Active defence
Active defence - A solicitor should actively defend and promote their client’s interests, including:
* Obtaining as much information from the police as is possible.
* Advising your client fully and in accordance with your professional obligations.
* Advising on issues which arise during the police investigation, such as whether to provide samples, extensions of periods of detention, searches of premises and bail.
* Attending and advising during the interview.
Who is not a vulnerable client?
Who is not a ‘vulnerable’ client? - generally, a person under the influence of drink or drugs should not be treated as vulnerable.
When should a suspect be treated as vulnerable
- At the beginning of the suspect’s detention, the custody officer will undertake a risk assessment and identify whether the suspect is or might be ‘vulnerable’.
- If so, the vulnerable suspect will be provided with access to an appropriate adult.
- The custody officer must inform the appropriate adult of the grounds for detention, where the suspect is being detained and ensure the appropriate adult attends the police station as soon as possible.
Suspecting a person is vulnerable
COP C Annex E states that if at any time an officer suspects that a person is vulnerable then the person will be treated as vulnerable unless there is clear evidence to the contrary. The officer must then make reasonable enquiries to ascertain whether the person falls within the definition of vulnerable and record that information, including:
* The behaviour of the person;
* Their mental health and capacity;
* What the person says about themselves;
* Information from police officers, staff and records;
* Information from health and social care and other professionals who know or have had previous contact with the person.
The role of the appropriate adult
If a person is vulnerable, an appropriate adult should be appointed and their role is to:
* ensure that the detained person understands what is happening and why;
* support, advise and assist the detained person;
* observe whether the police are acting properly and fairly and to intervene if they are not;
* assist with communication between the detained person and the police; and
* ensure that the detained person understands their rights and that those rights are protected and respected.
An appropriate adult can request a solicitor on behalf of the person detained, though the person detained does not have to see the solicitor if they do not want to. A vulnerable suspect can consult privately with a solicitor in the absence of the appropriate adult if they wish.
Who cannot act as an appropriate adult?
*A solicitor attending the police station for the suspect.
*A person under 18 years old.
*A police officer or police employee.
*A person:
-suspected of involvement in the offence;
-the victim of, or a witness to, the offence;
-involved in the investigation;
-who has received admissions from the person detained before acting as an appropriate adult;
-of low IQ and unable to appreciate the gravity of the situation; or
-an estranged parent that an arrested youth specifically objects to.
Who can act as an appropriate adult?
In the case of a vulnerable suspect, the appropriate adult can be: a parent; or a guardian; or a relative; or someone who has experience in dealing with such persons. The appropriate adult must be 18 years old or over.
Interviewing without an appropriate adult
Generally, a vulnerable person must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult. However, an urgent interview can take place if a superintendent or above is satisfied it would not significantly harm the person’s physical or mental state and delay would lead to:
*interference with or harm to evidence connected with an offence;
*interference with or physical harm to other persons; or
*serious loss of, or damage to, property; or
*the alerting of other persons suspected of having committed an offence but not yet arrested for it; or
*hindering the recovery of property obtained in consequence of the commission of an offence.
Representing vulnerable clients
- an appropriate adult has been appointed.
- the custody officer has requested a medical assessment where appropriate.
- Take as much time as is necessary to take your client’s account and to clearly advise them.
- Ensure the client understands:
- your role.
- everything that is happening.
- what will happen in the interview and how to approach the ‘no comment’ interview if that is the option taken.
- what happens after interview.
- In the interview:
- request regular breaks.
- be especially mindful of the language and tone used by officers- intervene if necessary.
lawyers role when advising the client
The consultation with the client should take place in private and is confidential.
The lawyer should not breach any professional conduct issues by, for example taking instructions from:
* a relative or third party unless you are satisfied that the person giving instructions has authority to do so on behalf of your client; or
* two clients in relation to the same matter and one client blames, or might blame, the other.
The lawyer should:
* Be supportive and explain their role.
* Assess the client’s fitness to be interviewed.
* Provide advice on the legal position.
* Explain the options the client has in the interview and consider which option would be best.
* Explain and advise of the consequences of those options.
* If necessary, provide advice on samples.
Options in the interview
There are three options in the police interview for the client:
oAnswer questions
oDon’t answer questions (‘go no comment’)
oProvide a written statement and ‘go no comment’
Whilst a client is entitled to remain silent in an interview the lawyer must explain the consequences of any silence. Consequences might include a court drawing ‘adverse inferences’
Handing in a prepared written statement
- Handing in a prepared written statement is a strategy sometimes used to try and avoid later adverse inferences.
- A statement is handed in at the beginning of the interview which sets out the defence.
- It is often used where there are facts which will be later relied on at trial but the lawyer thinks that there are reasons why the client should not participate in answering questions.
- A prepared statement is NOT a ‘best of both worlds’ option.
Mixed interviews
A mixed interview (stating ‘no comment’ to some questions and answering others) is not a valid option in the interview, and you should advise your client in the strongest terms to avoid this approach because:
* The transcript of the interview will be read in court. A ‘no comment’ interview is not read as evidence. Imagine a jury hearing a suspect apparently avoiding some questions.
* The interviewing officers will use tactics and techniques to push the suspect into talking about matters they had intended not to speak about.
* The suspect is likely to become confused as to what they have already said.
Should the client answer questions? - factors to consider
*Amount of disclosure
*Admissibility and strength of evidence- that you are aware of or that might become available in the future.
*Your client’s account/ instructions
*The state of your client- court should not draw inferences from silence where the suspect’s condition, such as ill-health (especially mental), confusion, intoxication or shock gives the lawyer cause for concern.
*Significant statements- A significant statement is one capable of being used in evidence against the suspect.
*Possible adverse inferences
adverse inferences
An adverse inference - a common-sense conclusion that is adverse to the interests of a party in proceedings.
Three inferences that can be drawn under the Criminal Justice and Public Order Act 1984:
* Section 34 – allows for an inference to be drawn by the jury or magistrates in circumstances when the defendant later relies on a fact in their defence that was not offered at the time of questioning.
* Section 36 – if there is a failure to account for a mark, object or substance. This is why careful consideration of the custody record is important so that you are not ambushed in interview.
* Section 37 – if there is a failure to account for presence at the scene. Where was the suspect arrested? Can this be linked to their involvement?
Section 38 - contains the safeguard that no defendant may be convicted solely based on an adverse inference.
Section 35 - if the accused is silent at trial, will be considered in a separate element.
Effect of an adverse inference
- the explanation given at trial has been fabricated since the time of the interview; or
- the defendant withheld their account at interview as they knew that it would not stand up to police questioning (the ambush defence); or
- at the time of the interview the defendant had no reasonable explanation which would refute the prosecution case.
Safeguards - adverse inferences
- There is an important safeguard within section 38 Criminal Justice and Public Order Act 1994 which states that no defendant may be convicted solely based on an adverse inference.
- Importantly, no adverse inference can be drawn where the suspect has not been allowed access to legal advice
- It is important to understand that an adverse inference under any section will only be relevant if the defendant has a trial. If the case never gets to trial or your client pleads guilty then adverse inferences are irrelevant.
- The lawyer will have to balance the likelihood of a trial actually happening against the risk of an inference if it does.
Investigative stage - Visual identification from an eyewitness
- The eyewitness might recognise the suspect as someone they have seen before, as a friend or acquaintance, family member or a stranger who travels on the same bus every day; or
- may never have seen the suspect before the crime was committed but were able to give police a description. They may also express an ability to recognise the person if they saw them again.
Investigative stage - what doesnt count as visual identification evidence?
The following are examples of evidence that do not constitute visual identification evidence:
* Mere description of clothing/vehicle (‘I couldn’t see his face, but he was wearing a purple jumper’)
* The suspect has a connection to a particular place or others at the scene (e.g. ‘I thought it was Maria because I know she is always at the café on a Saturday morning’)
* A description of the suspect (‘He was 5’7’ with dark hair and blue eyes’)
Investigative stage - The special need for caution
The reliability of eyewitness identification has attracted concern from legal professionals and academics for over a century as:
* experience has shown that it is easy for an honest and convincing witness to be mistaken even if the suspect is well known to them.
* a confident identification is no more likely to be reliable than a hesitant one.
Safeguards were introduced at every stage of the process to ensure that identification evidence before a jury is reliable as possible:
* Investigation stage: Police and Criminal Evidence Act 1984 (PACE) Code of Practice D
* Trial: Turnbull guidelines.
Following the codification of police powers in PACE, Code D Code of practice for the identification of persons by police officers was issued. PACE Code D deals with the process to be adopted by the police where a witness purports to identify a suspect or expresses an ability to make a visual identification. It was introduced for two reasons:
* to protect an innocent suspect from an incorrect identification; and
* to make a successful identification as watertight and ‘challenge-proof’ as possible.
Duty to hold identification procedures
Code D paragraph 3.12 states that an identification procedure shall be held (unless an exception exists) where:
* An offence has been witnessed and an eyewitness: has identified a suspect or purported to have identified them; or is available who expresses an ability to identify the suspect; or has a reasonable chance of being able to identify the suspect.
* The suspect disputes being the person the eye-witness claims to have seen.
Identification procedures
- video identification- the eyewitness is shown moving images of a known suspect, together with similar images of others who resemble the suspect.
- identification parade- the eyewitness sees the suspect in a line of others who resemble the suspect.
- group identification- the eye-witness sees the suspect in an informal group of people.
If the suspect’s identity is not known to the police, then the eye-witness can be shown photographs in accordance with Code D, Annex E.
The arrangements for, and conduct of, the eyewitness identification procedures shall be the responsibility of an officer not below inspector rank who is not involved with the investigation (‘the identification officer’).
identification procedures - formalities
- A record made of the description of the suspect given by the eye-witness and copy given to the suspect or their solicitor before identification procedures are carried out.
- A notice must be given to a suspect and the following must be explained:
-the purpose of the procedure
-their entitlement to free legal advice
-the procedures for holding it, including their right to have a solicitor or friend present;
-that they do not have to consent to or co-operate in the procedure;
-that if they do not consent to, and co-operate in, a procedure, their refusal may be given in evidence in any subsequent trial and police may proceed covertly without their consent or make other arrangements.
-The suspect shall be invited to participate in a video identification procedure first.
Video identification
- The detailed arrangements for a video identification are contained in Code D Annex A.
- Officers film the suspect asking them to face the camera and be filmed from the right, left and centre.
- The identification officer, suspect and legal representative select lookalikes from over 10,000 video clips on the VIPER system.
- A video clip is produced with the suspect placed amongst at least eight other individuals who, so far as possible, resemble the suspect in age, general appearance and position in life.
- If the suspect has an unusual physical feature e.g. a facial scar, tattoo, distinctive hairstyle or hair colour which does not appear on the images of the other people that are available to be used, steps may be taken to:
- conceal the location of the feature on the images of the suspect and the other people; or
- replicate that feature on the images of the other people.
- The suspect, their solicitor, friend or appropriate adult must be given a reasonable opportunity to see the complete set of images before it is shown to any eyewitness.
- If the suspect has a reasonable objection to the set of images or any of the participants, the suspect shall be asked to state the reasons for the objection.
- Immediately before the images are shown, the eyewitness shall be told that the person they saw on a specified earlier occasion may, or may not, appear in the images.
- The video clip is then shown to the witnesses.
- The suspect’s solicitor may only be present at the video identification procedure on request and with the prior agreement of the identification officer.
- The video identification procedure must be recorded on video with sound. The recording must show:
o all persons present within the sight or hearing of the eyewitness whilst the images are being viewed;
o what the eyewitness says; and
o what is said to the eyewitness by the identification officer and by any other person present. - Care must be taken not to direct the eye-witness’ attention to any one individual image or give any indication of the suspect’s identity.
- A supervised viewing of the recording of the video identification procedure by the suspect and/or their solicitor may be arranged on request, at the discretion of the investigating officer.
- Eyewitnesses are not able to communicate with each other. One eyewitness may see the set of images at a time.
