POLICE STATION ADVICE  – THE CASE-LAW 

 

The first of February's 2 presentations will be on Friday, 11th February and will consider the important case-law of assistance to you when advising clients at this early stage of the investigation.

The following 20 issues will be considered:

1 – The extent to which the police must disclose their case to you prior to the first interview and what to do if they don’t – R v Howell [2003] EWCA Crim 01

2 – 3 good reasons according to the Court of Appeal for having a ‘no comment’ interview – R v Ali Hersi Roble (Court of Appeal – January 1997) – see also the case of Regina v Brian Argent (Court of Appeal December 1996) – ‘circumstances particular to the client’

3 – Tactics in terms of gaining access to the recording of the interview prior to charge where you are attending upon a client today and the client was represented by a different firm last time – DPP v Ara [2001] EWHC Admin 493

4 – Explaining the legal position to the client who wishes to have a ‘no comment’ interview – the position at law where this is as a result of your advice – R v Beckles [2004] EWCA Crim 2766

5 – You may say at the commencement of the interview ‘that this will be a no comment interview upon your advice’ but be very wary of saying anything in addition to this! – R v Bowden No.97/7529/x2 – 10th February 1999

6 – Is it really necessary to arrest the client who has attended the police station as a volunteer? – R (TL) and the Chief Constable of Surrey Police [2017] EWHC 129 (Admin) – do try to avoid an arrest taking place wherever possible

7 – To what extent must the police question a suspect in interview in order that adverse inferences may later be drawn at trial? – R v Green [2019] EWCA Crim 411

8 – What is the legal distinction between ‘mere comment at trial’ and the Magistrates’/District Judge or jury considering ‘adverse inferences’? – R v Smith - Court of Appeal (1985)

9 – The acceptance of a caution followed by the issuing of process in relation to a private prosecution for a charge in respect of the same matter – Jones v Whalley [2006] UKHL 41

10 – The acceptance of Fixed Penalty Notices followed by a decision of the Crown Prosecution Service to charge – R v Gore and Maher [2009] EWCA Crim 1424

11 – An unequivocal offer that the client will be cautioned if admissions are made and then the police proceed to charge – Mansfield and the DPP [2021] EWHC 2938 (Admin)

12 – The legal position at trial where the suspect lays down his factual defence by means of a written statement – R v Knight [2003] EWCA Crim 1977 and T v DPP [2007] EWHC 1793 (Admin)

13 – Circumstances in which a post-charge interview should NOT HAVE taken place – Charles v The CPS [2009] EWHC 3521 (Admin)

14 – Is there any legal advantage in the adviser saying at the commencement of the interview ‘that the no comment interview is as a result of legal advice’? – R v Essa [2009] EWCA Crim 43

15 – Alcohol and consent or non-consent when dealing with allegations of rape – R v Bree [2007] EWCA 256

16 – Underage sexual activity under the Sexual Offences Act 2003 – R v Whitbread [2021] EWCA Crim 1413

17 – Full admissions and early remorse at the police station stage – R v Caley and Others [2012] EWCA Crim 2821 – see also the more recent case of Regina v  Roland [2021] EWCA Crim 459 – (causing death by careless driving) – remorse and  an early guilty plea

18 – Advising on whether or not the presence of DNA will raise a prima facie case – Regina and FNC [2015] EWCA Crim 1732

19 – Facts unknown to the suspect at the time of interview – R v Nickolson [1999] Crim LR 61

20 – Advising the suspect on whether or not he or she should disclose details of their PIN/Encryption – Section 49 and Schedule 2 of the Regulation of Investigatory Powers Act 2000 – the sentencing case of Spencer