72383078 How to Write a Legal Opinion

8/13/2019 72383078 How to Write a Legal Opinion

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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

asuccessful 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 opinionwill

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

thin!s 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. "erfect grammar,

punctuation and precision of language are essential.

#larity 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.

#larity of e$pression is therefore vital. #larity of e$pression can only be achievedthrough 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 bro!en down into sections.

Each section will culminate in an opinion and each opinion must be fully e$plained


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and %ustified. #larity of legal writing also requires conciseness. This does not

necessarily imply brevity, but once the point has been made, nothing more need be

said. &aving 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 opinionwill usually come in written form. 'uch 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 as!ed 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

!now for e$ample 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 client+s 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 client+s prospects of success, a good legal opinion will

spell this out very precisely. umbered action points are one way of achieving clarity

in this regard.

Above all it is vital to remember that in being as!ed to draft a legal opinion, you are

being as!ed to advise. 'itting on the fence is not an option. -ay out the pros and cons

of a particular course of action, but always come down on one side or the other..

iving a percentage chance of success at the beginning of a legal opinion is one way

of being clear about what you thin! the client+s prospects are.

/rafting a legal opinion can and should always be split into two processes0 The

thin!ing process and the writing process.

The Thinking Process


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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

opinionmust 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 e$ercise.

1nce the facts are at your finger tips, a legal framewor! needs to be constructed into

which these facts can be logically slotted. A legal opinion in a personal in%ury action

for e$ample 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 e$pect to receive or pay out. This will be at the forefront of the

client+s mind.

1ther types of cases will involve different legal framewor!s, but whatever the legal

issue, the legal opinionmust be continuously advising on the strength of the client+s

position in the case. 1ne question which is implicit in every request for a legal

opinion is 2what should be done ne$t)+ This should be decided at the planning stage

and should inform the legal opinion throughout.

3hat 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 client+s case in

isolation. Evidential issues must also be considered. A good legal opinion will always

address how a particular factual situation can be proved.

4efore you begin writing a legal opinion, you will !now e$actly what advice you are

going to give, why you are giving it and how you are going to present it.

The Writing ProcessThe legal opinion should be written following a structure. It should be entitled

1"II1 or A/5I#E 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 as!ed to advise about.


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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 !nowing

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 ta!en 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 sa!e of

consistency in legal opinions. 1ne e$ample of these is that liability should be dealt

with before quantum in civil claims. If there are two or more defendants ta!e each of

the defendant+s liability in turn before turning to quantum.

The concluding paragraph of a legal opinion ought to be a 2e$t 'teps+ paragraph

advising the instructing solicitors of what needs to be done to strengthen the client+s

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. 1therwise, 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 %udgment although often paraphrasing the effect of thedecision will usually suffice. Always refer the case you are citing bac! 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 e$ample, there is no point citing a #ourt of Appeal

%udgment which has been overruled by a subsequent &ouse of -ords case.


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3ith regard to statute, much of the same advice will apply. If there is a statutory

provision which deals directly with the sub%ect of the legal opinion then this should be

clearly stated and its effects fully e$plained. 1f course care must be ta!en 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 wor!. Above all, the advisory purpose of a legal opinion

should be borne in mind at all times.


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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 (!) one legal document that

may be used in connection with your recommended course of action.

"elanie #. $amboa seeks your advice on the possibility of changing the surname of her niece,

1%&year old #aula #. 'ortes, who was placed under her care by her sister, "aricel #ere, who is

currently in the .*. working as a nurse.

+he following is your interview with "elanie #. $amboa

- "elanie, tell me something about yourself first, your personal circumstances.

am "elanie #ere $amboa, 0 yrs old, married with an 2&year old son. live at 34

'raig *t., *ampaloc, "anila. work as the assistant manager for a bank.

- 5ou said that your sister wants to change the surname of her daughter. 6hat is her

name7 6here is your sister now7

"y sister is "aricel brogar #ere. *he is now in the nited *tates, working as a nurse,

so she asked me to seek legal assistance for her.

- 8ow old is she7

*he is 34 yrs old.

- 8ow long has she worked in the *7

*he has been working there for ten years already, since !.

- s she married7

9o, she is not.

- But she has a daughter7

5es, her daughter is my niece, #aula #ere 'ortes, and she is now 1% years old.

- 6hen was #aula born7

9ovember 14, 1::0.

- 6ho is #aula;s father7


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8er father is 6illiam 'ortes, "aricel;s boyfriend back in college. 8e got her pregnant

while they were in their third year of college.

- s #aula living with you now7

5es, ever since "aricel went to the * in !. have been her guardian since then.

- 6hat happened when "aricel became pregnant7

6illiam 'ortes told her they can;t get married yet because they were still young and

had to finish college first. But he said he will give support. 8e did, while "aricel was pregnant

and after she gave birth. 6illiam paid the bills for "aricel;s check&up while she was pregnant.

8e also paid for more than half of the hospitaliation expenses when "aricel gave birth. 8e

paid for the baby;s medical check&ups and vaccination. *ometimes, he would give additional

money for baby formula and diapers or he would buy them himself. 8e would also visit "aricel

and the baby almost every day. 8e was even present at the christening.

- B'

for her second birthday, saying that he was sorry that he was not there for her birthday. +hat

was the last time we heard from him.

-


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"y parents and helped "aricel take care of #aula, especially since she was still

studying. 6e pitched in. fter she graduated, she worked for a while in a private hospital and

was later able to find work in the * as a nurse.

- *o basically, #aula grew up never knowing her father7

5es.

- But she carries his surname7

5es. t is in her birth certificate. 6illiam is indicated as the father.

- 6ho supplied the information in the birth certificate7

t was "aricel, but 6illiam was also there. 8e was there when "aricel gave birth, and

when hospital personnel came to ask for information for #aula;s birth registration. 6illiam was

at the hospital everyday until "aricel and #aula were discharged.

- *o in all of #aula;s official records, she carries 6illiam;s surname and 6illiam is

identified as her father7 5es. ll her school records state that.

- 6hat does "aricel now want to do with #aula;s surname7

*he wants #aula;s surname to be changed from 'ortes to #ere because she intends to

petition #aula to the * and the change in name would facilitate the process. #aula would be

easily identified as her daughter. lso, "aricel does not want #aula to have anything to do

with 6illiam anymore since he abandoned his own child.

- 8ow does #aula feel about the change of name7

*he is okay with it, because she never knew 6illiam. ?ven 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. +his is also one of the reasons why "aricel wants to change #aula;s surname.

Laws and jurisprudence that may apply

1. rticle 1%4 of the @amily 'ode

'hildren conceived and born outside a valid marriage are illegitimate, unless otherwise

provided in this 'ode.

!. rticle 1A% of the @amily 'ode

llegitimate 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 'ode. 8owever, illegitimate

children may use the surname of their father if their filiation has been expressly recognied by


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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. #rovided, the

father has the right to institute an action before the regular courts to prove non&filiation during

his lifetime. +he legitime of each illegitimate child shall consist of one&half of the legitime of a

legitimate child.

3. rticle 1:0 of the @amily 'ode

*upport comprises everything indispensable for sustenance, dwelling, clothing, medical

attendance, education and transportation, in keeping with the financial capacity of the family.

+he 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 ageof maority. +ransportation shall include expenses in going to and from school, or to and from

place of work.

0. rticle 1:4 of the @amily 'ode

*ubect 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) +he spouses

(!) >egitimate ascendants and descendants

(3) #arents and their legitimate children and the legitimate and illegitimate children of the

latter

(0) #arents and their illegitimate children and the legitimate and illegitimate children of the

latter

(4) >egitimate brothers and sisters, whether of the full or half&blood.

4. rticle !3 of the @amily 'ode

+he 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

udicial or extraudicial demand. *upport pendent lite may be claimed in accordance with the

Cules of 'ourt. #ayment shall be made within the first five days of each corresponding month.


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6hen the recipient dies, his heirs shall not be obliged to return what he has received in

advance.

%. Cule 13 (of the Cules of 'ourt) D 'hange of 9ame

*ec. 1. Eenue.F person desiring to change his name shall present the petition to the 'ourt of

@irst nstance of the province in which he resides, or, in the 'ity of "anila, to the Guvenile and


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A. n Ce #etition for 'hange of 9ame and/or 'orrection of ?ntry in the 'ivil Cegistry of Gulian

>in 'arulasan 6ang, $.C. 9o. 14::%%, "arch 3, !4, 040 *'C 144

Before a person can be authoried 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 ustify such change. +he touchstone for the grant of a change of name is that there

be proper and reasonable cause for which the change is sought. +o ustify a reIuest for

change of name, petitioner must show not only some proper or compelling reason therefore

but also that he will be preudiced by the use of his true and official name. mong 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 conseIuence, as in legitimation (c) when the change will avoid confusion (d) when onehas continuously used and been known since childhood by a @ilipino name, and was unaware

of alien parentage (e) a sincere desire to adopt a @ilipino name to erase signs of former

alienage, all in good faith and without preudicing 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 preudice public interest.

2. 'oncepcion v. 'ourt of ppeals, $.C. 9o. 1!304, ugust 31, !4, 0%2 *'C 032

Gurisprudence 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 ointly or by the

mother alone if the father refuses.

:. 'oncepcion v. 'ourt of ppeals, $.C. 9o. 1!304, ugust 31, !4, 0%2 *'C 032

+he law, reason and common sense dictate that a legitimate status is more favorable to the

child. n the eyes of the law, the legitimate child enoys a preferred and superior status. 8e is

entitled to bear the surnames of both his father and mother, full support and full inheritance.Hn the other hand, an illegitimate child is bound to use the surname and be under the parental

authority only of his mother. 8e can claim support only from a more limited group and his

legitime is only half of that of his legitimate counterpart. "oreover (without unwittingly

exacerbating the discrimination against him), in the eyes of society, a Jbastard is usually

regarded as bearing a stigma or mark of dishonor.


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1. Cepublic v. 'apote, $.C. 9o. 14A03, @ebruary !, !A, 410 *'C A%

n illegitimate child whose filiation is not recognied by the father bears only a given name

and his mother; surname, and does not have a middle name. +he name of the unrecognied

illegitimate child therefore identifies him as such. t is only when the illegitimate child is

legitimated by the subseIuent marriage of his parents or acknowledged by the father in a

public document or private handwritten instrument that he bears both his mother;s surname

as his middle name and his father;s surname as his surname, reflecting his status as a

legitimated child or an acknowledged child. +he foregoing discussion establishes the

significant connection of a person;s name to his identity, his status in relation to his parents

and his successional rights as a legitimate or illegitimate child. @or 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. Cepublic v. 'apote, $.C. 9o. 14A03, @ebruary !, !A, 410 *'C A%

n illegitimate child never recognied by his father is entitled to change his nameFa change of

name will erase the impression that he was ever recognied by his father. t is also to his best

interest as it will facilitate his mother;s intended petition to have him oin her in the *. +his

'ourt will not stand in the way of the reunification of mother and son.

1!. *y v. 'ourt of ppeals, $.C. 9o. 1!0412,


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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.

4elow is a sample legal opinion6 professional advice written for a man

charged with a series of criminal offences.I T&E I--I&A7 #813 #1U8T

#ase o. /9999

8EIA

v.9999 9999

and

9999 9999Advice 1 A A""-I#ATI1 T1 'TA: "81#EE/I' A' A A4U'E 1F

"81#E''

;. 999 999 is charged with racially aggravated affray, two counts ofrobbery, having an offensive weapon, possessing a controlled drug, and

possessing a controlled drug with intent to supply. &e faces trial at

illingham #rown #ourt. The preliminary hearing was heard on >< and the "lea and #ase 7anagement &earing is listed for

the =;

st7arch =>>


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that1$bridge Essays www.o$bridgeessays.com

?i@ in relation to the count of racially aggravated affray and the

=>>< robbery, 99 9999 cannot receive a fair trial becausethe prosecuting authorities wrongly destroyed potentially

e$culpatory evidence

?ii@ in relation to the count of robbery dating from =>>, 999999 cannot receive a fair trial because of adverse publicity

li!ely to cause a %ury to be biased

?iii@ in relation to the count of robbery dating from =>>, it wouldbe unfair to try 99 99 because the prosecution is brought in

breach of a promise not to prosecute made by 99 999

. The crown case is that on Thursday =

ndFebruary =>>< 99 999, together

with 99 99, committed a racially aggravated affray at a petrol station on

999 999 8oad, and then went on to rob two women who were wal!ing

along 999 999 8oad ?although 99 99 is charged with the robbery ofonly one of the women@. 7r 999+s defence to these charges is one of

mista!en identity. ##T5 footage of the petrol station and 999 999 8oadwas destroyed upon authorisation by the police.

B. Upon being stopped and searched in connection with the affray and

robbery later on =nd

February =>>>< a

larger quantity of heroin was discovered. 7r 999 is also charged withrobbery, which he is alleged to have committed in an unconnected

incident in =>>.

Durisdiction of the #ourt. 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 ?#onnelly v

/"" ;GHB A# ;=B, &[email protected]$bridge Essays www.o$bridgeessays.comH. The #ourt of Appeal in 4ec!ford ;GGH ; #r App 8 GB, 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 /efendant could not receive a fair trialJ. In ' =>>H = #r App 8 =, it was held that the discretionary decision

whether or not to grant a stay as an abuse of process is an e$ercise in

%udicial assessment dependant on %udgement rather than any conclusion

as to fact based on evidence. &owever, there are some circumstances


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which have been recognised as grounding an application to stay

proceedings as an abuse of process.

Failing to obtain, losing and destroying evidence>> #rim -8 B;, police destroyed ##T5 evidence after

deciding it contained nothing of value. The #ourt of Appeal upheld the trial

%udge+s refusal to stay the proceedings as an abuse of process in theabsence of the ##T5 footage, because there was no evidence of malice,

and nothing to show that the absence of the tape made the conviction

unsafe. 'imilarly, and more recently in Khalid Ali v #rown "rosecution'ervice, 3est 7idlands =>>J E3#A #rim HG;, the #ourt 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 #ourt of

Appeal in 7edway did however hold that a defendant could bedisadvantaged in a case where evidence had been tampered with, lost or

destroyed, but it was only in e$ceptional circumstances, for e$ample

where such interference was malicious, that a stay was %ustified.

1bligation to obtain and6or retain material1$bridge Essayswww.o$bridgeessays.com

G. In 8 ?Ebrahim@ v Feltham 7agistrates+ #ourt =>>; = #r App 8 = it washeld that the first question to as! when see!ing to stay proceedings on the

ground that the prosecuting or investigating authorities have failed to

obtain, lost or destroyed evidence is to what e$tent the investigator wasunder a duty to obtain and6or retain the material in question, giving

consideration to #riminal "rocedure and Investigations Act ;GGH, and the

AC+s uidelines0 /isclosure of Information in criminal proceedings.

;>. According to #"IA ;GGH, ., investigating officers should pursue allreasonable lines of enquiry, whether those point to or away from the

suspect, and according to .H, where the officer in charge of an

investigation believes that other persons might be in possession ofmaterial that may be relevant to the investigation, he should as! the

disclosure officer to inform them of the e$istence of the investigation and

invite them to retain the material in case they receive a request for itsdisclosure. 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 ?#"IA ;GGH .;@

;;. /estruction of evidence by the police is relevant in 999 999+s case inrelation to the racially aggravated affray ?#ount ;@, and the street robbery

?#ount =@. 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 pointedtowards the door and the till in the petrol station shop, and so it would

have li!ely been possible to establish from the footage from those

cameras whether 999 999 did in fact enter the petrol station on the dayin 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, "# 999 999 concedes that "# 999 was mista!en in forming

the view that identification would no longer be in dispute and so the


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footage would not be required. "# 999 further concedes that "# 999

told 7r 999 this and so 7r 999 deleted the footage.1$bridge Essays

www.o$bridgeessays.com;=. 3ith regards the footage from the local authority cameras situated on

999 999 8oad, it may be more difficult to establish that this amounted to

2relevant material+. In his statement, "# 999 states that he can confirmthe cameras did not show either the petrol station or the area where the

street robbery is alleged to have ta!en place, that the lighting in the areas

the cameras covered was poor, and that the quality of the footage wasalso poor. "# 999 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 ##T5 footage.'erious pre%udice caused to the defendant

;. 'econdly, in 8 ?Ebrahim@ v Feltham 7agistrates+ #ourt, the court held that

if there was a breach of the duty to obtain and6or retain the material then

the defence must establish on the balance of probabilities that as a resultof the breach the defendant is 2seriously pre%udiced+. 4y 2seriously

pre%udiced+, the court meant 2could not have a fair trial+. It was howeverstressed that the normal forum for challenges was the trial process itself

the presumption seems to be in favour of refusing to stay. According to

4roo!e -D, there has to be either an element of bad faith, or at least someserious fault, on the part of the police or the prosecuting authorities.

;B. In this case, I am of the opinion that although the police were under a duty

to retain the local authority ##T5 footage from 999 999 8oad, the

destruction of this footage does not serious pre%udice 999 999 in thesense 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 crossCe$amination at trial.;. 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. 999 999+s defence to the charges of robbery andaffray is one of mista!en identity, so clearly any evidence which may have 1$bridge

Essays www.o$bridgeessays.com

been capable of substantiating his claim that he was not present at the

petrol station that night, or showing that another person fitting hisdescription was present, would be central to his defence. The fact that this

##T5 footage is no longer available, and that no police officer ever saw

the footage to find out whether it could substantiate 999 999+s defence inmy opinion has seriously pre%udiced 7r 999+s chances of having a fair

trial.

;H. The pre%udice caused to 7r 999 is increased by the breaches of "A#E;G


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evidence, which, if believed, would %ustify a safe conviction, then a trial

should proceed+. In my opinion the mista!es made by the police in

gathering evidence relating to identity may mean that the evidenceavailable in absence of the ##T5 footage from the petrol station does not

meet this test.

Adverse publicity;J. Although adverse publicity has been held to constitute grounds for staying

a prosecution as an abuse of process ? see, for e$ample, 8 v 8eade,

unreported, ### 1ctober ;, ;GG, in which arland D stayed aprosecution for this reason@, it is very rare for an application made on this

ground to be allowed.

;>; A# HB; it was held that the test

was whether the ris! of pre%udice was so grave that whatever measureswere adopted, the trial process could not reasonably be e$pected to

remove it. 'imilarly, in 8 v Abu &amLa =>>J ; #r App 8 =J, the #ourt of

Appeal held that the fact that adverse publicity may have ris!ed

pre%udicing a fair trial is no reason for not proceeding with the trial if the 1$bridgeEssays www.o$bridgeessays.com

trial %udge concludes that, with his assistance, it will be possible to have afair trial.

;G. In this case, there may be grounds for ma!ing an application to stay

proceedings in relation #ount J, the =>> robbery. Around the time of thealleged robbery, the local newspaper, the Tottenham and 3ood 999

Independent, ran a series of articles about robberies in the area, and

according to 999 999, on at least two occasions printed photographs of

7r 999.=>. I am of the opinion that an application to stay proceedings on this ground

is unli!ely to succeed. 'ome B years have passed since the articles and

photographs were published, and it may be difficult to establish that anypotential %urors would even recall having seen them, let alone that they

may be biased as a result. Even if the %udge were to accept that a %ury

drawn from the area of circulation of the Tottenham and 3ood 999Independent, he may still find it possible to hold a trial in another part of

-ondon where %urors would not have had access to the articles and

photographs in question.

=;. It is, however, not possible to come to a firm conclusion in relation to thismatter without having details of the contents of the articles, or seeing the

way in which the photographs of 7r 999 were presented in relation to the

articles.It would be unfair to try the defendant

oing bac! on a promise

==. In #roydon Dustices, e$ parte /ean ;GG M4 JHG, the /ivisional #ourtheld that where the prosecuting authorities or the police ma!e a

representation, underta!ing or promise to a defendant that they will not

proceed with a prosecution in relation to a particular offence, this may


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such authority and rely upon the promise. In this case it is therefore not

relevant whether /# 999 actually had the authority to ma!e a deal with

999 999 in relation to the =>> robbery offence.=> robbery, and

the accompanying photographs of 7r 999, so that it might be possible toanalyse any pre%udice which may have been caused to 7r 999 by their

publication.

=. Enquiries should be made of 999 999 as to whether he has anyevidence which may support /# 999 having made a promise that he

would not be prosecuted for the =>> robbery in return for acting as a

police informant. It would also be helpful if 999 999 could provide a more 1$bridge

Essays www.o$bridgeessays.com


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detailed account of e$actly what was said to him by /# 999 when

ma!ing the representation that 7r 999 would not be prosecuted for the

=>> robbery. Instructing solicitors should enquire as to whether 7r 999,in consideration for the promise made by /# 999, acted as a police

informant.

#onclusion. 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 thestrongest and is li!ely 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 stayproceedings for abuse of process based on the adverse publicity is li!ely

to fail because the court will feel able to accommodate for any potential

bias within the trial process.

Jth

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72383078 How to Write a Legal Opinion

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