Criminal law

Police station advice

The case of R v Wahab (2002) The Times, 22 July will need to be read with considerable care as to its description of the role of the defence solicitor.

Notwithstanding phrases used in the judgment, the role of a defence lawyer remains to obtain the best result for his or her client and, where that can be the avoidance of prosecution or an acquittal following prosecution, the solicitor should act accordingly and will, in many cases, advise that no comment be made in answer to those questioning a suspect.

While the judgment does contain words to the effect that a lawyer should not always seek to get the client off or seek to make life difficult for the prosecution, this must be understood in the context of the particular case.

The original solicitor who advised did properly consider the limited disclosure made by the Crown and advised the client that no comment should be made.

However, after there had been a significant degree of disclosure during the interview it become apparent that the prosecution had a strong case and the client approached the solicitor to see whether his wife also needed to remain in custody if he made admissions to the allegations being put.

In the circumstances of a case where there was significant evidence against the client and a benefit to his family in the release of his wife, it was proper for a solicitor to bring to the attention of the client the advantages which could follow from his admissions.

This was the giving of realistic advice against a background of sufficient disclosure.

It is consistent with the general duty to obtain the best result for the client.

In Beckles v UK (2002) The Times, 15 October, the decision of the Court of Appeal in R v Beckles and Montague (1999) Crim LR 148 was effectively overturned.

The European Court approved the terms of the standard guidance on inferences from silence prepared by the Judicial Studies Board.

If legal advice might be the reason for silence (as in this case where there was, at the time of initial interview, little evidence against the suspects), inferences should not be drawn.

This upholds the approach in R v Betts and Hall (2001) Crim LR 754 and significantly assists solicitors who assess that the admissible evidence that will be available at trial is insufficient to establish a case to answer or that the position is as yet too uncertain fully to understand the strength of the prosecution's case.

In R v Elliott [2002] 5 Archbold News 2, the line of cases on the implications of section 37(7) of the Police and Criminal Evidence Act 1984 is continued.

Under the provisions of this section a suspect shall, once there is sufficient evidence to charge, be charged.

This case holds that even if the investigating officer believes that there is sufficient evidence to charge he may offer the suspect the opportunity to explain the position and give his version and that an inference from silence may be available should the suspect decline to do so.

This would appear to be appropriate as, in certain cases, the explanation may avoid prosecution.

However, the situation will be very different if the investigating officer intends to charge whatever the suspect says in interview and, in those circumstances, a suspect should indeed be charged and any interview would be unlawful.

This will continue to apply to those police areas where there is a published policy of always prosecuting domestic violence, whatever explanation is given by a suspect.

Solicitors have always been wary of giving at the police station reasons for silence in interview.

The giving of reasons, although possibly strengthening the client's position, waives legal privilege.

It is seldom wise at so early a stage to make such a critical decision.

R v Beard (2002) Crim LR 684 only emphasises the dangers of reasons being given at too early a stage.

The solicitor gave two reasons in this case for advising a no comment interview: namely that the questioning might prejudice an existing trial and, secondly, that the documents seized by the investigators from the defendant were complex and there had been insufficient time for the solicitor fully to understand them.

The court examined both reasons and was unsympathetic.

If a prejudicial question had been asked then the solicitor should have intervened to deal with it on an individual basis rather than by advising no comment to all the questions.

Furthermore, the solicitor had no limitation on the amount of time he could spend with the client so as to ensure that the paperwork was fully understood by him.

It is notable that, in this case, there would have been considerable doubt at the time of interview whether the documents would be admissible in evidence.

Notwithstanding that fact, the issue of inferences from silence was allowed to go the jury.

It would have been better if the solicitor had just made clear that he advised no comment.

By Anthony Edwards, TV Edwards, London