DR 15: Case Analysis

Prep task notes – case analysis exam structure

Structure and points to note Example Answer

 Who?  Who: the accused is D
 Where?
Q1: What must  When?  Where: X
the prosecution  What? – legal basis
prove if the  How? – factual basis  When: xx/yy/zz.
accused is to be
convicted? Literally structure your exam answer as this bullet  What: D is accused of Y
point list.
 How: D punched C
which caused injury to C
Structure: Oral Testimony:
 A – Witness statement
(1) Heading e.g. “Name of Witness”  B – Oral interview
(2) Description of Evidence
(3) Explain which elements it helps to prove Real Evidence:
Q2: What (who/what/when/where/how)  E – weapon used
Evidence do the  F – item stolen
Prosecution
Have to Prove Useful checklist: evidence may include:
Each Element of o Oral testimony, Forensic Evidence:
the Offence? o Real evidence  G – finger print search of
o Forensic evidence, envelope
o Documentary and recorded evidence Documentary and Recorded
o Evidence of the accused’s bad character (likely Evidence
evidence from a specific “Record of Previous  H – CCTV footage
Convictions document”. NOTE the rules on when  I – record of audibly
Character Evidence is admissible). recorded interview

 See notes on component elements of offences Evidence of the Accused’s

which may come up in the exam. Bad Character
 D has a number of
previous convictions for
Z
Prosecution has a legal burden to prove beyond
Q3: has the reasonable doubt that the defendant is guilty with the
prosecution met offence with which he was charged.
their burden?
Prosecution has an evidential burden to ensure they
have sufficient evidence to justify a finding of guilt and
show that the defendant has a case to answer i.e. to
disprove the defendant’s defence beyond reasonable
doubt.
 Explain the client’s version of events.
Q4: What is the  E.g. X denies
Client’s  NB: if client states that “I was somewhere else”, he involvement
Defence? is raising the defence of alibi. This is not predicated
on having another person confirm that this is true.
Q5: What is the  Same structure as the prosecution
Client’s
Evidence?
 No legal burden
Q6: has the  However, if a client raises the defence of an alibi, he
client met their has an evidential burden to prove it is true.
burden?  This can be discharged by giving his own testimony
 under oath.

Prep task

Use Documents A to G to undertake the following case analysis:

What are each of the Docs?

 Doc A: defendant’s version of events
 Doc B: victim’s statement
 Doc C: witness statement of a barmaid who witnessed the alleged offence
 Doc D: statement from a policeman on duty at the time of the alleged offence
PLUS a transcript of the interview conducted by said policeman with the defendant
 Doc E: witness statement of Dr on duty who saw to the victim
 Doc F: Police record of the defendant’s previous convictions
 Doc G: Defendant’s comments re the prosecution’s papers (i.e. Docs B-F)

(a) What must the prosecution prove if Nathan Duggan is to be convicted?

 Who: Nathan Duggan

 Where: Kings Head Pub
 When: 17:30 on 11 December 20__.
 What: Assault of victim causing actual bodily harm
 How: D (Nathan Duggan) punched V (Darrin Piart) in the face; and the punch caused
injury (a cut lip)

(b) What evidence do the prosecution have to prove each element of the offence?

 Document B – statement from victim (Darrin Piart) helps the prosecution to prove:

- Where and when the alleged crime took place

- How, and by extension what – Darrin describes being punched in the face, his lip
pouring with blood and him having to go to hospital as a result
- NOT very helpful in proving who. Darrin does not name the assailant. He merely
describes being punched by a powerfully built man, who is over 6ft and has short dark
hair. This description could fit many men and so does not help the prosecution prove
who committed the offence.

 Document C – witness statement from barmaid (Klaudia Makowski) helps the

prosecution to prove:

- Where and when the alleged crime took place AND

- Provides powerful circumstantial evidence as to who and what:
o She named the two men who were in the room (the alleged assailant and victim)
– but did not see the event itself
o However, she heard what happened before the alleged offence (one man
calling the other a wanker and then a bang)
o She also saw what happened after the alleged offence (the alleged assailant
standing over the victim, his fist clenched, and the victim on the floor bleeding)

(NB: circumstantial evidence = evidence which the prosecution would ask the court to
draw an inference from it)
 Document D – PC Farrell’s audibly recorded interview with the alleged assailant
helps the prosecution to prove:
o When and where – Nathan states he was at the pub at the time of the offence
o How, and by extension what – Nathan admits that he punched the victim once
in the face so as to stop him from name calling
o Who – Nathan states that he himself committed the crime in Q

(Setting aside any counter arguments put forward by the defence, this is a strong piece of
evidence for the prosecution)

 Document E – statement from Dr Spark helps the prosecution to prove:

- When the alleged offence occurred as it states the time at which Dr Spark saw to
Darrin [timeline aligns with Darrin’s version of events]
- Powerful circumstantial evidence as to what – namely that the victim sustained
injury that constitutes ABH
- (nothing new on who/ where/how)

Has the prosecution discharged its burden?

Yes.

Document D seem to provide the prosecution with sufficient evidence to justify a finding of
guilt and showing that the defendant has a case to answer, thus satisfying the prosecution’s
evidential burden. Based on all the other evidence, it seems prosecution can prove
beyond reasonable doubt that the defendant is guilty with the offence with which he was
charged. Therefore, legal burden has also been discharged.

(c) What is Nathan Duggan’s defence?

Nathan Duggan’s defence is the specific defence of self-defence.

(d) What evidence supports his defence?

 His oral testimony in document A forms the basis of his defence – during the interview he
admits that he “threw the punch” in order to defend himself from the victim
 However, in his interview with PC Farrell (document D) he says “OK, fine, I assaulted
him”
 If this is played to the jury without being challenged, it will fundamentally undermine his
defence

Has the alleged assailant discharged his burden?

 The alleged assailant has no legal burden

 He discharges his evidential burden by giving an oral testimony – it is then for the
prosecution to disprove it

Task 1 – notes
NB – prosecution needs to go through first third of flowchart. Defence must work
through it in its entirety i.e. responding to arguments put forward by the prosecution
PLUS advancing arguments.
Gateway D: explained

s101(1) CJA 2003: in criminal proceedings, evidence of a defendant’s bad character is

admissible if:

Gateway (d): it is relevant to an important matter in issue between the defendant and the
prosecution (s101(1)(d) CJA 2003)
 Step 1: define important matter

CJA 2003 s112(1): “a matter of substantial importance in the context of the case as a
whole

Step 2: apply s103(1) – the evidence is only admissible if:

(a) The defendant has a propensity to commit offences of the kind with which he is
charged; OR
(b) The defendant has a propensity to be untruthful

Step 2 option 1: applying s103(1)(a): propensity to commit offences “of the same
kind”

Do previous convictions demonstrate relevant propensity? (Look at circumstances of

previous offences to prove propensity to re-offend)

 s103(2) CJA 2003: This may be established by evidence that the defendant has
[previously] been convicted of:

1. SAME DESCRIPTION or
s103(2)(a) an offence of the same description as the one with which he is charged.

 s103(4)(a) defines as in the same terms of charge sheet

- previous defence is the same as the current one

- facts of the earlier conviction must be the same, even if the offence was described
differently
Example: a previous conviction for theft committed on premises whilst the defendant was a
trespasser fits the current description of burglary, so these two offences would be the
“same” for the purposes of; if convicted of ABH and previous conviction of GBH wouldn’t
satisfy s103(2)(a).

2. SAME CATEGORY or
s103(2)(b) an offence of the same category as the one with which he is charged

 s103(4)(b) defines as if they belong to same category of offences

 Only relevant for:

o Sexual Offences (don’t deal with this on course)
o Theft Offences – all of the following are in the same “category” prescribed by the
Secretary of State:
o Theft; Robbery; Burglary; Aggravated burglary; Handling stolen
goods; Going equipped for stealing; Making off without payment

3. FACTUALLY SIMILAR
s103(2) Offences which are ‘factually similar’ – “without prejudice to any other way of
doing so”

 Re Brima: You can use factually similar previous convictions to show propensity
to commit offences of the same kind

 Previous convictions will be admissible if there are significant factual similarities between
them
Example: if previous offences similarly involved the defendant getting drunk and committing
a violent crime such as assault, GBH, criminal damage.

R v Hanson: Three questions to ask to be considered should CPS seek to adduce

evidence of D’s bad character under gateway d):

1. Does the defendant’s history of offending show a propensity to commit offences?

2. If so, does that propensity make it more likely that the defendant committed the
current offence?
3. If so, is it just to rely on convictions of the same description or category, having in
mind the overriding principle that proceedings must be fair?

 ONLY if answer to all 3 Qs is YES: convictions should be allowed in evidence

 The fewer number of previous convictions, less likely propensity can be established (one
does not show a propensity)

Step 2, option 2: Applying s103(1)(b): Propensity for the defendant to be untruthful

Look at FACTS of previous convictions. ONLY RELEVANT if crime being charged w/has
elements of dishonesty (R v Campbell)

 R v Hanson: Propensity to be untruthful will be shown if: section 101(3) argument

 The defendant has pleaded not-guilty to the offence and was found guilty
 The defendant pleaded not guilty to an earlier offence, but was convicted following
a trial at which his account was disbelieved
 The defendant was found guilty of an offence involving the telling of lies e.g. fraud,
perjury etc.
o dishonest offences (like theft) do not satisfy this

 R v Campbell: a defendant’s propensity to be untruthful will be an important matter

in issue only where telling lies is an important element of the offence with which the
defendant is charged (for example, perjury), and will not be an important matter in issue
simply because the defendant has entered a not guilty plea to the offence charged.
o Defence subject to academic criticism but is still good law

Example: Theft does not involve telling lies (theft in R v Hanson) not enough to demonstrate
propensity to be untruthful

Step 3: are there any defences applicable?

If relevant propensity is made out, consider the grounds on which the defendant
solicitor might argue the relevant propensity has NOT been made out:

1. Are there are significant differences between the facts of the previous offences and
the current offence which means it ought not to be admissible?
Examples: different circumstances/ damage against property Vs damage against person/
threatening behaviour Vs physical violence

2. Would it be unjust rely on the convictions given the time which has elapsed since they
occurred? (s103(3)).
 Significant amount of time (e.g. over ten years ago), young, reformed etc., only
mention spent for the next section

3. Does the propensity make it no more likely that the defendant is guilty of the offence?
(s103(1)(a)).
 Example: are the current circumstances different; motivated by desperation; etc?

Step 4: if yes to step 3, will the court exclude convictions under s101(3)?
P;;p
 s101(3) CJA 2003: The court must not admit evidence which would have such an
“adverse effect on the fairness of the proceedings that the court ought not to
admit it”. This will mainly occur where:

1. The convictions are more prejudicial than probative:

 i.e. if the jury are likely to convict on the basis of the previous convictions alone
due to the extent or nature of these.

2. Admissibility of the convictions is sought to support a case which is otherwise weak

(R v Hanson)
 No positive evidence – circumstantial evidence

3. The defendant’s previous convictions are “spent”:

 Definition: Spent convictions have reached a set period, defined by the Rehabilitation of
Offenders Act 1974, and are removed from an individual's criminal record.

 The court will likely exclude spent convictions, however the fact they are spent is not
definitive

 If the offence is particularly similar on the facts, this might justify it being
admissible even if the previous conviction is “spent”.

 So, previous convictions will be admissible if the CPS can satisfy a ground and
there are no defences the defence could raise and the convictions are not excluded
by the court
 Task 1

Question 1: On what basis would the CPS be able to adduce the evidence of Nathan
Duggan’s previous convictions under s.101(1) CJA 2003 at trial?

Note to self – jot down what D’s previous convictions were. Example – Document F:
o GBH conviction – pushed police officer when trying to escape, caused broke collar bone
o Conviction for smashing window after pleading not guilty
o Conviction for stealing
o Conviction for threatening bouncer long time ago

Evidence of a defendant’s previous convictions is only admissible under one the 7 gateways.
The relevant gateway here is s101(1)(d) CJA 2003: whether the convictions are relevant to
an important issue between the D and the CPS (“gateway D”).

There are 2 ways to succeed under gateway D:

1. D has the propensity to commit offences of the same kind which he is charged
(s103(2)):

a) Where the previous offence is the same description as the current one.
b) An offence is the same category
c) The offences have similar facts
The CPS can argue that the previous convictions of GBH (incident with police officer), public
order (i.e. threatening the bouncer) and criminal damage (smashing a window should be
disclosed due to the similar facts of previous convictions (under the third limb) as they are all
linked to alcohol.

Dispute Resolution
Workshop 15- Case analysis,
evidence and Professional Ethics
The evidence will be
misconduct if is either a
commission of an offence or
other
reprehensible behaviour s.112
CJA 2003. All of Mr Duggan’s
previous conviction satisfy this
definition therefore satisfy the
definition of misconduct.
Is the evidence connected with
the offence charged or
misbehaviour during the
course of
the investigation?
Mr Duggan’s previous
convictions do not constitute
evidence connected to the
offence
charged. Therefore it will only
be admissible through a
gateway created under
s.101(1) CJA
2003.
Evidence admissible through
one of the seven gateways
created by s.101(1) CJA 2003
There are seven gateways the
correct gateway here seems to
be gate way D, s.101(d).
First it is important to consider
whether it is relevant to an
important matter in issue
between the defendant and
prosecution? This means it has
to have a substantial
importance
to the case as a whole, s.112(1)
and substantial more than
trivial or marginal.
Mr Duggan’s record of
previous convictions is an
important matter in the case
between
himself and the prosecution.
His previous convictions
including threatening
behaviour, theft,
criminal damage and the
offence of GBH are an
important matter because they
are of
substantial important to the
case as a whole and substantial
more than trivial or marginal.
The evidence only be
admissible under s.101(d) if it
shows the defendant has
previous
convictions of the kind
s.103(1)(a) or where the
defendant has been found to be
telling
lies/convicted at trial after
pleading not guilty.
Propensity to commit offences
of the similar kind:
Mr Duggan has previous
convictions which are the
similar nature such as
threatening
behaviour and GBH.
The prosecution would say
there is a common theme
between the public order
offence, the
criminal damage offence and
the GBH which allowed
involved drinking. The
prosecution
would claim that this is
someone who cannot control
their behaviour when they are
drunk
as they have previously
threatened a bouncer, broken a
window and a arm of a police
officer
and now assaulted someone in
a pub. The prosecution will
look to show Mr Duggan to
have
a propensity to commit the
offence of section 47 because
he has shown an inability to
master alcohol and is abusive
and aggressive when drunk.
2. D has the propensity to be untruthful (R v Halson)
i) D has been dishonest; or
ii) D pleaded not guilty and was subsequently convicted
The accused pleaded not guilty to the smashed window conviction and was found to be
guilty. Therefore, the CPS can argue that this conviction should be disclosed.

Question 2: On what basis might the Defence be able to oppose the admission of this
bad character evidence?

If the CPS succeeds under gateway D, the defence may be able to oppose the
admission of bad character evidence on the basis that:

Offences are too few in number to show a propensity

On the basis that there is only one previous offence that is in any way similar to this defence
(i.e. involving a person being hurt).

For propensity to commit offences of the kind charged:

The accused can oppose the admission by showing:

1. there are significant differences between the offences
2. it would be unjust due to the length of time that has elapsed since conviction
3. the propensity makes it no more likely the accused will be found guilty

One of the charges involved

criminal damage, one of them
involved trying
to get away rather than
actually assault a police officer
and the other was just a verbal
insult. Therefore, these are not
enough to show a propensity to
commit an offence.
The defence could argue that the offences are significantly different. One charge involved
criminal damage, one was a verbal insult and the third involved Mr Duggan trying to get
away from a police officer rather than assaulting him. In addition, all three of these offences
involved being drunk, whereas the offence in question occurred when Mr Duggan had only
two units of alcohol. Second, the defence can argue that that it would be unjust to admit the
public order offence since it was 17 years ago.

For propensity to be untruthful

The accused can oppose the admission by showing:

 it is not suggested that the defendant’s case is in any way untruthful
 The court in R v Campbell held that propensity to be untruthful is only relevant where
crime with which the defence is charged involves telling lies. The crime that allegedly
meets this criteria relates to GBH rather than the telling of lies. Therefore, the defence
can argue that Duggan’s previous convictions should not be admitted. While R v
Campbell is subject to academic criticism, it remains good law and therefore is a valid
basis for the defence.

In the event that the relevant propensity has been demonstrated

The accused could get the court to exclude previous convictions under s101(3) by arguing:
 The first three convictions have been spent
 Admitting GBH conviction would be more prejudicial than probative as the defendant
was merely trying to escape from the police officer rather than assault
 The convictions support a prosecution case that is otherwise weak
o The bar maid only saw Mr Duggan standing over the victim with his hands
clenched so did not actually see what happened. The victim cannot
remember much of the incident. The court may lose sight of the actual case
by relying on previous convictions. Therefore, the defence would look to get
rid of those old convictions.
 Task 2: general notes

Confessions

 Definition of a confession “any statement wholly or partly adverse to the person who
made it, whether made to a person in authority or not and whether made in words or
otherwise” (PACE s82(1)))

 Anything said by a defendant which constitutes an admission of any element of the

offence with which he is subsequently charged, or that is any way detrimental to his
case will satisfy the definition of a confession in s82(1)

 A confession can include ‘mixed statements’ (“I hit him in the face, but did it in self-
defence), where whole statement will be admissible under s76(1) PACE
Confessions as admissible: an exception to the hearsay rule

 A confession made before the trial would ordinarily satisfy the definition of hearsay
evidence.
o It is a statement made outside of court, which is repeated in court to prove the truth
of the matter stated.
o Hearsay evidence is generally inadmissible in Criminal Proceedings

 HOWEVER:
o A confession will be admissible by virtue of s114(1)(a) of the CJA 2003 - provides
that hearsay evidence will be admissible if it is made admissible by virtue of
any statutory provision

o s76(1) of PACE 1984 provides that confessions are admissible: “In any
proceedings a CONFESSION made by an accused person may be given in
evidence against him in so far as it is relevant to any matter in issue in the
proceedings and is not excluded by the court in pursuance of this section”.
Challenging the admissibility of a confession under s76 PACE

S76(2) PACE: A defendant may argue that the confession should not be admissible
because:
 He did not make the confession at all i.e. the witness to the confession was mistaken/
lying; or

 He made the confession, but onlyfor reasons other than the fact that he was actually
guilty of having committed the offence
o This will either be “oppression” under s76(2)(a) OR “unreliability” under s76(2)
(b)

1. Oppression s76(2)(a) – probs not in exam UNLESS OBVIOUS

 Definition of “oppression”
o s76(8): “oppression” includes torture, inhuman or degrading treatment, and the
use or threat of violence”
 o R v Fulling: CA said ‘oppression’ consisted of ‘exercise of authority or power in a
burdensome, harsh or wrongful manner; unjust or cruel treatment of subjects,
inferiors, etc; the imposition of unreasonable or unjust burdens’

 Examples of when the Court found oppression

 R v Davidson where D confessed after being unlawfully held at the police station,
unlawfully denied access to legal advice and questioned about an offence for
which he had not been arrested

 R v Paris where in an audibly recorded interview at the police station, the

defendant was bullied and hectored into making a confession. CA held: other
than actual physical violence, it would find it hard to think of a more hostile and
intimidating approach adopted by interviewing officers.

2. Unreliability s76(2)(b)
If...where the prosecution proposes to give in evidence a confession made by an accused
person, it is represented to the court that the confession was or may have been obtained—

(b) in consequence of anything said or done which was likely, in the circumstances
existing at the time, to render unreliable any confession ....

...the court shall not allow the confession to be given in evidence against him except
insofar as the prosecution proves to the court beyond reasonable doubt that the confession
(notwithstanding that it may be true) was not obtained as aforesaid.

Key Qs in exam:

1. What was said or done likely to render the confession unreliable? - i.e. was there a
breach of code C? Relevant provisions:
 Part 6 – right to legal advice
 Part 8 – conditions of detention; meals & refreshments; rest breaks
 Part 9 – care and treatment of detained persons i.e. medical needs
 Part 11 – interviews right to legal advice; inducement of confession
 Part 12 – interviews; rest period; fitness for interview; breaks for meals
 Annex G
 Annex H

2. What is the causal link between the thing(s) said or done and the unreliability?
NB: Unreliability does not require deliberate misconduct on the part of the police, though
evidence will only usually be inadmissible if there has been a breach.

Burden of proof under s76: if D argues that a confession should not be admissible through
oppression or a breach of Code C, the prosecution must prove beyond reasonable
doubt that the confession was NOT so obtained.

Challenging the admissibility of a confession under s78 PACE

Note: s78 covers more than just confessions

S 78 PACE – Unfairness
...the court may refuse to allow evidence on which the prosecution proposes to rely to be
given if it appears to the court that, having regard to all the circumstances, including the
circumstances in which the evidence was obtained, the admission of the evidence would
have such an adverse effect on the fairness of the proceedings that the court ought not
to admit it

 D can rely on s78 if:

 They accept that they made the confession, but claim it was untrue or
 They deny making the confession at all.

 If D alleges that they confessed only in light of a breach of Code C:

 The court is unlikely to exercise its discretion under s78 unless the breach is
“significant and substantial” (R v Walsh)
E.g. failure to caution the suspect (breach of para 10.1).
 Denying the suspect legal advice – will almost always result in the court
exercising its discretion under s78 (R v Walsh)

 HOWEVER, D can argue that a confession is inadmissible even if there has NOT
been a breach of Code C under s78 – here, the court will commonly exercise its
discretion where:

1) the physical condition of the defendant renders the confession unreliable:

Example: D was tired, emotional, or suffering from the effects of illness or medication (about
which he had not told the police) when he made the confession OR

2) D had ulterior motive for making a confession:

Example: D needing to get out of the police station as soon as possible for reasons
unconnected to the police investigation or wanting to protect another person.

 If the police allege D confessed outside of an interview, but D denies this, D can
challenge the admissibility the confession if:
 The police failed to make an accurate record of D’s comments (required by
Code C, para 11.4).
 Police gave D no opportunity to view, sign and approve the record of his
comments (required by Code C, para 11.11).
 The police failed to put D’s admission to D at the start of D’s subsequent
interview (required by Code C, para 11.4).

 There is no burden of proof under s78 – both parties just put their sides forward

Spotting code C breaches

Para 6 Right to  6.1 – detainees must be informed that they may consult with a
legal advice solicitor.

 6.4 – The police must not do or say anything with the intention of
dissuading a suspect from obtaining legal advice.

 6.5 – Outlines the circumstances in which a client’s right to legal

advice may be delayed.

 6.6 – If a detainee requests legal advice, they may not be

interviewed until they have received such advice unless
 particular exceptions apply.

 6.16 – 6.17 – records must be made of the client’s request for legal
advice.

Guidance Notes
 6ZA: Police officers may not indicate that the time the suspect
is liable to be detained for might be reduced if they do NOT ask
for legal advice, unless the police are asked this question directly.

 6E: An officer who takes the decision to exclude a solicitor must be

in a position to satisfy the court the decision was properly made.

 6J: Solicitors must be allowed to consult with their clients in

private.

 6K: A suspect is not obliged to give reasons for declining legal

advice and should not be pressed to do so.
Para 8 Conditions  8.1 – One detainee per cell so far as practicable.
of
detention  8.2 - Cells must be adequately heated, cleaned and ventilated.

 8.3 – Blankets, mattresses, pillows and other bedding reasonably

clean and sanitary

 8.4 – Defendant must have access to toilets and washing facilities.

 8.6 – Meals
o At least two light meals and one main meal should be offered
in any 24-hour period.
o Drinks should be provided at meal times and upon reasonable
request between meals.
o Note 8B: Meals should, so far as practicable, be offered at
recognised meal-times, or other times that take account of
when the detainee last had a meal.

 8.7 - Brief outdoor exercise shall be offered daily if practicable.

Para 9 Care and  9.3 - Detainees should be visited at least every hour. Also outlines
treatment what the police should do if the suspect is under the influence of drink
of detained or drugs.
persons
 9.5 - The custody officer must make sure a detainee receives
appropriate clinical attention as soon as reasonably practicable if
the person appears to need it.

 9.5A – Para 9.5 applies even if the detainee makes no request for
clinical attention.

 9.8 - A healthcare professional must be called to assess the detainee

if they request one.

 9.9 – prescribed prescription, custody officer to consult health care

professional before use

 9.15 – Any arrangements necessary after the healthcare

professional’s examination must be recorded.

 9.17 – The custody record should record all medication a detainee

has and a note of such medication they claim to need.
 Guidance Notes
 9C – alerts police to the fact that a detainee who appears drunk or
behaves abnormally may be suffering from illness, the effects of
drugs or may have sustained injury, particularly a head injury which is
not apparent. When there is any doubt, police should always act
urgently to call an appropriate healthcare professional or an
ambulance.

Para Interviews -  11.1A – Defendant’s right to information: “Before a person is

11 general interviewed, they and, if they are represented, their solicitor must
be given sufficient information to enable them to understand the
nature of any such offence, and why they are suspected of
committing it”. However, this does not require the disclosure of
details at a time which might prejudice the criminal investigation.

 11.2 – Immediately prior to the interview, the interviewer should

remind the suspect of their entitlement to free legal advice and
that the interview can be delayed for legal advice to be obtained.

 11.4 –The interviewer must put to the defendant any significant

statement or silence made prior to the interview at the beginning of
the interview, after cautioning the suspect.

 11.5 – Interviewers must not attempt to elicit answers through use

of oppression or inducement – “no interviewer shall indicate,
except to answer a direct question, what action will be taken by the
police if the person being questioned answers questions”.
e.g., if suggest answer in right way will get out quicker

 11.8(b) - Fitness for interview

 11.11/11.12 – The suspect/their solicitor should be given an

opportunity to read the interview record and sign it as correct.
Para Interviews
12 in police  12.2 - Generally, a suspect must be allowed at least 8 hours rest in
stations a 24-hour period.
o The period of rest should normally be at night or other
appropriate time which takes account of when the detainee
last slept or rested.

 12.3 – The police and appropriate healthcare professionals, if

necessary, must assess whether the detainee is fit enough to be
interviewed before the interview. “The custody officer shall not
allow a detainee to be interviewed if the custody officer
considers it would cause significant harm to the detainee’s
physical or mental state”.

 12.8 - Breaks from interviewing should be made at recognised meal

times or at other times that take account of when an interviewee
last had a meal. Short refreshment breaks shall be provided at
approximately two hour intervals.

Guidance Notes:
 12B: Meal breaks should normally last at least 45 minutes and
shorter breaks after two hours should last at least 15 minutes.
 Annex Fitness to The annex gives general guidance on things the police should consider
G be with regards the detainee’s fitness to be interviewed, such as:
interviewed
 2(b) – highlights that “anything the detainee says in the interview
about their involvement or suspected involvement in the offence
about which they are being interviewed might be considered
unreliable in subsequent court proceedings because of their
physical or mental state”. – E.g. if drunk – smells strongly of
alcohol?

 3(a) – “the detainee’s physical or mental state might affect their

ability to understand the nature and purpose of the interview, to
comprehend what is being asked and to appreciate the significance of
any answers given”.
Annex Detained This annex contains a checklist. If the detainee fails to meet any of the
H person provisions in the checklist, an ambulance or healthcare professional
observation should be called. In brief:
list
 2. Can the suspect be roused, respond to questions and respond to
simple commands?

 3. A person who is drowsy and smells of alcohol may also have

diabetes; epilepsy; a head injury; drug intoxication or overdose;
a stroke.

Task 2

Question 1: Why and on what basis will the CPS want to rely on the evidence
contained in the record of audibly recorded interview? Give legal authority to support
your answer where appropriate.

The CPS will want to rely on the record of audibly recorded interview as it contains a
confession from the accused which is helpful evidence in advancing the CPS argument that
the accused is guilty of the offence with which he has been charged.

Confessions are hearsay: The general rule is that hearsay is inadmissible in criminal
proceedings, unless it is made admissible by a statutory provision (s114(1)(a) CJA 2003).
Once such statutory provision is s76(1) PACE, under which a confession made by an
accused person may be used in evidence against him.

Question 2: With reference to the record of audibly recorded interview and to the
statement provided to you by your client, identify any breaches of Code C of the
Codes of Practice to the Police and Criminal Evidence Act 1984 (see in particular
paras 6,8,9,11,12 and Annexes G and H) which may assist you in challenging the
admissibility of the evidence contained in the record of audibly recorded interview.

Intro

There various breaches of Code C PACE that will allow the defendant to challenge the
admissibility of the evidence from the recorded interview.

Para 6: Right to legal advice

6.4 – The police must not do or say anything with the intention of dissuading a suspect
from obtaining legal advice.
Nathan Duggan tells the officer that he would like to see a solicitor, to which PC Farrell
responds that this “mean you staying here even longer and I haven’t finished questioning
you yet”. This deters Nathan Duggan from seeking legal advice, breaching 6.4

6.6 – If a detainee requests legal advice, they may not be interviewed until they have
received such advice unless particular exceptions apply.

Once Nathan asked to receive legal advice, the interview should have been stopped. Since
PC Farrel; continued with the interview, 6.6 has also been breached.

Para 8: Conditions of detention

8.6 – At least two light meals and one main meal should be offered in any 24-hour
period. Drinks should be provided at meal times and upon reasonable request between
meals.

The interviewing officer also breached 8.6 by refusing Nathan Duggan’s request for a cup of
tea with sugar.

8B: Meals should, so far as practicable, be offered at recognised meal times, or other times
that take account of when the detainee last had a meal.

Nathan Duggan should have also been provided a meal. At the time he was arrested,
Nathan Duggan was making dinner which points to the conclusion that Nathan hadn’t had
his evening meal. By failing to provide Nathan with a meal, the interviewing officer also
breached 8B.

Para 9: Care and treatment of detained persons

9C – a detainee who appears drunk or behaves abnormally may be suffering from

illness. When there is any doubt, police should always act urgently to call an
appropriate healthcare professional or an ambulance.

The fact the officer states Nathan Duggan to smell heavily of alcohol but decided to continue
the interview without consulting the appropriate healthcare professional is a breach of this.

Para 11: Interviews (general)

11.2 – Immediately prior to the interview, the interviewer should remind the suspect of
their entitlement to free legal advice and that the interview can be delayed for legal advice
to be obtained.

It is unclear whether this was abided by and so we should check with the client.

11.5 – Interviewers must not attempt to elicit answers through use of oppression or
inducement

Throughout the interview the interviewing officer breached this by making comments to
Nathan Duggan such as “you don’t think I buy that do you? You’re twice his size”, “look we
can stay here all night”, “just tell me the truth” and more.

Para 12: Interviews in police stations

12.3 – The police and appropriate healthcare professionals, if necessary, must assess whether
the detainee is fit enough to be interviewed before the interview.

The fact that in the interview, the officer that stated Nathan Duggan had strong smell of
alcohol suggests that PC Farrell should have assessed whether Nathan was fit to be
interviewed but breached this duty.

Annex G: Fitness to be interviewed

2(b) – “anything the detainee says in the interview about their involvement or suspected
involvement in the offence about which they are being interviewed might be considered
unreliable in subsequent court proceedings because of their physical or mental
state”.

Annex H: Detained person observation list

Sets out a criteria which must be met otherwise an appropriate healthcare professional must
be called.

3. A person who is drowsy and smells of alcohol may also have diabetes; epilepsy; a
head injury; drug intoxication or overdose; a stroke.

While PC Farrell did not know Nathan had diabetes, he noticed the smell of alcohol (and
also Nathan’s request for tea with sugar) so breached this duty by failing to call a medical
professional. At the very least, the smell of alcohol may indicate poor physical health,
meaning Nathan may be considered unreliable in subsequent court proceedings

Conclusion

Having considered all the breaches and the client’s underlying health issues, it is arguable
that Nathan Duggan was not fit to be interviewed, rending his confession unreliable.

Question 3: On the basis of your answer to Question 2 and the information given to
you by your client, outline the grounds upon which the defence will challenge the
admissibility of the confession contained in the record of audibly recorded interview.

You should consider:

(a) the relevant statutory ground(s) to challenge admissibility

The defence will look to challenge the confession under s76(2)(b) PACE by claiming that the
confession was/may have been obtained as a consequence of anything said or done to
render it unreliable.

In the alternative the defence could challenge the admissibility under s78 PACE 1984,
claiming to have made the confession but it was untrue. If successful, the court has a
discretion to refuse evidence which would have an adverse effect on the fairness of
proceedings.

(b) how the burden of proof operates in such a challenge

For s76(2) PACE, the defence would argue the confession should not be admissible
because there is a causal link between the thing(s) said or done and the reliability of the
confession. For example, the defence would have to show that Nathan confessed because
he was not given proper legal advice, he was in poor physical health at the time of the
interview, he was induced to do so etc. (and other breaches of Code C mentioned in
question 2).

It will then be up to the prosecution to prove beyond reasonable doubt that this was not the
case.

There is no burden of proof for s78 PACE. Both sides merely put forward their argument.

(c) what information you would use from Question 2 to support the challenge

List all the breaches of Code C i.e.

- the fact that Nathan was refused refreshments and not offered any food
- the fact that Nathan was in poor physical health during the interview
- the fact that he was induced to confess
- the fact that he was denied legal advice
- the fact that he smelt of alcohol so a medical professional should have been
contacted
etc.
(d) whether any exclusion of the evidence is mandatory or discretionary

s76(2) = mandatory.

s78 = discretionary.

The court is unlikely to exercise its discretion under s78 unless the breach is significant and
substantial (R v Walsh). Having regard to the number and severity of the breaches of code C
in this case, it is likely the court will consider the breach to be significant and substantial and
therefore will not allow the evidence to be admissible.

Task 3: Your client’s friend has offered to speak to the complainant on his behalf, to
encourage him to drop his complaint. Advise the client.

This scenario relates to professional conduct.

Interfering with the claimant would pervert the course of justice which would procure fresh
criminal charges.

In addition, this would undermine the client’s credibility, since the complainant would likely
report this to the police and the court would likely to refer to such a complaint when making
its decision.

Thus, it is not in client’s best interests to go down this route and we must therefore advise
the client to tell his friend not to approach the complainant.

If the client disobeys this advice, the solicitor will have to resign for professional reasons due
to the ongoing duty of confidentiality (6.3). Also, integrity Principle 5. 2.4 is important
For MCQs, s117 is a frequent flyer
Section 117 of the CJA 2003 provides:
(1) In criminal proceedings a statement contained in a document is admissible as
evidence of any matter stated if—
(a) oral evidence given in the proceedings would be evidence of that matter,
(b) the requirements of subsection (2) are satisfied, and
(c) the requirements of subsection (5) are satisfied, in a case where subsection (4)
requires them to be.
s 117(2) requirements:
(a) Doc created or received by a person in the course of a trade, business,
profession or other occupation, or as the holder of a paid or unpaid office (a
receipt from a shop which evidences that the accused purchased a gun);
(b) the person who supplied the information contained in the statement (the
relevant person) had, or may reasonably be supposed to have had, personal
knowledge of the matters dealt with (that the accused bought a gun); and
(c) each person (if any) through whom the information was supplied from the
relevant person to the person mentioned in paragraph (a) received the
information in the course of a trade, business, profession or other occupation,
or as the holder of a paid or unpaid office (the receipt example above, if it was
created by the shop-worker who served the gun-man).
Effect of s117 is that both ‘first-hand’ and multiple hearsay can be admissible in evidence (A
tells B tells C who writes the statement down in a document)

Statements prepared for use in criminal proceedings

Statement was prepared for ‘the purposes of pending or contemplated criminal proceedings,
or for a criminal investigation’ (s 117(4)), the requirements of s 117(5) must be satisfied.

The requirements of s 117(5) will be satisfied if:

(a) any of the five conditions mentioned in s 116(2) is satisfied; or
(b) the relevant person cannot reasonably be expected to have any recollection of the
matters dealt with in the statement (having regard to the length of time since he
supplied the information and all other circumstances).

Can the court refuse to admit documentary hearsay under s117?

 Court retains discretionary power to make direction that statement shall not be admitted
under s 117 (CJA 2003, s 117(6)) if it is satisfied that the statement’s reliability as
evidence for the purpose for which it is tendered is doubtful in view of:
(a) its contents;
(b) the source of the information contained in it;
(c) the way in which or the circumstances in which the information was supplied or
received; or
(d) the way in which or the circumstances in which the document concerned was created
or received (CJA 2003, s 117(7)).
 Where a statement in a document is admissible as evidence in criminal proceedings, the
statement may be proved by producing either—
(a) the document, or
(b) (whether or not the document exists) a copy of the document or of the material part
of it, authenticated in whatever way the court may approve.