Lewis Kennedy, Advocate
We should always be wary of euphemistic language. We should remember to speak of the Police Office – and not the Police Station – because a Police Station is an intimidating and sinister venue. We used to deal with the Police Force – and not the Police Service. Equally, the solicitor is not participating in a mere ‘interview’ of his client. This is not some perfunctory business meeting – but a ‘custodial interrogation’ of a detainee (to apply the phraseology of the European Court) in a criminal trial process, which is necessarily adversarial in character. As such, these can be occasionally hostile and aggressive encounters.
So, what exactly is the difference between a police interview and a police interrogation? In one word: everything. An interview is a fact-gathering contact. An interrogation is what the police do when your client is their suspect and their purpose is to extract an incriminating statement from him, which can then be used to convict him.
To the detainee, the whole interaction with the police correlates to his first day of trial; and the laying of a criminal charge, which is akin to a preliminary determination of guilt. The investigative stage of the criminal process involves an intimidating environment with accusatory features. All steps taken during this stage have an impact on the suspect’s defence.
It should be remembered that the police are allowed to employ trickery, lies, and threats of certain kinds, promises and other forms of deception and psychological manipulation, in order to get suspects to waive their right to legal representation and to admit their crimes. In practice, the interrogation room is often imbued with an atmosphere of implied violence and physical coercion – none of which would be permitted in the courtroom context.
Each police officer understands the enormous difference between, on the one hand, a police-station interrogation of an unrepresented, unprepared and frightened suspect – and, on the other hand, the formal questioning of a ‘lawyered-up’, well-prepared suspect. In the eyes of the police, the latter is no substitute for the former. Cops want to solve crimes in real time. They want to find the body while it is still warm – or, even better, still alive. They understand that confessions offered under the pressure of police interrogation may be faulty, but the physical evidence to which they may lead will often be self-proving and crime solving.
Police investigators will thus have considerable incentives to interrogate vulnerable suspects, especially if they can use the fruits of such interrogations to do their crime-solving jobs – an entirely different remit from the prosecutor who can only seek conviction at trial with admissible evidence.
Accordingly, safeguarding suspects’ rights in a substantial and effective manner can demand real commitment from the defence solicitor.
The purpose of this paper is to address the following issues:
What exactly is the solicitor’s purpose in attending on his client in police custody; the limitations of providing only telephone advice; special considerations in respect of the vulnerable or mentally disturbed suspect; consideration of whether detainee waiver of the right to legal representation has been legitimate; the pre-conditions, which the solicitor should insist upon, particularly by way of pre-interview disclosure; whether the police should even be questioning the ‘chargeable suspect’; how the solicitor should deal with oppressive and objectionable police questioning or obstructive police conduct; whether absolute silence is truly the best policy; immunity; compulsory questioning under section 172 of the Road Traffic Act; the taking of forensic samples; whether the solicitor might even challenge a Search Warrant application, hitherto an exclusively ex parte affair, since any such hearing now coincides with his representation of his client; and how to deal with the refractory client who is determined to talk in defiance of legal advice.