Flash-Warnings.txt

• - silence@an interview on legal advice-genuineness of the decision that matters-CA said that where silence at an interview is said to be on legal advice, the judge must make it plain to the jury that they can draw inferences only if they are sure that the failure to mention facts subsequently relied on was because the defendant had not at that stage any explanation to offer, or none that he believed would stand up to questioning or investigation, so that the solicitor�s advice was no more than a convenient shield behind which to hide. Must outrule genuine reliance!
• Held that a bare admission at trial of part of the prosecution case was incapable of constituting a �fact� for s.34 purposes. Had it been otherwise, the accused�s right to silence would have been effectively removed by requiring him to make admissions at interview.

• -silence based upon sound objective reasons-The CA has adopted an increasingly restrictive approach to s.34. Allen-CA said that police interview and the trial are to be seen as part of a continuous process in which a suspect is engaged from the beginning. There's a public interest in reasonable disclosure by suspect of what he has to say when faced with incriminating facts. This interest is thwarted if currency is given to the belief that a suspect can avoid adverse comment at his trial if he remains silent on legal advice. In addition to tightening up the directions to be given to a jury under this section, the concept of a fact relied on in a defence has been narrowly construed. "The kind of circumstance which may most likely justify silence will be such matters as the suspect's condition (ill-health, in particular mental disability; confusion; intoxication; shock, and so forth � of course we are not laying down an authoritative list), or his inability genuinely to recollect events without reference to documents which are not to hand, or communication with other persons who may be able to assist his recollection. There must always be soundly based objective reasons for silence, sufficiently cogent and telling to weigh in the balance against the clear public interest in an account being given by the suspect to the police. Solicitors bearing the important responsibility of giving advice to suspects at police stations must always have that in mind." The questioning must be directed to trying to discover whether or by whom the alleged offence was committed (inferences under s 34(1)(a) only). Inferences cannot be drawn if the police have already made up their mind to charge before commencing the interview. R v Pointer [1997] However, inferences can be drawn if a court is persuaded that the police still had an open mind even if there was sufficient evidence to charge prior to the interview starting. Recent Court of Appeal decisions concerning the effect of legal advice on the question whether inferences may be drawn from �silence� have not all been consistent, but the current approach appears to be embodied in R v Howell, - R v Hoare and Pierce and R v Beckles, and may be summarised as follows:
• Where an accused gives evidence that they remained silent on the advice of their solicitor, the question for the jury or court is whether, in the circumstances existing at the time, it is reasonable to expect the accused to have mentioned the relevant fact or facts. This is an objective question.
• The fact that the court or jury accepts that the accused genuinely relied on legal advice not to tell the police about facts on which they subsequently rely in their defence does not mean that they have to conclude that it was reasonable for the accused not to mention those facts. They may, for example, conclude that it was not reasonable to rely on that advice, or that the accused relied on the advice because it suited their purpose. A court or jury may be more likely to conclude that reliance on legal advice not to put forward relevant facts was reasonable if there were �soundly based objective� or �good� reasons for that advice. The following may be regarded as �good reasons�:
• -Little or no disclosure by the police so that the solicitor cannot usefully advise the client
• -The case is so complex, or relates to matters so long ago, that no sensible immediate response is feasible
• -The suspect has substantial difficulty in responding as a result of factors such as ill-health, mental disability, confusion, intoxication, or shock.

directions under s.35 CJPOA 1994. The direction in accordance with Cowan is mandatory whenever a jury is entitled to draw inferences under s.35 CJPOA=s.34

silence@an interview on legal advice- an attempt was made to close the gap between Betts and Hall and Howell-flushing out innocence at an early stage or supporting other evidence of guilt at a later stage.Court of Appeal said that the question for the jury in the end is whether, regardless of advice given and accepted, an accused has remained silent not because of that advice but because he had no, or no satisfactory, explanation to give. For some reference to circumstances in which a suspect might have good reason to rely on a solicitor�s advice to remain silent, despite having an answer to allegations against him. CA held whole basis of s. is as assumption that an innocent D �as distinct from 1 who is entitled to require the P prove its case-would give an early explanation to demonstrate innocence. In R v Brizzalari the court said that s 34 =was primarily directed [at] the positive defence following a ?no comment/ interview and/or the ?ambush defence�. In R v Hoare and Pierce, on the other hand, the court said that s 34 is =concerned with flushing out innocence at an early stage or supporting other evidence of guilt at a later stage. Beckles, R. v [2004 EWCA 2004) Para 6. Section 34 was recently, justifiably, described by Dyson L.J. in R. v. B. (K. J.) The Times, December 15, 2003; [2003] EWCA Crim 3080, as "a notorious minefield" [paragraph 20 of transcript]. In R v Brizzalari, The Times, March 3, 2004; [2004] EWCA Crim 310, the Court of Appeal felt it necessary to discourage prosecutors from too readily seeking to activate the provisions of section 34 [paragraph 57]. As the Court said: "the mischief at which the provision was primarily directed was the positive defence following a "no comment" interview and/or the "ambush" defence" [ibid]. In this case the police knew the essence of D' defence before the police interviews.

where an appeal was allowed because of an inadequate direction under s.34 and Telfner v Austria, where the European Court of Human Rights acknowledged that inferences can be drawn from silence, provided -the evidence adduced amounts to a convincing prima facie case and is such that the only common-sense inference to be drawn is that the accused has no answer to the case against him.

• 1-the judge will have told the jury that the burden of proof remains upon the prosecution throughout.
• 2-the jury is told that the defendant is entitled to his right to remain silent.
• 3-the silence itself cannot on its own prove guilt.
• 4-before any inferences can be drawn the jury must be satisfied that the prosecution has established a case to answer despite any unreliable witnesses.
• 5-if the jury is satisfied in the absence of such evidence that to explain the silence can only be attributed to the defendant's having no answer, then, they may draw an adverse inference.

good character, the House of Lords said that a person with no previous convictions was generally to be treated as being of good character, but not an absolute rt they qualified it by confirming obiter, if D's claim was spurious it would be an insult to common sense to give a Vye direction.

• good character, court recognised two �limbs� in any direction:
• 1- relevance of good character to credibility
• �2- relevance of good character to the question whether the defendant was likely to have behaved as alleged by the prosecution.

-cross-examination of police officers-requirement that a verdict of acquittal in another trial must �necessarily� indicate that the jury disbelieved the officer who gave evidence in that trial. Note how this difficulty was avoided in R v Meads [1996] Crim LR 519. Note also the unsettled state of the law on this matter after R v Guney [1998] 2 Cr App R 242. Whether police officers can be questioned about unresolved allegations against them is also uncertain. Compare the approach in R v Edwards (Maxine) [1996] 2 Cr App R 345 with that taken in R v Guney [1998] 2 Cr App R 242

• 1-the warning will refer to the possibility that even a convincing witness(es) may be mistaken. (And vv)
• 2-jury should test the evidence by examining such things as the circumstances in which the identification came to be made.
• -how long was the suspect under observation?
• -at what distance?
• -in what light?
• - was the observation impeded?
• -had the witness seen the suspect before? (is the identification one of pure recognition rather than the identification of a stranger?)
• -how often? If only occasionally, had he any special reason for remembering D?
• -how long elapsed between the original observation and the subsequent identification to police?
• -were there any particular reasons for noting the suspect?
• -Finally, recognition may be more reliable than identification of a stranger but they should be reminded that mistakes can occur.

evidence ID=guidelines NOT corroboration-judgment has led to the adoption of a substantially more critical evaluation of the testimony of witnesses who purport to identify suspects as the perpetrators of offences and the acceptance by trial judges and appellate courts of the need for abundant care in dealing with that testimony, most particularly where it is not corroborated by independent evidence.

• cross-examination of police officers-counsel for the Crown identified four principles governing the cross-examination of police officers, which the Court of Appeal approved
• 1-evidence must be relevant
• 2-cross examination relating to criminal conviction or an adverse disciplinary finding is permissible
• 3-or an acquittal in one case indicates that the jury must entirely rejected the evidence of the police officer, that officer can be cross-examined about it in a subsequent case.
• 4-it is not permissible to cross-examine an officer about complaints made against him which did not result in a criminal conviction or adverse disciplinary finding; nor is it permissible to cross-examine one officer about this credible conduct by others.
• -counsel for the Crown also tried to rationalise the decisions on the cross-exam of officers as to credit.

informant disclosure-basic rule is that in public prosecutions witnesses may not be asked, and will not be allowed to disclose, the names of informers or the nature of the information given. As a result, a witness cannot normally be asked a question that would disclose a third party informer�s identity, such as that of the person who told the police where to search for the stolen rowing trophies that were ultimately linked to Quincy in the question under consideration. In an action for malicious prosecution, the DPP was called as a witness by the plaintiff but refused on grounds of public policy to give the names of his informers were to produce the statement on which he had acted in directing the earlier unsuccessful prosecution of the plaintiff. His objection was upheld by the trial judge and by the sea a. The reason for the rule is that informers need to be protected, both for their own safety and to ensure that the supply of information about criminal activities does not dry up. However, Lord Escher qualify this basic rule by stating that he could be departed from if the disclosure of the name of the informant was necessary to show the defendant's innocence. In such a case one public policy would be in conflict with another, and the policy than an innocent man should not be condemned when his innocence could be proved had to prevail

Relevance-The question whether evidence is relevant depends not on abstract legal theory but on the individual circumstances of each particular case. The uncertain development of concern about the admissibility of evidence relating to cash and lifestyle in cases of possession of drugs and possession with intent to supply has been traced back to R v Batt [1994]

Relevance-Money found on the defendant-It is not necessarily evidence of future supply. It may be evidence of supply in the past but on its own the money is not evidence of a future intent to supply. it was held that the discovery of cash in a kettle in Batt's house was inadmissible because, while having a prejudicial effect as evidence of propensity to supply or of past or future supplying generally, it had nothing to do with intent to supply the drugs found in the house in future. Nevertheless in our judgment the relevance of any particular piece of evidence should be decided on a case by case basis. Accordingly although evidence of cash and lifestyle may only rarely be relevant where the charge is simple possession, we are unable to accept that as a matter of law such evidence must, automatically, be excluded as irrelevant.

s.76(2)(b)-If the defence is relying on s.76(2)(b), once it has been shown that an external factor may have caused the confession to be made, the personal circumstances of the defendant can then be taken into account to determine whether that factor was likely to render unreliable any confession that the defendant might make in consequence of it.

Section 76(2)(b)(a)-i.e. anything said or done-to apply it must be shown that the matters complained of did, in fact, cause the confession to be made=causal link. They were limited to something external to that person & to something likely to have some influence on him. The fact that the defendant might have had a motive for confessing to secure his release on bail was not therefore something which affected the admissibility of the confession. Implicit in this decision is a finding not only that the police had not held out any inducement to the defendant to confess but also that the mere holding of the interview in response to his request was not itself something said or done likely to produce an unreliable confession. Dennis-Given that the concern of section 76-2-b is with behaviour influencing methods of dealing with suspects, this decision looks right on the facts. A defendant's possible anxiety to confess to secure some advantage, when not induced by the police themselves, is something which under the PACE scheme goes to the weight to be attached to the confession. It is regarded as an issue for the jury, not one of admissibility for the judge.

The defendant was age 17 educationally sub-abnormal w/ an IQ of 80, and there was psychological evidence that he was subject to quick emotional arousal which might lead him to wish to rid himself of the interview as quickly as possible.

• section34 direction-the court made it clear that it is professionally improper for a solicitor at the Crown court stage to advise a client not to file a defence case statement. It was a statutory requirement to do so. Solicitors will, however, retain the right to advise clients of the decisions available to them, namely whether or not to file a statement and the advantages and disadvantages of each course. It is then for the client to make a decision which course to follow. The potential semantic complications of a section 34 direction are considerable. It is important to remember that the significance of section 34 does not lie in silence in interview, it lies in reliance at trial on something that should have been said in interview. Secondly, it is important to remember that the acid question in any section 34 case is not: was it reasonable to rely on the solicitor's advice? Rather it is: could the appellant reasonably have been expected to say what he now relies upon at trial? The first question must be answered en route to the second, but the second is the one that matters. We, for our part, are prepared to accept, at least for the purposes of argument, that there may sometimes be a case where an appellant may have good reason to rely on his solicitor's advice, even though he has in fact got an answer that could be given. A simple case, but a very long way from the present one, might be that of a vulnerable or disabled appellant who would have real difficulty getting across what he wanted to say, even though there was something there to be said. But there needs to be an element of realism in the approach to a subsequent analysis of what has been said in any particular case. In this case, as in many others, no evidence was given of what advice or why the solicitor gave the advice that he did, nor of the terms in which he gave it. The appellant can, of course, give such evidence if he chooses and he can call his solicitor if his evidence is not accepted. If he does not do that, privilege is not, as we have previously said, waived.
• (see R v Bowden [1999] 2 Cr App R 176). But it nevertheless can be assumed, in the absence of evidence to the contrary, that the solicitor will have given proper advice and proper advice must include, first, the effect of section 34, and secondly, that an appellant exposes himself at least to the risk of criticism if he does not now say in interview what he later decides to say in court. It is with the benefit of that advice that an appellant himself makes the decision whether to answer questions or whether to decline to do so and take the risk which goes with it.

-recent complaint-jury direction that recent complaint=NOT independent confirmation of complainent's evidence-not from independent source

• recent complaint-s.120-as soon as could reasonably be expected-C told of stepdad sex abuse from yrs ago also to bro 4 months later.
• Held-s.120 no limitations,
• free-standing,
• admissible-where made in different circumstances
• -to different parties,
• -against different backgrounds