Voicing concerns about those who wish to stay silent

Solicitors and police do not see eye to eye over a defendant's right not to reply, writes Grania Langdon-Down

"My client is not prepared to answer your questions until, in fairness, you tell me first what case you have against my client which requires an answer."

"We have given what we consider to be the fullest appropriate information at this stage and now wish to give your client the opportunity of giving his account of this incident."

A classic head-to-head between a defence solicitor and a police interviewer illustrates the potentially confrontational nature of interviews now that suspects no longer have an unconditional right to silence.

Concern that the initiative was slipping away from inexperienced officers has prompted one police force to respond with a strongly worded booklet warning of defence "tactics" that were "thwarting" the aims of the law.

Under the Criminal Justice and Public Order Act 1994 (CJPOA), which came into force in April 1995, suspects can still refuse to answer questions. But they risk a court drawing adverse inferences from their silence in certain circumstances.

Defence solicitors must therefore play a more proactive role in protecting their clients' rights while ensuring they do not incriminate themselves.

In response, Kent police is issuing officers with new guidance on interviewing techniques and dealing with "disruptive conduct" in a 35-page booklet, Managing the Encounter with Defence Solicitors and Legal Advisers.

It says a number of defence solicitors are advising clients not to answer police questions but to tender a "considered statement" either before the interview or after being charged to "negate any inference a court or jury may make from the accused's silence".

It concludes: "The considered statement is a new development brought about by solicitors/legal advisers attempting to protect their clients from further incrimination and thwart the aims of the CJPOA 1994.

"The police should not hesitate to challenge these tactics in a proper manner with the powers bestowed under the Police and Criminal Evidence Act and the CJPOA 1994."

The Kent guidance received an acerbic response from Mark Haslam, secretary of the London Criminal Courts' Solicitors' Association.

"Kent is well ahead of many other forces in its training and yet they still seem to have difficulty in taking on board the principles of defending people. We are there to make sure the police do their work properly, gather proper evidence for proper convictions. It is quite wrong to suggest we are seeking to obstruct justice - we are trying to prevent miscarriages of justice. There are obviously bad solicitors who will stoop to underhand methods, as there are corrupt police officers - that is an occupational hazard. But to suggest in general we are seeking to thwart the legislation is to miss the point of why we are there."

He said they were now waiting for the Court of Appeal to make its first decisions on when inferences should or should not be drawn about a defendant's silence.

At present, the legislation's "sole advantage" to defendants was an increase in the amount of information being disclosed by police officers at the time of interview, he said.

However, the Kent guidelines, which stress the need for officers to act in an "ethical and fair manner", recommend tight control is kept on disclosure. Grounds for arrest need only include what the suspect is accused of, not why, nor the extent of, the evidence or its origin.

Information can be withheld to expose deliberate lies, false alibis or other inconsistencies in previous statements made by the suspect, although the interviewing officer must not lie or deliberately mislead, the booklet says.

Mr Haslam agreed there was no legal obligation to disclose any evidence. "What we are saying is, if you disclose proper information, then we can take an informed decision on how to advise our clients and the chances are significantly greater that it will be to answer questions."

Kent's Assistant Chief Constable, Bob Ayling, said they were not criticising defence solicitors or suggesting that the tactics they used were not legitimate. "But the police perspective is to seek the truth, which is not necessarily a common aim of the defence solicitor.

"Inexperienced officers in particular have been overawed by the tactics of defence solicitors. This guidance seeks to give them the confidence to assert their authority in the interview and do their job effectively, fairly and with integrity and maximise the opportunities to get at the truth."

Dr Eric Shepherd, a forensic psychologist, has published guidance to improve defence solicitors' skills in protecting their clients' rights at the police station, and is currently a consultant to Kent Police's advance interview course.

"The problem with the Kent guidelines," he says, "is the use of words like 'disrupt', which gives the idea that legal advisers are engaged in some sort of tactical exercise while the police are merely seeking to get at the truth.

"Legal advisers are doing what is required of them by the Lord Chief Justice Lord Taylor, who said during the Cardiff Three appeal that a defence solicitor's duty was to act responsibly and courageously or he was not doing his job."

One aspect of the new legislation on which everyone agrees is that the 37-word police caution given when a suspect is arrested is a legal nightmare.

The caution - "You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence" - started out at an unmanageable 60 words.

Dr Shepherd and colleagues found that among the general population, few people could remember or fully understand the caution, with many believing it meant they had to answer police questions. Misunderstandings were exacerbated because few police officers are able to explain the legal nuances accurately.

Dr Gisli Gudjonsson, a forensic psychologist based at the University of London's Institute of Psychiatry, is working on a project for the police with Dr Isabel Clare, a clinical psychologist at Cambridge, to try to simplify the caution.

"The caution is a mess. However, when we tried to simplify it, we found the concept of inferences being drawn is very difficult to explain briefly. But to improve it would make it lengthy and difficult to remember," he said.

"I am very concerned that there are going to be many people who won't remember or fully understand the caution as it is. People who are vulnerable will be at an increasingly greater risk of not understanding their legal position."

One spin-off from the new legislation is a 15 per cent increase in the cost of the free legal advice scheme at police stations. This will add about pounds 10m to the Legal Aid Board's bill for the scheme, which ran to pounds 68m in 1994-95.

So, while the professionals battle it out for the moral high ground, the "success" of the Home Secretary Michael Howard's much-heralded legislation is still in the balance.

Life and Style
Small winemakers say the restriction makes it hard to sell overseas
food + drink
Arts and Entertainment
A comedy show alumni who has gone on to be a big star, Jon Stewart
tvRival television sketch shows vie for influential alumni
Arts and Entertainment
Jerry Hall (Hand out press photograph provided by jackstanley@theambassadors.com)
theatre
Arts and Entertainment
Carrie Hope Fletcher
booksFirst video bloggers conquered YouTube. Now they want us to buy their books
PROMOTED VIDEO
Have you tried new the Independent Digital Edition apps?
News
ebooksNow available in paperback
News
Clare Balding
peopleClare Balding on how women's football is shaking up sport
Sport
Lewis Hamtilon and pole-sitter Nico Rosberg
SportShould F1's most aggressive driver curb his instincts in title decider?
Arts and Entertainment
Damien Hirst
artCoalition's anti-culture policy and cuts in local authority spending to blame, says academic
Sport
premier leagueMatch report: Arsenal 1 Man United 2
Arts and Entertainment
Kirk Cameron is begging his Facebook fans to give him positive reviews
film
News
i100
Sport
Jonny May scores for England
rugby unionEngland 28 Samoa 9: Wing scores twice to help England record their first win in six
Life and Style
fashionThe Christmas jumper is in fashion, but should you wear your religion on your sleeve?
Arts and Entertainment
Jason goes on a special mission for the queen
tvReview: Everyone loves a CGI Cyclops and the BBC's Saturday night charmer is getting epic
Sport
Tony Bellew (left) and Nathan Cleverly clash at the Echo Arena in Liverpool
boxingLate surge sees Liverpudlian move into world title contention
Voices
Neil Findlay
voicesThe vilification of the potential Scottish Labour leader Neil Findlay shows how one-note politics is today, says DJ Taylor
Life and Style
food + drinkMeat-free recipes and food scandals help one growing sector
News
i100
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs General

Reach Volunteering: Financial Trustee and Company Secretary

Voluntary Only - Expenses Reimbursed: Reach Volunteering: A trustee (company d...

Recruitment Genius: Senior Project Manager

£45000 - £65000 per annum: Recruitment Genius: This is a fantastic opportunity...

Recruitment Genius: Shopfitter

Negotiable: Recruitment Genius: This is an opportunity to join a successful an...

Recruitment Genius: Digital Sales Account Manager

£25000 - £30000 per annum: Recruitment Genius: A Digital Sales Account Manager...

Day In a Page

Mau Mau uprising: Kenyans still waiting for justice join class action over Britain's role in the emergency

Kenyans still waiting for justice over Mau Mau uprising

Thousands join class action over Britain's role in the emergency
Isis in Iraq: The trauma of the last six months has overwhelmed the remaining Christians in the country

The last Christians in Iraq

After 2,000 years, a community will try anything – including pretending to convert to Islam – to avoid losing everything, says Patrick Cockburn
Black Friday: Helpful discounts for Christmas shoppers, or cynical marketing by desperate retailers?

Helpful discounts for Christmas shoppers, or cynical marketing by desperate retailers?

Britain braced for Black Friday
Bill Cosby's persona goes from America's dad to date-rape drugs

From America's dad to date-rape drugs

Stories of Bill Cosby's alleged sexual assaults may have circulated widely in Hollywood, but they came as a shock to fans, says Rupert Cornwell
Clare Balding: 'Women's sport is kicking off at last'

Clare Balding: 'Women's sport is kicking off at last'

As fans flock to see England women's Wembley debut against Germany, the TV presenter on an exciting 'sea change'
Oh come, all ye multi-faithful: The Christmas jumper is in fashion, but should you wear your religion on your sleeve?

Oh come, all ye multi-faithful

The Christmas jumper is in fashion, but should you wear your religion on your sleeve?
Dr Charles Heatley: The GP off to do battle in the war against Ebola

The GP off to do battle in the war against Ebola

Dr Charles Heatley on joining the NHS volunteers' team bound for Sierra Leone
Flogging vlogging: First video bloggers conquered YouTube. Now they want us to buy their books

Flogging vlogging

First video bloggers conquered YouTube. Now they want us to buy their books
Saturday Night Live vs The Daily Show: US channels wage comedy star wars

Saturday Night Live vs The Daily Show

US channels wage comedy star wars
When is a wine made in Piedmont not a Piemonte wine? When EU rules make Italian vineyards invisible

When is a wine made in Piedmont not a Piemonte wine?

When EU rules make Italian vineyards invisible
Look what's mushrooming now! Meat-free recipes and food scandals help one growing sector

Look what's mushrooming now!

Meat-free recipes and food scandals help one growing sector
Neil Findlay is more a pink shrimp than a red firebrand

More a pink shrimp than a red firebrand

The vilification of the potential Scottish Labour leader Neil Findlay shows how one-note politics is today, says DJ Taylor
Bill Granger recipes: Tenderstem broccoli omelette; Fried eggs with Mexican-style tomato and chilli sauce; Pan-fried cavolo nero with soft-boiled egg

Oeuf quake

Bill Granger's cracking egg recipes
Terry Venables: Wayne Rooney is roaring again and the world knows that England are back

Terry Venables column

Wayne Rooney is roaring again and the world knows that England are back
Michael Calvin: Abject leadership is allowing football’s age-old sores to fester

Abject leadership is allowing football’s age-old sores to fester

Those at the top are allowing the same issues to go unchallenged, says Michael Calvin