How to write a legal opinion

The following will be a guide to writing an effective and legally sound legal opinion. It will begin by discussing the qualities of good writing which is central to writing a successful legal opinion. It will then move on to discussing the formulation of the legal opinion itself. Finally it will discuss the use of law in a legal opinion and how to refer to both case law and statute effectively and efficiently.

Quality of Writing
The primary purpose of a legal opinion is communication of advice to either a lay or professional client. It is therefore of the utmost importance that it is clear and in plain, understandable English. Every word of the legal opinion should be chosen by the writer because it communicates precisely the advice which the writer intends to covey. It is important to write in plain English wherever possible. A good legal opinion will avoid archaic language and legalese. Use of legalese will create a barrier between lawyer and client and divert the main purpose of the legal opinion; to communicate. That is not to say that the legal opinion should be over simplified. It will no doubt be conveying specialised legal advice and must therefore be as detailed as the writer thinks necessary. The use of plain English simply involves saying what needs to be said in the clearest way possible and avoiding unnecessary verbosity. There are times where technical terms will have to be used if they carry the precise meaning of the advice being delivered. This should not be shied away from. Perfect grammar, punctuation and precision of language are essential. Clarity defines good writing. A legal opinion will often contain a complicated set of facts which will have to be sorted into specific legal issues and defined in legal terms. Clarity of expression is therefore vital. Clarity of expression can only be achieved through thorough planning and thought. A thorough plan will lead to a logical structure. Any legal opinion will be conveying a particular point, but that point will inevitably need to be broken down into sections. Each section will culminate in an opinion and each opinion must be fully explained

and justified. Clarity of legal writing also requires conciseness. This does not necessarily imply brevity, but once the point has been made, nothing more need be said. Having said that, completeness and total accuracy is vital and conciseness should not come above giving full and precise advice.

Formulation of a Legal Opinion

A request for a legal opinion will usually come in written form. Such a request will usually include any documents in the case. The request for a legal opinion will include at least one and usually a number of questions which the legal advisor is being asked to address. For a barrister an instruction to provide a legal opinion will come from a solicitor so any response will be written with the solicitor in mind as the reader, but the solicitor will have requested the legal opinion in order to advise the client and therefore the client must be borne in mind as well. The client will want to know for example not will liability be established?, but will I get any money out of this and if so how much? A legal opinion will often have the over arching question of does the client have a good and viable case. This is clearly the most important question to any client and must be approached with honesty and directness. If the clients case is not viable they must be advised of this in the course of the legal opinion, if there is something which can be done to improve the clients prospects of success, a good legal opinion will spell this out very precisely. Numbered action points are one way of achieving clarity in this regard. Above all it is vital to remember that in being asked to draft a legal opinion, you are being asked to advise. Sitting on the fence is not an option. Lay out the pros and cons of a particular course of action, but always come down on one side or the other.. Giving a percentage chance of success at the beginning of a legal opinion is one way of being clear about what you think the clients prospects are. Drafting a legal opinion can and should always be split into two processes: The thinking process and the writing process.

The Thinking Process

The first thing to do is to digest and organise the facts. There will be facts in any case which are relevant and pertinent to the case and facts which are not. A legal opinion must focus on the relevant facts, but it may also be necessary to specifically advise that certain things are not relevant. The first stage will be about organising the facts of the case into these categories. It is a matter of personal preference how this is done, but charts and schedules are often useful and a chronology should be a starting point for every fact marshalling exercise. Once the facts are at your finger tips, a legal framework needs to be constructed into which these facts can be logically slotted. A legal opinion in a personal injury action for example will be based on negligence and therefore will usually be structured along the lines of duty, breach, damage, causation, forseeability and contributory negligence. In a negligence legal opinion it will be vital to assess the level of damages that the client can expect to receive or pay out. This will be at the forefront of the clients mind. Other types of cases will involve different legal frameworks, but whatever the legal issue, the legal opinion must be continuously advising on the strength of the clients position in the case. One question which is implicit in every request for a legal opinion is what should be done next? This should be decided at the planning stage and should inform the legal opinion throughout. What should also be borne in mind throughout the planning stage should be the opposing case. A legal opinion will be useless if it considers the clients case in isolation. Evidential issues must also be considered. A good legal opinion will always address how a particular factual situation can be proved. Before you begin writing a legal opinion, you will know exactly what advice you are going to give, why you are giving it and how you are going to present it.

The Writing Process

The legal opinion should be written following a structure. It should be entitled OPINION or ADVICE and contain the title of the case in the heading. The first paragraphs should serve as an introduction to the legal opinion, laying out the salient facts and what you have been asked to advise about.

At this point, many legal opinions will set out the main conclusions and advice and the overall opinion. This is good practice as it will encourage focus throughout the legal opinion and the reader will be able to read the following paragraphs knowing where they are leading. A percentage chance of success can be included in this section if appropriate. The subsequent paragraphs should set out your reasons for reaching the legal opinion which you do in the opening paragraphs. This is where the legal structure will come in. Each issue should be taken in its logical order. Each section should include you opinion on that issue and the reasons for it. There are certain rules of structure which ought to be followed for the sake of consistency in legal opinions. One example of these is that liability should be dealt with before quantum in civil claims. If there are two or more defendants take each of the defendants liability in turn before turning to quantum. The concluding paragraph of a legal opinion ought to be a Next Steps paragraph advising the instructing solicitors of what needs to be done to strengthen the clients case.

Using the Law in a Legal Opinion.

There is no need to set out basic principles of law with which the reader will be familiar. Otherwise, authorities should be cited to support propositions of laws and when doing so a full citation should be given. It is important to prioritise the authorities cited in a legal opinion in order of importance to the point being addressed. If a particular case is central to your reasoning, the basis on which the case was decided should be set out fully in the legal opinion. It may even be appropriate to quote directly from the judgment although often paraphrasing the effect of the decision will usually suffice. Always refer the case you are citing back to the facts being dealt with in the legal opinion. Always cite the most authoritative case on the point of law being dealt with. For example, there is no point citing a Court of Appeal judgment which has been overruled by a subsequent House of Lords case.

With regard to statute, much of the same advice will apply. If there is a statutory provision which deals directly with the subject of the legal opinion then this should be clearly stated and its effects fully explained. Of course care must be taken to ensure that any statutory provision being cited is in force at the time of writing the legal opinion. In summary, any legal opinion should be written with the reader in mind. It should be clear, well reasoned and as concise as it is possible to be without sacrificing completeness. A logical structure based on the legal principles being discussed is vital to clarity. Any piece of legal writing should be read before submission to ensure against grammatical or typographical errors which will detract from the communicative value of the work. Above all, the advisory purpose of a legal opinion should be borne in mind at all times.

Below is an exchange between you and a hypothetical client. Based on the information given, write (1) a brief legal opinion/advice specifying the relevant facts of the case, the legal problems raised by your hypothetical client, your assessment of the issues involved, and the possible courses of action that may be taken under the law; and (2) one legal document that may be used in connection with your recommended course of action.

Melanie P. Gamboa seeks your advice on the possibility of changing the surname of her niece, 16-year old Paula P. Cortes, who was placed under her care by her sister, Maricel Perez, who is currently in the U.S. working as a nurse.

The following is your interview with Melanie P. Gamboa:

Q: A:

Melanie, tell me something about yourself first, your personal circumstances. I am Melanie Perez Gamboa, 40 yrs old, married with an 8-year old son. I live at 35

Craig St., Sampaloc, Manila. I work as the assistant manager for a bank. Q: You said that your sister wants to change the surname of her daughter. What is her

name? Where is your sister now? A: My sister is Maricel Abrogar Perez. She is now in the United States, working as a nurse,

so she asked me to seek legal assistance for her. Q: A: Q: A: Q: A: Q: A: Q: A: Q: How old is she? She is 35 yrs old. How long has she worked in the US? She has been working there for ten years already, since 2000. Is she married? No, she is not. But she has a daughter? Yes, her daughter is my niece, Paula Perez Cortes, and she is now 16 years old. When was Paula born? November 15, 1994. Who is Paulas father?

A:

Her father is William Cortes, Maricels boyfriend back in college. He got her pregnant

while they were in their third year of college. Q: A: Q: A: Is Paula living with you now? Yes, ever since Maricel went to the US in 2000. I have been her guardian since then. What happened when Maricel became pregnant? William Cortes told her they cant get married yet because they were still young and

had to finish college first. But he said he will give support. He did, while Maricel was pregnant and after she gave birth. William paid the bills for Maricels check-up while she was pregnant. He also paid for more than half of the hospitalization expenses when Maricel gave birth. He paid for the babys medical check-ups and vaccination. Sometimes, he would give additional money for baby formula and diapers or he would buy them himself. He would also visit Maricel and the baby almost every day. He was even present at the christening. Q: A: During this time, was Maricel still in college? While she was pregnant, yes, but after she gave birth, she took a leave of absence for

one semester. She could not simultaneously concentrate on her studies while taking care of Paula. Q: A: Q: A: How about William? He continued his studies. He did not take any leave of absence. So he gave support while Maricel was pregnant and after she gave birth? Yes, but after Paulas first birthday, William returned to his province in Zamboanga. By

then, William had already graduated from his Management course, and he said that he was looking into expanding his uncles business in the province. He said he will return to Manila, but he never did. Since then, he has not sent anything for Paulas support. Q: A: So from the time he left for Zamboanga, he never gave support? Well, for around a year from the time he left for Zamboanga, he still managed to send

some money for Paula but it was not consistent. He even sent Paula a letter and gift via LBC for her second birthday, saying that he was sorry that he was not there for her birthday. That was the last time we heard from him. Q: A: Do you still have any communication with him? No more. After he went to Zamboanga, he would call around once a week, then later

once or twice a month, then about a year from the time he left, we never heard from him anymore. We tried calling him on the phone, but the people we talked to would tell us that he was not there. We also sent letters, but we never got any replies. Were no longer sure if he has the same address. Q: How did Maricel take care of Paula without Williams support?

A:

My parents and I helped Maricel take care of Paula, especially since she was still

studying. We pitched in. After she graduated, she worked for a while in a private hospital and was later able to find work in the US as a nurse. Q: A: Q: A: Q: A: So basically, Paula grew up never knowing her father? Yes. But she carries his surname? Yes. It is in her birth certificate. William is indicated as the father. Who supplied the information in the birth certificate? It was Maricel, but William was also there. He was there when Maricel gave birth, and

when hospital personnel came to ask for information for Paulas birth registration. William was at the hospital everyday until Maricel and Paula were discharged. Q: So in all of Paulas official records, she carries Williams surname and William is

identified as her father? A: Q: A: Yes. All her school records state that. What does Maricel now want to do with Paulas surname? She wants Paulas surname to be changed from Cortes to Perez because she intends to

petition Paula to the US and the change in name would facilitate the process. Paula would be easily identified as her daughter. Also, Maricel does not want Paula to have anything to do with William anymore since he abandoned his own child. Q: A: How does Paula feel about the change of name? She is okay with it, because she never knew William. Even to this day, she still gets

asked why she has a different surname from that of her mother and it embarrasses her to tell the reason why. This is also one of the reasons why Maricel wants to change Paulas surname.

Laws and jurisprudence that may apply

1. Article 165 of the Family Code

Children conceived and born outside a valid marriage are illegitimate, unless otherwise provided in this Code.

2. Article 176 of the Family Code

Illegitimate children shall use the surname and shall be under the parental authority of their mother, and shall be entitled to support in conformity with this Code. However, illegitimate children may use the surname of their father if their filiation has been expressly recognized by

their father through the record of birth appearing in the civil register, or when an admission in a public document or private handwritten instrument is made by the father. Provided, the father has the right to institute an action before the regular courts to prove non-filiation during his lifetime. The legitime of each illegitimate child shall consist of one-half of the legitime of a legitimate child.

3. Article 194 of the Family Code

Support comprises everything indispensable for sustenance, dwelling, clothing, medical attendance, education and transportation, in keeping with the financial capacity of the family.

The education of the person entitled to be supported referred to in the preceding paragraph shall include his schooling or train for some profession, trade or vocation, even beyond the age of majority. Transportation shall include expenses in going to and from school, or to and from place of work.

4. Article 195 of the Family Code

Subject to the provisions of the succeeding articles, the following are obliged to support each other to the whole extent set forth in the preceding article: (1) The spouses; (2) Legitimate ascendants and descendants; (3) Parents and their legitimate children and the legitimate and illegitimate children of the latter; (4) Parents and their illegitimate children and the legitimate and illegitimate children of the latter; (5) Legitimate brothers and sisters, whether of the full or half-blood.

5. Article 203 of the Family Code

The obligation to give support shall be demandable from the time the person who has a right to receive the same needs it for maintenance, but it shall not be paid except from the date of judicial or extrajudicial demand. Support pendent lite may be claimed in accordance with the Rules of Court. Payment shall be made within the first five days of each corresponding month.

When the recipient dies, his heirs shall not be obliged to return what he has received in advance.

6. Rule 103 (of the Rules of Court) Change of Name

Sec. 1. Venue.A person desiring to change his name shall present the petition to the Court of First Instance of the province in which he resides, or, in the City of Manila, to the Juvenile and Domestic Relations Court.

Sec. 2. Contents of petition.A petition for change of name shall be signed and verified by the person desiring his name changed, or some other person on his behalf, and shall set forth: (a) That the petitioner has been a bona fide resident of the province wher the petition is filed for at least three (3) years prior to the date of such filing; (b) The cause for which the change of the name of the petitioners name is sought; (c) The name asked for.

Sec. 3. Order for hearing.If the petition filed is sufficient in form and substance, the court, by an order reciting the purpose of the petition, shall fix a date and place for the hearing thereof, and shall direct that a copy of the order be published before the hearing at least once a week for three (3) consecutive weeks in some newspaper of general circulation published in the province, as the court shall deem best. The date set for the hearing shall not be within thirty (30) days prior to an election nor within four (4) months after the last publication of the notice.

Sec. 4. Hearing.Any interested person may appear at the hearing and oppose the petition. The Solicitor General or the proper provincial or city fiscal shall appear on behalf of the Government of the Republic.

Sec. 5. Judgment.Upon satisfactory proof in open court on the date fixed in the order that such order has been published as directed and that the allegations of the petition are true, the court shall, if proper and reasonable cause appears for changing the name of the petitioner, adjudge that such name be changed in accordance with the prayer of the petition.

Sec. 6. Service of judgment.Judgments or orders rendered in connection with this rule shall be furnished the civil registrar of the municipality or city where the ort issuing the same is situated, who shall forthwith enter the same in the civil register.

7. In Re: Petition for Change of Name and/or Correction of Entry in the Civil Registry of Julian Lin Carulasan Wang, G.R. No. 159966, March 30, 2005, 454 SCRA 155

Before a person can be authorized to change his name given him either in his certificate of birth or civil registry, he must show proper or reasonable cause, or any compelling reason which may justify such change. The touchstone for the grant of a change of name is that there be proper and reasonable cause for which the change is sought. To justify a request for change of name, petitioner must show not only some proper or compelling reason therefore but also that he will be prejudiced by the use of his true and official name. Among the grounds for change of name which have been held valid are: (a) when the name is ridiculous, dishonorable or extremely difficult to write or pronounce; (b) when the change results as a legal consequence, as in legitimation; (c) when the change will avoid confusion; (d) when one has continuously used and been known since childhood by a Filipino name, and was unaware of alien parentage; (e) a sincere desire to adopt a Filipino name to erase signs of former alienage, all in good faith and without prejudicing anybody; and (f) when the surname causes embarrassment and there is no showing that the desired change of name was for a fraudulent purpose or that the change of name would prejudice public interest.

8. Concepcion v. Court of Appeals, G.R. No. 123450, August 31, 2005, 468 SCRA 438

Jurisprudence teaches that a birth certificate to be considered as validating proof of paternity and as an instrument of recognition, must be signed by the father and mother jointly or by the mother alone if the father refuses.

9. Concepcion v. Court of Appeals, G.R. No. 123450, August 31, 2005, 468 SCRA 438

The law, reason and common sense dictate that a legitimate status is more favorable to the child. In the eyes of the law, the legitimate child enjoys a preferred and superior status. He is entitled to bear the surnames of both his father and mother, full support and full inheritance. On the other hand, an illegitimate child is bound to use the surname and be under the parental authority only of his mother. He can claim support only from a more limited group and his legitime is only half of that of his legitimate counterpart. Moreover (without unwittingly exacerbating the discrimination against him), in the eyes of society, a 'bastard is usually regarded as bearing a stigma or mark of dishonor.

10. Republic v. Capote, G.R. No. 157043, February 2, 2007, 514 SCRA 76

An illegitimate child whose filiation is not recognized by the father bears only a given name and his mother surname, and does not have a middle name. The name of the unrecognized illegitimate child therefore identifies him as such. It is only when the illegitimate child is legitimated by the subsequent marriage of his parents or acknowledged by the father in a public document or private handwritten instrument that he bears both his mothers surname as his middle name and his fathers surname as his surname, reflecting his status as a legitimated child or an acknowledged child. The foregoing discussion establishes the significant connection of a persons name to his identity, his status in relation to his parents and his successional rights as a legitimate or illegitimate child. For sure, these matters should not be taken lightly as to deprive those who may, in any way, be affected by the right to present evidence in favor of or against such change.

11. Republic v. Capote, G.R. No. 157043, February 2, 2007, 514 SCRA 76

An illegitimate child never recognized by his father is entitled to change his namea change of name will erase the impression that he was ever recognized by his father. It is also to his best interest as it will facilitate his mothers intended petition to have him join her in the US. This Court will not stand in the way of the reunification of mother and son.

12. Sy v. Court of Appeals, G.R. No. 124518, December 27, 2007, 541 SCRA 371

Support must be demanded and the right to it established before it becomes payable, for the right to support does not arise from the mere fact of relationship, even from the relationship of parents and children, but from imperative necessity without which it cannot be demanded, and the law presumes that such necessity does not exist unless support is demanded.

13. Dela Cruz v. Gracia, G.R. No. 177728, July 31, 2009, 594 SCRA 648

The Court sees it fit to adopt the following rules respecting the requirement of affixing the signature of the acknowledging parent in any private handwritten instrument wherein an admission of filiation of a legitimate or illegitimate child is made: 1) Where the private handwritten instrument is the lone piece of evidence submitted to prove filiation, there should be strict compliance with the requirement that the same must be signed by the acknowledging parent; and 2) Where the private handwritten instrument is accompanied by other relevant

and competent evidence, it suffices that the claim of filiation therein be shown to have been made and handwritten by the acknowledging parent as it is merely corroborative of such other evidence.

Below is a sample legal opinion/ professional advice written for a man charged with a series of criminal offences. IN THE GILLINGHAM CROWN COURT Case No. DXXXX REGINA v. XXXX XXXX and XXXX XXXX Advice ON AN APPLICATION TO STAY PROCEEDINGS AS AN ABUSE OF PROCESS 1. XXX XXX is charged with racially aggravated affray, two counts of robbery, having an offensive weapon, possessing a controlled drug, and possessing a controlled drug with intent to supply. He faces trial at Gillingham Crown Court. The preliminary hearing was heard on 8 th February 2008 and the Plea and Case Management Hearing is listed for the 21 st March 2008. I am asked to advise Mr XXX on the merits of making an application to stay the proceedings as an abuse of process. 2. In summary, I would advise that an application be made on Mr XXXXs behalf to stay the proceedings as an abuse of process on the grounds

that;Oxbridge Essays www.oxbridgeessays.com (i) in relation to the count of racially aggravated affray and the 2008 robbery, XX XXXX cannot receive a fair trial because the prosecuting authorities wrongly destroyed potentially exculpatory evidence; (ii) in relation to the count of robbery dating from 2003, XX XXXX cannot receive a fair trial because of adverse publicity likely to cause a jury to be biased; (iii) in relation to the count of robbery dating from 2003, it would be unfair to try XX XX because the prosecution is brought in breach of a promise not to prosecute made by XX XXX; 3. The crown case is that on Thursday 2 nd February 2008 XX XXX, together with XX XX, committed a racially aggravated affray at a petrol station on XXX XXX Road, and then went on to rob two women who were walking along XXX XXX Road (although XX XX is charged with the robbery of only one of the women). Mr XXXs defence to these charges is one of mistaken identity. CCTV footage of the petrol station and XXX XXX Road was destroyed upon authorisation by the police. 4. Upon being stopped and searched in connection with the affray and robbery later on 2 nd February 2008, XXX XXX was found to be in possession of an offensive weapon (a lock-knife) and a quantity of heroin. During a search of Mr XXXs house, conducted on 3 rd February 2008 a larger quantity of heroin was discovered. Mr XXX is also charged with robbery, which he is alleged to have committed in an unconnected incident in 2003. Jurisdiction of the Court 5. The court has a discretion to prevent a prosecution proceeding against a defendant by staying the proceedings where the proceedings are considered by the court to be an abuse of its own process (Connelly v DPP [1964] AC 1254, HL).Oxbridge Essays www.oxbridgeessays.com 6. The Court of Appeal in Beckford [1996] 1 Cr App R 94, held that in order for an application to stay proceedings as an abuse of process to succeed, it must be shown either that; (i) the defendant could not receive a fair trial, or; (ii) it would be unfair to try the defendant. The Defendant could not receive a fair trial 7. In S [2006] 2 Cr App R 23, it was held that the discretionary decision whether or not to grant a stay as an abuse of process is an exercise in judicial assessment dependant on judgement rather than any conclusion as to fact based on evidence. However, there are some circumstances

which have been recognised as grounding an application to stay proceedings as an abuse of process. Failing to obtain, losing and destroying evidence 8. In Medway [2000] Crim LR 415, police destroyed CCTV evidence after deciding it contained nothing of value. The Court of Appeal upheld the trial judges refusal to stay the proceedings as an abuse of process in the absence of the CCTV footage, because there was no evidence of malice, and nothing to show that the absence of the tape made the conviction unsafe. Similarly, and more recently in Khalid Ali v Crown Prosecution Service, West Midlands [2007] EWCA Crim 691, the Court of Appeal emphasised that in such cases, the mere fact that missing material might have assisted the defence will not necessarily lead to a stay. The Court of Appeal in Medway did however hold that a defendant could be disadvantaged in a case where evidence had been tampered with, lost or destroyed, but it was only in exceptional circumstances, for example where such interference was malicious, that a stay was justified. Obligation to obtain and/or retain materialOxbridge Essays www.oxbridgeessays.com 9. In R (Ebrahim) v Feltham Magistrates Court [2001] 2 Cr App R 23 it was held that the first question to ask when seeking to stay proceedings on the ground that the prosecuting or investigating authorities have failed to obtain, lost or destroyed evidence is to what extent the investigator was under a duty to obtain and/or retain the material in question, giving consideration to Criminal Procedure and Investigations Act 1996, and the A-Gs Guidelines: Disclosure of Information in criminal proceedings. 10. According to CPIA 1996, 3.5, investigating officers should pursue all reasonable lines of enquiry, whether those point to or away from the suspect, and according to 3.6, where the officer in charge of an investigation believes that other persons might be in possession of material that may be relevant to the investigation, he should ask the disclosure officer to inform them of the existence of the investigation and invite them to retain the material in case they receive a request for its disclosure. The duty of the investigating officer in the case to retain material however, relates only to that material which may be relevant to the investigation (CPIA 1996 5.1) 11. Destruction of evidence by the police is relevant in XXX XXXs case in relation to the racially aggravated affray (Count 1), and the street robbery (Count 2). It is clear that in this case the police were under a duty to obtain and retain footage from the petrol station. The two cameras pointed towards the door and the till in the petrol station shop, and so it would have likely been possible to establish from the footage from those cameras whether XXX XXX did in fact enter the petrol station on the day in question. I would not in any case envisage a problem in establishing the duty of the police to retain the footage from the petrol station, as in his statement, PC XXX XXX concedes that PC XXX was mistaken in forming the view that identification would no longer be in dispute and so the

footage would not be required. PC XXX further concedes that PC XXX told Mr XXX this and so Mr XXX deleted the footage.Oxbridge Essays www.oxbridgeessays.com 12. With regards the footage from the local authority cameras situated on XXX XXX Road, it may be more difficult to establish that this amounted to relevant material. In his statement, PC XXX states that he can confirm the cameras did not show either the petrol station or the area where the street robbery is alleged to have taken place, that the lighting in the areas the cameras covered was poor, and that the quality of the footage was also poor. PC XXX does however state that the footage does show a car driving into the petrol station. The driver of this car is a potential witness, and I am therefore of the opinion that the police were under a duty to retain the local authority CCTV footage. Serious prejudice caused to the defendant 13. Secondly, in R (Ebrahim) v Feltham Magistrates Court, the court held that if there was a breach of the duty to obtain and/or retain the material then the defence must establish on the balance of probabilities that as a result of the breach the defendant is seriously prejudiced. By seriously prejudiced, the court meant could not have a fair trial. It was however stressed that the normal forum for challenges was the trial process itself; the presumption seems to be in favour of refusing to stay. According to Brooke LJ, there has to be either an element of bad faith, or at least some serious fault, on the part of the police or the prosecuting authorities. 14. In this case, I am of the opinion that although the police were under a duty to retain the local authority CCTV footage from XXX XXX Road, the destruction of this footage does not serious prejudice XXX XXX in the sense that he cannot have a fair trial. It seems that the destruction of this evidence was not carried out in bad faith, and it will also be possible to question the destruction of the evidence in cross-examination at trial. 15. In my opinion an application to stay proceedings as an abuse of process based on the destruction of the petrol station footage stands a greater chance of success. XXX XXXs defence to the charges of robbery and affray is one of mistaken identity, so clearly any evidence which may have Oxbridge Essays www.oxbridgeessays.com been capable of substantiating his claim that he was not present at the petrol station that night, or showing that another person fitting his description was present, would be central to his defence. The fact that this CCTV footage is no longer available, and that no police officer ever saw the footage to find out whether it could substantiate XXX XXXs defence in my opinion has seriously prejudiced Mr XXXs chances of having a fair trial. 16. The prejudice caused to Mr XXX is increased by the breaches of PACE 1984 which occurred during the street identification procedure, as a result of which the prosecution evidence supporting identification may turn out to be weak. This is relevant given that Brooke LJ in R (Ebrahim) said at 27 that if there is sufficient credible evidence, apart from the missing

evidence, which, if believed, would justify a safe conviction, then a trial should proceed. In my opinion the mistakes made by the police in gathering evidence relating to identity may mean that the evidence available in absence of the CCTV footage from the petrol station does not meet this test. Adverse publicity 17. Although adverse publicity has been held to constitute grounds for staying a prosecution as an abuse of process ( see, for example, R v Reade, unreported, CCC October 15, 1993, in which Garland J stayed a prosecution for this reason), it is very rare for an application made on this ground to be allowed. 18. In Montgomery v H.M. Advocate [2003]1 AC 641 it was held that the test was whether the risk of prejudice was so grave that whatever measures were adopted, the trial process could not reasonably be expected to remove it. Similarly, in R v Abu Hamza [2007] 1 Cr App R 27, the Court of Appeal held that the fact that adverse publicity may have risked prejudicing a fair trial is no reason for not proceeding with the trial if the Oxbridge Essays www.oxbridgeessays.com trial judge concludes that, with his assistance, it will be possible to have a fair trial. 19. In this case, there may be grounds for making an application to stay proceedings in relation Count 7, the 2003 robbery. Around the time of the alleged robbery, the local newspaper, the Tottenham and Wood XXX Independent, ran a series of articles about robberies in the area, and according to XXX XXX, on at least two occasions printed photographs of Mr XXX. 20. I am of the opinion that an application to stay proceedings on this ground is unlikely to succeed. Some 4 years have passed since the articles and photographs were published, and it may be difficult to establish that any potential jurors would even recall having seen them, let alone that they may be biased as a result. Even if the judge were to accept that a jury drawn from the area of circulation of the Tottenham and Wood XXX Independent, he may still find it possible to hold a trial in another part of London where jurors would not have had access to the articles and photographs in question. 21. It is, however, not possible to come to a firm conclusion in relation to this matter without having details of the contents of the articles, or seeing the way in which the photographs of Mr XXX were presented in relation to the articles. It would be unfair to try the defendant Going back on a promise 22. In Croydon Justices, ex parte Dean [1993] QB 769, the Divisional Court held that where the prosecuting authorities or the police make a representation, undertaking or promise to a defendant that they will not proceed with a prosecution in relation to a particular offence, this may

amount to grounds for staying any subsequent prosecution as an abuse Oxbridge Essays www.oxbridgeessays.com of process, and that in such circumstances it is not necessary for the accused to show that there was bad faith on the part of the police. 23. However, more recently in Abu Hamza [2007] 2 WLR 226, the Court of Appeal held that these circumstances are not likely to constitute an abuse of process unless; (i) there has been an unequivocal representation by those with the conduct of the investigation or prosecution of a case that the defendant will not be prosecuted, and; (ii) the defendant has acted on that representation to his detriment. 24. XXX XXX claims that DC XXX (the officer in the case) approached him and asked him to act as a police informant. According to Mr XXX, DC XXX assured him that in return the proceedings against him for the 2003 robbery charge would be discontinued. Mr XXX agreed and the officer told him that as far as Mr XXX was concerned that was the end of the proceedings against him, and he would be contacted about making a statement in due course. Mr XXX received no further communications from DC XXX, and so did not attend Snaresbrook Crown Court on the date of his trial. 25. On the facts as presented by Mr XXX this seems to be a fairly compelling case for staying proceedings for the 2003 robbery as an abuse of process. More information is needed about the exact words used by DC XXX in making the representation to Mr XXX that he would not be prosecuted, however on the facts as they stand it would seem that the representation made was not equivocal. In my opinion it will also be possible to show that Mr XXX did rely on the promise to his detriment, in that on the basis of his agreement with DC XXX, Mr XXX failed to attend his trial for the relevant charges. It would be useful to know whether Mr XXX also did act as an informant for the police, in consideration of the promise made by DC XXX.Oxbridge Essays www.oxbridgeessays.com 26. However, there is a problem in this case regarding available evidence to support XXX XXXs version of events. Instructing solicitors inform me that they have contacted DC XXX who has stated that there was no record made of such an assurance having been given by DC XXX, and unfortunately DC XXX has since died and is therefore obviously unable to substantiate the facts as presented by XXX XXX. However, it may be that the fact that the police made no attempt to execute the warrant issued for Mr XXXs arrest after his failure to attend Snaresbrook Crown Court for trial is evidence of the fact that they did not intend to bring proceedings against him. 27. In Bloomfield [1997] 1 Cr App R 135 it was held that it is irrelevant whether the person who represents to the defendant that the case will be discontinued actually has the authority to discontinue the case; in that case the defence were entitled to assume that prosecuting counsel had

such authority and rely upon the promise. In this case it is therefore not relevant whether DC XXX actually had the authority to make a deal with XXX XXX in relation to the 2003 robbery offence. 28. In my opinion, an application to stay proceedings as an abuse of process on the basis that the proceedings constitute a breach of promise by the police should be made, and if the court accepts XXX XXXs version of events there is a good chance the application will be successful. However, the success of the application will be largely dependant on whether the judge accepts Mr XXXs allegation that a promise was in fact made. Procedure 29. The procedure for making an application of no case to answer in the crown court can be found in the consolidated criminal practice direction, Part IV. 3.6. According to Part IV.36.1, a defendant must give written notice of application to the prosecuting authority and any co-defendant not later than 14 days before the date fixed or warned for trial. Notice must;Oxbridge Essays www.oxbridgeessays.com (i) give the name of the case and the indictment number; (ii) state the fixed date or the warned date of the trial; (iii) specify the nature of the application; (iv) set out in numbered sub-paragraphs the grounds upon which the application is to be made; (v) be copied to the chief listing officer at the court centre where the case is due to be heard. 30. The automatic directions which are to apply can be found in Part IV.36.3; (a) The advocate for the applicant must lodge with the court and serve on all others parties a skeleton argument in support of the application at least five clear working days before the relevant date. If reference is to be made to any document not in the existing trial documents, a paginated and indexed bundle of such documents is to be provided with the skeleton argument; (b) The advocate for the prosecution must lodge with the court and serve on all other parties a responsive skeleton argument at least two clear working days before the relevant date, together with a supplementary bundle if appropriate. Next steps 31. It would be useful to have a copy of the articles published by the Tottenham and Wood XXX Independent relating to the 2003 robbery, and the accompanying photographs of Mr XXX, so that it might be possible to analyse any prejudice which may have been caused to Mr XXX by their publication. 32. Enquiries should be made of XXX XXX as to whether he has any evidence which may support DC XXX having made a promise that he would not be prosecuted for the 2003 robbery in return for acting as a police informant. It would also be helpful if XXX XXX could provide a more Oxbridge Essays www.oxbridgeessays.com

detailed account of exactly what was said to him by DC XXX when making the representation that Mr XXX would not be prosecuted for the 2003 robbery. Instructing solicitors should enquire as to whether Mr XXX, in consideration for the promise made by DC XXX, acted as a police informant. Conclusion 33. I advise that an application to stay proceedings as an abuse of process be made on all three grounds outlined above. I am of the opinion that the case for staying proceedings based on destruction of evidence is the strongest and is likely to succeed. The application to stay proceedings because the prosecution is brought in breach of a promise not to prosecute may succeed if the court finds that the promise was in fact made. I am however of the opinion that the application to stay proceedings for abuse of process based on the adverse publicity is likely to fail because the court will feel able to accommodate for any potential bias within the trial process. 7 th March 2008 Inns of Court Chamber