Criminal Practice 1 - Representing vulnerable clients and adverse inferences Flashcards
(19 cards)
Who counts as a vulnerable client?
- Juveniles - Code C says to treat anyone that appears under 18 as a juvenile until there is evidence to the contrary.
- Suspects with mental health conditions or mental disorders - when suspected a suspect has one of these, should be treated as though they do until evidence to the contrary.
- Suspects who are deaf, unable to speak or blind.
- Suspects who cannot speak or understand English.
Code C requires that arrangements be made for a girl under 18 be under the care of a woman while detained at the police station.
Informing the person responsible for the juvenile’s welfare
In addition to the right to inform someone of their arrest, in the case of juveniles, the custody officer, if practicable, must find out the person responsible for their welfare.
That person may be:
- parent or guardian
- the person appointed to have responsibility if the child is under care of local authority or voluntary organisation care
- any other person who has, for the time being, assumed responsibility for the juvenile’s welfare.
That person must be informed of their arrest as soon as practicable, why they have been arrested and where they are detained. This right cannot be delayed.
When they do not speak or understand English or has a hearing / speech impediment
The custody officer must obtain an interpreter or someone able to assist the suspect with communication.
When blind or serious visual impairment
Custody officer must ensure there is someone (not involved in the investigation) such as an appropriate adult, relative, solicitor or someone likely to take an interest in their welfare, to help them check any documentation.
Appropriate adult - order of contact for juveniles
Someone that attends to provide support and assistance to a juvenile or other vulnerable adult.
Hierarchical order the police should use when contacting an appropriate adult for a juvenile:
a. should initially contact parent or guardian (or representative from local authority where juvenile is in care) to act as appropriate adult
b. if not available, should ask social worker from local authority
c. if not available, should finally contact another responsible adult aged 18 or over and not connected to the police - police may find that someone as young as 18 may be insufficiently responsible sometimes.
An appropriate adult for a vulnerable client who is not a juvenile
- A relative, guardian or other person responsible for their care or custody
- Someone experienced in dealing with vulnerable people
- some other responsible adult.
People who should not fulfil the role of appropriate adult
Solicitor because that right is in addition to the right for an appropriate adult who provides support and assistance.
Other persons:
- police officers or persons employed by the police
- an interested party such as a victim, another suspect, a potential witness or anyone else involved in the investigation
- a person such as a parent or social worker to whom the juvenile has made admissions prior to that person being asked to be appropriate adult
- an estranged parent (but only where juvenile expressly and specifically objects to the presence of such a person).
Role of appropriate adult
On arrival at the station, given a copy of the Home Office’s document entitled Guide for Appropriate Adults.
To ensure that the suspect understands what is happening to them and why.
Key roles:
- to support, advise and assist the suspect, particularly under questioning
- to ensure suspect understands rights at station, and appropriate adult’s role in protecting those rights
- to observe whether the police are acting properly, fairly and with respect for suspect’s rights
- to assist with communication between suspect and police.
Not to provide legal advice, and conversations not covered by legal privilege.
AA should consider whether legal advice is required and has he right to ask that solicitor attend if in the suspect’s best interests even if suspect denies - however suspect unable to be forced to see solicitor.
Custody officer should explain juvenile’s rights in the station to the suspect in the presence of the AA, or repeat when AA turns up in their presence.
Role of the solicitor with the appropriate adult
Needs to ensure the AA is aware of their role and that they are not there to help the police.
Also needs to make sure they know they are not there to answer questions on the suspect’s behalf.
AA should however intervene if they consider the suspect has not understood the question or asks for clarification if necessary.
Removing an AA
If AA acting in such a way as to unreasonably obstruct proper questions then police will ask to stop the interview, consult a superintendent if one is readily available, if not then an inspector, not connected with the investigation.
After speaking to the AA, officer consulted must remind them of their role and offer an opportunity for them to respond. Will then decide if interview should continue without them or not. If yes, another appropriate adult must be obtained before the interview continues.
Alternatives to charging juveniles
Community resolution - starting point for out of court disposals - primarily aimed at first time offenders with an admission of guilt and where victim’s views taken into account. Not part of criminal record retained by the police.
Youth cautions - can be offered where there is sufficient evidence to charge the offender with an offence, the offender admits that they committed the offence, and the police do not consider that they should be prosecuted or given a youth conditional caution in respect of the offence.
Can be given to someone 17 or under - but must be done in presence of an appropriate adult.
Youth conditional cautions - requirements:
- sufficient evidence against them for a realistic prospect of conviction
- it must be determined that a youth conditional caution should be given to the offender
- offender admits to the offence
- effect of youth conditional caution must be explained to them and must be warned that failure to comply with conditions may result in prosecution for original offence (where 16 or under, in front of AA)
- offender must sign a document containing details of the offence, their admission, consent to be given a youth conditional caution and details of conditions attached.
Must be capable of being completed within 16 weeks of offence if summary. Can be up to 20 weeks from date of caution if either-way of indictable.
Effect of youth caution and youth conditional cautions
Solicitor must be careful not to advise these when client is adamant they are innocent.
Cautions are not criminal convictions but they do go on the client’s criminal record and may be referred to an employer.
Drawing an adverse inference from silence
A silence on its own cannot prove guilt. Must first establish that the defendant had a case to answer that calls for an explanation by the D.
Usual inference is recent fabrication.
Another inference is that the defence would not stand up to police investigation.
Court cannot draw adverse inferences from a D’s silence if that silence occurred at a time when the D had not been allowed the opportunity to consult a solicitor to obtain independent legal advice.
S34 Criminal Justice and Public Order Act 1994
S34 allows the court to draw an adverse inference when the suspect has failed to mention at an opportunity something they later rely on in court.
Conditions:
- interview had to be under caution
- D had to fail to mention any fact later relied on in his defence at trial
- failure to mention this fact had to occur before D was charged
- questioning had to be directed to trying to discover the identity of who committed the offence
- the fact which the D failed to mention had to be a fact, in the circumstances existing at the time, the D could reasonably have been expected to mention when questioned.
Use of a prepared written statement for adverse inference purposes
Writing in a written statement everything that you later rely on in court will prevent the court from drawing any adverse inferences under s34 of any silences you made at interview concerning the same content as already written down.
In the rare case that the defence solicitor writes a written statement but does not hand it into the police, this will prevent the court drawing an inference of recent fabrication but will not prevent the court from drawing an inference that the D lacked confidence in their defence to withstand police questioning.
Courts acknowledge the following reasons for advising to remain silent
- level of disclosure offered by the police - if solicitor feels unable to properly advise their client due to the level of disclosure, safest option to do a no comment interview.
- nature of the case - if very complex material or relates to events from long time ago
- personal circumstances of the suspect - very tired, ill, shocked, mentally disordered.
A client who states their only reason for remaining silent was due to legal advise, not automatically protected from adverse inferences but ECHR stated this must be given appropriate weight at trial.
Jury directed to not draw adverse inferences if they believe that the D genuinely and reasonably relied on legal advice to remain silent.
Waiving legal privilege
Legal privilege is not waived by saying they remained silent on the advice of their solicitor.
Legal privilege is waived when they give information regarding the reasoning behind why the solicitor advised to remain silent.
S36 Criminal Justice and Public Order Act 1994
S36 allows the court or jury to draw an adverse inference if when questioned by the police the D had failed to account for the presence of an object, substance or mark.
Only applies when given a special caution first:
- what the offence under investigation is
- what fact the suspect is being asked to account for
- that the officer believes this fact may be due to the suspect taking part in the commission of the offence in question
- that a court may draw adverse inference from failure to comply with request
- that a record is being made of the interview and that it may be given in evidence is brought to trial
S37 Criminal Justice and Public Order Act 1994
S37 allows the court to draw an adverse inference if, when interviewed by the police, the D failed to account for his presence at a particular place at or about the time the offence was committed.
Only applies when special caution given first.
Applies irrespective of any defence later relied on at trial.
