Report and Recommendations - Scottish Government
Report and Recommendations - Scottish Government Report and Recommendations - Scottish Government
6.1.36 In England and Wales, research findings prompted the creation of the CriminalLitigation Accreditation Scheme for duty solicitors and associated LawSociety competency standards 33 . A number of problems were identified. Itwas ascertained that, contrary to popular belief, solicitors did not advisesilence in almost every case. In nearly half of the cases examined, the suspectwas advised to speak; this being prevalent especially where: the suspectadmitted the offence to the solicitor, although he/she may have had anexplanation to proffer; where he/she vehemently denied the offence and had apositive defence to advance; and where the client maintained his/herinnocence, but the evidence against him/her was nevertheless overwhelming.In only about a quarter of cases was silence advised; that being regarded asappropriate where insufficient information on the charges or the evidence hadbeen provided or where the solicitor feared that the client would indeed selfincriminate. In the remaining cases, there was no real guidance given. Buteven when silence was advised, few clients were able to maintain total silence,as distinct from stating “no comment”, in the face of determined interrogation.It was also found that some solicitors took a very passive role in the interviewitself, even in the face of such interrogation 34 .6.1.37 What advice is given will depend on many circumstances, not least theexperience of the suspect with the police custody regime. Of course, prior tothe interview, the solicitor may be advising the client primarily on theadvantages and disadvantages of responding at all to police enquiries. Thereis some material on this and the whole police station process, at least from the33 http://www.lawsociety.org.uk/productsandservices/accreditation/accreditationcriminallitigation.page;and Hodgson: Improving custodial legal advice 1995 Crim LR 10134 see Paris (1993) 97 Crim App Rep 99160
experience in England and Wales 35 . During the interview, matters may besomewhat more complex, but, subject to the caveat on complacency,experience of situations where the solicitor has been present dictates thatproblems do not often arise at that stage. If the solicitor considers that theinterview is being conducted unfairly, he/she can intervene and state his/herobjection. Such an action will no doubt be taken seriously by any court rulingon subsequent admissibility. During an interview the solicitor can also ask fora private consultation where that is desirable. There must be some scope forthe solicitor to ask questions, at least where an answer is ambiguous or furtherclarity is desired. But the solicitor is not entitled to disrupt the questioningprocess in any major way or otherwise to obstruct the ongoing investigation.6.1.38 In this whole area, care will have to be taken by the appropriate academic 36and professional institutions, especially the Law Society , to see that there isappropriate training and guidance available for solicitors in relation to policestation interviews. There is little formal guidance as yet available, specificallytailored to Scottish needs. No doubt the nature and extent of that guidancewill depend upon what regime is ultimately implemented. It will be importantfor the profession to consider when, as a generality, it is advisable for thesuspect to remain silent and when he/she would benefit from providing anaccount of his/her movements and/or actions. The nature of that advice maybear some similarities to that given to an accused person, at or prior to theconclusion of the crown case, on whether to give evidence. But, in this35 see e.g. JUSTICE: Giving Legal Advice at Police Stations: Practical Pointers (November 2010); seealso University of Warwick (Professor Hodgson): Police Station Advice: Promoting Best Practice;Research based findings from England and France36 i.e. the Law Schools at least by or at the diploma stage161
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6.1.36 In Engl<strong>and</strong> <strong>and</strong> Wales, research findings prompted the creation of the CriminalLitigation Accreditation Scheme for duty solicitors <strong>and</strong> associated LawSociety competency st<strong>and</strong>ards 33 . A number of problems were identified. Itwas ascertained that, contrary to popular belief, solicitors did not advisesilence in almost every case. In nearly half of the cases examined, the suspectwas advised to speak; this being prevalent especially where: the suspectadmitted the offence to the solicitor, although he/she may have had anexplanation to proffer; where he/she vehemently denied the offence <strong>and</strong> had apositive defence to advance; <strong>and</strong> where the client maintained his/herinnocence, but the evidence against him/her was nevertheless overwhelming.In only about a quarter of cases was silence advised; that being regarded asappropriate where insufficient information on the charges or the evidence hadbeen provided or where the solicitor feared that the client would indeed selfincriminate. In the remaining cases, there was no real guidance given. Buteven when silence was advised, few clients were able to maintain total silence,as distinct from stating “no comment”, in the face of determined interrogation.It was also found that some solicitors took a very passive role in the interviewitself, even in the face of such interrogation 34 .6.1.37 What advice is given will depend on many circumstances, not least theexperience of the suspect with the police custody regime. Of course, prior tothe interview, the solicitor may be advising the client primarily on theadvantages <strong>and</strong> disadvantages of responding at all to police enquiries. Thereis some material on this <strong>and</strong> the whole police station process, at least from the33 http://www.lawsociety.org.uk/products<strong>and</strong>services/accreditation/accreditationcriminallitigation.page;<strong>and</strong> Hodgson: Improving custodial legal advice 1995 Crim LR 10134 see Paris (1993) 97 Crim App Rep 99160
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