Written by: Kim Evans
When to shut up
Do you really understand what’s meant by your ‘right to silence’? A report showed that only one in 10 of people given a caution really understood it, although 96% claimed they did. What people fail to appreciate is that what they understand to be their ‘right to silence’ was effectively abolished in 1994. It is a heavily curtailed right: a failure to tell the police all the relevant details about your defence in a case can amount to evidence of your guilt when your case arrives at court months, even years, later. Plus, I’d say, many police officers don’t seem to understand it either.
Right to silence? Chance would be a fine thing with some of my clients. The difficulty is shutting them up. Roughly speaking, my clients fall into two categories. Those who won’t say anything, including when it might help them, and those who can’t keep quiet, even when silence would really be the best option.
My ‘regulars’ often have an inbuilt distrust of the police, and even though they may have been arrested dozens of times before, being interviewed still makes them very nervous, surprisingly so. They worry that their words may be twisted, or words put into their mouths, and that things like drug or alcohol withdrawal will put them at a disadvantage. One of the many problems being an habitual criminal is that their face is very well known. This makes them an easy target when someone needs to be arrested, although on the odd occasion they really will be innocent of the crime alleged.
This is when I have a problem convincing them to answer questions for fear that they will become tied up in knots by their interviewer and end up sounding guilty. It’s a tough job on those occasions to convince them it’s in their best interests to put forward a defence. Once a person is charged and a prosecution begun, it can be very difficult to stop. One of my favourites, a shameless Scouser with a record as long as your arm, always comes out of his cell with a cheeky grin saying ‘I’m gonna be making a full and frank denial, love’. I give him the benefit of my advice, usually at a very antisocial hour, after which he proceeds to do exactly the opposite. It’s sometimes tempting to ask him why he has a solicitor.
At the other end of the spectrum is the person who couldn’t keep quiet to save their life (or liberty). These people are generally more mild mannered, less confident types, and often of the ‘people pleaser’ type of personality. No matter how many times I point out that they do not have to convict themselves by their own words, they find it almost impossible to stay silent. These clients fear they will anger their interviewer, leading to bail being refused, or that they will ‘get out of jail’ faster if they answer questions. Sometimes they even just worry about appearing to seem ‘rude’ by making no comment. The silence can be excruciating, and a ‘no comment’ interview can be more difficult to maintain than you might imagine. I can see the turmoil, see them fidgeting on their seat becoming more and more uneasy by the moment. They sometimes look at me pleadingly, until they can’t take the pressure anymore and blurt out an answer. I have sat for 10, 20 minutes with a client preparing them for a ‘no comment’, only for them to answer the first question and then look at me sheepishly. Of course it’s not a game, and they’re not staying silent because I want them to (despite what the interviewing officer sometimes thinks).
Doing the right thing
I have to justify my decisions with regard to my advice. I’m audited on it by the Legal Services Commission, and I may have to justify it in court at trial. I also have a very strong sense of ethics and take my role very seriously. My motto is ‘if it were a member of my family sitting there, is this the advice I would give them?’ That way I can be sure that I’m always doing the right thing. It can be difficult to separate out what’s morally right from what’s in the client’s best interests and sometimes I am put under pressure from the police to do the ‘right thing’, which is why it’s never a good idea for a legal advisor to become too pally with their police colleagues as it adds to the pressure. The only test of my advice can be ‘will this advice have the best chance of achieving the best outcome for this client?’ Everything else, all the pressures, the personal feelings I may have about the client or their alleged crime, have to be put to one side. I’m a professional, and as long as I do my job ethically, yes, I can sleep at night.