Advising a Client pt 2

Question 1

Advising the client on the relevance of previous misconduct

Answer 1

Evidence of a defendants bad character is admissible under the Criminal Justice Act 2003 s101, Which are known as character gateways.

If such evidence is admitted it may be used to show that the client had the propensity to commit the offence of which they are accused, or to attack the credibility of their evidence.

Question 2

What are some examples of character gateways and how many of them need to be satisfied.

Answer 2

1. To correct a false impression given by the defendant
2. If the defendant has made an attack on another persons character.
3. The evidence is adduced by the defiant or is given in answer to a question asked by defendant.

If one or more is satisfied evidence of previous misconduct will be admissible and the defendant can be cross examined on it.

Question 3

What precautions should you take in relation to previous misconduct by the defendant

Answer 3

When the client is answering question or hands in a statement, the lawyer must carefully consider whether any admissions of previous bad character is necessary.

Advise the client of the dangers of making such assertions.

Question 4

Advising whether to consent to fingerprints being taken

Answer 4

If the offence which the client has been arrested for is a recordable offence, the client should be advised that resistance is pointless and could result in a charge of obstruction or assault on a police officer.

Question 5

How must appropriate consent to fingerprints be provided at the police station

Answer 5

It must be in writing

Question 6

How does the age of the client determine the process for obtaining fingerprints

Answer 6

• If 18 years or older consent of that person is required.
• If aged 14 year or more, consent of both the juvenile and a parent or a guardian
• If under 14 years it is the consent of a parent or a guardian

If a parent or a guradian is not present consent can be given by telephone, but they must be given full information and must be allowed to speak to the juvenile.

Question 7

How is consent obtained for someone with a mental disorder or mentally vulnerable person

Answer 7

Consent must be given in the presence of the appropriate adult.

Question 8

In what circumstances can the police obtain fingerprints by force?

Answer 8

• At the police station when a person is detained in consequence of arrest for a recordable offence., provided that they have not had their fingerprints taken in the Course of an investigation.
• If they are charged with a recordable offence or informed that they have been reported for such an offence, and their fingerprints have not been taken throughout the course of the investigation.
• If the person answering for bail at the police station or court, casts reasonable doubt that they are not the same person or the person who has answered for bail claims to be a different person from the person whose fingerprints were taken on a previous occasion.
• If they have been arrested for a recordable offence and are on bail and their fingerprints have not been taken throughout the course of the investigation.
• if a constable reasonable believes that the person is committing or attempting to commit or has committed or attempted to commit an offence and the name of the person is unknown and their true identity cannot be determined

Question 9

Police powers in relation to taking photographs.

Answer 9

Code D paras 5.12- 5.16 provides that a person detained at a police station may be photographed with appropriate or without appropriate consent if it is not practicable to obtain it.

Question 10

When would it not be practicable to obtain consent?

Answer 10

Code D NFG 5E outlines it would not be practicable if the person is drunk or otherwise unfit to give consent,

• if there are reasonable grounds to suspect that if the person became aware that a photograph was to be taken they would take steps to prevent this.
• that in order to take a suitable photograph it must be done covertly.

Question 11

Who must the photograph be taken by?

Answer 11

Must be taken by a police constable and reasonable force can be used. The

Question 12

Advice to the client in relation to photographs

Answer 12

The client should be advised that resistance could result in a charge of obstruction or assault on a police officer

Question 13

What are the different types of identification available in identification procedures

Answer 13

• An identification parade is when the eye-witness sees the suspect in a line of others who resemble the suspect.
• A group identification is when the eye-witness sees the suspect in an informal group of people
• A video identification is when the eye-witness is shown images of a known suspect, together with similar images of others who resemble the suspect.

Question 14

What conditions make the holding of an identification procedure necessary?

Answer 14

Code D para 3.12

• An eye witness has identified a suspect or purported to have identified them prior to group identifications or identification parades
• There is an eye witness available who expresses an ability to identify the suspect or there is a reasonable chance of an eye witness being able to do so
• The eye witness has not been given an opportunity to identify the suspect in a video or group identification or identification parade
• The suspect dispute being the person the witness claims to have been seen

Question 15

How do the police determine which identification procedure is selected for the client to take part in

Answer 15

Code D para 3.14 makes it clear that video identification is preferred method unless it is not practicable or another type of identification is more suitable such as an identification parade

Question 16

Should the suspect ask for an identification procedure?

Answer 16

If the suspect is reasonably confident that they will not be picked out, then it is likely to be advisable to request an identification procedure. It is important however that the client is warned of the potential danger of being identified.

A firm identification in a formal identification procedure by one or more witness is likely to weigh against the suspect heavily.

Question 17

What should you consider when determining whether to advise the client to request an identification procedure

Answer 17

you must take account of what information the police have about the nature of the identification evidence and what methods of identification the police are considering.

you should seek details of how many potential identification witnesses there are, and what description they gave to the police

Question 18

Should the suspect co-operate with a police request for an identification procedure

Answer 18

Only an identification parade requires the active co-operatation of the suspect and a failure to co-operate can be given in evidence.

it would be appropriate to advise the client to cooperate with an identification procedure, since if they do not the police may be able to conduct an identification procedure in any event and evidence of refusal may disadvantage the client at trial

Question 19

Before advising a client to consent to an identification procedure what should you do?

Answer 19

Consider what information is available in particular as to the description given by the identifying witness

Ask whether any further relevant information has been obtained since the orginal description was given

Question 20

What conditions need to be satisfied in order for an intimate sample to be taken

Answer 20

Per Pace S62 (1)(a) or (2A)(b)

1) The officer has reasonable grounds for suspecting their involvement in a recordable offence and believes the sample will confirm or disprove their involvement
2) Appropriate consent is given per PACE s62(1)(b), (1A)(b) or (2A)(c) although refusal may result in inferences being drawn
3) Before the sample is taken the person is informed of the reason for taking the sample

Its important to consider whether your client falls within the TA 2000 s40(1b).

Question 21

Why is it important to ask the officer whether they have any forensic samples

Answer 21

Because if they do not possess them, it may be argued that the taking of an intimate cannot fulfil this requirement.

Similarly you should consider whether the nature of the alleged offence is such that an intimate sample is likely to have probative effect.

Question 22

What must be remembered if the only available power to take an intimate sample is under PACEs62 (1A) or (2A) or the TA 2000

Answer 22

These provisions require the police to take at least two non intimate samples. Therefore, if the police originally took an intimate sample or only one non-intimate sample, that has proved to be insufficent they have no power to take an intimate sample.

Question 23

When advising a client on whether they should give an intimate sample, what factors should be considered

Answer 23

• what other evidence do the police have, If the evidence obtained is weak a refusal may not in itself add very much to the overall weight of evidence. In this case allowing a sample to be taken may actually provide the police with the evidence they need to be able to prosecute.

• Whether the accused has good cause to refuse consent. The client may be scared of needles or have relgious obligations. In the case of mentally vulnerable or mentally disordered clients an Appropriate adult should be present per code d para 2.15.

In conclusion if a client puts forward such reasons to refuse consent, they should be carefully questioned to determine the basis of their view, and accurate note taken of what the client says

you should also inform the police of the reasons and ask that they be noted on the custody record and explain to the client that a court may not accept the reasons for reusing consent amount to good cause.

Question 24

Advising on searches and examinations to ascertain identity

Answer 24

The police have extensive powers to take photos with or without consent.

you should consider whether the conditions set out in PACE s54(1)-(3) are satisfied. if they are satirised the client should be advised that refusal of consent will not prevent a search or examination from taking place and that resistance could result in a charge or obstruction or assault on police.

Question 25

what is PACE s54A(1)-(3)

Answer 25

These are the conditions that need to be satisfied for search and examination to ascertain idnetity

S54(1)(a) - For the purpose of determining whether a person has a mark which would identify them as person involved in a commission of an offence

S54a(2)- it is not practicable to obtain such consent.

S54(1)(b)- For the purpose of facilitating the ascertainment of the persons identity, in this case authorisation may only be given if the person has refused to identify themselves,

or per S54(3) the officer has reasonable grounds for suspecting that the person is not who they claim to be

Question 26

What advice would you give a client about a search at the police station after an arrest

Answer 26

• should ask whether a record was made of anything found on the suspect and if so whether it was made on the custody record, you should ask to see the custody record

This is important because the items seized on search may be the subject of questioning.

• It’s with noting that a search may not be necessary if it is clear that the person will only be detained for a short period and is not to be placed in a cell.