As the third edition of his book is published, Eric Shepherd outlines the best practice procedures for legal advisers when defending clients at a police station


For a decade the book PoliceStation Skills for Legal Advisers has represented a good practice guide for legal advisers - solicitors and non-solicitors. It has been produced as evidence of a minimum acceptable standard of professional practice. The forthcoming edition reflects the fundamental changes in the law and in police investigation and other investigative procedures.



Following two landmark cases - R v Howell [2003] Crim LR 404 and R v Knight (2003) EWCA Crim 1977 - legal advisers must assess how a court might view the circumstances of the case at the time the client was advised and the risk posed by the absence of, or the absence of detail within, an early defence.



Volume 1 - the accreditation manual - covers essential issues such as police investigation, best practice interviewing, investigative procedures (fingerprinting, taking of samples, searches, and identification procedures including the use of video), practices and procedures of investigating officers (IOs), custody and identification officers, civilian staff, and police surgeons. It also gives practical guidance such as assessing a client's emotional, mental and physical state; working with clients, police and civilian staff, police surgeons, interpreters, and appropriate adults; identifying and advising on the safest defence, preparing a defence statement, and preparing the client for interview or another investigatory procedure.



Volume 2 - the practical reference - describes objectives and easily navigated checklists of flexible actions for each stage of active defence from the initial request to attend. It provides reference material on key topics: advice and access; advising on silence; appointment of the appropriate adult; assessing the client's vulnerability; bail; charging and alternatives to charging; complaints; detention; identification (by witnesses and by body samples and impressions); investigation and detention by services police; offences; photography; and searches. There are useful tools for capturing and analysing detail comprehensively throughout the entire process of defending: the Case Narrative proforma; the Witness Testimony sheet and the Safest Defence decision-making template.



Following Howell and Knight, police disclosure is of fundamental importance. The accreditation manual devotes 60 pages to the consultation with the IO, recommending the adviser tape-record the consultation as an incontrovertible, accessible record of disclosure. Full disclosure is extremely rare. Selective disclosure is the norm to prevent the construction of an untruthful defence, and to expose mismatch between the suspect's account and undisclosed information and evidence. Minimal or no disclosure occurs in intelligence-led investigations. It also happens often if information or evidence of sufficient status is lacking - frequently the result of poor investigation, poor witness interviewing, and poor crime reporting, and lack of resource to validate the content of handover notes or witness accounts, or even to visit the crime scene.



In more serious cases disclosure is phased. Pre-interview disclosure is typically under-detailed and non-specific in nature. Depending on what happens in the interview, additional disclosure occurs either then or before subsequent interviewing. Legal advisers still go along with wholly improper three-step disclosure - no initial disclosure, an interview inviting the suspect's account, followed by selective disclosure before a second interview. Police Station Skills is unequivocal - where there is no proper initial disclosure a client should never answer questions.



Proper initial disclosure - verbally or in a written disclosure document - must specify several details. These include the allegation, the line of reasoning that leads the police to believe that the suspect, rather than anyone else, committed the offence, and any 'special knowledge' attributed to the suspect concerning the circumstances leading up to, during, and following the offence. It should sensibly describe the police case - police beliefs concerning these circumstances - even if no indication is given of the prosecution evidence and ongoing investigation.



Where disclosure is so minimal or there is no disclosure, Police Station Skills suggests a position statement reminding the IO of R v Roble [1997] Crim LR 449 - that is to say, if disclosure is so limited that the legal adviser cannot usefully advise the suspect, this is a reasonable ground for a court not to draw an adverse inference from silence.



Initial disclosure is unlikely to contain inconsistency or contradiction. Legal advisers must identify what has not been said - missing detail, gaps and jumps in the police narrative, and anything expressed vaguely. Police Station Skills recommends using SE3R - a simple, rapidly applied visual representation technique that the police service uses to detect what has been left out and other oddities in what witnesses and suspects say. SE3R immediately reveals what the legal adviser needs to ask the IO (see www.forensicsolutions.co.uk).



The legal adviser should then obtain vital information about the client. This includes what is held by the police, the IO's awareness of the client's potential vulnerability, and involvement of health professionals.



Police Station Skills recommends systematic probing of potential prosecution evidence. Potential forms of prosecution evidence include:



- Covert information on the suspect;



- Accounts and descriptions from victim and witnesses;



- Accounts or statements by co-accused;



- House-to-house enquiries;



- Films, video recordings and photographs released to the media;



- Identification by witnesses;



- Object evidence (namely, material items of any kind including those recovered from the crime scene - including the victim - and in searches of the suspect, locations and vehicles associated with the suspect; recordings of any kind, for example, CCTV, audio; still photography, for example, from a security camera);



- Contact trace material (namely, finger and palm prints; impressions, for example, made on a surface by footwear or an object - such as a tool - or by part of the body - such as an ear or teeth - and marks on clothing; traces, for example, hair, natural and artificial fibres, shards of glass, wood, paint; substances, for example, DNA, blood, semen, accelerant (used to set a fire), suspected drugs);



- Specialist opinion and testimony;



- Significant statements by, or silence from, the suspect;



- Interviewing of the suspect to date (account(s) given);



- Formal statements taken from the suspect.



In highly circumscribed circumstances - for example, shoplifting in a store - house-to-house enquiries would of course not be a source of evidence. However, in most cases legal advisers have to second guess what types of evidence might exist. Experience, judgement and common sense assist but this is extremely risky. The lesson from R v Imran and Hussein [1997] Crim LR 754, is all too clear - it is essential to question the police about every form of evidence.



The IO and the legal adviser are adversaries - one represents the prosecution, the other the defence. Adversarial does not mean being antagonistic, but being systematic. This approach gains respect and enables assessment of how a future court might perceive the circumstances at that moment - an assessment vital to the next stages of active defence in the police station.



Eric Shepherd is a consultant forensic psychologist and author of Police Station Skills for Legal Advisers, the third edition of which will be published by Law Society Publishing in July and can be ordered direct from Marston Book Services, tel: 01235 465 656