Police station advice


Pressures on solicitors in the police station mount, with an increasing requirement for clear and immediate decision making.



Sexual offences



Changes taking effect under the Sexual Offences Act 2003 will require immediate consideration by defence lawyers when advising about alleged sexual offences committed on or after the implementation date of 1 May, 2004. The statute creates certain conclusive presumptions if the Crown is able to prove that the defendant intentionally committed the 'relevant act', and either that the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act, or that the defendant intentionally induced the complainant to consent to the relevant act by impersonating a person known personally to the complainant. If these circumstances are proved there would be no requirement on the Crown to prove a lack of consent and a lack of reasonable belief in consent. They are deemed conclusively to be absent. Therefore, admissions at an early stage of the investigation might best be avoided until the evidence is clear.


On the other hand, the creation of rebuttable presumptions in a series of situations puts conflicting pressures on those advising in the police station. If the Crown can prove the underlying facts to raise the rebuttable presumption the defence must then raise, by evidence, the issue of consent or their reasonable belief in it. In order to obtain the benefit of the presumption, the Crown will need to prove that the defendant knew of the relevant underlying circumstances (and, therefore, admissions might be best avoided at the early investigative stage), but if a presumption can be raised, the sooner that evidence to rebut it can be placed on record, the stronger will be the defence at trial.


The fundamental change made by the Sexual Offences Act 2003 is that no longer is an honest, if unreasonable, belief a defence. The Crown will need to prove that the defendant did not reasonably believe in the relevant circumstances, such as there was consent to intercourse, or that the complainant was at least a certain age. Indeed the definition of 'sexual' itself contains an objective element. In such circumstances, the sooner a factual background for a reasonable belief is placed on the record, the stronger the defendant's case will be at trial.



Inferences from silence



The Court of Appeal has sought to reconcile two lines of cases on the significance of legal advice when no comment is made by suspects in interview. R v Howells [2003] Crim LR 405, held that to avoid inferences a suspect must have objectively sound grounds for relying on legal advice to say nothing. This qualified the more subjective approval taken in R v Betts and Hall [2001] Crim App R 257, which had suggested that a client could merely rely on legal advice to make no comment whatever the solicitor's reasoning process. In R v Hoare and Pierce [2004] EWCA Crim 784, the court takes a much simpler approach.



The court asks why any innocent suspect would chose to say nothing on legal advice, in the absence of grounds such as those specified in R v Roble [1997] Crim LR 449, R v Argent [1997] Crim App R 27, and R v Howells. To have confidence in advice to say nothing, given to a client denying guilt, a solicitor will need to consider with particular care issues of disclosure and the client's condition. Even if some response is required, solicitors will carefully consider whether to advise the client to answer questions in interview or to draft a prepared statement.



Diversion



The decision in R (F) v CPS and the Chief Constable of Merseyside 168 JP 93, emphasises that if a reprimand, warning, or caution is offered at the police station but the suspect declines to make any admissions at that time, they are not entitled to rethink their position once charged and require the matter to be returned to the police station for diversion. Neither the CPS nor the police are bound to act in that way. However, this can only be the correct approach if sufficient evidence has been disclosed to the solicitor at the investigative stage to show that there is a case to answer. Solicitors are bound to give 'informed' advice and must continue to demand disclosure of sufficient evidence and advise against admissions if a case is not made out. If there is and a charge and the evidence is thereafter made good, it is improper to prosecute to conviction and the matter should be returned for reprimand warning or caution (DPP v Ara [2001] 4 All ER 559). This will become of greater significance with the introduction (initially on a pilot basis) of conditional cautions under the Criminal Justice Act 2003.



A new edition of the codes of practice, issued under the Police and Criminal Evidence Act 1984, will come into force on 1 August 2004.


By Anthony Edwards, TV Edwards, London