More (Il)legal Representation
I initially started to write this as a comment in reply to a comment I received from Harrybelly in my post (Il)legal Representation but it started to get a bit long so I decided to make it a post in its own right. Harrybelly is defence solicitor and its good to have some opinions from the other side of the fence. Thanks for your comments Harry.
There are good solicitors out there don’t get me wrong. They are usually the ones who tell their client to go No Comment when they know they are banged to rights and not eligible for a caution; therefore meaning the police have to complete all outstanding enquiries because it cannot be treated as an anticipated guilty plea at court. After my disclosure I can usually tell which ones are going to be a No Comment interview.
However take today for example, I was in the custody suite waiting to take my detained person out for interview. Whilst waiting, another officer brought a chavvy estate lad back to the desk. This lad was thick as pig muck. You could tell that just by looking at him before you even heard him speak. Basically he had been arrested for a burglary whereby he had broken into his parent’s garage. He still lived at home with his Mum & Dad but they had banned him from the garage. His Dad had become aware that his son had been sharpening an axe to take out with him later that night to use in a fight. Being the conscientious the Dad he had locked the axe in the garage and banned his son from going in their by locking the door and hiding the key. The son had broken a window and climbed in to try and retrieve the axe but couldn’t find it so climbed back out again.
The son’s account during interview after a lengthy consultation with his solicitor was that in a fit of rage he had been recklessly swinging a spade around in the garden which had somehow managed to strike the window causing it to accidentally break. Once the window had accidentally been broken he then climbed through the window to get to the freezer to take out a pizza that belonged to him! He couldn’t find the pizza so climbed back out again. This had been recorded as a burglary because the son had entered the garage as a trespasser with the intent to steal the axe.
Whilst this pile of pap was being relayed to the custody sergeant during the interview result I was finding it hard to hide my smile from the solicitor who was stood directly in front of me and could clearly see my face. This account had obviously been fed to the son by the solicitor to change an accusation of a technical burglary into an admission of a reckless criminal damage using a defence that will be very difficult to disprove.
Everybody knows that the lad broke the window to the garage so that he could climb in to get the axe that his Dad had just taken off him but try and disprove that very carefully worded story. Those were the exact words used by the lad during his interview and it was blatantly obvious he had been prepped to say the specific words e.g. “I was swinging a spade around in a reckless manner”. A person of this intellect would never string a sentence together of such good English!
Harry makes reference that if we suspect a bent brief to bug the cell to record the consultation. He must know full well that we would never get the authority to do this. Why not just record all consultations. The tapes could then be randomly audited by an independent authority separate from the police. This would then hopefully act as a deterrent to any dodgy brief in that they may get caught out. Everything that the police do it recorded and audited e.g. the custody video, tape recorded interviews etc. to ensure that we play the game correctly. Why bother tape recording interviews or writing it down. I am a sworn officer of the crown as a solicitor is an officer of the court. If they should be trusted why not us?? I am not suggesting that at any point the contents of the tape should be used as evidence against the defendant but why should these meetings be allowed without any form auditing and accountability check being available?
Filed under: Defence, Police, Solicitors, War Stories | 10 Comments
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Pc Bobby Dazzler - Police Response Officer 
Never ever underestimate the enemy. A lot of them are daft but some of them are not stupid. In every barrack room there is a lawyer.
Might it be possible that the aspiring axe wielder came up with the rubbish tale himself and has then picked up a few words used by his solicitor in the consultation and grafted them in to try and make it sound better. Solicitors are, by and large, quite canny folk and though some are dumb enough to concoct stories, even those ones might choose to pick a client with a modicum of acting ability who doesn’t come over as if the solicitor has his hands up the bum working the teeth. Also an experienced bent lawyer would do a better job with the tale and they tend to do it for rather more high profile clients and other monied members of the criminal classes. Getting caught out inventing a tale has very serious consequences for them so it really needs to be worth it. Kappa boy has likely been weaselling his way out of these situations at school, at home and with his social workers since he could talk. The right sort of lies can come very easily if not very well. That being said, how good do you have to be to fool a social worker.
Potential Conversation as Kappa clad numpty struggles to explain guilty actions in a way that might just slide him out from under in a school suspension?
“Look, I broke the window wiv da spade but I didn’t mean to, I were just angry and then once it were bust like, I went in coz I just wanted to get me pizza”
“Well do you mean you were reckless about breaking the window?”
“Yerr woteva. Will that get me off?”
Close to the wind but probably just the right side of advising the client rather than cooking him a story. I cannot know because of course the consultation is private and privileged.
Jack, good to see you back.
The taping of consultations has been suggested a load of times, usually by us police who have concerns over accounts heard similar to what you relate. We are accountable so why can’t the sols and reps be? The law society could audit these and investigate if representations are made by police or other prosecuting authority. The question that jumps to mind is why are the sols and reps so against this?
Well the account put forward is clearly a load of tosh so the detainee should have been charged with a burglary with an alternative charge of criminal damage – the Court can then decide what the truth is, that’s what it’s there for. No doubt the CPS would lack the balls to do that though (we hate them too!). The defence solicitor may have told him what to say, but as part of getting to the bottom of what happened the question “did you break the window deliberately?” would have to be used in consultation and part of the legal advice when he said no would have used the words “reckless” or “recklessness”, which could then have been picked up by the detainee. As best practice I (and colleagues I’ve discussed it with) give the detainee the disclosure we’ve had and then ask “tell me what happened”.
In this case frankly I would have taken an account from the detainee which I would have had him sign and date to protect his account if needed at Court, and got him to no comment on the basis that the complaint may well be withdrawn as the IP is his dad. You may not like that but it’s generally in the best interests of the client to avoid a conviction. Would have made it easier for the Crown to charge a burglary though.
We don’t want taped consultations because if you’re taping it you can listen in and frankly, whilst most of you are straight, our professional memory recalls a time when a larger proportion than today (hopefully) were not and we therefore don’t trust you. The main point though is this: If the detainee knew the consultation was being taped they wouldn’t open up to us and the solicitor client relationship has to be based on trust as otherwise we cannot give proper advice. Denial of that proper advice I would suggest is wrong if you accept that our system is based on everyone being innocent until proven guilty.
Secondary to the above though, in terms of any taped consultations being listened to by the Law Society – it would now be the Solicitors Regulation Authority – that would be resisted as the SRA is self-funded. This would mean that apart from anything else we’d have to pay for it and frankly we already pay about £1k a year for a certificate that says we’re allowed to practice so I can’t see the profession being happy about that. You may think that us “fat cat lawyers” can afford that but most legal aid lawyers I know earn about the same as a probationary officer. Would you want to pay that for your warrant card?
In terms of bugging the cell, I had no idea that you’d never get authority to do that. I would imagine a senior officer would be needed, like a super or higher, but surely if you have reasonable suspicion that a crime is being committed you’d have grounds for doing so?
In terms of why the interview needs to be recorded, I’d suggest that it’s easier for everyone all round as then there’s no argument about what was said. What you think has been said as significant may well differ from what the detainee thinks is significant and no-one can write at the speed people speak. As for being believed as an officer of the Crown, I think you’ll find that when up against Jonny Scrote in the Magistrates’ Court, you get believed 99% of the time so I wouldn’t feel too aggrieved.
I sometimes used to incur the anger of the defence brief, and on occasions my DI, by asking a suspect, after consultation, “You have given an account of the circumstances at the time of the offence. Can you confirm that this is your own account and not one which has been suggested or advised by your defence counsel?” This avoids any possible future outburst of, “I was only saying what my brief told me to say, innit.” The question was one I picked up in a Karin Slaughter novel (brilliant crime reading) and was quite helpful on a number of occasions. Whether it would be acceptable in todays fluffy bunny, partnership, days I have no idea.
The police should not be trusted, because their aim these days is to meet targets. Often in practice, that means easy targets, at the expense of justice, public confidence, and otherwise law-abiding citizens, and to hell with the damage done. Everything the police do may be recorded, who’s recording it?? Try getting hold of any of it to defend yourself! Every solicitor in the land knows a complaint to the IPCC has a virtually nil chance of being upheld. Why’s that, I wonder?
ps, How someone can be arrested for burglary when nothing was stolen, I do not know. See what I mean?
In response to Bob at 7: You do not have to actually steal anything, you only have to enter somewhere as a trespasser with the INTENT to steal to commit the offense of Burglary. Obviously it can be difficult to prove what somebody was thinking e.g. their intent especially if nothing was actually stolen but the police only need to SUSPECT your intentions in order to arrest you for an offense. That is why many people are arrested for offenses but not many are actually charged because the physical evidence isn’t there.
Was that a “no comment” on #6? 🙂
Surely you have to justify your suspicion, else open yourself up to a Wrongful Arrest?
Bob,
At #6 above you say “Everything the police do may be recorded, who’s recording it?? Try getting hold of any of it to defend yourself.” By law, every tape recorded interview includes outlining the method for gaining access to a copy of the tapes (if charged with an offence) for such purposes. A form is completed and a copy given to the suspect. He/she may choose to have the tapes sent to him personally or to his legal represenative. It’s usally a good idea to have some idea of what you are talking about before posting.