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
- Page 112 and 113: ignored. There are about 100 detent
- Page 114 and 115: 5.2.26 Scotland is a small jurisdic
- Page 116 and 117: 5.2.29 Continuing with the custody
- Page 118 and 119: 5.2.32 The sheriffs principal and s
- Page 120 and 121: jurisdictions where judicial or oth
- Page 122 and 123: where they are uncertain of what th
- Page 124 and 125: 122
- Page 126 and 127: The grounds for arrest and initial
- Page 128 and 129: procurator fiscal consider that the
- Page 130 and 131: the standard bail conditions and, i
- Page 132 and 133: prudent, therefore, to constrain an
- Page 134 and 135: to challenge any conditions before
- Page 136 and 137: ⎯ the exercise of the powers to l
- Page 138 and 139: the nature and scope of police ques
- Page 140 and 141: suspect the right of access to an a
- Page 142 and 143: involving the suspect having inform
- Page 144 and 145: 6.1.3 It was essential that the Rev
- Page 146 and 147: 6.1.7 In Ireland 7 , a suspect in c
- Page 148 and 149: lawyer at that stage, although the
- Page 150 and 151: detained suspect must have prompt a
- Page 152 and 153: interview. That is the general posi
- Page 154 and 155: doubt remain dependent upon the sta
- Page 156 and 157: of non-qualified persons posed a pr
- Page 158 and 159: eing interviewed, or otherwise hind
- Page 160 and 161: proportionate. If a conflict does o
- Page 164 and 165: context and returning to the genera
- Page 166 and 167: Waiver6.1.41 The European Court has
- Page 168 and 169: until shortly before his/her attend
- Page 170 and 171: ⎯ the right of access to a lawyer
- Page 172 and 173: and whether there is sufficient evi
- Page 174 and 175: the degree of suspicion, and to adv
- Page 176 and 177: is detained 7 . Regardless of wheth
- Page 178 and 179: at the diet of trial to exclude his
- Page 180 and 181: police elect, for whatever reason,
- Page 182 and 183: sense, are inadmissible if objected
- Page 184 and 185: the suspect’s right to silence an
- Page 186 and 187: and reliable, e.g. to clear up ambi
- Page 188 and 189: “would have such an adverse effec
- Page 190 and 191: 6.2.38 As noted above, section 78 o
- Page 192 and 193: ensure that reasonable lines of enq
- Page 194 and 195: determining fairness in certain cas
- Page 196 and 197: permission to do so. The applicatio
- Page 198 and 199: hour maximum detention period, in a
- Page 200 and 201: incrimination. It should be specifi
- Page 202 and 203: accused’s first appearance on pet
- Page 204 and 205: 202
- Page 206 and 207: Current law6.3.4 For the purposes o
- Page 208 and 209: to a Hearing or prosecuted in court
- Page 210 and 211: ight of access to the child, subjec
experience in Engl<strong>and</strong> <strong>and</strong> 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 <strong>and</strong> 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 36<strong>and</strong> professional institutions, especially the Law Society , to see that there isappropriate training <strong>and</strong> guidance available for solicitors in relation to policestation interviews. There is little formal guidance as yet available, specificallytailored to <strong>Scottish</strong> needs. No doubt the nature <strong>and</strong> 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 <strong>and</strong> when he/she would benefit from providing anaccount of his/her movements <strong>and</strong>/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 Engl<strong>and</strong> <strong>and</strong> France36 i.e. the Law Schools at least by or at the diploma stage161