The importance of expert legal advice

Expert legal advice is essential any time you are interviewed by police

I met a new client last week. He is accused of drink driving and contacted me after hearing of me through others I've represented. He was arrested at home where the police found him in bed… asleep. He was not the only person in the house and was not the only person with access to the car he was accused of driving.

Having considered the evidence, I saw that the police received call from an “unknown informant” saying that somebody was drink driving. No reason for this belief was given nor was there any description of the driver. In short, there was no evidence that the man charged with the offence was the driver. Since the prosecution must prove not only that a person is over the drink driving limit but also that he drove while over the limit, evidence identifying the driver is very important.

At the police station, my client was interviewed in the presence of the duty solicitor – or at least an accredited rep acting on behalf of the solicitor – advised that the client make a full admission to driving after consuming alcohol. If you’ve not read it then I refer you to my recent post on advising suspects at the police station and my suggestion that a solicitor should advise a “no comment” interview unless there is a good reason to move from that position. I also suggest that solicitors consider a prepared statement followed by no comment to ensure that key points in a defence are put forward while remaining silent on everything else to test the strength of the prosecution evidence.

In this case, my client told me that his consultation with the solicitor lasted a few minutes and the advice given was, “they have a witness who saw you driving so you have to admit it”. This is surprising since the police account is that they do NOT have a witness to the driving. A simple question from the solicitor would have sorted this important point out, e.g. when the police say, “your client was seen driving.” The solicitor should be asking, “do you have a witness statement to that effect?” and, importantly, “will you be conducting ID procedures? If so, I need to know now so I can advise D about whether to take part or not.” Had these questions been asked the answer would have been either “no we don’t have a statement” or, “I’m not willing to answer that question”. The only answer to the ID procedures question can be, “no”. Had the police answered in any other way then the interview could be excluded at trial under section 76 of the Police and Criminal Evidence Act 1984 as being unfair since the police had lied to the solicitor to extract a confession. Given there seems to be no suggestion that the police lied, I can only conclude that the solicitor did not bother to ask any questions of the police.

In addition to throwing his hands up and not considering the advice properly, the solicitor did not spell out the importance of the client putting forward his post-driving alcohol consumption in the interview. The police did not ask whether he had anything to drink after driving and so neither did the client. This was a situation crying out for a “no comment” or prepared statement interview.

Had the solicitor advised no comment, the police would have been left with no evidence of driving since their anonymous informant did not describe the person he or she saw and could not take part in any ID procedures since the police have no idea who he or she is. Without any evidence of driving there would have been only one outcome: no further action and release without charge.

Even if the client had insisted on telling the police he had driven after drinking then the solicitor should have insisted that he put forward his post-driving alcohol consumption (this is commonly known as the hip-flask defence) either by reminding him to tell the police at the end of the interview or by drafting a prepared statement. While this probably would not have avoiding a charge being brought it would have set out his defence from the beginning and strengthened any account he gives at court.

I do not know why this solicitor did not effectively question the police and why he decided to ignore the sensible approach of answering no comment unless there is a good reason to move from that position but I can speculate. In my experience people accused of drink driving face three problems. First, there is a tendency to treat drink driving as not a very serious offence and so not to give it as much thought as you would a murder. I get that, from a solicitor’s point of view a drink driving is not as serious an offence as a murder. But, from a client’s point of view it is very serious to them and they deserve the benefit of knowledgeable and considered legal advice as much as anybody else. Secondly, I meet a lot of criminal law solicitors who will happily admit that they don’t understand motoring offences fully and don’t like them. When you don’t like something you tend not to spend much time learning about it and so if you find yourself giving legal advice you risk missing defences. We saw this happening in the case of R v Mohammed & Others, where solicitors were criticised by the Court of Appeal for not knowing about the availability of a statutory defence – that was an Identity Cards Act case but it happens in drink driving law too. Thirdly, when police station agents are being paid £50 to £90 per attend there is an incentive to wrap up each case as quickly as possible so they can get on to the next job.

As I say, I do not yet know what prompted the advice this chap was given but what I do know is that had he been given the correct advice to answer “no comment” then he would not now be facing a charge at court. If you ever doubted the importance of expert legal advice in the police station, I hope I’ve cleared up why it is so important.