CRIMINAL PRACTICE- PROCEDURES/PROCESS AT POLICE STATION- Chapter 1

Question 1

Different codes of conduct for processes/procedures at police station:

Answer 1

Part 1= Police and Criminal Evidence (PACE) Act 1984.

Code C =Code of Practice to PACE for the Detention, Treatment and Questioning of Persons by Police Officers.

Code D = Code of Practice for the Identification of Persons by Police
Officers.

Code E = Code of Practice on Audio Recording Interviews with Suspects

Code F = Code of Practice on Visual Recording with Sound of Interviews with Suspect

Question 2

general rule for suspects arrested other than at police station:

Answer 2

must usually be taken to the
police station ‘as soon as is practicable after the arrest’ (s 30(1A)) unless the arresting officer decides to grant ‘street bail’.

Code C: ‘all persons in custody
must be dealt with expeditiously, and be released from the police station as soon as the need for detention no longer applies’.

Question 3

Who is a custody officer and what are their responsibilities?

Answer 3

CO= a police officer holding at least the rank of sergeant, who should not be involved in the investigation of the offence for which the suspect has been arrested

• arrested suspect must be brought before custody officer upon arrival at PS- ‘as soon as practicable.’

CO= responsible for:
- r authorising the detention of the suspect
- supervising their welfare whilst in police custody
- opening and then maintaining a custody record for each suspect who has been arrested and brought to the police station
- inform suspect of ongoing rights

Question 4

What must CO include in custody record for arrested suspect?

Answer 4

(a) the suspect’s name, address, telephone number, date of birth and occupation

(b) the offence for which the suspect has been arrested and why the arresting officer
considered it necessary to arrest the suspect (Code G, para 4.3)

(c) the time of the suspect’s arrest and the time of their arrival at the police station;
(d) the reason why the suspect’s ongoing detention at the police station has been authorised by the custody officer

(e) the time such detention was authorised

(f) confirmation that the suspect has been given details of the rights they may exercise whilst detained at the police station (see below), and whether they have requested legal advice from a solicitor

(g) details of the items of property the suspect has on their person, and details of any
medical condition they suffer from

h) detention log- a record of all the
significant events that occur whilst the suspect is in police custody.

Question 5

When can CO exercise right of search of detained person?

Answer 5

Section 54(3): allows the CO to seize and retain any items the suspect has on their
person.
- Items of clothing and personal effects may be seized only if CO has reasonable grounds for believing that they may be evidence
- E.G. a blood-soaked shirt

OR

if the custody officer believes that the suspect may use them:

(a) to cause physical injury to themself or others;
(b) to cause damage to property;
(c) to interfere with evidence; or
(d) to assist them to escape (Code C, para 4.2).

E.G. pen-knife, key, sharpened comb, razor blade- also shoelaces, ties, belts

Question 6

when is a decision to detain a suspect made?

Answer 6

• after opening custody record and informing suspect of their rights

Question 7

How is decision to detain suspect made?

Answer 7

• CO determines where already ‘sufficient evidence’ to charge the suspect with the offence arrested for by asking investigating officer for details of the evidence that already exists against the suspect.
• if no evidence, IO proposes steps to take if further detention before charged= authorised- e.g. investigative procedure lie audibly recorded interview with suspect OR ID procedure

Question 8

What happens if there is evidence against suspect at stage of arrest?

Answer 8

• suspect should be charged straight away, and either:
• released on bail to appear before the magistrates’ court on a later date
  OR
• remanded in police custody until they
  can be brought before the magistrates’ court.

Question 9

What happens if there is NO sufficient evidence to charge suspect immediately?

Answer 9

suspect should be released either on bail or without bail, unless grounds for detention are met:

(a) the custody officer has reasonable grounds for believing that detaining the suspect without charge is necessary to secure or preserve evidence relating to an offence for which they are under arrest

(b) it is necessary to obtain such evidence by questioning (s 37(2)

Question 10

When must detained suspect be released immediately?

Answer 10

• If the custody officer becomes aware at any time that the grounds on which a suspect’s
  detention was authorised have ceased to apply

Question 11

Conditions for detention?

Answer 11

cell of suspect must be adequately:
- heated
- cleaned
- ventilated
- lit
- bedding must be reasonable standard and clean/sanitary
- access to toilet/washing facilities
- two light meals and one main period per 24 hour period
- drinks at mealtimes and upon reasonable request between meals
- offered brief outdoor exercise daily if practicable
- should be visited in cells at least every hour
- if suspect injured, suffering from physical/mental illness, needs clinical attention, CO must arrange to ensure suspect receives clinical attention as soon as reasonably practicable

Question 12

What are suspect’s ongoing rights which are exercised at any time while suspect in custody?

Answer 12

(a) the right to have someone informed of the suspect’s arrest (s 56)

(b) the right for the suspect to consult privately with a solicitor (the suspect must be told that free, independent legal advice is available; s 58)

(c) the right to consult the Codes of Practice.

d) to be informed about offence/any further offences for which they are arrested, and why they have been arrested/detained

Question 13

Procedure for enacting suspect’s right to legal advice?

Answer 13

• unless a suspect asks for legal advice to be paid for privately, the police must contact the Defence Solicitor Call Centre (DSCC) – even if the suspect has asked for a named solicitor or firm.
• The DSCC will then determine whether the case is such that telephone advice is sufficient or whether a solicitor should attend

telephone advice= free through Criminal Defence Direct (CDD)

• suspects may have to pay for a phone call to own solicitor

NOTE : Code C: police cannot dissuade suspect from obtaining legal advice

Question 14

When can suspect right to legal advice be delayed?

Answer 14

• MUST be authorised by officer of a least rank of superintendent
• max delay = 36 hours
• authorised ONLY when suspect has been arrested for indictable offence, AND if officer has reasonable grounds for believing that the exercise of this right, at the time when the suspect wishes to exercise it, will:

(a) lead to interference with or harm to evidence connected with an indictable offence, or interference with or physical injury to other persons
OR
(b) lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it
OR
(c) hinder the recovery of any property obtained as a result of such an offence (s 58(8)

Question 15

Case authority: guidelines police must follow when determining whether to delay suspects access to legal advice:

Answer 15

R v Samuel:
- the accused was denied solicitor advice 3 times before he eventually confessed to robbery
- later submitted that this confession should not be admitted because refusal to access to solicitor was unjustified
- HELD- in agreement with above and conviction was squashed

PRECEDENT:
- officer must have subjective belief that consultation with a legal adviser will result in one of above 3 conditions

Question 16

Suspect’s right to have someone informed of arrest:

Answer 16

• can be one friend of relative known to suspect who is likely to take interest in his welfare
• must be told as soon as practicable

Question 17

Requirements for delaying the suspects right to have someone informed?

Answer 17

• delay must be authorised by officer of at least rank of inspector
• can ONLY be authorised when
  the suspect has been detained for an indictable offence
• length of delay can be max 36 hours from ‘relevant time’
• authorisation may be given orally but must be confirmed in writing as soon as practicable

Question 18

On what grounds can police officer authorise delay for suspect to have someone informed of arrest?

Answer 18

s56:

if they believe telling someone else of the arrest will:

(a) lead to interference with or harm to evidence connected with an indictable offence, or interference with or physical injury to other persons;

(b) lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or

(c) hinder the recovery of any property obtained as a result of such an offence

Question 19

examples of indictable offences?

Answer 19

= most serious category of criminal offences dealt with in Crown court

examples:
- murder
- rape
- manslaughter
- robbery
- possession of firearm
- causing death by dangerous driving

Question 20

What are the time limits on how long a suspect can be detained at police station?

Answer 20

initial maximum period of detention before charge= detention clock

s41: a person ‘shall not be kept in police detention for more than 24 hours
without being charged’.

24 hour period begins at the ‘relevant time’

Question 21

How is the ‘relevant time’ determined?

Answer 21

(a) in the case of a person attending voluntarily at the police station who is then arrested at the police station, RL= the time of their ARREST

(b) in the case of a person who attends a police station to answer ‘street bail   ’ granted under s 30A, RL= the time when they ARRIVE at the police station

(c) in the case of a suspect who has been arrested away from the police station, RL= generally the time when the suspect ARRIVES at the first police station to which they
are taken after their arrest

Question 22

When can police extend maximum period of detention?

Answer 22

s42:
- can extend up to 36 hours from relevant time if an AUTHORISED officer of rank of SUPERINTENDENT or above has reasonable grounds for believing:

(a) the detention of the suspect without charge is necessary to secure or preserve evidence relating to an offence for which the suspect is under arrest, or to obtain such evidence by questioning them;

(b) the offence is an indictable offence (ie an either-way or an indictable-only offence);
- but not SUMMARY offences- e.g. common assault

(c) the investigation is being carried out diligently and expeditiously

Question 23

examples of either-way offences:

Answer 23

• Theft and handling stolen goods
• Burglary
• Assault occasioning actual bodily harm (ABH)
• Fraud
• Dangerous driving
• Possession of drugs with intent to supply

Question 24

can detention be extended beyond 36 hours?

Answer 24

• yes- but police needs to obtain warrant of further detention from magistrates court
• can be up to 72 hours detention

conditions:
a) the suspect’s detention without charge is necessary to secure or preserve evidence
relating to an offence for which they are under arrest, or to obtain such evidence by
questioning them; and

(b) the investigation is being conducted diligently and expeditiously

a FURTHER extension until 96 hours can be obtained under s44

Question 25

What is a detention review/ review clock?

Answer 25

- requirement for police to t carry out periodic reviews of the suspect’s detention to ensure that the grounds on which the detention was initially authorised by the custody officer are still applicable - otherwise detention = unlawful

Question 26

When do detention reviews take place and by who?

Answer 26

Reviews of detention that take place before a suspect is charged are carried out by an officer of at least the rank of inspector who is not directly involved in the investigation = the review officer - first review must take place no later than six hours after the custody officer first authorised the detention of the suspect (NOT six hours after suspect first arrived at the police station). - The second review must take place no later than nine hours after the first review. - Subsequent reviews must take place at intervals of not more than nine hours

Question 27

What are the rights of a volunteer entering a police station?

Answer 27

If the police do not have sufficient evidence to arrest a suspect, or where an arrest is not necessary (e.g. where a suspect has indicated a willingness to assist the police with their investigation), they may ask that person to attend voluntarily at the police station to answer questions. rights- s29: - no obligation to attend as a volunteer - can leave at any time unless formally arrested - can request a friend or solicitor is present at interview - if volunteer makes admissions that give police grounds to arrest them, they can be arrested

Question 28

role of a solicitor when a suspect has been arrested in police station?

Answer 28

- only role in the police station is to protect and advance the legal rights of their client. - e.g. give advice helps client avoiding giving evidence which strengthens the prosecution case.

Question 29

does suspect have right to remain silent when being asked questions at police station

Answer 29

yes

Question 30

3 key sources available to a solicitor who attends the police station to represent a suspect:

Answer 30

* The custody officer (and the custody record) * The investigating officer * The client

Question 31

what info does solicitor representing suspect at police station need to obtain from custody officer?

Answer 31

(a) the alleged offence(s) for which the client has been arrested; (b) the time at which the custody officer authorised the client’s detention and the reason such authorisation was given (ie was detention authorised to obtain or preserve evidence and/to obtain such evidence by questioning); (c) any significant comments made by the client whilst at the police station (e.g. an admission of guilt) (d) any samples, fingerprints or impressions of footwear which may already have been taken from the client; (e) any identification procedure which may already have taken place (f) any interview which may already have taken place at the police station (if, e.g, the client has decided to obtain legal advice only after already having been interviewed by the police); (g) whether the client is under any form of physical or mental disability, or requires the attendance of an appropriate adult; (h) any illness which the client may be suffering from, or any indication that the client is in any way vulnerable or requires medical treatment (or details of any medical treatment which the client has already received whilst at the police station). - solicitor should find out if the client is suffering from the effects of drink and/or drugs; (i) any significant items found as a result of a search either of the client’s person, or of any premises owned, used or occupied by the client or premises where the client was arrested (e.g. , items it is alleged the client has stolen or used in the commission of the offence); and (j) if the client has already been at the police station for six hours or more, details of any detention reviews which have been carried out and the reason why the client’s continued detention has been authorised

Question 32

What info does solicitor need to find out from investigating officer?

Answer 32

(a) disclosure (the facts of the offence and the evidence supporting those facts); - solicitor must know what client is alleged to have done which = criminal offence - police not obligated to provide solicitor evidence against client but provides summary of witness statements obtained - solicitor should push IO to disclose as much as possible about case against their client- i.e. if police have any other evidence - types of evidence = forensic i.e. samples/fingerprints, CCTV or items i.e. drugs, weapons (b) significant statements and/or silence; - e.g. admission on arrest- if so, police needs to ask client at interview if they confirm or deny saying this (c) the next steps the investigation officer proposes to take - e.g. will client be interviewed straightaway, OR will identification process take place, OR fingerprints and samples provided?

Question 33

What should a solicitor do if investigating officer refuses to disclose information about client?

Answer 33

- solicitor must point out that they cannot properly advise client as to nature of case against them - this can affect solicitors advice to client about whether to not to answer questions in interview.

Question 34

What assists a solicitor in obtaining disclosure from IO?

Answer 34

- Code C: - Solicitor must be given sufficient information to enable them to understand the nature of any such offence, and why they are suspected of committing it - but does not require the disclosure of details at a time which might prejudice the criminal investigation- in this case, up to the IO what to disclose

Question 35

What matters does solicitor need to discuss with client after obtaining info from officers?

Answer 35

1. ) The solicitor’s identity and role: - must make clear they are there to provide the client with free, independent legal advice and that they have no connection with the police - only role at the police station will be to protect and advance the client’s legal rights - anything they are told by the client will remain confidential (even after the solicitor has stopped acting for them) 2. details of alleged offence: - level of information the solicitor can give to the client will depend upon the level of disclosure given by the police - solicitor should advise the client as to what the police will need to prove in order to obtain a conviction for the offence for which the client has been arrested 3. clients instructions: - solicitor should then get the client’s version of event - then solicitor should take detailed instructions from the client- i.e. what they approach they want solicitor to take - . Any advice which the solicitor subsequently gives to the client will be based on this information 4. next step in police investigation 5. prepare for the client interview- involves: (i) advising the client on whether or not to answer questions in interview (ie advising the client what is the ‘safest option’ in the interview); (ii) preparing a written statement on the client’s behalf if the client is to give a ‘no comment’ interview, but hand the statement to the police so that their defence is put ‘on record’ (iii) advising the client how the interview will be conducted by the police (iv) advising the client what role the solicitor will play in the interview

Question 36

what are the clients options in an interview?

Answer 36

4 options: * to answer all the questions put to them; * to give a ‘no comment interview’ * selective silence, where the client answers some questions but not others; * to give a ‘no comment interview’, but either during the interview or before being charged, hand a written statement to the police setting out facts the client will rely upon in their defence at trial

Question 37

pros and cons of option 1: answer all questions:

Answer 37

PROS: - allows the client to put his version of events on record straight away shows the client told a 'consistent' story from start - important if the client is raising a specific defence which imposes an evidential burden on them, e.g. as self-defence or the defence of alibi (accused being elsewhere when offence happened) - if clients defence= strong, answering all q's may mean no further investigation - ensures that at trial, the court or jury will not be allowed to draw adverse inferences against the client (i.e. assume client was silent as they were hiding something) - if client admits guilt early on rather than later, may lead to reduction in sentence CONS: - many suspects will either say something incriminating or make comments which undermine their credibility- esp as suspects are in emotional condition - if solicitor does not consider that the police have made a full disclosure of their case, it is a risky to advise the client to answer questions in the interview. The client is likely to be caught out when the police raise a matter which was not disclosed to their solicitor

Question 38

Pros and cons of option 2: staying silent:

Answer 38

PROS: - no danger of the client incriminating themself by making any admissions, or giving the police evidence which they would not otherwise have obtained. - if case against client is weak, best to stay silent as that means police doesn't have much evidence against client, and will try to obtain evidence in the interview. CONS: - magistrates or jury may draw adverse inferences under s34, 26 , 27 CJPOA from client's silence - if client tries to raise a defence at trial, court/jury entitled to conclude the defence= sham and was fabricated by D after they left police station when they had a chance to get their story straight.

Question 39

When would a solicitor advise client to give a no comment interview?

Answer 39

- if client admits their guilt to solicitor and case against client is weak - means police do not have sufficient evidence to prove allegation - if answering in this case, client may give a damaging admission, giving police evidence to charge - can lead police to not investigate further if no admissions made by C other times: (a) the solicitor considers that the police have not provided adequate disclosure of the evidence against the client (b) the solicitor considers that the police may attempt to ‘ambush’ the client during the interview by revealing a piece of evidence which they had not disclosed to the solicitor in advance of the interview (c) the client denies involvement in the offence and the police do not currently have sufficient evidence to charge the client (d) the client is physically or mentally unfit to be interviewed (if, for example, the client is suffering from the effects of drink or drugs), or the solicitor considers that the client would fail to give a good account of their case in interview because the client is distressed/tired -e.g. if the interview is to take place late at night, the client has been at the police station for a number of hours before the interview takes place, or the client has been involved in an upsetting incident (e) the client is likely to perform badly in interview due to his: (i) age- young or elderly (ii) lack of maturity (iii) psychological vulnerability or (iv) previous inexperience of police detention and questioning. (f) the facts of the case are so complex/so long ago that the client can't provide an immediate/accurate response to the allegations. - e.g. fraud cases- questions about complex financial matters (g) although the client says they did not commit the offence, the client does not have a viable case or defence. (h) where the client has other good personal reasons for remaining silent e.g. if the client would suffer extreme embarrassment if they were to tell the police what actually happened.

Question 40

what should solicitors warn clients when advising to give a no comment interview?

Answer 40

potential for court to draw adverse inferences from silence at subsequent trials - full written note of the reasons for this advice must be made by solicitor

Question 41

Should solicitors advise selective silence?

Answer 41

- generally NO - Appears to the magistrates or the jury that the defendant has something to hide and is refusing to reply to those difficult questions for which they have no satisfactory answer

Question 42

When may a written statement be made?

Answer 42

- if the solicitor considers that the client needs to place their version of events on record to avoid an adverse inference being drawn at trial, but is concerned that the client may perform badly if they answer questions in interview - e.g. if client has positive defence like self defence or alibi - likely the case for young, emotional or never previously arrested - if written statement handed in, solicitor advises client to give no comment interview

Question 43

what should the statement contain?

Answer 43

- all the facts - the client's defence - matters about which the police might also ask the client in interview and which may at trial be the subject of an adverse inference

Question 44

When should the statement be handed in to the police?

Answer 44

either during the interview, or just prior to charge OR even kept on the client’s file and not disclosed at either of these stages. - if solicitor feels police case is weak, better to hold back handing in statement until police decide to charge client (but before formally charged ^ handing in earlier may give police extra info and make them change the charge- e.g. statement may include partial admission

Question 45

when would a solicitor take statement from client but not hand to police and just keep it on client's file?

Answer 45

when the solicitor has doubts as to the accuracy of clients instructions and are reluctant to disclose this defence to the police because they believe the facts put forward by the client either will not stand up to scrutiny, or may ‘change’ later in the case. - prevents court drawing inference that clients defence= fabricated after leaving police station but may invite other adverse inferences- e,g. defendant was not confident in their defence to expose it to police scrutiny OR they had not thought up all the details of this defence at the time of the interview

Question 46

steps investigating officer can take to secure evidence while suspect is detained at police station:

Answer 46

(a) carrying out an audibly recorded interview with the suspect about the suspect’s alleged involvement in the offence (b) arranging for an identification procedure to be conducted by another officer to see if a witness to, or a victim of the offence is able to identify the suspect (c) taking fingerprints from the suspect to see if these match fingerprints found at the scene of the crime, or on any relevant objects or articles which the police have recovered (d) taking samples from the suspect to see if these match any samples obtained during the course of the police investigation

Question 47

What codes do police interviews have to comply with?

Answer 47

- Codes C and E

Question 48

How are police interviews recorded?

Answer 48

- normally be recorded on two or three tapes/discs or as one digital recording

Question 49

definition of interview?

Answer 49

Code C: the questioning of a person regarding their involvement or suspected involvement in a criminal offence or offences which must be carried out under caution.

Question 50

Who should not be interviewed under Code C?

Answer 50

suspects who are unable to: (a) appreciate the significance of questions or their answers; or (b) understand what is happening because of the effects of drink, drugs, or any illness, ailment or condition

Question 51

Can a suspect be interviewed before receiving legal advice?

Answer 51

general rule= no, if suspect has indicated they need legal advice - even if initially suspect indicates they dont need legal advice and later change their mind mid interview, police must stop interview and allow them access to LA

Question 52

Exceptions to general rule of allowing legal advice before interview:

Answer 52

European Convention on Human Rights: (a) Section 58(8) allows the police to delay a suspect receiving legal advice for up to 36 hours. If exercised, police may want to interview suspect prior to legal advice (b) If the solicitor the suspect has asked to speak to either cannot be contacted or has declined to attend the police station, and the suspect has then declined the opportunity to consult the duty solicitor (c) If a suspect asks for legal advice and changes their mind about this, the police may interview the suspect, provided: (i) an officer of the rank of inspector or above speaks to the suspect to enquire about the reasons for their change of mind, and makes reasonable effort to ascertain the solicitor’s expected time of arrival and to inform the solicitor that the suspect changed mind and reason for it; (ii) the suspect’s reason for the change of mind and the outcome of the efforts to contact the solicitor are recorded in the custody record; (iii) the suspect, after being informed of the outcome of the efforts, confirms in writing that they want the interview to proceed without speaking to a solicitor- by signing an entry to this effect in the custody record; (iv) an officer (inspector rank or above) gives authority in writing for the interview to proceed without legal advice - and if the authority is not recorded in the custody record, the officer must ensure that the custody record shows the date and time of the authority - and takes reasonable steps to inform the solicitor that the authority has been given (v) when the interview starts and the interviewer reminds the suspect of their right to legal advice, the interviewer shall then ensure that the following is recorded in the interview record: (1) confirmation that the detainee has changed their mind about wanting legal advice or about wanting a solicitor present, and the reasons for it if given; (2) the fact that authority for the interview to proceed has been given; (3) that if the solicitor arrives at the station before the interview is completed, the detainee will be so informed without delay, and a break will be taken to allow them to speak to the solicitor if they wish

Question 53

What should police officer tell client before an interview begins?

Answer 53

1. caution: - 'You do not have to say anything, but it may harm your defence if you do not mention when questioned something which you later rely on in court. - Anything you do say may be given in evidence.' 2. The continuing right to legal advice: - even if the suspect has a solicitor present at the interview 3. THEN- e interviewing officer must then put to the suspect ‘any significant statement or silence which occurred in the presence and hearing of a police officer: - interviewing officer must ask the suspect whether they confirm or deny that earlier statement or silence - significant statement= capable of being used in evidence against the suspect at trial- e.g. guilt admission - significant silence= failure or refusal to answer a question which might allow the court to draw adverse inferences from that silence at trial

Question 54

what happens if police officer fail to put to a suspect at the start of the interview a significant statement or silence made outside the police station?

Answer 54

contents of that statement/silence being ruled inadmissible at trial

Question 55

Conduct of police interview:

Answer 55

Code C: ‘No interviewer may try to obtain answers or elicit a statement by the use of oppression' oppression= if PO: (a) raises their voice or shouts at the suspect; (b) makes threatening gestures towards the suspect; (c) leans towards the suspect so that they are ‘in the suspect’s face’; (d) stands over or behind the suspect; or (e) threatens to detain the suspect indefinitely unless they make a confession -officer also cannot make inducements to client to make them admit guilt- e.g. tell them they may have a shorter police detention

Question 56

when must an interview cease?

Answer 56

When the IO is satisfied all questions relevant to obtaining accurate/reliable info about the offence have been put to the suspect - includes allowing the suspect an opportunity to give an innocent explanation - asking questions to test if the explanation is accurate and reliable, OR - IO/ custody officer reasonably believes there is sufficient evidence to provide a realistic conviction for that offence

Question 57

timings of interview:

Answer 57

if interview= more than a day, in any 24 hour period, suspect must be given continuous period of 8 hours rest - should also be breaks from interviews at mealtimes - short refreshments every 2 hours

Question 58

what happens if interview conduct= breached

Answer 58

at any subsequent trial the court may rule inadmissible any admission or confession made by the defendant in that interview

Question 59

how solicitors should prepare client for interview?

Answer 59

must explain: (a) The interview will be audibly recorded and all parties must identify themselves at start (b) The interview may be stopped at any time if the client requires further legal advice from the solicitor. (c) The solicitor will be present in the interview to protect the client’s interests, and will intervene if police questioning is inappropriate, or considers that the client would benefit from further legal advice in private. (d) If the client is to remain silent in the interview, they should say ‘no comment’ in answer to all the questions which are put to them. (e) A client who is to remain silent should be advised that the police will often employ certain tactics to get them to talk. In particular the police may: (i) try to get the client to talk by asking apparently innocuous questions that have nothing to do with the offence under investigation; (ii) try to alienate the client from the solicitor by suggesting that the legal advice they have received from their solicitor is incorrect; or (iii) warn the client that certain adverse consequences may arise unless they answer questions. - solicitor should tell client to ignore such tactics and to maintain their silence. (f) If the client is advised to answer questions in the interview, the solicitor should remind them not to ‘lose their cool’ or make personal attacks on others during the interview- may enable the prosecution to adduce evidence of the suspect’s previous convictions at his trial

Question 60

seating arrangements at interview:

Answer 60

- solicitor allowed to sit next to client and allowed to make eye contact with client during entire interview

Question 61

What does a solicitor do during interview?

Answer 61

- intervene to improper questioning/ seek clarification - give client further advice

Question 62

what solicitors should include in their opening statement at start of interview:

Answer 62

- their role in the interview - when they can intervene - what client has decided to do after seeking advice (e.g. remain silent or answer)

Question 63

when can solicitor intervene in interview?

Answer 63

(i) the questioning techniques employed by the police are inappropriate or improper; (ii) the police are behaving in an inappropriate manner; or (iii) the client would benefit from further (private) legal advice

Question 64

when can solicitor be removed from interview?

Answer 64

- if they unreasonably obstruct questioning e.g.: - answering questions on behalf of suspect - providing written replies for suspect to quote rank of superintendent or above must decide if solicitor removed

Question 65

What should a solicitor do when client admits guilt to them?

Answer 65

- must advise client they cannot attend interview with them and represent them IF client intends to deny offence in the interview - otherwise- breach of solicitor's duty to not mislead court - BUT solicitor CAN attend interview if client has admitted guilt but intends to give no comment- this is not giving false information - should also advise client not to lie in interview - advise client that if they admit guilt in interview, they receive credit from court for cooperating with police when later sentenced.

Question 66

if a solicitor no longer acts for a client after client admits guilt, can solicitor tell the police this?

Answer 66

- NO- solicitor cannot tell police why they can no longer act due to duty of confidentiality owed to client - they usually say 'for professional reasons'

Question 67

Who's responsibility is it to determine conflict of interest between solicitor and client?

Answer 67

responsibility of the solicitor to determine whether a conflict of interest exists - If the custody officer suggests there is a conflict, the solicitor should ask the officer to clarify why they this this- BUT stress that ultimately it is the decision of the solicitor alone as to whether a conflict exists- not the police

Question 68

Steps solicitors should take to determine conflict of interest:

Answer 68

* after speaking to IO, solicitor should speak to one of the suspects (usually the first suspect to have requested the solicitor’s attendance at the police station). - If that suspect’s account suggests a clear conflict of interest (e.g. suspect denies guilt and accuses the other suspect of having committed the offence), the solicitor should decline to act for the second suspect and inform the police that this suspect should receive separate legal advice. - To act for both = breach of para 6.2 SRA code of conduct - a solicitor must not act where there is a conflict of interest between two or more clients or a significant risk of a conflict.

Question 69

when can conflict of interest arise for solicitor acting for suspect?

Answer 69

- usually if there are 2 or more suspects who are jointly alleged to have committed an offence - e.g. suspect denies guilt and accuses the other suspect of having committed the offence

Question 70

what if conflict of interest emerges only after both suspects are seen by solicitor?

Answer 70

* Even if there is no obvious conflict of interest at start, the solicitor should be alert to a potential COI arising later in the case- e.g. if both suspects admit the offence but, when the case comes to court, the mitigation for one of the suspects is going to be that they only played a minor role in the commission of the offence and that the larger role was played by the other suspect, and this is something the other suspect disputes. * If COI emerges only after the solicitor has seen both suspects, solicitor should withdraw from case completely. - to continue acting for both suspects = clear conflict of interest. - also solicitor would be in possession of confidential information from the other, which could not be passed on to the one whom the solicitor was continuing to represent. Only if the solicitor is able to act for one client without putting at risk their duty of confidentiality to the other may they continue to represent that first client (SRA Code of Conduct, para 6.3). - This is unlikely to be the case, because the confidential information received from the other is likely to assist the client the solicitor is continuing to represent - ALSO the solicitor = under a duty to disclose all relevant information to the remaining client – SRA Code of Conduct, para 6.4)

Question 71

Should a solicitor disclose to one client information they have been given by another client?

Answer 71

If a solicitor decides that there is no COI and they are able to represent both suspects, they must STILL not disclose to one client anything they have been told by the other for duty of confidentiality unless: (a) the solicitor has obtained the other client’s consent (preferably in writing) to disclose this information (ie the client waives their right to confidentiality); (b) both clients are putting forward consistent instructions; and (c) the solicitor considers it in their clients’ best interests for the information to be disclosed

Question 72

how can solicitor maintain duty to not mislead the court when representing two or more suspects?

Answer 72

- Co-accused suspects solicitor may attempt to use that solicitor to pass information between each other so that they can jointly fabricate a defence and give the police a consistent ‘story’. - To guard against this, solicitor should ensure that before telling the second client what they have been told by the first client, they obtain an account of the second client’s version of events. - If this is consistent with the account given by the first client, the solicitor will then be able to pass on the relevant information (provided the first client has authorised this). - If the stories are inconsistent, the solicitor will need to withdraw from the case - inappropriate for the solicitor to continue to act for just one of the clients because they would be in possession of confidential information about the other and yet also under a duty to disclose it

Question 73

When can a solicitor disclose client's case to third party?

Answer 73

- if another solicitor representing co-accused for the same offence asks solicitor for info about their client's defence, solicitor cannot disclose any info due to DOC UNLESS - in best interests of their client - BUT, if so, solicitor must first explain this to their client and obtain their consent (ideally in writing) before disclosing

Question 74

The solicitor’s duty of disclosure to a client- and exceptions:

Answer 74

Para 6.4 of the SRA Code of Conduct: - requires a solicitor to make the client aware of all material information of which the solicitor has knowledge exceptions: * disclosure is prohibited by national security or the prevention of crime; * the client gives informed consent (in writing) to the information not being disclosed; * you have reason to believe that serious physical or mental injury will be caused to the client or another if the information is disclosed; and * the information is contained in a privileged document that has been mistakenly disclosed to you.

Question 75

What steps should solicitor take when they withdraw from acting for client?

Answer 75

(a) explain to the client why they are no longer able to represent them; (b) tell the client that they are entitled to free legal advice from another solicitor of their choice or the duty solicitor; (c) tell the client that, although they are no longer able to represent them, the solicitor still owes them an ongoing duty of confidentiality and will not therefore tell the police why they are unable to act; and (d) tell the custody officer that they are no longer able to act (for professional reasons), but not disclose the reason why- they disclose= breach of the ongoing duty of confidentiality owed to the former client under para 6.3 of the SRA Code of Conduct

Question 76

If a client initially requests legal advice before an interview but later changes mind and wants to be interviewed without legal advice, what safeguards need to be met?

Answer 76

* this officer speaks to the suspect to enquire about the reasons for their change of mind, and makes reasonable efforts to contact the solicitor; * the suspect’s reason for the change of mind and the outcome of the efforts to contact the solicitor are recorded in the custody record; * the suspect confirms in writing that they want the interview to proceed without first obtaining legal advice by signing an entry to this effect in the custody record; and * the officer of the rank of inspector or above is satisfied that it is proper for the interview to proceed in these circumstances and gives authority in writing for the interview to proceed