James Vine, Barrister
Author: The Bung Blog
Clause 12 of LAPSO has already, and rightly, raised the proverbial storm of protest from all corners of the criminal justice community.
There is universal concern at the ConDem’s attempts to reduce, if not eradicate, legal aid for representation of arrested persons in police stations.
BUT THERE IS ANOTHER CRUCIAL ISSUE THAT HAS NOT YET BEEN RAISED ANYWHERE AS FAR AS I CAN SEE.
One thing is very clear. This is NOT about lawyers protecting their own interests. In fact it could be said that if Clause 12 is responsible for reducing the legal aid spend on police station attendance, (which is presumably the reason for passing it in the first place) then lawyers stand to make MORE money rather than less, as they will be able to charge a fee significantly higher than the legal aid rate.
So when Ken Clarke (or the boy Djanogly) tries his usual distractionary bluster by claiming this is all about lawyers looking after themselves, we all know that he is being err… “Economical with the actualite”. (That means what the other Clarke, Alan, meant it to mean Ken.)
So what is it that gets me agitated enough to type a whole sentence in block capitals?
It is simply this.
If a defendant is in custody in a police station accused of crime, they are going to be interviewed by police about that crime.
If they fail to answer questions in interview, or fail to say something in interview that they subsequently rely on in court (in evidence or cross-exam of a prosecution witness) then the jury may be directed that they may draw an adverse inference, i.e. hold it against them.
A defendant is likely to be an amateur interviewee. A police officer is a trained professional and knows in advance what he/she is going to ask. What evidence he has up his sleeve and just as important, what he does not.
Those ignorant of the complexities of the issues usually chip in at this stage with a remark like, “well the defendant knows what he’s done, so why be afraid of answering questions if he’s innocent.”
We’ll come back to that canard later on.
This “crucial” point has its origins in the case of Condron. The defendants there argued all the way to Europe, that if they were advised by a solicitor to remain silent, then no judge could ask a jury to draw an “adverse inference.”
Not so said the court, a defendant can listen to a solicitor’s advice, and decide whether or not to accept or reject it. It’s the defendant’s choice.
The practice now is usually this, based on the authorities I have cited below.
If a defendant is awaiting interview in a police station, and has a solicitor present, the police should (not must) give advance disclosure to the solicitor of the nature of the evidence they have, and a general scheme that the interview will follow. They don’t have to do so in full, and they can try and do it bit by bit. They can even try not to give any disclosure at all, but this is very likely to backfire on them for reasons we shall see below. (R –v Roble)
BUT they give this disclosure so that the solicitor can give effective advice to the client on whether or not to answer questions, and if so, how.
NOW THE BLOCK CAPITALS BIT.
If there is no solicitor to give advice to the defendant on what has been disclosed, then THE POLICE DO NOT GIVE DISCLOSURE TO AN UNREPRESENTED DEFENDANT.
What this means is that the unrepresented defendant is at a double disadvantage.
No legal advice, and no idea what is coming.
“Well he knows what he’s done so what’s he got to be afraid of?”
He knows what he’s done, but quite genuinely might not know if it is an offence, or equally might not know that something he has done or said could be relevant to the existence of a lawful defence. In both cases without legal advice, he may fail to mention something of vital importance to his case simply because he has not had proper advice which would have told him how important it was.
The police officer is not there to explore the full ambit of his defence case, and will not do so. He may well finish the interview with the usual “is there anything else you want to tell us?” but that is not enough for someone who is genuinely ignorant of the law.
If he has not had proper disclosure, he may well not be aware, if it be the case, that in fact the police investigation lacks vital evidence, without which they have no case. A solicitor would be able to probe and recognise this, and advise his client that it was not for him to provide evidence against himself, thus plugging the gap.
We live in the real world. We know that police officers are not above “remarking” to defendants already, that if they want a solicitor, they might have to wait for hours for one to get there, thus delaying the interview and therefore prolonging the stay in the police station. Of course the thought that this might persuade the defendant to proceed without a solicitor never enters their head. Ever!
The other issue is this, and it’s one that is going to cause concern to a lot of Custody Sergeants.
Time and again they must be asked the same question when they ask if a defendant wants a solicitor. “well what do you think I should do officer?”
The answer will always be the same. “I can’t give you legal advice.”
There is no-one to tell the defendant that if he has a solicitor, he is more likely to get pre interview disclosure, which is a major factor in the decision.
There is also a massive incentive for the slightly unscrupulous officer who knows he has a weak case which he is hoping to bolster up in interview without a solicitor’s advice, to try to hint at the advantages of going ahead without a solicitor.
Who is going to brief the civil servant to whom the telephone application for legal aid is made, at 3am? The officer.
Is the briefing going to be accurate? Is it going to be recorded? Is the civil servant going to question or test it? Will he care? What balanced input, if any, can the defendant have on the making of this application?
If there is any force at all in the Article 6 “Equality of Arms” argument, then Clause 12 makes a mockery of it.
Has anyone in parliament suggested yet that clause 12 is potentially incompatible with Article 6? Maybe they should.
PACE was introduced to provide safeguards on both sides, to protect police as well as defendants, and introduce a balance between the two sides.
Clause 12, if it leads to a significant reduction in representation at police stations, which it is bound to do, removes that balance.
The inevitable conclusion is a dramatic rise in miscarriages of justice and many more appeals to the Crown Court or Court of Appeal, which the MoJ will have to pay for.
If you want to save money Ken, keep legal aid for police station work!
If anyone doubts my cynicism as to the day to day approach of police to this topic, they need only look at the link below to a discussion thread started by a police officer who posed this question:
Hi everyone. With regards to disclosing evidence to the defence before interview, what are the legal requirments? I tend to tell them everything but sometimes I wish I didn’t. If I know the legal grounds for it then I’ll do it. Just don’t want to do it and then be asked by the defence is to why I didn’t tell them.
And then we can look at some of the answers from officers only interested in seeking justice:
Many briefs forget disclosure is at our discretion largely so don’t be bullied into revealing more than you want to. Try dropping the odd bombshell in interview, its great watching their reaction when its really devastating.
But you also get more sensible ones which demonstrate how useful to both side pre interview disclosure is:
For me it often comes down to the brief. If I know it is someone sensible and I’ve got a full deck of cards then I’ll show them all, as I expect then it’s more likely I’ll get a full and frank admisssion and save the criminal justice system and everyone involved a whole load of time, expense and effort.
So even some sensible police officers themselves can see the benefit of legal advice in a police station to all sides.
“Save a whole load of time expense and effort…” (Are you listening Ken and Jonboy?)
What about the law?
The Court of Appeal in R. v. Argent (1997),12 stated that the crucial issue is whether the police have given sufficient information to enable legal advisers to advise their clients properly. This was a matter for the jury to consider when deciding the wider question of the reasonableness (or otherwise) of the accused’s conduct.
If there is NO legal adviser present then there will be no disclosure and no advice.
The kind of circumstances in which the provision of information might be so deficient as to make silence a reasonable response were considered in R. v. Roble (1997) Rose L.J. stated that: “Good reason may well arise if, for example, the interviewing officer has disclosed to the solicitor little or nothing of the nature of the case against the defendant, so that the solicitor cannot usefully advise his client, or where the nature of the offence, or the material in the hands of the police is so complex, or relates to matters so long ago, that no sensible immediate response is feasible.”
And yet as things stand at the moment, if there is no solicitor, there is no disclosure.
If Clause 12 is implemented, there will be far more unrepresented defendants, with no disclosure and no advice.
Advance bookings now being taken for the Court of Appeal.
You may find this podcast of some interest…