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Advising the Client at the Police Station

STAGE 1 - Introduction Welcome to this criminal litigation i-Tutorial, which focuses on the police investigation including advising the suspect at the police station. By the end of this i-Tutorial you will be able to: identify the importance of and explain sections 34, 36 and 37 of the Criminal Justice and Public Order Act 1994 identify the relevant arguments as to whether a suspect should or should not answer police questions explain the role of the solicitor in an interview at the police station and explain the identification procedures that are open to the police

STAGE 2 Conduct of Questioning by the Police Please take a look at the diagram on screen which summarises criminal procedure from the start of the investigation until trial and sentencing. In this i-tutorial we will be focusing on the police investigation stage. Code C which covers the detention, treatment and questioning of persons by police officers, controls the conduct of police questioning. In addition to conforming with the code, the police must also comply with the general law of evidence on involuntary confessions. This is contained in Section 76(2) of PACE- this states that an alleged confession, which is defined as any statement adverse to the maker, must be excluded either if it was obtained by oppression or if it was obtained as a result of words or conduct which in the prevailing circumstances were likely to render the confession unreliable, the so called unreliability principle. An important practical purpose of Code C is to ensure, as far as possible, that the police question a suspect in such a way as to prevent the defence from being able to subsequently claim that a confession was obtained by oppression or in breach of the reliability principle. STAGE 3 Steps which the Police Must Take Before Interviewing a Suspect Paragraph 10.1 of Code C makes it clear that if the police have grounds to suspect a person of having committed an offence, they must caution that person before questioning them about the offence, if the purpose of the questioning is to obtain evidence for use in a Court rather than, for example, to establish the suspects identity or the ownership of a vehicle. The wording of the caution is set out at paragraph 10.4 of Code C and can be seen on screen. This form of the caution was introduced as a result of section 34 of the Criminal Justice and Public Order Act 1994. The caution permits certain inferences to be drawn at
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trial where the accused has initially failed to mention after caution any fact which they later rely on in their defence at trial. Well be looking at the 1994 Act in more detail later. Paragraph 10.3 of Code C supplements paragraph 10.1 by providing that an arrested person must be cautioned upon their arrest, unless they have already been cautioned in accordance with paragraph 10.1 or it is impractical to do so, for example because they are being physically abusive. Paragraph 11.1 of code C makes it clear that once a suspect has been arrested they should not be interviewed about the offence other than at a police station. An interview is defined at paragraph 11.1A of the code as the questioning of a person regarding his involvement or suspected involvement in a criminal offence. Taking all of these provisions together, it should be clear that any interview should only take place at a police station after the suspect has been cautioned. Its important for a solicitor called to advise a suspect at a police station to check with their client if they have been interviewed anywhere other than at the police station and if so what was said. Attempts to interview a suspect other than at a police station are referred to as verballing the suspect. STAGE 4 Preliminary Steps for Advising a Client at a Police Station There are two distinct circumstances in which a solicitor may be asked to advise a client at a police station. First the suspect, who, on arrival at the police station should have been informed by the custody officer of their right to free legal advice in accordance with Code C, may request advice from a specific firm of solicitors. In some cases the request may come from a third party, such as a friend or relative of the suspect, in which case it is necessary to confirm the instructions with the suspect direct. Secondly, the suspect may have indicated that they want legal advice but do not have their own solicitor or one who is willing to come, in which case the police will contact the duty solicitor service. They in turn will contact one of the duty solicitors who are local practitioners, who will attend round the clock at local police stations on a rota basis- their costs are paid out of public funds irrespective of the suspects means. If the suspect wants telephone advice, theres currently a scheme being piloted by Criminal Defence Service Direct, which is a centralised service for provision of telephone advice to suspects. If CDS take the view that the suspect needs face to face advice, they will then refer the matter onto the duty solicitor service. Whether the solicitor is attending in their own capacity or as the duty solicitor there are a number of steps they should take on first being instructed. First before attending at the police station, they should telephone the custody officer with a view to eliciting as much relevant background information as possible relating to the offence and the polices intention to interview the suspect. For example, what is the alleged offence theyre investigating? Has the suspect already been interviewed- if so, what did they say. Assuming they havent already been interviewed, is the suspect in the polices view in a fit state to be interviewed? If so, when do they intend to
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commence the interview, bearing in mind they must wait a reasonable time to allow the solicitor to be present at the interview. A solicitor will then usually ask to be put through to the suspect. Its customary first to confirm that the suspect does wish you to attend at the police station, particularly if the original instructions came from a third party. Most solicitors will then give the suspect some preliminary advice over the phone, which will normally involve advising the suspect not to say anything more to the police until the solicitor arrives. On arrival at the police station the solicitor will speak to the custody officer, the investigating officer and the client in that order. It is important to speak to the custody officer to find out on what basis detention without charge has been authorised, what state the suspect is in, and to review the custody record. Although some of this information may already have been given over the telephone, the custody officer may be more forthcoming in person. When reviewing the custody record its important to focus on whether the suspect has been treated in accordance with Code C- for example, have their rights been correctly explained to them and have they been given proper refreshment? Its important to establish these points at the outset, because if, there have been breaches of code C, this may allow the defendant to subsequently argue in court that any evidence obtained as a result of these breaches should be ruled inadmissible. The purpose of speaking to the investigating officer is to ascertain what evidence the police have obtained so far against the suspect. This is one of the factors influencing whether the suspect should answer police questions. The less evidence the police have, the more reason generally not to answer police questions, as to do so may give the police the evidence they need to charge the suspect. Its important to realise that the police are under no obligation at this stage to disclose what evidence they have against a suspect. In practice, however, the police will normally disclose some if not all of their evidence because if they dont its easier for the suspect to justify a refusal to answer police questions. The solicitor is now ready to meet their client, the suspect, armed with what they have learned from the custody and investigating officers. STAGE 5 Advising the Client: Case Analysis Before a solicitor can properly advise their client whether to answer police questions, they need to undertake some case analysis. The purpose of case analysis, as in civil litigation, is to be clear what must be proved both in fact and law if the client is to succeed at trial and be acquitted. In a criminal case you need to pose three separate questions. First, what will the prosecution have to prove in order to secure a conviction? Youll need to assess the substantive law relating to the relevant offence. For example, if your client has been accused of theft, the prosecution will have to prove beyond all reasonable doubt that they dishonestly appropriated property belonging to another with the intention of permanently depriving that other person of the property.

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Secondly, what evidence is there to prove each element of the offence? The solicitors analysis will be at this stage based on the disclosure obtained from the investigating officer. Thirdly, what is your clients defence, and what evidence is there to support that defence? Except in exceptional cases such as a defence of insanity, a defendant is not of course required to prove formally that their defence is true, but there must be some defence evidence to put the matter in issue. For example, in a theft case involving shoplifting, a suspect may assert that they simply forgot to pay for the item and therefore had no intention of permanently depriving anyone of it. Although it is for the prosecution to prove this is untrue, the defendant would first have to give evidence to this effect. STAGE 6 The Law Affecting the Right of Silence A suspect has a right to silence when being interviewed by the police. But refusal to answer police questions is far from risk free, because its possible in some circumstances for the prosecution to draw adverse inferences at trial from the accuseds silence when questioned under caution at the police station. The relevant law concerning adverse inferences is set out at sections 34, 36 and 37 of the Criminal Justice and Public Order Act 1994. Well look at section 35 later on in the course. First lets look at section 34. Take a moment to read through section 34 which is on screen now. PAUSE AND STOP The first thing to note about section 34 is that it applies generally to any proceedings. In contrast sections 36 and 37, apply only to certain specific situations which well see in a moment. Lets focus on the highlighted parts. First section 34 will only apply if the defendant has been questioned under caution. Weve already seen that paragraph 10.1 of code C makes it clear that if the police have grounds to suspect a person of an offence, the general rule is that they must caution that person before questioning them about the offence. If they dont section 34 wont apply. Secondly section 34 applies to the defendant who fails to mention any fact subsequently relied on in their defence. A simple example is the defendant charged with burglary who at trial proffers an alibi defence that he was at home watching TV when the offence was committed but did not mention this when questioned under caution. Remember that a defendant cannot be compelled to give evidence at trial. If they choose not to do so, section 34 cant apply because the defendant wont be raising any facts they failed to mention earlier. However, as well see later such a defendant is likely to be caught by section 35 of the same act. The consequence of failing to mention the facts is that the court or jury may draw such inferences from the failure as appear proper. Note that the reference to court or jury encompasses both trial in the magistrates and by jury in the Crown Court.
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The word may means that its not mandatory for inferences to be drawn and case law shows that inferences should only be drawn if the magistrates or jury are satisfied that, in the circumstances existing at the time of the interview, it would have been reasonable to expect the suspect to mention the relevant facts. The Court of Appeal held in the case of the crown against Argent that relevant circumstances included matters such as the time of day, the suspects age, experience, mental capacity, state of health, sobriety, tiredness, personality and legal advice. Thirdly, what is an appropriate inference? Case law confirms that there are two alternative inferences the Prosecution can properly ask the magistrates or jury to draw. Either the defendant subsequently fabricated the facts not mentioned at the interview or that the defendant could have mentioned the facts at the interview, but did not do so because they did not want their account subject to scrutiny. Lets turn our attention now to section 36. Please take a moment to look at the wording of section 36 on screen now. PAUSE AND STOP It may be wordy but its clear enough in its intended application- it would cover, for example, a suspect arrested on suspicion of assault occasioning grievous bodily harm, who is asked to account for bloodstains on their shirt but declines to reply. Although theres some overlap between section 34 and 36, unlike section 34, section 36 operates irrespective of any defence put forward by the defendant at trial. Itll therefore apply even if the defendant doesnt give any evidence. As with section 34, its not mandatory for the court to draw inferences. Whether it does draw inferences or not depends on considerations similar to those which apply to section 34. Section 36 paragraph 4 makes it clear that section 36 will only apply if the accused is told in ordinary language by the officer requesting the explanation the effect of failing to comply with the request. Code C paragraph 10.11 states what should be brought to the suspects attention. They must be told: what offence is under investigation what fact the suspect is being asked to account for that the officer believes this fact may be due to the suspects taking part in the commission of the offence in question that a Court may draw an inference from failure to comply with the request that a record is being made of the interview and that it may be given in evidence if the suspect is brought to trial

In effect this is a special caution over and above the normal caution. Lets look finally at section 37, which covers failure by the suspect to account for their presence at a particular place and which is shown in full on screen now. Please take a moment to read it through.
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PAUSE AND STOP An obvious example of the application of section 37 is where a suspect apprehended running down the road close to the scene of the crime, is arrested on suspicion of burglary. If the suspect is asked to account for their presence on the road and remains silent, section 37 will apply. Like section 36 but unlike section 34, section 37 will operate irrespective of any defence put forward at trial. As with sections 34 and 36 inferences are not mandatory. Finally as with section 36, section 37 can only apply if the accused has been told in ordinary language by the officer requesting the explanation the effect of failing to comply with the request. A warning under section 37 should be in the same terms to one given under section 36. STAGE 7 Activity The Law Concerning Adverse Inferences This next activity tests your understanding of the law concerning adverse inferences. Follow the instructions on screen to complete the activity and receive feedback. PAUSE AND STOP STAGE 8 Applying the Law in Order to Advise the Suspect Whether to answer police questions when interviewed at the police station is one of the most significant decisions a suspect will have to make. So its something any solicitor representing a client at a police station will be expected to advise on. Well be looking at the 4 different options open to a suspect, but first two important points to begin with. First the solicitor will be offering their advice but the ultimate decision whether to answer questions or not must be the clients and the clients alone. Secondly, the solicitor must be satisfied themselves that the client is in a fit state to be interviewed. Code C paragraph 12.3 anyway requires the custody officer in consultation with the investigating officer and appropriate health care officials to assess whether the suspect is fit enough to be interviewed and states that an interview should not take place if it would cause significant harm to the suspects mental or physical state. But if the solicitor is not satisfied the client is in a fit state to be interviewed, they must advise the police of this and have their objections recorded in the custody record. Of the clients 4 options in the interview, the 2 most straightforward are either to remain silent or to answer questions. The principal argument in favour of silence is that the suspect thereby avoids incriminating themselves. Remember that anything a suspect says in an interview is admissible in evidence against them at trial. This is why its so important for the solicitor to speak to the investigating officer and gauge the strength of evidence against the client. If the police do not appear to have enough evidence to establish a case to answer, then remaining silent may be the safest option as this

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will prevent the suspect giving the police more evidence. Its probably the most common reason to justify advising a client to remain silent. But there may be other reasons that justify a client remaining silent. If the solicitor takes the view that the client is not capable of answering questions, for example because they are in a vulnerable state, then silence will be the best option. Equally the matter may be too complicated, for example a complex fraud, to expect the client to be able to answer questions without reference to relevant documents, which wont generally be available at this early stage. Or in the case of an old offence, the relevant events may have taken place so long ago that the client cant be expected to remember the facts and by guessing, may incriminate themselves. But, as weve seen the major disadvantage of remaining silent is it may allow adverse inferences to be drawn at trial, provided the various safeguards in sections 34, 36 and 37 have been observed. So its always crucial to advise a client on the risk of adverse inferences being drawn. Conversely an argument in favour of a suspect answering police questions is to avoid the adverse inferences, which could otherwise by drawn. Indeed if the client has a compelling defence thats a positive reason to answer questions. If the police believe the defence put forward, then it is possible that no further action may be taken and your client will be released without charge. Even if this doesnt happen, theres still an advantage in placing your client's case on record early. A jury may be impressed by the fact that the defendant mentioned his defence, such as alibi or self defence, at an early stage. This allows a positive inference to be drawn and boosts credibility, providing of course the suspect is consistent with this defence at trial. If on the other hand the evidence overwhelmingly points to the clients guilt, it may be to their advantage to answer police questions. Then if the suspect does make admissions some mitigation of sentence can be gained if the court should accept that the suspect has cooperated fully with the police, saved police time and shown remorse. Further, in some less serious cases the client may escape with a caution by the police if they make admissions and avoid being charged and prosecuted altogether. The client could opt for a middle road and be what is known as selectively silent choosing to answer some questions but not others. In practice, however, this is a dangerous approach which few solicitors would be prepared to recommend. This is because the whole of the interview will be admissible in evidence at trial and the prosecution will inevitably seek to draw the inference with the magistrates or the jury that the client chose to answer only those questions for which they had a credible explanation. The final option is for the client to remain silent but to prepare a written statement. The written statement, which will be drafted by the solicitor on the clients instructions, and signed by them, will enable the client to set out their defence, such as an alibi, without being subjected to the pressure of police questioning.

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If a written statement is produced, there are two ways of handing the statement to the police. The first option is to hand in the written statement during the interview. If this is done, then on the authority of R v Ali and others the prosecution will not be able to draw adverse inferences at trial under sections 34, 36 or 37, provided that the statement contains all the facts relied on by the defendant at trial. The second option is to hand in the written statement only if the suspect is charged. This may be appropriate where the solicitor has doubts as to whether there is sufficient evidence to charge the suspect. In this situation handing the statement in prior to charge may give the prosecution the additional evidence needed to charge the defendant. If the suspect is charged and the statement is only handed in at this stage, this will avoid some inferences being drawn but not others. Section 34 sub-section 1(b) deals with matters which were not mentioned on being charged, so no inferences can be drawn under this sub-section but handing the statement in on being charged will not prevent inferences being drawn under section 34 sub-section 1(a), which covers failure to mention matters on being questioned nor will it prevent inferences being drawn under sections 36 and 37. STAGE 8 Preparing the Client for the Interview Once the solicitor has advised the client whether to answer police questions or not and the client has made their choice, the solicitor should prepare the client for the interview. This will generally involve explaining the procedure and advising the suspect on police tactics. In most cases, these are the most important points to get across: If the client has decided to remain silent, rather than just saying nothing they should use a stock phrase such as no comment. This stock response makes it easier for the client psychologically. Remember that the interview will be audibly recorded. This answer makes it clear that the client is exercising their right to remain slient, rather than thinking whether to reply or not. So an interview where the client remains silent is commonly referred to as a no comment interview. The client who wishes to remain silent should always be warned that the police will sometimes try to get a suspect talking by asking apparently innocuous questions like the suspects name and address, or to suggest the suspect has been poorly advised and things would be much easier for them if they did answer questions. They should therefore not answer any questions no matter how innocuous. It should be made clear to the client that the interview can be stopped at any time if the client wants further advice and that the client should make it clear to the police at the outset that they wish to exercise this right. The solicitor is present to protect the clients interests and will intervene in the interview as and when necessary. Its very important, however, for the client to realise that the legal adviser cannot answer questions on their behalf, and can be excluded from the interview if they attempt to do this.

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STAGE 9 The Solicitors Role at Interview Now lets look in a little detail at the course of a typical interview. Its conventional at the start of the interview for the solicitor to state on the record who they are and why they are there. And if the client has decided to give a no comment interview the solicitor will normally make this clear at the outset. If the solicitor does intervene in the course of the interview, the standard practice is to explain for the record why they are intervening. For example, if the solicitor intervenes in order to object to an improper question, they should first explain why the question is improper. For example it might be based on evidence of which the solicitor is unaware and on which they have therefore not been able to advise. The solicitor might then propose how the situation could be rectified. In our example they might state that the interview should be suspended in order for the police to disclose the further evidence and for the solicitor to advise their client on that evidence. The solicitor must of course always avoid overstepping the mark and intervening in such a way that theyre likely to be excluded from the interview. Code C note 6 D cites three circumstances in which a solicitor may properly intervene first in order to seek clarification of or challenge an improper question secondly to advise the client not to reply to a particular question thirdly to give the client legal advice

The same section of the code specifies that a solicitor may be excluded from an interview if their conduct prevents or unreasonably obstructs proper questions being put to the suspect. The code cites as examples of unacceptable conduct answering questions on a suspects behalf or providing written replies for the suspect to quote. STAGE 10 Activity Intervening in the Interview For the next activity you need to review the fictitious extracts of a transcript of a police interview with your client, and decide whether you should intervene and if so what you should say. Your client is accused of burglary of a dwelling house Assume that prior to interview the investigating officer wasnt prepared to disclose any evidence against your client, apart from the fact they had been spotted by the next door neighbour, and also that your client has decided to give a no comment interview. Follow the instructions on screen to complete the activity and view the correct answer. PAUSE AND STOP STAGE 11 Identification Procedures After interview, unless the suspect admits in the interview they were present at the scene of the crime, the police will want to carry out an identification procedure to see whether they can link the suspect with the scene of the crime. Although it may sometimes be possible to

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use CCTV evidence, in most cases where identification needs to be proved, the police will need to use a formal identification procedure. Code D Para. 3.12 explains when an identification procedure must be used. Take a moment to read through the extract from the code on screen now. PAUSE AND STOP The four formal identification procedures prescribed by code D are: video identification- the witness is shown moving images of the suspect together with similar images of 8 other people who resemble the suspect an identification parade- the witness sees the suspect in a line of other people who resemble the suspect group Identification- the witness sees the suspect in an informal group of people but outside of the controlled environment of the police station identification or ID parade - group identification may, for example, take place at a railway station or a shopping arcade confrontation- the witness is taken to the suspect and asked whether the suspect is the person in question

Code D, Para 3.14 states that if, because of paragraph 3.12 an identification procedure is to be held, the suspect shall initially be offered either a video identification or identification parade unless: (a) (b) a video identification is not practicable; or an ID parade is both practicable and more suitable than a video ID

The ID officer, who is the officer responsible for the identification procedure and must not be involved in the actual investigation of the offence, and the investigation officer, shall consult each other to determine which option is to be offered. A video ID would normally be more suitable if it could be arranged and completed sooner than an ID parade. Code D paragraph 3.14 gives the police discretion to choose the type of ID procedure to be used. It effectively places video ID and ID parade on the same level. Because Video IDs are cheaper and easier to organise, the police will generally opt for a Video ID as their procedure of choice. A solicitor will be expected to advise a client who is offered either a video ID or an ID parade how to respond. Typically a solicitor would advise a suspect to agree to participate in whichever one of these procedures is offered because: The prosecution can draw adverse inferences at trial from a suspects refusal to take part in an ID procedure. Furthermore, if a suspect does refuse, the police are entitled to use less favourable methods of identification such as group identification or confrontation. These methods are generally considered to be less favourable because its more likely that a witness will positively identify the client, particularly in a confrontation, where theres only one person to consider.

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STAGE 12 - Outcomes That concludes this i-Tutorial. Take a moment to look at the outcomes on screen to make sure you are happy you have achieved them. You should now be able to: identify the importance of and explain ss34, 36 and 37 CJPOA 1994 identify the relevant arguments as to whether a suspect should or should not answer police questions explain the role of the solicitor in an interview at the police station

explain the identification procedures that are open to the police

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