Beyond the Basics: Police Interviews SYLA 29

th

April 2014 Jodie Blackstock Director of Criminal and EU Justice Policy

“I take it that the decision [to attend an interview] is mine. If the client ends up not being happy, it would be up to the client to contact somebody else” “Would I then attend every interrogation? This is an interesting question…Sometimes I tell my clients that it makes no sense for me to be present”

Inside Police Custody (Intersentia, 2014)

• E&W, FR, NL, SC • How four rights are delivered during police detention by police officers and lawyers: - right to interpretation and translation - right to information - right to access a lawyer • • - right to silence Average two months spent in police station by researchers per site, one month with lawyers, followed by semi-structured interviews with police and lawyers Includes recommendations for best practice and training framework for police and lawyers

European Standards

• • • Article 6 European Convention on Human Rights 1950 – right to a fair trial Article 6(3)(c) right to defence and to appoint lawyer of own choosing ECtHR repeatedly held that the right of any person charged with a criminal offence to be effectively defended by a lawyer is a fundamental element of a fair trial and this extends to pre-trial proceedings

Salduz v Turkey (ECtHR 2008)

• • • • •

The right of everyone charged with a criminal offence to be effectively defended by a lawyer is one of the fundamental features of a fair trial The evidence obtained during the investigation stage provides the framework in which the offence is carried to trial The accused person is particularly vulnerable given the stage of proceedings and complexity of the law. In most cases this can only be compensated by a lawyer whose task, amongst other things, is to ensure respect of the right not to incriminate oneself.

A lawyer should be provided as from the first interrogation of a suspect unless there are compelling reasons that may exceptionally justify denial of access

The rights of the defence will in principle be irretrievably prejudiced when incriminating statements are made during interrogation without access to a lawyer and used for a conviction

Cadder v HMA (2010)

• UKSC found the Salduz decision applied to the Scots system: “The procedure under sections 14 and 15 of the 1995 Act is

therefore, in this respect, the very converse of what the Grand Chamber holds is required by article 6(1) and (3)(c) of the Convention…in my view there is not the remotest chance that the European Court would find that, because of the other protections that Scots law provides for accused persons, it is compatible with article 6(1) and (3)(c) for the Scottish system to omit this safeguard – which the Committee for the Prevention of Torture regards as “fundamental” – and for suspects to be routinely questioned without having the right to consult a lawyer first. On this matter Strasbourg has spoken: the courts in this country have no real

option but to apply the law which it has laid down,” Lord Rodger [93]

Aspects of the right

• • • • • • • • From point where freedom of movement is curtailed Private consultation In such time and manner as to allow suspect to exercise their defence effectively To have their lawyer present and to participate To advise To be facilitated by the police To be exercised freely and voluntarily Dayanan v Turkey 2009: fairness requires the whole range of legal services. Counsel must be able to secure fundamental aspects of defence: collection of evidence; preparation for questioning; support of accused in distress; assessment of conditions of detention

Ambrose, M and G v HMA (2011)

From when does right apply?

• Police custody is likely to be oppressive and intimidating – balance of power shifted.

• Person is vulnerable to having confession extracted.

Custody is a ‘significant curtailment of freedom of action’

• Outside of actual custody flexible approach needed as coercive atmosphere may not exist in every conversation with suspect • Requires very sensitive handling – guide is when no longer a potential witness but become suspect. Questioning need not be detailed and sustained to form ‘police interrogation’ in Salduz sense. Likely to be when police have reason to think they may elicit an incriminating response

Waiver of the right to a lawyer

• • • • Salduz – to be effective, must be established in an unequivocal manner and be attended by minimum safeguards commensurate to its importance Panovits v Cyprus (2008) – re-emphasises the importance of access to a lawyer for young suspects and during police interrogation Waiver by minors : can only be accepted after the authorities have taken all reasonable steps to ensure that the child is

aware of their rights of defence and can appreciate the consequences of their decision.

Pischalnikov v Russia – knowing and intelligent waiver

UKSC consideration of waiver

• McGowan (PF) v B; Jude, Hodgson and Birnie v HMA • Where acted of own free will, no rule that must have legal advice to waive. If there is a reason to believe did not do so/ did not understand, might be ineffective • Rights may not be understood by everyone, e.g. Lord Hope low intelligence, otherwise vulnerable, under influence = may need to be given more; Lord Dyson – age, health, apparent intelligence, extent to which appears in state of stress. Where appears intelligent and not ‘especially’ vulnerable = usually valid • Question of fact as to what fairness demands in a particular case. Sufficient to show that understood lawyer would/might be of benefit.

UKSC suggestions for ensuring effective waiver

Lord Hope: (1) Police should follow para 6.5 PACE Codes of Practice: officer should inform includes right to speak to solicitor on telephone + ask why detainee waives. Reasons should be recorded - may reveal D has not fully understood the right (2) Should be warned that if indigent, a lawyer will be appointed through legal aid – if unable to name a lawyer or concerned about the costs Lord Hamilton: ACPOS Guidance and SARF compliance may not be sufficient. Child or vulnerable adult may require special arrangements to ensure rights respected

Lord Kerr dissented in Ambrose, Birnie and B

• Not all debates will be resolved by Strasbourg. HRA (and SA) give direct access to the courts to decide Convention issues • Right to fair trial encompasses pre-trial investigation stage • Ambrose – question is the use to which statements put not nature of detention and is the accused liable to incriminate themselves? Right arises when person becomes a suspect • Birnie and B – indispensible pre-requisite that should ascertain the reasons for waiver – unmistakable effect of the Strasbourg jurisprudence: in order to show was a knowing and intelligent decision (i.e. has wherewithal to understand consequences) must have insight into why right declined. Inconceivable that any court could be satisfied without.

EU Standards

• • • EU Directive on the right to information – in force June 2014 – requires suspects to be informed in simple and accessible language of their rights – does CP(S) Act 1995/SARF comply? Anyone seen the letter of rights?

EU Directive on the right of access to a lawyer – adopted November/in force 2017 but not by UK (yet) Provides for right to presence of lawyer during police detention and effective participation of lawyer during interrogation; confidential communication; legal aid.

Inside Police Custody – Some General Findings

• • • • England and Wales - access to a lawyer during police detention for 20 years – functioning duty lawyer scheme, automatic legal aid provision, mandatory accreditation scheme for people undertaking police station representation France – right afforded 2011 - organised duty scheme and training for lawyers, but role very limited as little disclosure provided, and cannot intervene during interrogation. Netherlands – partially afforded access to interrogation from 2011 to juveniles – pre-existing right to consultation – only one lawyer on duty per district – spend approx 15 mins with suspect Scotland – right from 2010 – duty scheme but lawyers poorly organised. Few attend police station advise clients to remain silent by telephone.

Inside Police Custody – Some General Findings

• • • • • • Poor remuneration, other demands upon time, limited role, minor offence, advice to remain silent OR tell story – reasons not to attend across NL, FR, SC Specialist criminal defence lawyers in E&W, NL, thought important to attend interview in all cases Approach of lawyers differed across jurisdictions – passive/active and for differing reasons including attitude of police Lawyers thought officers less likely to act oppressively and to adhere to procedure Police thought lawyers assisted with efficient progression of interview Lawyers can support exercise of silence

Organising effective legal representation

• • • Appropriate qualification and ongoing training/guidance for the provision of advice and representation by lawyers Training provision for police officers so that they understand the importance of the right to the suspect and role of the lawyer Workable duty schemes such that lawyers are able to attend their slot whilst maintaining their practice – needs sufficient numbers over realistic time periods – independent from the police

Role of defence lawyer

• • Upon arrest and detention at the police station a suspect is entitled to be informed of the right to a lawyer – advice and assistance Lawyer’s role is to: - assist in preparation of defence from approach to interrogation by police through to trial and appeal - inform suspect of, and safeguard, their rights - assess welfare of suspect in detention - communicate with external contacts

Role of defence lawyer in practice

• • • Defence lawyer must therefore attend the police station and/or prison to consult with and assess client; negotiate access, charge, bail with police Must have skill and expertise commensurate with the offence suspected/charged Must have sufficient time to adequately and effectively consult and represent suspect’s interests

Giving Legal Advice at Police Stations: Practical Pointers (JUSTICE, 2010)

BASIC AIMS (1) Identify and assess the client’s vulnerabilities; (2) To advise the client in private; (3) To be accurate as to the law; (4) To investigate the police case: evidence and procedure; (5) To be present at the police interview; (6) To avoid the client assisting the police case, subject to obvious exceptions; (7) To influence the police as to charge and further investigation; (8) To create the most favourable position for the client; (9) To act ethically.

Checklist on role of lawyer

1. Understanding role and significance of legal advice during police detention at each stage (advice, interrogation, other investigative acts, decision as to charge and as to release) 2. Understanding needs of suspects and vulnerabilities ( knowledge, demands and support needs of repeat/new suspects/desire for release/ability to articulate circumstances ) and need to test account in order to devise defence/interview strategy

Checklist on role of lawyer

3. Enhancing ability to effectively carry out role: timely provision of advice and assistance; importance of advising in person; whether to attend interview; negotiating information from police; ensuring confidentiality 4. Making use of lawyer-client consultation: introduction and explanation of (independent and confidential) role; verifying suspect’s understanding of their rights; obtaining instructions; advising on law and procedure; right to silence

Checklist on role of lawyer

5. Developing skills related to advising during/intervening in interview (including identifying unfair, unlawful, inappropriate questioning by police) and developing role as active defender rather than passive observer 6. Considering implications of procedural errors by police and whether to intervene