Disclosure Matters

I have recently blogged on the matter of the proposed changes to the legal aid system. This was in support of a blog by @crimsolicitor. We now also have a blog by @_millymoo. The item below is a guest blog by @lifeincustody. She has been a police officer and is now an accredited police station advisor. She has experience of both sides of the fence and blogs candidly on her role.

As an accredited Police Station Adviser, I’ve obviously been studying all the commentary regarding the proposed cuts to legal aid with great interest. It is of course my livelihood and my profession, and a role I take very seriously if not passionately.

There are a number of sides to my job. There are my day to day bread and butter clients, who quite frankly would look at me as if I were barking if I tried to explain the theft act to them. After all, they know it better than I do (I’m gonna make a full and frank denial love). All they want to know is if they’re getting bail or not, and that takes up the larger part of our discussion. We know each other so well that we are able to fall in to a shorthand. They know what to expect from me and I know how not to p!ss them off. It’s a happy relationship and it needs to be as my continuing employment depends upon it.

Then there are the clients I get when I act as the Duty Solicitor representative. Very often, these will be people who have never been in trouble before. They ask for ‘Duty’ because they don’t have an ‘own’ Solicitor to nominate. Alternatively they may need an Appropriate Adult, who will nominate the Duty Solicitor so as not to show any favouritism to any particular firm. Either way, both these sets of clients require a very high standard of client care, and I take this work very seriously. I stick meticulously to a script of what is expected of me from our legal aid contract. I explain everything as many times as is needed until I’m happy that they understand what they’re doing and why. I am aware that they place an enormous amount of trust in me to know what I’m doing and to give them the correct advice to achieve the best outcome for them. As John Cooper QC pointed out in a recent podcast, that may mean accepting guilt at the earliest opportunity, in order to gain the maximum credit in any subsequent sentencing exercise.

Some excellent blogger’s have recently set out to you how extending telephone advice may adversely affect people detained in custody and about to be interviewed. Whilst thinking about these blogs, I realised no-one had started as far back as ‘Disclosure’, or as I like to call it ‘Poker’. To cut a long story short, when my client is ready for interview I am called to the Station and handed a custody record detailing everything that has happened up until that point. I glean what I can from that and then the officer and I will go to a room for a chat. With one of my regular clients, that chat will consist of 5 (ok 10) minutes of gossip and leg pulling and a couple of minutes of disclosure. ‘He nicked some beer, what else do you need to know’? My chat with the client will be equally brief, and of the am I getting out today/don’t be ridiculous variety. However, with some, not all cases, I am handed a piece of paper with a few lines on which generally tells me Jack, sometimes even Diddly. At the top of this piece of paper is a heading which says something along the lines of ‘we are withholding certain evidence in order to test the truth of your client’s account’. And so the game of poker begins.

I have been doing this job an awfully long time, and those of you who follow me will know that I am an ex police officer and extremely fond of the officers that I get to work alongside. However, I have a job to do and I like to do anything I do to the best of my ability. I love a good game of double bluff; it makes things more interesting. I have to look at those few lines of disclosure and read between them. Read the lines that haven’t even been written. I then look carefully at my officer, looking for their ‘tell’. Are they shuffling on their chair, looking at the floor, going red, trying to leave the room, or is their nose just plain getting longer. I look a bit longer, for the ones that just can’t take the pressure and blurt out what I want to know, just to fill in the awkward silence. I then begin with my questions. ‘What aren’t you telling me officer’? I investigate their disclosure to find out the strength of the evidence against my client, because let’s face it, if it were that strong, why hold anything back? In one now famous exchange I asked if there was a statement against my client, the answer being yes. I forgot to ask if it was signed. If I had I would have found out that not only was it unsigned, it was also now in two halves!

Let me explain why disclosure of evidence is important to my client. I have to tell my client if a) an offence has been committed and b) there are reasonable grounds to suspect my client of having committed that offence. Sometimes the disclosure doesn’t even give me that much. I have to tell them how they may have committed that offence, and if not that one then another one, i.e they didn’t steal it but handled it, or that they still committed burglary by being a lookout. And yes, if the evidence is strong enough and they have something to gain, i.e. an Adult Caution, I like to be able to advise them of that so the client can be realistic in their approach to the interview and outcome. If I don’t get sufficient disclosure to properly advise the client on, I can with some justification advise them to make no comment, a decision which may subsequently mean that no adverse inference could be drawn against us at trial for not answering questions. This is not a criticism of the interviewing officers, they have a job to do and so do I. Two halves of the same criminal justice system, as I always like to say. Then there is ‘staged disclosure’. As an adviser, you only fall for staged disclosure once, as it can be so devastating to your client’s case that you never ever want to be in that situation again. That however, is the fault of the client in thinking that it would be a good idea to lie to his new best friend/solicitor, as well as the police. So, perhaps another aspect to advising the suspect in the police station that you may not have thought of? Frankly by the time all this has taken place on the telephone, I’d be seriously worrying if all those health scares about mobile phones were true. And if any of you actually do play poker, would it work over the phone?

Finally, for the police officers amongst you, I am regularly instructed by the Police Federation to advise their Officers prior to Pace interviews. In one recent exchange, I badgered the interviewing officer until I was told what I needed to know. Based on what he was trying to withhold, but eventually told me, I was able to advise my client that there was insufficient evidence to say that an offence had been committed and that if he were to refuse to submit to a voluntary Pace interview there were no grounds upon which to arrest him. My client and his Federation Representative agreed, and he was subsequently only dealt with for the Discipline matters. The effect of this being that the Officer did not have to suffer being interviewed for a criminal offence, nor the subsequent wait for a decision from the Crown Prosecution Service as to whether a prosecution would follow. A huge relief for him, and his family as I’m sure you will understand.

So, on the subject of telephone advice let me tell you where I’m at. It won’t work, so I’m out.

@lifeincustody


The other legal aid blogs can be found here;

by @crimsolicitor


by @thecustodysgt


by @_millymoo

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4 thoughts on “Disclosure Matters”

  1. There is another aspect to pre-interview disclosure and the problem of telephone advice, or no advice, that needs to be touched on.
    As I understand Interview procedure since Condron, pre-interview disclosure by police to a legal representative is essential if the prosecution subsequently wish to rely, at trial, on a defendant’s silence in interview so as to draw an adverse inference.
    In Roble, decided the same year, the Court of Appeal held that a good reason for a solicitor advising a client to stay silent might be that the officer had disclosed little or nothing of the nature of the case, so that the solicitor could not give the client any useful advice.
    But…. although I cannot find the authority I believe I am right in thinking that if there is no solicitor to advise the client, then no disclosure at all has to be given to an unrepresented detainee, because no one is going to be advising him.
    What this would mean, post LASPO, is that if an application at 3am is refused by a semi-comatose civil servant somewhere the other side of dreamland, and a detainee has no representative, he will get no disclosure, and be given no advice. If he fails to answer questions then an adverse inference may be drawn.
    Thus effectively, LASPO will drive a steamroller over Condron.
    I don’t doubt that the eponymous blogger TheCustodySergeant, would be more than alive to this, but with the best will in the world, I have my doubts that his integrity is shared universally amongst all his colleagues.
    I’d be delighted to be proved wrong about any of this by those with real life experience of Custody Work.

  2. Another interesting blog . I wonder if disclosure interviews between police and advisor are ever taped for serious offences? This would surely give protection for both parties so there is no misunderstanding and no accusations of anyone saying in interview there has been insufficient disclosure. Also stop advisors and police being pompous in tone and downright rude or patronising if they knew it might be played in court. I agree if I was in custody I would prefer the face to face advice.

    Anon – writing as Walter English on Twitter. @rosettastone57

  3. I don't understand why someone would go into this side of the law after having been a police officer. From the above blog it basically sounds like a large part of your job is trying to get guilty people off their sentences by manipulating legal technicalities. Don't you ever feel guilt ridden about that? I know I would.

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