Legal advice Essay Sample

Dick was kept in remand for two months which is in breach of the Magistrates' Courts Order which states the defendant may be remanded in custody for a further period, 'which must generally not exceed eight days'24. It is also very unlikely that Dick consented to being remanded for that period of time which could have extended the period to twenty eight days, and if this was the case the order would have still be breached as he was held in remand for two months until his trial at the Crown Court.

Dick should have continued to appear before the court on remand, to apply for bail, at regular intervals until the trial took place25. This irregularity could result in civil action being brought against the prosecution service by Dick due to unfair trial proceedings and those concerned may be subjected to disciplinary procedures. In the trial, contrary to the defences' argument, the judge ruled that since the statement was signed by Dick he has no power to exclude it.

However, in Art 74 (2)26 'special provisions are made for confessions'27. They must be excluded from evidence on two occasions; where it was obtained by 'oppression' and when it was obtained' in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made… in consequence thereof'28. It is unknown whether oppression was used so that occasion cannot be considered.

However, breaches in codes of practice, in which there were many, fall under the second occasion and thus in accordance with Art 74 (2) of PACE, the confession must be excluded from evidence. Dick claims in court to have acted in self-defence due to the threat which Vernon made to head butt him. The judge then instructs the jury that if Dick could have retreated from the scene he cannot rely on this as a defence as a matter of law. The common law allows reasonable force to be used in defence of oneself, however for the force to pass the test of reasonableness it needs to be both necessary and justified.

The force used by Dick may have been necessary due to the threat which Vernon issued however it may not have been justified as the harm caused by Dick throwing a glass bottle at Vernon clearly outweighs the harm which would be caused by the perceived threat of being head butted. Also his failure to retreat may have indicated that the force used was not reasonable 29 but this reason alone cannot be used to discredit the claim of self-defence. So, although either way the claim of self-defence cannot be relied upon, the reason alone which the judge gave is not enough to disallow the claim.

The judge adds that Dick's evidence is at odds with his statement but as already established, the statement cannot be used as evidence due to the irregularities which occurred in the police station. Furthermore the judge advises the jury to convict Dick unless they are convinced beyond reasonable doubt that his claim of self-defence is true but the judge should be warning the jury not to convict unless satisfied beyond reasonable doubt that Dick is guilty30, and should have warned them of the dangers of convicting on certain kinds of evidence, principally the confession due to the circumstances in which it was obtained.

There are, therefore, irregularities in the judges summing up which could make a good grounds for appeal31. There are an abundance of irregularities in this case which could help Dick, not only lodge an appeal against his conviction but also begin civil proceedings due to the treatment he received. The following features of the case were unlawful: Now that the irregularities have been established, Dick needs to decide whether he wants to appeal against the sentence or the conviction to the Court of Appeal, to begin the appeal i.e. the remedy.

It would be advised for Dick to appeal against the conviction as he would be applying on both points of law and facts32. Leave to appeal must be obtained from the Court of Appeal33, it can be obtained from the trial judge but it is highly unlikely they will grant it. The process after this would be fairly straightforward in Dick's case as there are so many irregularities, especially in the trial itself, it is almost certain that the appeal will be granted.