Should suspects break their silence?
9 May 1995
28 February 2014
11 September 2014
17 June 2014
19 September 2014
15 August 2014
"HE is so young, he's just a boy. You wouldn't even think he was 11," says a home counties solicitor of her young client.
The child is due to be tried soon for a very serious offence which he confessed to after a barrage of police questioning which lasted for 45 minutes.
The lawyer, a specialist in child cases, says the case is entirely dependent on the confession. "It seems to be the basis of the charge," she says.
But she does not believe the child was in a fit psychological state to be interviewed at all let alone for 45 minutes during which he consistently claimed his innocence. She is also unhappy about the persistence of the questioning in the face of the boy's denials.
"There is a fine line between persistence and harassment."
Immediately before the interview the youngster had been held at the police station for just under 12 hours after spending the two nights out and about in the street.
Despite this, and the fact his parents had not come to the station, the duty solicitor who was there appeared to allow the questioning to go ahead.
At the start of a second interview the child confessed to everything. Later he told his new lawyer he had been advised to admit the offence by the solicitor.
"I don't think that he was given any options to choose from," says the lawyer, who believes the change in the right to silence law played a strong part in persuading the duty solicitor both that the child could not maintain his silence and that the persistent police questioning was legitimate. "Under the old rules the first interview would have lasted for no more than 10 minutes and that would have been that because there was so little evidence to support the case," she says.
The case would appear to illustrate widespread concern in the profession over the effects of the change in the law.
When it opposed a change in the right to silence law in 1993, the Royal Commission on Criminal Justice agreed with an earlier royal commission that a change "might well increase the risk of innocent people, particularly those under suspicion for the first time, making damaging statements".
The 11-year-old's case will add substance to the fears of the majority of the solicitors polled in The Lawyer survey who believed that the change in the law had done exactly what the commission predicted and increased the chances of miscarriages of justice occurring.
A large majority of the solicitors (76.5 per cent) polled indicated they were advising their clients more thoroughly than before, leaving their clients better prepared to answer questions than before the change in the law.
Concern will naturally focus on the badly advised along with the two thirds of suspects who, for whatever reason, do not ask to see a solicitor despite repeated offers of free advice.
"I dread to think what is happening to them," says one lawyer.
Andrew Palazzo, of the London firm McCormacks, says: "The change has shifted the focus of the criminal justice system away from the courts presided over by an independent judge to the police station. This has shifted the law in favour of the prosecutor because the police station is controlled by the police."
Palazzo's claims of what would amount to a profound change in the criminal law system appear to be resoundingly confirmed by The Lawyer survey which showed a massive 91 per cent of lawyers claiming police station advice was more important than before. Sixty per cent said it was far more important.
Roger Ede, secretary of the London Criminal Courts Solicitor, agrees the change in the law has put police station advice at the centre stage.
"I think the difference is that it emphasises the need for the adviser to understand the law because the advice that he or she gives can directly influence the way in which the trial is conducted, the evidence which is put to the trial and the strength of the defence case."
The change raises fundamental questions about police station advice which have been illustrated this week with news of the suspension of 800 out of 1,800 accredited police station advisers, says Palazzo.
Experienced solicitors are paid at the same legal aid rates for police station advice as solicitor representatives, but Palazzo's firm does not allow non-lawyers to give advice.
In its response to the Lord Chancellor's legal aid Green Paper, the London Criminal Courts Solicitors Association, of which Palazzo is a member, admitted to "concerns about the quality of advice and representation given in many criminal cases especially by non-specialist firms".
The group said contracts with the Legal Aid Board would provide a chance for minimum standards of quality to be set. Simon Hillyard, who runs the board's duty solicitor scheme, said duty solicitors already fulfilled selection criteria.
But he added the board would like to see some form of accreditation for advisers not on the scheme.
The survey was carried out by Centaur Research and Centaur Telemarketing. Criminal practitioners Michael Burdett and Lyn Devonald advised on questions.