Criminal litigation on the LPC is one of the more fun modules. It is one of the few that actually seem like what you would expect, and it isn’t completely removed from what you will have studied as an undergraduate or GDL student. It is also fairly logical: from arrest to trial the stages are easy to follow (at least for the simple crimes!). Criminal litigation is not for everyone but is a requirement for the LPC and so is likely to be studied in some context.
This is a key area for a criminal lawyer and is likely to be in the exam.
Criminal litigation is quite a large subject, despite the logic behind it. As a result, I have focused on the earlier part of an investigation: what happens in the police station. This is a key area for a criminal lawyer and is likely to be in the exam. One of the important things to remember for a criminal lawyer is that most trials fall down because of procedure, or more accurately, the failure to correctly follow procedure. Very rarely is there a case formed around a ‘did he do it’/‘didn’t he do it’ key witness, or a complicated argument around the required mens rea for a particular crime. The procedural elements are what you focus on for the exam: how a criminal investigation and subsequent prosecution should be handled by both sides.
There are a couple of stages where correct procedure needs to be checked; if anything is done outside of the powers or procedures that should be followed, the evidence obtained may be inadmissible or there may be penalties against the police, and so on.
Stop and search
Stop and search powers are granted under s. 1 of PACE. These dictate the grounds under which the police may stop and search someone: when they have ‘actual suspicion and reasonable grounds for that suspicion’. Actual suspicion is a subjective test – did the policeman actually suspect? Reasonable grounds is an objective test, and should be based on recent, reliable police intelligence, not based on the suspect’s personal factors.
PACE sets out the procedure for carrying out a stop and search, i.e. it must be in a public place, outer clothing only, the suspect must be given reasons for the search, etc. Failure to follow the correct procedure makes the stop and search illegal and the evidence obtained from the search can be challenged.
Common law arrest, with or without a warrant. Common law arrest is only available where there is breach of the peace or where there is harm done or likely to be done to property or person or fear of harm. Arresting a person with a warrant is provided where the offence is indictable or punishable by prison; arresting without a warrant is under PACE.
Again there are procedural elements that must be followed – the officer must state his name and station, inform the suspect they are under arrest and the reasons for it, and caution the suspect. The caution is the standard ‘you have the right to remain silent’ blurb you see on police TV shows.
Police code and human rights law. Detention is a tricky area and again, if the conditions for humane treatment under detention are not followed, evidence obtained through interview that took place during the period of detention may be open to challenge. For example, there are rules as to how much sleep a suspect is allowed, access to water and food, how early they can be woken, as well as the right to a telephone call and legal advice.
It is the role of the custody officer – an officer independent of the investigation – to look after detained suspects. As soon as a suspect is signed into custody, the custody officer (and therefore the police force) has a legal duty for his welfare. Mistreating or neglecting a suspect in custody could make his evidence inadmissible. The custody record should keep a record of everything that happens to the suspect whilst in custody, which is a key component for the defence solicitor to challenge evidence obtained through interview.
Police code. The interview is usually the primary method for the police to gather evidence. Interviews should be conducted under caution and have strict procedural requirements. There is none of the American style, ‘good cop, bad cop’ or violence permitted. The police cannot use questions as a bargaining chip (‘just tell us where the gun is, and we will get you a drink’), neither can they continue questioning a suspect indefinitely. Again, evidence obtained in an interview that is not conducted correctly is inadmissible.
It is the role of the defence criminal lawyer to check the police are complying with the code and the law in the handling of suspects. A lawyer attending a police station is there both to advise the suspect and to verify that the investigation is being carried out correctly. An attending lawyer should therefore ensure he is prepared before attending, but also that he verifies all information available to him.
Preparation for attendance
- Speak to Funding Unit – this is to get the authority to act for the suspect through legal aid. Without this authority, you might not get paid.
- Ring Custody officer to notify attendance.
- Speak to client over the phone. It is important to remember that the phone is likely to be in a public place and the suspect may be overheard. It is also important to caution against speaking to anyone – a confession to a cellmate can be used as evidence!
- Information/materials needed to attend: Legal details of offence, i.e. the legislation and relevant case law regarding the offence, PACE and Codes (to ensure you know what the police should be doing!), old files – most criminal lawyers will have come across a suspect before in one form or another, having the files to hand may be helpful and will certainly give you background informaton and details in relation to arrest – you should be able to obtain this from the custody officer.
On arrival at the police station
- Check in and ask that the client be informed of arrival.
- Ascertain when the interview will take place.
- Check the custody record – look for anything unusual, whether the suspect has received medical treatment, what time he was checked, when he last received water, etc.
- Speak to investigating officers.
Disclosure of evidence – the investigating officers should disclose all evidence they have gathered so far for ease, although the decision is discretionary. For example, have there been any:
- Witness statements
- CCTV videos?
If yes, has it been reviewed? If you ask ‘is there any information you have not disclosed?’ the investigating officers can’t lie to you!
Your interview with the suspect may be crucial to how they perform in their police interview. As well as taking down information, you should also be checking the suspect for signs of vulnerability or stress, considering how they are likely to come across in the interview. Check their state of mind and general health – if you think they might need to see a doctor, make representations to the custody officer (who ultimately makes the decision as to whether the suspect is fit for interview) and ensure it is noted on the custody record.
It is also important to consider the interview strategy. There are three options:
1. Advising silence
Silence means literally silence. There are reasons why you might advise the client to remain silent but you should weigh this up against the possibility that a negative inference may be drawn, i.e. if there is anything the suspect later relies on that he doesn’t say in interview, a negative inference could be made. You should assess the strength of evidence, if it is weak or ambiguous then it is unlikely the suspect will be charged or convicted. You should also consider the suspect’s ability to cope in interview; if emotional, unwell, in shock, under the influence or drink/drugs, silence may be the best option. Silence in these situations may be better to avoid the suspect saying something incriminating inadvertently. Also, if there is a lack of disclosure it may be better to remain silent so as not to inadvertently contradict evidence of which you are not aware.
You could consider a ‘no comment’ interview instead, which will at least take the pressure off completely ignoring questions. However, once the mouth is open, it is easy to keep talking!
2. Prepared statement
A prepared statement is essentially a witness statement which is drafted in client’s handwriting and read by the legal advisor during interview. Any material departure from a prepared statement can lead to application for adverse inference. This is best used in straightforward cases where you can be clear and confident about client’s defence. It may be prudent to wait until after the first interview following further disclosure. A prepared statement could be appropriate where the suspect maintains innocence but for whatever reason is not in a good position to answer all questions, for example, due to stress or emotional state.
3. Allow suspect to be interviewed and advance a defence
You should only allow the suspect to be interviewed if, in your opinion, he is fit to be interviewed. It is better to avoid this option unless there is fair disclosure. You should advise the client to be honest to avoid an adverse inference, and also to avoid the gateways that can lead to bad character applications, including:
- Giving a false impression of self
- Attacking the character of another person
- Introducing his own bad character in interview.
If you advise the client to do something in an interview that later backfires, you can opt to explain in court that he was following your advice. However, this waives your legal privilege, and you may be asked further questions about your discussions with the client. You shouldn’t waive legal privilege without consent from the client.
A confession is ‘any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not’, i.e. a confession may be made anywhere to anyone, provided it is properly evidenced.
Confession evidence may be challenged on several grounds:
The exercise of power in a burdensome, harsh, or wrongful manner. This includes torture, inhuman or degrading treatment and threats of violence, but must be a deliberate misconduct by police, i.e. oppression cannot be as a result of neglect.
If the confession was obtained in circumstances likely to induce an unreliable confession it must be excluded. Breaches of the police code relating to detention are relevant, but there must be a causal link. It could also be due to lack of access to legal advice, or if the suspect was induced to confess. The burden of proof is on the Prosecution to prove lack of unreliability once the question is raised.
Unfairness (s. 78 PACE)
Where the admission of the confession would have an adverse effect on the fairness of the proceedings. Significant and substantial breaches of a Code are highly relevant such as:
- failure to spot and deal with a vulnerable suspect
- taking advantage of a vulnerable suspect
- failure to properly record an interview or provide safeguards
- failing to secure a solicitor.
Where there is a question regarding the admissibility of confession evidence, this is argued in a pre-trial hearing without a jury. If the application is successful, the confession and any evidence that references the confession is not admissible.
Although this is only a snippet of crinimal litigation, it should give you a flavour of what is involved: procedure and more procedure! For the exam, I would suggest a checklist for each aspect of the criminal proceedings – what is required procedurally and where that requirement comes from. It is likely you will be asked to advise the client at a certain stage in the proceedings, which will require an analysis of the evidence gathered up to that point, some of which will have been at the police station.
Another tip for the exam is to obtain the sentencing guidelines for the more common offences (burglary, criminal damage, theft, robbery, assault, drunk and disorderly, etc). These are useful to understand what the court considers an aggravating or mitigating factor and can assist in advising the client or when making an application for bail or mitigation (which I have not covered here). Although not issued materials (so you will be limited as to how much directly downloadable material you can take in to the exam) they are still very useful!