Ensuring Confidentiality and Initial Consultation with Frankie

Section A

Q1. I will immediately ensure that my conversation with Frankie is confidentiality and is not overheard by any other person at the police station. I need to obtain from Frankie initial information including the reason for his arrest, complaints and concerns, which he did share with me. I will explain my role to Frankie as his Defence Solicitor. I will advise Frankie and warn him that whatever conversation we have is not off the record.

Q2. I need to ascertain the ground for refusal of access to Frankie. As per PACE Code C 6.15, Frankie has a right to legal advice. He must be informed that I have arrived at the police station and asked him whether he would like to see me. If refusal is not on the justified ground as provided under Annex B of PACE Code and in accordance with PACE, section 118(2), the police cannot delay allowing access to this right. Assault is an indictable offence and hence Frankie has a legal right to access legal advice unless the denial will interfere with, or harm to, evidence connected with the offence or alert people suspected of having committed indictable offence but not yet arrested. In this case, there is no suggestion of anyone else having been involved in the offence.

Q3. I will apprise Frankie of the principle of client confidentiality, as per the SRA Code of Conduct outcome 4.1. Affairs of his case are confidential in nature. He is not required to disclose any confidential information unless it is required or permitted by law. Further, I will apprise his of the existence of attorney-client privilege communication that applies to the communications between him and me, which are made to enable him to obtain my give legal advice. Neither the police nor a court can force me or him to divulge the communication. It is only Frankie, as the client, who can waive such privilege and allow the disclosure. As client-care responsibility, I will explain to him my responsibilities and give him a clear explanation of the issues involved and the options available to him.

Q4. DEFENDANT’S CASE THEORY

WHAT NEEDS TO BE ESTABLISHED? AND WHO HAS THE BURDEN OF PROOF?

It needs to establish that the attack by the complainant was sufficiently serious so as to put the defendant in immediate peril, and as such an immediate defensive action was necessary.

The defence needs to establish that the defendant used a reasonable force necessary to resist or defend himself against the attack by the complainant. The defence has to prove a fact essential to determine the defendant’s guilt or his innocence.

FACTS IN ISSUE AND THOSE THAT ARE AGREED

THE MEANS OF PROVING THE FACTS IN ISSUE- THE MAIN POINTS TO BE ELICITED

FROM EACH WITNESS IN EXAMINATION IN CHIEF

Points – Examination in chief	PLEASE DO NOT WRITE IN THIS COLUMN
Frankie Williams
That the complainant’s behaviour was extremely aggressive
That the defendant was in immediate peril because of such behaviour of the complainant
That an immediate defensive action was necessary
That he was acting in self defence
That the force he used was reasonable and was necessary to resist or defend himself against the attack by the complainant
No previous convictions
Adam Walker
That the defendant was pretty upset about his break up with his ex-girlfriend
That he called his ex-girlfriend before going to her house to try to sort things out
That he saw the defendant knock at the door of the defendant’s girlfriend house
That he saw the complainant come out and started shouting and swearing at the defendant and moved towards him aggressively as though to attack him
That Frankie threw a punch, which made contact, and the guy appeared to fall backwards

THE MAIN POINTS TO BE COVERED IN CROSS-EXAMINATION

THE DEFENCE WITNESS(ES) AND REASON WHY CALLING

Section B

Q5. I will advice Emily that there are ethical measures to be followed during my communication with her. Otherwise, it may be considered an offence to attempt to pervert the course of justice. Thus, her request to pass on the message has to comply with PACE Code 5. I will ensure that whatever I do shall not assist in destruction of evidence. I will advice her that she can contact anybody known to her or likely to take an interest in her welfare. However, this right can be delayed if it interferes with the course of justice as per Annex B of PACE Code. I will advice Emily that any communication that she makes may be given in evidence and a record must be kept accordingly.

Q6. D. IV only.

Q7. I would apprise Sharon Binks about her role as an appropriate adult, as per PACE Code 1.7. She should attend to the police to ensure fair treatment and welfare of Emily, and safeguard of her rights. She should assist in communicating with Emily and also giving her support, advice and assistance. She must be present at key procedures, such as reading of rights, interview and identification procedures.

Q8. Emily is a juvenile and is a vulnerable person because of her learning difficulties. As per PACE Code 10.11, I would inform the police station about her status in order that they take caution while dealing with her. Thus, any information regarding the offence that Emily has committed or that she should be accountable will not be told to Emily unless the appropriate adult is present. Any cautioned provided to Emily will be made to repeat in the presence of the appropriate adult.

Q9. B. II only.

Q10. Emily, as she falls between 10 – 17 years of ages group, can be given a youth conditional caution. While sentencing, the approach should be individualistic and consideration must be given to her mental health and capability, and her learning difficulty or any other disorder, as per Sentencing Guidelines Council Definitive Guideline: 4. Emily is likely to be sentence the Youth Rehabilitation Order.

Section c

Speeding charges is governed by the Road Traffic Regulation Act 1984, s.89(1). Gurdeep should plead guilty in order for the court to take account of any potential reduction for a guilty plea, according to the Criminal Justice Act 2003, section 144 and the guideline for Reduction in Sentence for a Guilty Plea. For speed limit of 40 mph, and the recorded speed in 56 – 65 mph, the sentencing range is B and B fine, which is at the range of 75 – 125% of relevant weekly income. The points or disqualification is 7 – 28 days or 4 – 6 points.

In order to mitigate seriousness or for personal mitigation, Gurdeep should show that he has genuine remorse, and he should admit to the police in interview. He should show that he is of good character or of exemplary conduct. He should establish a genuine emergency by showing that his wife and he planned a night out to their friends and he was in a rush. In addition, he needs to show to the court that if he loses his driving licence, it would place him in an extremely difficult position to perform his employment obligations as his job requires lots of travelling. Instead, he can establish that he is financially sound and plead for paying the required fine and for the points as per the band.