Posted at 11.04.2018
Timing of the 'special alert' is a subject for the interviewing officer. The warning can only just get in a post arrest, post caution interview. There is absolutely no assistance in the Act as to when the 'special caution' should get but Codes E. 4. 3C and C. 10. 5A of the Codes of Practice are helpful. Code C concerns the detention and questioning of suspects and Code E concerns the tape taking of interviews with suspects: both point out,
"whenever a suspect who is interviewed after arrest, fails or refuses to answer certain questions, or to answer them satisfactorily, after due warning, a court or jury may bring a proper inference from this silence under ss. 36 and 37 of the Felony Justice and Community Order Work 1994".
The use of "after anticipated warning" reveals that the 'special caution' should get before questions are placed to the think concerning objects, grades or substances or markings on such things or being bought at a place or around the time an offence has been committed. That is a common-sense way. It would be an pointless burden for interviewing officials to be likely to judge, or know, whether a remedy to questions is unsatisfactory or not. In many cases, the police only achieve breakthrough of the unsatisfactory answer after further enquiries. If the 'special warning' is given then any later finding of any unsatisfactory answer may be the subject of a proper inference using the statutory provisions of ss. 36 and 37.
The chronology of the Act is also an indication of when the 'special alert' should be given. Section 36(1) has four parts:
a) is the actual fact of the possession of objects, chemicals and grades;
b) the belief of the official that possession implies participation within an offence;
c) informing the think of the idea and the obtain an explanation;
d) the refusal or inability to explain.
Item (c) is obviously the 'special warning'. The caution must therefore come before any inability or refusal to answer. The Police National Offense Faculty claims that "test" questions should be asked before making use of a special alert in their Sept 1996 upgrade when they assert "however, a special warning shouldn't be found in any circumstances until following a think has failed or refused to answer certain questions (Code C10. 5A)". This assertion makes no sense and flies in the face of the goal of the legislators. The legislator's interpretation is clearly right, the suspect should be warned of the sanction that might be applied, before questions start out, about incriminating articles or occurrence at a specific place.
Useful analogies can be attracted: police have the energy to take personal samples, e. g. blood for the purpose of confirming or disproving a suspect's engagement in a recordable offence. Before one is asked to supply the sample he must be warned that if he refuses without good cause, his refusal may harm his case if it involves trial. Is there any essential difference between this provision and special warnings? The warning comes prior to the demand: the think is up to date of the sanction to be applied if he refuses the submission.
Another analogy would be a section 34 extreme care. "A person whom there are grounds to believe of offence must be cautioned before any questions about it are put to him regarding his participation or suspected involvemen[t]". In this case, the caution comes before the questions. Again, will there be any essential difference between this provision and a particular warning? It makes clear and common sense to use the alert before questions are placed.
I concur it is right never to undermine the legal consultant by stating to the think that remaining silent may well not be in their interest. However, the Royal Fee research in 1993 discovered that legal representatives at police channels were frequently unqualified and untrained. The Legal Advice and Assistance Legislation 1989 permit delegation by the solicitor to such unqualified clerks. The Royal Commission study also found that the incidence of advice to exercise the to silence increased at law enforcement officials stations where in fact the adviser was wholly experienced.
The case laws to date obviously indicates that a mere assertion a suspect shouldn't answer questions on legal advice won't save them from a detrimental inference. Police shouldn't be passive where non certified or probationary staff, unsuited to provide legal advice, advise suspects to stay silent to pay their own lack of knowledge or experience. In those conditions, police should consider contacting the solicitor to give them the chance to make alternative plans.
Reference is manufactured in the memorandum to R v Condron and Condron. It is suggested that the judgement simply provides guidance at judge when the defence wish to challenge the pulling of inferences. That is not this is of the judgement. It evidently deals with a solicitor supplying his clients advice never to answer questions from the police. The appeal judge handled that by stating inter alia "If the accused gave as grounds for not answering questions that he previously been advised by his lawyer not to achieve this task, that advice didn't, in their Lordship's judgement amount to a waiver of privilege. But evenly that bare assertion was unlikely by itself to be regarded as a sufficient reason for not mentioning issues highly relevant to the defenc[e]".
The memorandum refers to detailed advice prepared by the Criminal Justice office. I have read the comprehensive advice, which seems to declare that suspects can't be interviewed after fee except on "information obtained after demand from sources apart from the suspect". I am unable to discover the source of the interpretation. Code C. 16. 5 claims that questions can be placed "where it is in the hobbies of justice a person should have put to him and have an possibility to comment on information concerning the offence which includes emerged since he was recharged or informed he could be prosecuted". There is absolutely no exclusion on information from the interviewee.
It would be apt to be in the interests of justice where, for example, a suspect produced a detailed written justification, after charge, especially where things are brought up, not previously included in the interview.
I agree with the sentiment of the paragraph. It would be a mistake to set a precedent needing written disclosure atlanta divorce attorneys case. Legal reps frequently assert that the prima facie research should be produced before interview or the think will be advised to stay silent. The foundation of the advice are the tips of the Royal Percentage that such a necessity be located in the 3rd release of the Codes of Practice. The advice were not ratified no such requirement is accessible. However, Doctor Eric Shepherd wrongly included the advice as a fact in his advice to legal representatives. Police officers should get instruction to equip them to cope with legal advisors who make assertions not based on legal requirements.
I have only briefly covered the matters brought up in the proposed memorandum. I am inclined to provide information that is more detailed if required. I am hoping that my views will be accepted in the way they are offered, i. e. helpful and qualified.
The enclosed e book is an comprehensive research of the matters mentioned above. The book is made up of critical comment about the position considered by the Criminal Justice Office and the National Crime Faculty. It is the job of any "master" to critically comment. As uneasy as it is for the individuals concerned I believe the responses are justified. It is to be hoped that the systems criticised do not treat the responses personally, thereby clouding their judgement.
Terence D. Inch M. A. LLM