The lord chancellor is inviting ideas for savings. Here’s one.
The lord chancellor is now talking to representatives of criminal solicitors and has invited ideas for making improvements and savings. Here’s one. Abolish advice and assistance at the police station and save that chunk of the budget.
Police interviews serve no useful purpose today. We continue with the ritual because we have become so accustomed to it and we don’t pause to examine its usefulness. But if the government must make savings, then I would rather give up that section of the work on condition that:
a. Legal aid rates in the courts would be reviewed up so as to reflect the expertise that should be put into that side of the criminal justice system;
b. Legal aid went back to an ‘interests of justice’-only gateway, but with a means test post-grant so that guilty defendants who can pay, would pay towards their representation, and
c. The forthcoming contracts and two-tier system would be scrapped.
The need for police interviews is a throwback to the days when the police felt they needed a confession to get a conviction.
Because some resorted to torture and chicanery in getting false confessions, by 1984, society felt it necessary to safeguard suspects by guaranteeing access to a lawyer. Then lazy lawyering developed a stonewall ‘no comment’ defensive approach which led the then home secretary, Michael Howard, to bring in ‘adverse inferences’.
Apart from giving prosecutors (and co-defendants in cutthroat trials) the opportunity to comment adversely at trial, police interviews serve no proper purpose in court proceedings. In the hands of the defendant, they are self-serving and not evidence. The prosecution can’t rely on adverse inference alone, without other evidence.
When police decide to take no further action in a case after an exculpatory interview, it is usually because they knew they had a weak case all along and they only used the interview to try and bolster a case against the suspect.
That is a perverse reason to have an interview with a suspect. In an age when surveillance and technology abound, to retain the interview as an investigative tool is an expensive waste.
Interviews have spawned many practices on the part of the police and the defence which slow down the criminal justice system and cost money. There are cases where an informal chat might serve an operational purpose. Such ‘interviews’ can be sanctioned by a superintendent and conducted by investigators, but should have no evidential purpose in court proceedings.
Under my proposal:
- The government could fulfil its EU/European Convention on Human Rights obligations by keeping the telephone advice service purely as a means for explaining to arrestees who are new to the process or vulnerable, what the arrest process involves and what they can expect at court;
- An independent evidential evaluation team would consider the grounds of arrest, and the available evidence, and decide whether a suspect should be charged or not. This should be an agency separate from the police and Crown Prosecution Service but made up of lawyers, perhaps on a rota scheme basis so that charging decisions are more robust than they are now;
- Court duty schemes would be expanded so that more solicitors are available at court to give individual attention to cases and ensure proper pleas are entered early;
- There would be more solicitors at the magistrates’ court freeing the Crown court for counsel;
- There would be no adjournments to obtain interview tapes etc;
- We would abolish the Michael Howard system of disclosure and move to handing everything to the defence, along with used statements, saving adjournments and time.
Lord Mansfield said, when arguing for a change of mind on the old usury statute which prohibited the charging of interest on loans in the 18th century: ‘It is astonishing how prejudice should have kept common sense so long out of the world!’
Joe Mensah-Dankwah is a member at Foresters Solicitors Limited