(Il)legal Representation
When the solicitor arrives, I as the investigating officer have to give the solicitor what is known as disclosure. This is where I tell them what evidence I have against the suspect. I do not have to tell them anything but I cannot lie to them so if they ask "Have you got my client on CCTV?" and I have got them on CCTV clearly showing them concealing the CD in their jacket I either have to tell the solicitor this or say "I am not willing to disclose that information at this time". If I say this though it is a dead cert that when I produce this evidence in the interview the suspect will be advised to answer "No Comment" to any questions regarding it. This is where the solicitor also asks if the suspect is eligible for a caution. If they are I can usually guarantee the suspect will admit the offence. Seems a bit wrong really, if their client will admit the offence to only receive a caution then surely that should be taken as an admission even if they are not eligible for a caution.
The solicitor then has a private consultation with the suspect where they make up a story to fit around the evidence I have got against them… sorry I mean where they discuss the account of what happened so that they know what to say in interview.
This is the part that gripes me. Why should I tell them anything? I appreciate that a detained person in custody has a right to legal advice and somebody to look out for their rights during their interview and time in custody, but why should I have to give them everything they need to allow them make up their excuses prior to them being asked to account for their actions?
I know that everybody is innocent until proven guilty (yeah right) and I accept that it is the job of the police to prove their guilt but it is not the job of the police to assist them in proving their innocence. People think that you have a right to silence which is true in some respects. As the first line of the caution states You do not have to say anything… but for the benefit of the tape recording we ask that if the suspect is not going to answer a question that they reply No Comment.
My own personal thoughts on this are simple;
- If you have done nothing wrong then say so – deny the offence that is put to you.
- If you have committed the offence you can either admit it or lie and deny it. Obviously if you deny it during your interview and then you continue to enter a Not Guilty plea at court and you are subsequently found guilty your punishment should be harsher than if you had just admitted the offence in the first place.
- The third option is to go No Comment and use your legal right to not incriminate yourself by not saying anything.
What I cannot understand is that surely you are incriminating yourself by going No Comment and an inference can be drawn from this. As I said earlier, if you have done nothing wrong any normal person with half a brain would just deny the offence and give your reasons as to how they couldn’t have done it. Why would you not defend yourself if you are accused of something that you haven’t done.
When a private consultation takes place between a solicitor and their client prior to a police interview this is legalised Perverting the Course of Justice and the police can do nothing about it. If the client has admitted to the solicitor that they have committed the offence and the solicitor helps them to concoct a story to get out of it based on the evidence already disclosed by the police the solicitor is actively telling their client to lie and therefore obstruct the path of justice.
I am not saying that all solicitors are like this but most bobbies know of a dodgy solicitor but we have no way of proving it. I think that consultations in police custody suites between solicitors and detained persons should be tape recorded, the tape then sealed after the consultation and once the case has been finished with at court, the tape should then be reviewed to insure the consultation was legal. If the solicitor is then found to have acted inappropriately they can be dealt with.
If a detained person admits the offence to their solicitor the solicitor should only be able to advise them to either admit the offence in interview or go no comment. Solicitors should not be able to assist their client in getting off an offence, they should only be able to advise on points of law, protect their clients interests and welfare and exploit any holes or inaccuracies in the evidence to their clients advantage.
Filed under: Defence, Police, Ridiculous, Solicitors | 4 Comments
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Just found your blog off your post on Nightjack’s. Interesting reading, i’ll be back!
I’m a non-police reader by the way, used to work for the police in transfers / standards / recruitment and have a fair few ex and current copper mates…
As a MOP your comments make me afraid of the police and their procedures. Don’t forget you are in control of the situation and not there to help the suspect
Your job is to make the suspect fit the facts as you see them, not to judge. Therefore anybody who is a suspect comes under a lot of pressure, and will justifiably do everything they can to reduce that pressure. Please don’t complain about the allowable tactics of the suspect.
I’m reading these in reverse order and now I’m insulted as I’m a defence solicitor. You’re right, we do have bad eggs in our profession, just as you do in yours.
You’re also right, we are not to assist the Detainee to concoct a story, but instead we are there to ensure that they are treated appropriately and given appropriate advice. If we sit in on an interview under caution where we know that the detainee is lying then we are liable to be arrested ourselves on conspiracy to pervert the course of justice, and a solicitor caught doing that should expect an immediate custodial sentence in excess of 12 months due to our position.
You can’t record what we’re saying to our client’s because of legal professional privilege. The principle that anything my client says to me is in confidence has to be preserved because otherwise people will not be able to access legal advice, which like it or not, is part of what makes our Criminal Justice System one of the most highly regarded and fair in the world. Why should you have access to a lawyer (CPS at the police station) and the detainee not?
In terms of detainee’s just admitting it if they’ve done it, sometimes they don’t know. I’ve had client’s before who were unaware of what self-defence is and if unrepresented may well have put forward what would have effectively amounted to a false confession. Similarly, most of the public don’t know the differnce between breaking and entering (criminal damage) and burglary, which is pretty significant when you look at the difference in sentencing (compensation and unpaid work as opposed to Custody).
If they’re found guilty after trial the punishment is increased, although in an arse-about-face way: they no longer get the 1/3 discount in sentence for an early guilty plea. But not that the earliest opportunity to get the full one third now runs from interview rather than first hearing as it used to.
In terms of assuming that someone incriminates themselves by answering no comment, whilst you’re probably right most of the time, there are legitimate reasons not to put forward an account. Sometimes a detainee will tell the solicitor about another crime they did commit and not the actual allegation so no comment. What if their alibi is someone they’re having an affair with – you’re not bound by confidentiality in the same way that we are.
If you truly do know of solicitors in your area that are giving the detainee what to say, get authority from higher up to bug the cell next time you get one of their client’s in on something relatively minor. The offence you pick the detainee up for will have to be binned, but you’ve then got the dodgy solicitor by the short and curlies. Bear in mind that the more serious the offence the more serious the consequences for the solicitor and that you’ll still be able to get the original detainee for conspiracy to pervert. We don’t want them in our profession either.
I suspect the reason you think we’re telling them to lie is because you don’t know exactly what’s happening in the consultation, just like we don’t know exactly what happens to the drunks in the back of your vans…