Interview Questions, Written Statement and Solicitor during Interview
7. Criminal Justice and Public Order Act – Inferences from Silence.
8. Criminal Justice and Public Order Act – s.34, 35, 36, 37
9. Conduct Issues – when advising a client who is a suspected criminal.
10. Case Analysis
11. Case Analysis
12. Case Analysis & Criminal Prosecutions (Table)
13. Detention without Charge
14. Code C – Diagram
15. Allocation and Bail – Different types of offences
16. Allocation Procedure for Either-Way Offences
17. Defendant’s Choice of Venue – Magistrates or Crown Court (Magistrates)
18. Defendant’s Choice of Venue – Magistrates or Crown Court (Crown)
19. Bail
20. Bail
21. Conditions on Bail
22. Legal Aid Funding
23. Legal Aid Funding and the Means Test
24. Adducing Evidence of Previous Convictions (Gateway D)
25. Adducing Evidence of Previous Convictions (Gateway D)
26. Adducing Evidence of Previous Convictions (Gateway G (not examinable))
27. Gateway D and Gateway G (further points)
28. Gateway D and Gateway G (further points)
29. Admissibility of Confessions
30. Admissibility of Confessions & Pace Code C
31. Pace Code C
32. Hearsay Evidence
33. Hearsay Evidence
34. Documentary Evidence Hearsay
35. Bad Character Evidence
36. Bad Character Evidence
37. Bad Character Evidence
38. Plea in Mitigation
39. Plea in Mitigation
40. Plea in Mitigation
41. Sentencing – Types of Sentence
42. Sentencing – Ancillary Orders
43. CONDUCT – Conduct Issues at a Criminal Trial
, ROLE OF THE SOLICITOR WHEN ATTENDING THE POLICE STATION
Where a client has exercised his right to legal advice, the procedure on the solicitor attending the police
station is as follows:
Police powers and regulation on those powers largely comes from:
1. PACE 1984 - Powers of detention, stop and search, questioning etc. come from this act.
2. Codes of Practice
- Issued by Home Secretary
- S.67(11) of PACE obliges courts to take into account any relevant breaches of the Codes in relation to an issue in
proceedings – i.e. it could be used to contest the admissibility of some evidence.
- Breach of the codes is not an offence or civil wrong, but a formal complaint may be made to the relevant police
force and, potentially, this may be referred to the IPCC.
Telephone The solicitor will need to:
Call o Identify himself
between o Ask the client to confirm that he wants the solicitor to come to the police station
Solicitor o Remind the client that any advice will be free.
and Client The solicitor should not assume that the conversation will be completely confidential, and the client
should therefore be advised to confine himself to ‘Yes/No’ answers
BASICALLY – TELL THE CLIENT TO SAY NOTHING UNTIL THE SOLICITOR ARRIVES
ATTEND THE POLICE STATION
Three Objectives for the Solicitor at the Police Station
1. Find out as much as possible about the alleged offence
2. Find out if there have been any breaches of procedure and Codes by the police
3. Check on the client’s state and find out about any vulnerability.
Speak The solicitor has a right to view the Custody Record and Detention Log (Code C, para 2.4). These record
to the all significant events which have occurred since the client arrived at the police station. – has the suspect
Custody been treated in accordance with Code C? Has he made any significant comments since arrival?
Officer They must tell you the basis for the detention/charge (s.57), state of suspect, let you see custody
record and detention log (Code C para 2.4)
The solicitor should speak/(telephone call) to the Custody Officer and check the following details:
o The alleged offence for which the client was arrested.
o The time when the custody officer authorised detention.
Relevant for assessing Detention Reviews (below).
o The grounds for authorisation of detention:
I.e. was detention authorised to obtain or preserve evidence, or to obtain such evidence by
questioning?
o Any significant comments made by the client.
o Any samples, fingerprints or impressions of footwear which may already have been taken.
o Any identification procedure which may already have taken place.
o Any interview which may already have taken place at the police station.
NB: police are entitled, in certain circumstances, to interview suspects without their legal
representative present, however no adverse inferences may be drawn from silence in such an
interview if the suspect had not been allowed access to legal advice (Youth Justice and Criminal
Evidence Act 1999, s58).
o Whether the client is under any form of physical or mental disability.
o Any illness which the client may be suffering from, or any indication that the client is in any way
vulnerable or requires medical treatment.
o Any significant items found as a result of a search either of the client’s person, or at the client’s
property, or where the client was arrested.
If the client has already been at the police station for six hours or more, details of any detention reviews.
o Speaking to the Custody Officer and examining the Detention Log/Custody Record is largely about
checking on the client’s welfare and that they have been treated appropriately at the police station
(see below).
1
, ATTEND THE POLICE STATION
Speak to the The solicitor should seek to obtain from the investigating officer, details as to:
Investigating 1. The facts of the offence:
Officer o The Custody Log/Detention Record alone is likely to show solely the offence e.g. Fraud, and
not the facts behind it.
2. Disclosure of the police’s evidence:
o The police are not obliged to provide the solicitor with evidence.
o HOWEVER, if the police do not provide sufficient disclosure:
The solicitor is entitled to point out that in those circumstances he cannot properly advise
his client as to the nature of the case against him and therefore will only be able to advise
the client to give a ‘no comment’ interview.
3. Any Significant Statements or Silences made by the Client
4. The Next Steps in the Investigation the officer proposes to take:
Likely to be an interview, then possible charge and release on bail pending a hearing at the
magistrates’ court.
If the officer refuses to disclose evidence, solicitor should employ DEAL technique
Describe offending behavior – tell officer he is making insufficient discloser
Explain why it offends – unable to advise client and breach of Para 11.1A Code C (solicitor should
be given sufficient information to understand nature of the offence and why the client is a
suspect).
Ask officer to refrain from offending behavior – to make proper disclosure
Let officer know what will happen if he refuses – client will give no comment interview and
request that officer’s refusal be noted in custody lock.
Speak to the The solicitor should give the client details of what he has been told by the investigating officer
Client about the offence and advise as to the substantive law and what the police need to prove.
The solicitor will then obtain the client’s version of events.
In light of this, the solicitor will advise as to next steps and the most appropriate method of
answering the police’s questions e.g. no comment interview, written statement, full interview
etc.
Should the Decision is that of the client
suspect Check – is the client in a fit state to be interviewed (e.g. not drunk or exhausted etc)
answer Note that any confessions/statements made if obtained in such a way as to make it unreliable or
questions? by oppression will be disregarded (s.76(2) PACE).
General No vulnerable groups targeted
No person working in the public sector targeted
Not premeditated
Not acting in a gang or group
No religious or racial motive
With regards Injuries were minor
to assault Single blow
No weapon use
With regards No use of force
to a Items of low value stolen
property Opportunistic
offence No damage caused
Property unoccupied.
2
, POINTS TO CONSIDER WHEN ASSESSING THE CUSTODY RECORD/DETENTION LOG:
Has the Maximum stay of detention without charge is 24 hours from the “relevant time” - s41 of PACE 1984.
suspect The “relevant time” is:
been kept o If the suspect was arrested and then brought to the station, the time the suspect arrives at the station
for longer (s41(1)(d)
than is o If the suspect attended the station voluntarily, but was arrested at the station, the time of his arrest
permissible? (s41(2)(c)).
EXTENSIONS
Extensions up to 36 hours from the relevant time -
s42 - the police have the power to extend the period detention to up to 36 hours from the “relevant time” if:
Detention is authorised by a superintendent or above who must have reasonable grounds for believing that:
o Detention is necessary to secure or preserve evidence relating to an offence or to obtain such
evidence by questioning the suspect.
o The offence is an indictable offence (particularly serious offence which would be tried by jury at the
Crown Court e.g. Murder, Manslaughter, GBH, Rape etc.)
o The investigation is being carried out diligently and expeditiously.
Extensions beyond 36 hours -
s43 – Extensions of a further 36 hours (i.e. 72 hours [3 days] total) possible but requires a warrant of further
detention from the magistrates’ court.
The detention must be “justified”, which will be the case if:
o Detention is necessary to secure or preserve evidence relating to an offence or to obtain such
evidence by questioning the suspect.
o The investigation is being carried out diligently and expeditiously
Extensions of the warrant of further detention are possible under s44 if the above grounds remain satisfied.
An extension may be “be for any period as the court thinks fit” but:
This cannot be longer than 36 hours and
This cannot end later than 96 hours after the ‘relevant time’.
This means that the police can detain a suspect in police custody for a maximum period of four days before that
suspect must be either released or charged.
Where the Detention reviews must be carried out:
detention First review - no later than six hours after detention was authorised by the custody officer.
reviews Second review - no later than nine hours after the first review
carried out All subsequent reviews - must take place at intervals of not more than nine hours.
on time?
If reviews are not carried out, any detention after this time will be unlawful and will amount to the tort of false
imprisonment (Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662).
3
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