This is a serious problem for our justice system, but it only needs to be addressed with a few adjustments so that the innocent are not biased and the guilty receive a quick confession that helps them obtain an extrajudicial injunction or conviction. OIC. (Commissioner of Investigations/Interview) That`s all the disclosure you need as a lawyer. Role of the interviewer You should approach the interview with an investigative mindset. The interviewee`s reports should always be compared to what you already know or what can reasonably be established. www.npia.police.uk Deteriorated to the extent that the guard log does NOT record MY own entries made several times with the explicit instruction to note the recording!! Interview Steps • Notify the client without interrupting the interview if necessary. • If necessary, make sure the interview is interrupted to give the client legal advice privately • Try to make sure the client understands the questions being asked and can answer them freely. • Immediate call for criminal questioning www.npia.police.uk What is wrong with the inference provision in section 34 of the Criminal Justice and Public Order Act 1994? Role of the interviewer When conducting an interview, you are free to ask various questions in order to obtain material that can support an investigation. Even if a suspect exercises his right to remain silent, investigators have a responsibility to ask him questions. www.npia.police.uk There is a clear conflict of interest in giving the police absolute discretion in disclosure when they consider that their role is not to provide information, but to force the suspect to remain silent or to make a mistake under the pressure of an information vacuum. Auld LJ stated in his review of the criminal courts: «The criminal trial is not a game in which an accused should have a sporting chance.» The law is not a game we are told, and yet it is precisely the problem with the police playing the disclosure system.
It is treated as a game by the police, but it is a game with a stacked deck of cards. What`s the difference? The distinguished Professor Ed Cape gave a telling example of a «right of defence» as opposed to «procedural fairness». It points out that the right to remain silent is severely restricted by the inference provisions of the Criminal Justice and Public Order Act 1994. Moreover, the courts seemed anxious to limit these rights. As in Howell, where Chief Justice de Law gave strong indications that a suspect is required, in the public interest, to disclose relevant facts to the police, although this was limited by the obligation that arises when the suspect is «confronted with a set of facts that accuse him». Law`s Chief Justice went on to say: I. The disclosure does not deal with video surveillance, whether the IP supports the circumstances of the road identification, whether there are other witnesses. I am satisfied that no conclusion on guilt could be drawn from an interview «without comment». Now, in many cases, we are back where we started. The account of the above interview before the interview is not atypical for my experience.
This can be summed up as «your client has been charged with theft on the main street and we want to ask them about it». If you`re lucky, you`ll have an experienced and reasonable public servant who handles disclosure, but we`re increasingly faced with poorly trained automatons who say the mantra «That`s all I have to give you.» Just in case it was a local phenomenon, I did a legal Facebook group poll and also a Twitter poll (with all its inherent limitations). I asked: Over the past 5 years, has the quality of pre-interview disclosure deteriorated, remained about the same, or improved? R. V. Howell was decided when the police were not required to disclose information prior to questioning. It may soon be time to test this again. Interview Steps • At the beginning of the interview, make an opening statement confirming and asking again about your role, the information you received from the police, the information you requested and did not receive • Read the statement prepared by the client, if written, and give it to the interviewing officer. www.npia.police.uk Basic Investigation Doctrine 4.2.2 • The investigator`s objective is to maximize the amount of material collected.
The rules governing what is accepted into evidence by a court are complex and are often challenged even in criminal proceedings. www.npia.police.uk Now, this completely unnecessary form of disclosure is becoming more and more common from a defense perspective. I`m used to it, because it was the norm years ago, when lawyers were treated as hostile alien beings who, despite PACE, were supposed to receive as little information as possible. The situation improved significantly over the years, and most experienced and well-trained police investigators felt that when they had a case, it was in the best interest of the police to disclose as much as possible (with obvious exceptions such as the location of forensic evidence). A fuller disclosure triggered the finding of guilt if the suspect had failed to provide a report. It allowed for a meaningful out-of-court injunction when a warning was possible and saved the police, CPS and courts time and money when, under the pressure of disclosure, the suspect decided to admit his obvious guilt in order to obtain maximum recognition in court. Considerations • Impact of disclosure of documents on the purpose of the interview • Multi-level disclosure • Counsel`s reaction • Court Response www.npia.police.uk Court of Appeal in R. v. Howell (Jeffrey John)  EWCA Crim 1;  1 Cr. App.
R. 1 stated that the issue is whether the respondent`s reliance on legal advice was «reasonable». This exposes the suspect to some risk, because despite insufficient disclosure, the court may question the lawyers` legal opinion on this issue. Thus, the law provides for the right to legal representation, but then undermines that right by allowing the courts to «question» it on the grounds that they – non-lawyers – consider it to be unreasonable advice! This ensures that legal advice is not so much a matter of the lawyer`s judgment as of the eventual court decision. A form of procedural roulette. Evidence collection documents • Eligibility • Pre-interview information session • Quality of the interview • Structure of the interview • Basis for law enforcement • Case Presentation www.npia.police.uk «The ability of the police to control the disclosure of information gives them a clear advantage, and the risk of miscarriage is increased both by a deep-seated culture of antagonism in police investigations and by other pressures. exercised on suspects. Since «there is simply no rule of law or practice requiring police to disclose the full extent of their relevant evidence before questioning a suspect,» it is possible to «lude» a suspect into silence and draw adverse conclusions by restricting or refusing disclosure.