Should solicitor’s advise their clients to remain silent in police interviews?
Police have an important duty; to catch criminals. But in order to do so, they must prove that a suspect has committed an offence. When physical evidence is lacking, they will need some evidence from the suspect. In these circumstances is it right for a solicitor to advise a client to remain silent or answer no comment in a police interview?
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The solicitor's duty is owed to the client
A solicitor's role is to advance the best interests of their clients[[Solicitor's Code of Conduct; Rule 1.04]], whoever those clients may be. This is extremely important when dealing with suspects at a police station. These people have fundamental legal rights to liberty at stake. In order to advance their best interests will a solicitor may have to advise their client to remain silent at the interview. Given the fundamental nature of liberty, a solicitor should be allowed to give all the advise they can to a client in order to advance their best interests.
Solicitor 's duty to remind client of his or her rights
In Law, the client has the right to remain silent. But not everyone knows about that right. It is then , solicitor's duty to remind their clients of the right. They can only remind their clients of this right.Ultimately, it is up to the client whether to exercise the right.If the solicitor doesn't remind the client of this right, he or she is not doing his or her duty to protect the interest of the client
this prevents police from conducting their ole and so prevents justice
Police have the sometimes impossible task of 'proving' that a suspect committed a crime. In order to do this they first need to gather enough evidence to get the suspect into court. If there is not enough physical evidence in order for a trial to be called, then the police need to be able to get evidence from the suspect themselves. They need to be able to question the suspect in order to find loopholes and inconsistencies in his story in order to gather the requisite threshold of suspicion in order to get the criminal into the court room, before a full trial can ensue. A solicitor is preventing the police from doing this if they constantly advise their client to answer 'no comment'.
Under the Police and Criminal Evidence COP Code, the solicitor's sole role at a police station is to advance the legal rights of their client at the station[[COP C; NFG6D]]. They need not be concerned with how the police are to prove a case. They need not be concerned with the morality of their actions, or the nature of the justice system. All that is asked of them is that they protect their client.
it undermines the defence advanced at trial
In advising a client to remain silent, the solicitor may not be acting in the best interests of the client. If the suspect later seeks to rely on something which he could have reasonably mentioned when questioned [[s34(1) Criminal Justice and Public Order Act 1994]], negative inferences may be drawn. A jury could infer that the silence was due to the defence being fabricated at a later stage, that the defendant did not think he could uphold his story under police scrutiny or that the defendant had no reasonable explanation for his whereabouts at the time of the offence.
There is an important safeguard for defendants in the face of such adverse inferences. They cannot be the sole reason for a conviction[[s38(3) CJPOA 1994]] ,and the jury will be advised of this. Therefore, in some cases the course of silence will be the best course of non-action for the solicitor to advise the client.
adverse inferences will be drawn if no evidence given in defence
If the suspect does not answer questions in the interview, or answers with 'no comment' and then does not give oral evidence at the trial, the suspect will have adverse inferences drawn against them by the court and the jury [[s35 CJPOA 1994]]. A solicitor should not therefore advise the client to seek such a course of action. This action makes guilt presumed, therefore any defence would be better than no defence. In addition, if the same inference is going to be drawn whether a defence is made at trial or not, a defence may aswell be given.
In advancing the best interests of the client, the solicitor ultimately leaves the choice up to the client. It is not the the solicitor to make the mind of the defendant up, or to do what is best for them. In seeking to do what is best for them, a solicitor must uphold the suspects rights. One right is to stay silent in court without being guilty of contempt of court [[s35(4) CJPOA 1994]]. A solicitor's advice really only extends to setting out the consequences, as long as the solicitor spells out what the consequences are of such a course of action, then they have advised the client appropriately.
Counter to first point
It is not always in the best interests of the client to not talk to the police. Sometimes it is necessary to give the police certain information to keep in the clear.
A lot of the time; prisoners have no choice in the matter. Not communicating thus not cooperating with the police can lead to an additional charge of impeding justice.
What do you think?