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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.