Preparing the client for interview

Question 1

Advantage of a client answering all questions in interview

Answer 1

• allows the client to put their version of events on record straight away;
• the credibility of their evidence at trial will be boosted if it can be shown that the client placed their defence on record at the earliest opportunity, and have told a consistent ‘story’ throughout;
• lower chance of jury drawing adverse inferences.

Question 2

Benefits of answering all questions in interview if they are guilty

Answer 2

when determining the reduction in sentence a defendant will receive for entering an early guilty plea, the court may consider that the defendant should have indicated a willingness to plead guilty when interviewed at the police station.

Question 3

Disadvantages of answering all qs in interview

Answer 3

• incriminating themselves;
• could be tripped up by the interviewer;
• If the suspect is subsequently charged with the offence and pleads not guilty, a transcript
  of the interview record will be read out at court

Question 4

4 options for the suspect in interview

Answer 4

(1) answer all the questions put to them;
(2) give a ‘no comment interview’;
(3) selective silence
(4) ‘no comment interview’ with a written statement

Question 5

Advantages of remaining silent

Answer 5

• no danger of self-incrimination;
• no danger of inadvertently giving the police evidence;
• the police may not have sufficient evidence to charge.

Question 6

Disadvantages of remaining silent

Answer 6

• if the client is subsequently charged and pleads not guilty, the magistrates or jury may in certain circumstances draw an adverse inference;
• undermines their credibility, the judge and jury are entitled to deem their defence ‘a sham’

Question 7

When would you advise your client to give a “no comment” interview?

Answer 7

• if they privately admit their guilt but the police evidence is weak;
• the police have not provided adequate disclosure of the evidence;
• the police may attempt to ‘ambush’ the client during interview by revealing evidence which they had not disclosed to the solicitor in advance of the interview;
• client is physically or mentally unfit to be interviewed
• likely to perform badly due to age, vulnerability, immaturity;
• no viable defence although they claim innocence;
• personal reason eg their alibi is an affair

Question 8

If your client decides to give a ‘no comment’ interview on the basis of your advice, what must you explain to them?

Answer 8

the solicitor must explain to the client that this will not necessarily prevent a court from drawing adverse inferences from this silence at any subsequent trial.

Question 9

When is a prepared written statement a useful strategy?

Answer 9

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 the client is likely to perform badly if they answer questions in interview (eg young, emotional, unpredictable)

Question 10

Who will draft the written statement?

Answer 10

A written statement will be drafted by the solicitor and will allow the client to set out their defence in a clear and logical way, but it should be in their own words

Question 11

What should the written statement say?

Answer 11

no more than is necessary to prevent the drawing of adverse inferences at trial

Question 12

After cautioning the suspect, the officer must also remind the suspect

Answer 12

that they are entitled to free, independent legal advice, even if their solicitor is already present

Question 13

Procedure in the interview

Answer 13

(1) all parties will identify themselves on the audio recording;
(2) client can stop the interview at any time for further legal advice from the solicitor;
(3) the solicitor will be present in the interview to protect the client’s interests, and will intervene in the interview when necessary;
(4) use phrase ‘no comment’ to remain silent;
(5) ignore any tactics to make them talk and remain silent
(6) don’t make personal attacks on another’s character

Question 14

Why should the client be advised NOT to make personal attacks on another’s character?

Answer 14

could enable the prosecution to adduce evidence of the suspect’s previous convictions at trial through the bad character gateway that D made an attack on another’s character

Question 15

What would constitute ‘unacceptable conduct’ in the interview from the solicitor?

Answer 15

• answering questions on behalf of their client
• writing down answers for the client to read out

Question 16

Opening statement by the solicitor

Answer 16

The Law Society advises that the solicitor should give an opening statement at the start of every interview introducing themselves, explaining their active role in the interview, when they may intervene etc.

Question 17

Who can authorise the removal of a solicitor from the interview?

Answer 17

at least a superintendent, who will speak to the solicitor and decide if the interview should continue in the presence
of the solicitor or not

Question 18

If the solicitor is removed, can the client be interviewed in the absence of legal representation?

Answer 18

No, they must be given the opportunity to consult another solicitor before the interview continues who can be present at the interview

Question 19

Argent factors which must be satisfied before adverse inferences can be drawn from D’s silence in police interview (under s.34)

Answer 19

(a) interview must proceed under caution;
(b) D has to fail to mention any fact that they later rely on in trial;
(c) failure to mention occurs pre-charge;
(d) police must have specifically asked D to account for something which they later give explanation for at trial;
(e) D could reasonably have been expected to mention this explanation at interview