Be Prepared

By Claire Anderson (Solicitor.)

As a Criminal Defence Solicitor practicing for over 30 years I have represented hundreds of clients at police interview in respect of a huge variety of offences ranging from low level theft to murder, complex fraud and all manner of offences of a sexual nature.

My advice isn’t generic. It is tailored to the specific facts of a particular case and my advice to my client will depend on several factors including the amount of pre interview disclosure provided by the interviewing officer (this varies significantly from case to case), the quality of the instruction provided by my client and the personal characteristics of the client themselves.

The starting point for all of my advice is an explanation of the police caution read to the interviewee by the officer at the outset of the interview. A bit of a mouthful but it goes like this:

“You do not have to say anything, but it may harm your defence if you fail to mention, when questioned, something which you later rely on at Court. Anything you do say may be given in evidence.”

So, in short, you DO have the  right to silence when questioned under caution (there are  exceptions in certain terrorist cases) however that right is qualified by the warning that failing to raise a defence in interview, then relying on that defence at trial risks the jury or determining Magistrate, depending on where you are tried, being permitted to consider the reasons for your silence at the early interview stage and the reason they may attribute to that silence is guilt.

Generally, there are 3 routes to go down in interview;

1. Make ‘no comment’ to all questions put.
2. Submit a written statement prepared from your instructions by your solicitor outlining the salient points of your defence, then answer “no comment” to all questions.
3. Answer all questions in full.

Option (a) is advice I may give if I consider that evidentially there is insufficient evidence to charge my client. It may be that the police are conducting a ‘fishing expedition’ ie attempting to obtain information from the interviewee to perhaps use against another party. Alternatively, it may be that the allegation is that of an old and complex fraud and the client cannot be expected to comment properly on events involving paper transactions that occurred many years before without access to particular documentation.

I may advise No Comment where the client cannot offer any defence however consider that for tactical reasons an early confession is not beneficial. As you can imagine, however the police generally assume that where a no comment interview takes place it is because the suspect has something to hide. This is NOT, however, how the court will necessarily approach this situation. Sometimes the advising lawyer at the interview will give evidence at trial providing reasons for the advice. This can avert any negative inference being drawn.

Option (b) is an extremely useful strategy that allows inferences to be minimised or even avoided but protects the client from scrutiny that may lead to self-incrimination or the incrimination of co- suspects. Additionally, I may advise this course if my client is mentally or emotionally vulnerable. A prepared statement allows the lawyer and client to exercise some control over the interview process.

Option (c)is always a bit risky but frankly any defence lawyer will tell you that an interview where the suspect answers all questions put in a convincing and comprehensive manner is a very good start to defending a prosecuted case. It may very well also avoid charge as information provided can give the police facts that point away from guilt. This route does rely on proper police disclosure, and a client confident enough to feel they can stand up to scrutiny. Being accused of a crime (especially a sexual offence) and being questioned by an officer who on occasion displays bias, is not a walk in the park.

A historic sex allegation is the one offence where I very rarely advise a no comment interview. I often assume conduct of cases that are prosecuted where another firm has dealt with the matter at police station stage. I am sometimes baffled at the quality of the advice provided. A client may come to me full of denial and with pertinent information that could have been followed up by police at an early stage but were advised by their then solicitor that as the case was old, and was based on one person’s testimony only, the case was weak and so making “no comment” was appropriate. Make no mistake, a defendant CAN be convicted by a jury on the word of one complainant only however long ago the alleged offences took place. This astonishes many clients to learn, however a sex act is not ordinarily committed in front of an audience so offences like these fall into a category of their own.

The majority of my clients requested to attend an interview after a historic sexual allegation has been reported do so as a ‘volunteer’. This means they are not arrested as such but are entitled to a lawyer. The vast majority of my clients are very keen to deny the allegations made and can sometimes produce documentation that may undermine the testimony of the accuser. I have for example represented people who can produce birthday cards containing loving messages from their accuser or e mails and texts that by their nature undermine the complainant’s credibility.

If you are accused, seek out any such documentation. In potential false memory cases try and provide as much information as possible regarding pre and post therapy behaviour. It may be that the ‘loving’ messages stopped abruptly post therapy. All of the things are very important to disclose, if possible, at investigation stage.

The Police are there to investigate, not judge. However, unfortunately some officers cannot help but present as Prosecutor in interview. Recently I represented a male adult interviewed in what may well be a false memory case. He gave robust and detailed responses in the interview, however the officer questioning him assumed the role of the complainant’s ‘therapist’ and seemed determined to persuade the interviewee to allow the accuser ‘closure’ by making admissions. Her questions were unfair and inappropriate, and I naturally interjected several times to voice my objections only to be threatened with removal from the interview! I wasn’t removed, however. If the client had gone unrepresented, he would have struggled to cope with the ridiculous questions he was being asked to answer.