Police powers

on Human Rights had been violated by the judge s direction to the jury. Their appl
ication
was successful. If suspects are told to remain silent by their solicitor, they a
re likely
to see this as a good reason to remain silent. But that reason will not be suffi
cient to
prevent adverse inferences being drawn. To avoid these adverse inferences the
suspects have to reveal good reasons why the solicitor advised them to remain si
lent.
In Beckles v United Kingdom (2002) the European Court merely emphasised the
requirement that the defendant should have genuinely relied on the solicitor s adv
ice.
But when the case was subsequently reconsidered by the Court of Appeal (R v Beck
les
(2004)) that Court emphasised that there needed to be both a genuine and a reaso
nable
reliance on the advice of the solicitor.
In R v Bresa (2005) the Court of Appeal recommended that a jury should be direct
ed
in the following terms:
You have no explanation for the advice in this case. It is the defendant s right n
ot to
reveal the contents of any advice from his solicitor or what transpired between
himself
and his solicitor. The question for you is whether the defendant could reasonabl
y have
been expected to mention the facts on which he now relies and saying that he had
legal advice without more cannot automatically make it reasonable. If, for examp
le, you
consider that he had or may have had an answer to give, i.e. that he was acting
in selfdefence,
but genuinely and reasonably relied on the legal advice to remain silent, you
should not draw any conclusion against him. But if, for example, you were sure t
hat the
defendant remained silent not because of the legal advice but because he had not
acted
in self-defence and that was a matter which he fabricated later, and merely latc
hed on to
the legal advice as a convenient shield behind which to hide, you would be entit
led to
draw a conclusion against him.
Interviews outside the police station
PACE states that, where practicable, interviews with arrested suspects should al
ways
take place at a police station. However, evidence obtained by questioning or vol
untary
statements outside the police station may still be admissible. Since such interv
iews are
not subject to most of the safeguards explained above, the obvious danger is tha
t police
may evade PACE requirements by conducting unofficial interviews such as the
practice known as taking the scenic route to the station, in which suspects are qu
estioned
in the police car. The RCCJ found that about 30 per cent of suspects report bein
g
questioned prior to arrest.
Even at the police station, research by McConville ( Videotaping Interrogations:
Police Behaviour On and Off Camera (1992)) shows that illegal, informal and
unrecorded visits were made to suspects in cells to prepare the ground for an in
terview
and to persuade them not to raise a defence. Sometimes suspects themselves ask t
o see
police officers informally, in the hope of doing some kind of deal. In some case
s the
formal interview that followed was little more than a set piece, scripted by the
police.
Yet defence lawyers often accepted the police version of these events as the tru
th.