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Murder cases - What makes a good defence case?

23 December 2021

Arrest and interview

Before an interview police will give your solicitor something called 'disclosure'. This means information about why they suspect and want to interview you.

Disclosure is very important and the police are typically very cagey about providing this. This means that they will often not give much idea of where they will be going with their questions before the interview takes place. They will often leave out key details on purpose to prevent the suspect being able to map out a defence through the facts disclosed beforehand and known by the police. The police themselves in a live murder enquiry will usually not have all the forensic evidence that will later emerge over the hours, days and weeks immediately after the death. This means that a suspect giving an explanation may not be aware that any mistakes he or she makes in interview could end up being contradicted later on. This could be very damaging to his or her case.

When the police don't give proper disclosure before the interview, this should be noted by the murder solicitor and the solicitor can also note this on the audio recording. If the client has been advised either to make no comment or to give a prepared statement, the jury may want to know that there was a good reason for it if the case does reach trial.

The upshot of all of this is that a solicitor, and in reality a very good specialist murder solicitor, experienced in the most serious cases, is essential if you are a suspect facing interview for murder and you should always exercise your right to free legal advice. The sad truth is that many solicitors, via the duty solicitor scheme or even if they are chosen by the client, may advise to simply answer questions at interview, whether there is good disclosure from the police before interview or not. In a murder case this is nearly always a bad idea. A murder solicitor with the confidence and expertise to resist the temptation to advise full cooperation is what the client needs.

Prepared statements

In some cases a written statement may be a good way of providing an explanation. These ‘prepared statements' should generally be short, and only outline the basic points of any defence that the client will later rely on if the case reaches court. They should not get bogged down in detail, and only deal with material which helps the defence, and does not contain or refer to any areas which may be weak, or not overwhelmingly helpful to the defence. If there are any weaknesses of this type in the prepared statement, no comment is usually the safer path.

Forensic evidence

Forensic evidence can often be very important. Having some knowledge of the types of weapon involved should also be a priority. Specialist experts in forensic pathology, DNA, Ballistics, Fingerprints, or even CCTV enhancement may be required.

The Danger of Police Bias

'Confirmation bias' is something that often arises in police investigations. This basically means that there is a danger that once the police have an idea of who they think did it, the work that they then do, including deciding what lines of enquiry to explore, and whether evidence they have gathered is relevant, is done to prove what they think they know rather than find out the true position with an open mind.

The prosecution then present the facts to fit the case so that the client's guilt is the only reasonable explanation for a jury. Murder cases are often won by the defence team putting an alternative explanation of what has happened before the jury, and this where an experience murder solicitor can play an essential role.

Defence Reinvestigating

Because the risk of prejudice or confirmation bias by the police and prosecution is real, the defence should be prepared to reinvestigate the case or at least parts of it themselves. This means that anything which is damaging to the client which could have another explanation must be explored fully. There are no ‘long shots'. Every aspect of what the police say happened needs to be critically examined and tested if necessary. No stone should be left unturned. Where there is a potential life sentence in the offing for the person charged with murder, all reasonable possibilities which may help must be followed up.

The client - a full member of the defence team

For murder cases, as with any very serious case, one of the most useful resources for the legal team is often the client. In most cases, nobody can give a better insight into the relationships and events surrounding the allegation than he or she can. The client is a key member of the defence team. This means that the client must know every piece of significant prosecution evidence against him or her and had time to consider it and prepare a response in time for trial. A client should go into the trial knowing the detail of the prosecution case, and having a clear idea of his or her defence strategy.

Choice of barrister

A client accused of murder will have a murder solicitor as his or her main contact in the defence legal team. This person (or people) prepares the case from the police station interview onwards, carries out investigations on behalf of the client, and decides on early strategy. The client will also usually have a team of two barristers, who are specialist court advocates who are brought in to advise on evidence and strategy, and also to speak on the client's behalf at hearings and in the trial.

The barrister team is made up of a Junior Barrister, and Queen's Counsel or QC. The Junior Barrister should be an expert in serious cases, and will usually have extensive experience of murder cases. The Junior Barrister is usually much more available to the client and solicitors in the months before trial and is a very useful sounding board for strategic decisions during this period. The QC typically becomes more involved as the case approaches trial and of course is the main representative of the client in court during the trial itself.

This means that the choice of barristers in a murder case is very important. They must be chosen according to the particular client and according to the nature of the case. They should be chosen not just on the basis of recommendation, but on the basis of direct experience of their work and a knowledge of their track record.

What if I am being asked to attend as a witness or significant witness?

Speak to a murder solicitor as soon as you are spoken to by police if you are concerned that there is a possibility that you may become a suspect.

Is cooperation as a witness mandatory?

The police will ‘offer' for you to come in as a witness. They may say it is voluntary but their tone may be quite different, and in reality demand your presence.

The College of Policing, which sets the standard for police professional practice, states that ‘no pressure should be applied to encourage the witness to talk to the police or to give evidence.'

There is no legal consequence if you do not cooperate with the police as a witness, but there is always the chance that not cooperating could lead to increased suspicion by the police, and could lead later to questions at trial if the person is charged. There is no clear answer. The decision to agree or not to agree to be a significant witness should not be taken lightly, and advice from a murder solicitor should always be taken. A witness interview is not under caution, and it contains none of the protections regarding the type of questions that can be asked, or the right to silence. It can also in some cases be used by the prosecution as evidence in court against the person being interviewed. This can be prevented if the defence can show that the client was already a suspect at the time they were being spoken to as a witness. Judges are often reluctant to find that police would abuse the witness interview process in this way, although it would be naive to imagine that the police don't use this technique.

If you or a family member are worried about an investigation or prosecution for murder or manslaughter, you should contact a specialist murder solicitor straight away and seek initial free legal advice.

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