Role of the Solicitor

Introduction

From arrest and until arrival at the Police Station, a Solicitor has no chance to have any input into the suspect's case. The Solicitor can only assist a suspect at a Police Station if the suspect exercises one of his basic rights on arrival at the Police Station, i.e., he requests to speak to a Solicitor.

The Three Basic Rights

The suspect is told of three basic rights by the Custody Officer on his arrival at the Police Station:-

  1. The right to consult the Codes of Practice;
  2. The right to let someone know of the arrest;
  3. The right to speak to a Solicitor.

The last two rights can be withheld in very exceptional circumstances (i.e., certain terrorist case) but it is very rare indeed that the right to a Solicitor is delayed.

The Right to Speak to a Solicitor

It is the right of every suspect to speak to an independent Solicitor in private, free of charge, day or night. This is a continuing right and the suspect can change their mind at any time.

The suspect can call his/her own Solicitor. If they do not have one or cannot locate them, the suspect can speak to the Duty Solicitor. This advice is FREE.

The Duty Solicitor is not the "Police Solicitor" but an independent Solicitor in private practice and who happens to be on the Duty Rota at that time.

A Solicitor will not normally attend the Police Station immediately but will give initial advice over the telephone. However, unless expressly told that they are not required, the Solicitor would normally attend:-

  • For any interview
  • For any identification procedure (Identification Parade, taking of intimate or non-intimate samples, etc)
  • Where there are allegations of serious Police misconduct
  • If the suspect is particularly vulnerable (young, old, inform etc)

The Role of the Solicitor

The only role of the Solicitor as defined in the Police and Criminal evidence Act 1984 Codes of Practice is "to protect and advance the legal rights of his client".
In full, the Code states:-

"A detained person has a right to free legal advice and to be represented by a Solicitor. The Solicitor's only role in the Police Station is to protect and advance the legal rights of his client. On occasions this may require the Solicitor to give advice, which has the effect of his client avoiding giving evidence, which strengthens a prosecution case. The Solicitor may intervene in order to seek clarification or to challenge an improper question to his client or the manner in which it is put, or to advise his client not to reply to particular questions, or is he wishes to give his client further legal advice. Paragraph 6.9 [exclusion of the Solicitor] will only apply if the Solicitor's approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or his response being recorded. Examples of unacceptable conduct include answering questions on a suspect's behalf 9or providing written replies for him to quote".

Suspects under investigation by the Police will look to their Solicitor not only as a source of advice on the law but also as a provider of a protective shield between them and the Police. Rightly or wrongly, suspects will often fear that they are in danger of being abused, tricked or otherwise mistreated by the Police and they will expect their Solicitor to shelter them from any such mistreatment.

It is usually the case that the presence of a Solicitor will itself ensure that the suspect is treated properly by those in authority. However, this is not a guarantee and the Solicitor has to be alert and prepared to intervene where necessary to ensure that the Police are not in breach of any of the relevant rules or obligations.

The primary responsibility of the adviser can be summarised as follows:-

  • To act in the best interests, and
  • Upon the instructions of the suspect
  • Subject to the legality and the professional rules of conduct

This does not mean:-

  • Helping the suspect make up an account;
  • Telling the suspect to lie about certain things;
  • Answering questions for the suspect;
  • Writing down answers for the suspect in the interview;
  • Making calls or passing on messages for the suspect;
  • Buying the suspect food, drink, magazines, etc.

Where can the Solicitor help?

Finding out what the case is about

Before a suspect is interviewed the Police will give the Solicitor "disclosure" of the case against the suspect so far.

If the suspect is unrepresented they will hear about the evidence against them for the first time in the interview and their reaction and immediate answers are recorded on tape as evidence.

Advising on How to Deal with the Interview

The Solicitor will use the information gained from the Police and the information he/she gets from the suspect to advise the suspect how to deal with the interview.

There are a number of tactics but the most common are:-

  • Answer all the questions;
  • Answer none of the questions;
  • Provide a short statement and then answer no questions;
  • Answer some questions and not others;
  • Make a statement to the Solicitor but say nothing to the Police;
  • Make representations to the Police that they already have enough evidence to charge and should do so rather than interview the suspect.

Explaining the Right of Silence

A suspect will always be cautioned on arrest, before interview and on charge. The caution is:-

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

This is not easy to follow and there are tactics (as above) which are designed to limit the damage of a "no comment" interview.

Make sure the Interview is Conducted Fairly

The Solicitor should be ready to interrupt if the Police are using unfair questions.
Questions may be unfair if they are:-

  • Ambiguous
  • Unclear
  • Multiple
  • Leading
  • Hypothetical
  • Irrelevant
  • Contain an inducement (e.g., of getting bail)
  • Oppressive

Advise on Samples

During the course of an investigation the Police may require certain samples from a suspect such as:-

  • Blood
  • Saliva
  • Hair
  • Swabs
  • Handwriting
  • Fingerprints

The Solicitor should advise the suspect of the right of the Police to ask for such samples and to take them.
Some samples they cannot take without consent such as:-

  • Intimate samples (blood, intimate swabs, etc)
  • Handwriting

Other samples they can take without consent and by using reasonable force in certain circumstances:-

  • Non-intimate samples (saliva, head hair etc)
  • Fingerprints

Advising on Identification Procedures

A Solicitor will assist the suspect to decide whether to agree to any identification procedure contemplated by the police, for example an identification parade. There are other forms of identification procedure such as street identification, video identification and a confrontation.

There are potentially harmful consequences to the suspect's case if they do not agree to stand on a Parade but that does not mean that they should agree.

Bail

If the Police do not have sufficient evidence to charge a person, that person should be released from the Police Station. Often the suspect is released on Police bail to come back to the station at a later date after the Police have finished their enquiries.

If a suspect is charged, the Solicitor will make representations to the Police about bailing the suspect to go to Court that rather than have him/her kept in custody over night.
After the Suspect has been Charged

Once a suspect is charged with an offence, the Police are entitled to take their fingerprints, photograph and a DNA sample (saliva swab). They are then either bailed to go to Court or kept in the Police Station over night and taken to Court in the morning. No further interviews can take place.

Everyone is now entitled to free legal aid to be represented at Court provided that the case is deemed to be serious enough to warrant legal aid. There is no means test now, but if someone has a lot of money an they are convicted a Costs Order can be made against them.