By Anthony Edwards, TV Edwards, London

At the beginning: in the police station

When advising a suspect in the police station, the critical issue for a solicitor is whether the suspect should make no reply to the allegation, or for a range of reasons, given an explanation to the investigator.

In the latter case, a further decision is required, namely whether that explanation be given in answer to interview or by way of a prepared statement associated with an interview in which no reply is made.

The use of prepared statements is substantially assisted by the decision of the Court of Appeal in R v Knight 2003 Crim LR 799.

This makes clear that the purpose of the Criminal Justice and Public Order Act 1994 is to require the suspect to identify the general nature of his defence so that it may be further investigated.

It is not intended that inferences be drawn because the suspect is unwilling to answer questions whereby the police scrutinise and test that defence.

This will be an ideal situation for certain types of suspects, enabling the defence to be identified but avoiding detailed questions on which memory may be vague or when a frightened or confused suspect may give inaccurate replies.

While solicitors cannot answer questions for a client in interview, they should draft the prepared statement.

The technique is particularly suitable where the investigator has made only limited disclosure or is using phased disclosure, as Knight appears to allow for a prepared statement to be handed in at any point up to the moment of charge, and yet still prevent any inference from silence in associated interviews.

There will be a few cases where a statement can be read or handed in at the start and the facts will need to be straightforward and simple.

More normally, the solicitor would need a good quality of disclosure before preparing the statement with the suspect.

However, there will remain cases where it is not clear that the Crown can establish a prima facie case and yet the suspect needs to record the defence prior to interview.

In those cases, a prepared statement might be taken, signed, dated and timed but kept with the solicitor until the Crown is able to establish its case.

On 20 January 2004 limited provisions of the Criminal Justice Act 2003 came into force.

Police powers of stop and search were extended from a search for stolen or prohibited articles to articles also for use in causing criminal damage.

A discretion now exists for police officers not to take suspects immediately to a police station on arrest but to bail them to attend at a police station at a specific time.

Most significantly, the length of time for which a suspect may be detained may now extend beyond 24 hours, not only in cases involving serious arrestable offences, but in relation to any arrestable offence.

In the proceedings: bail

In R (Vickers) v West London Magistrates Court 2004 Crim L R 63, the Divisional Court usefully analysed the procedures that should be followed in a court, following the arrest of a defendant for alleged breach of bail conditions under section 7 of the Bail Act 1976.

The arrest generates a two-part enquiry.

The first is whether there was in fact a breach of the conditions.

This does not require evidence but material to be placed before the court that may be tested.

An excuse is not relevant at this stage.

If there is found to be a breach then the court must go on to consider how the defendant is to be further remanded The presumption is that it should be on the same bail terms as before but the court has power to remove bail or to impose further conditions.

The explanation for any breach is plainly relevant at this point.

The provisions of section 7 were further considered in R v Ashley 2003 9 Archbold News 1, which confirms that a breach of bail conditions does not amount to an offence or a contempt but merely a ground for an arrest and reconsideration of the bail terms.

In R v Hourigan 2003 Archbold News 1, the Court of Appeal, allowing an appeal in relation to a failure to appear under section 6 of the Bail Act, made clear that solicitors could not, when a case was in a Crown Court warned list, merely rely on a client telephoning in each night to discover whether the case was listed the following day.

Solicitors must be aware whether clients have telephoned and if they have not and the case was listed make further attempts to contact the client.

A practice direction has been issued by the Lord Chief Justice in relation to a failure to surrender and trials of defendants in absence, (2004 The Times, 26 January).

The penalty for an offence of failing to appear should not now generally be delayed until the conclusion of the case.

If a person had failed to appear, the court should give serious consideration to revoking bail or imposing stringent conditions.

Where custody was not a likely outcome of a trial, and a defendant failed to appear at trial, it should normally continue in their absence.

The approach required care and caution as there must be a fair trial but the court noted the rights of appeal and to set aside orders under section142 of the Magistrates Courts Act 1980.

At the conclusion: specimen sentencing

Two recent cases have reiterated the existing rules on the ability of a court to sentence for specimen offences (although legislation now before parliament will intervene to change the position).

The basic principle is that a court may only sentence for matters that are formally before it, either by way of charge or by way of a signed form of offences to be taken into consideration (R v Kidd Canavan & Shaw 1981 Cr App R(s) 243.) This principle was confirmed in R v Pardue 2003 Crim LR 641 The defendant had made admissions in police interview to several offences of the making of indecent photographs of children, sufficient to allow for a significant sentence under the guideline judgment R v Oliver 2003 Crim LR 127.

However, the Crown had only chosen to charge a limited number, which, on the guideline, would result in a lower sentence.

As a result, the Court of Appeal had to lower the sentence imposed.

However, the fundamental rule was slightly amended by the decision in A G ref no 82/2002 2003 Crim LR 561 so that a defendant could be sentenced on a specimen basis if there was a charge, to be taken into consideration, or that basis was agreed in a written basis of plea signed and accepted by the defence.

Solicitors will always be careful to advise clients not to ask for offences to be taken into consideration unless the Crown is plainly able to prove them.

Similar steps will now be taken to ensure that advocates do not sign a basis of plea for which there is insufficient provable evidence.