Before Conviction

What to do when arrested

A. Under Arrest…

Are you under arrest? Ask: -if you are not, then you may leave the station.

New Police Caution:

“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence”

What to say in reply:

“I have been advised that I should answer no questions. It is not right that I should have to give a complete case for my self until charges have been made and properly explained and until there are other people around to check that the questions put to me are fair and legal. I will say nothing until I am advised do so by a fully qualified legal advisor”.

**Never rely on a duty solicitor unless he has dealt with serious offences before. Always get a second opinion.**

If under arrest, then every six hours your case must be reviewed by a police inspector to see whether you should still be there, and whether there should be further enquiries while you remain locked up.

Extensions of detention must be noted on the custody record.

B. Maximum periods of detention

For most offences you can only be kept a maximum of 24 hours without charge, though in serious cases, (so-called "serious arrestable offences") murder, rape for example, you can be detained for up to 72 hours without charge.

To preserve evidence, for example, in "serious" cases the superintendent can extend the usual 24 hour maximum custody period for a further 12 hours (making 36 hours in all) and thereafter apply to a magistrates court for a "warrant of further detention" for yet another 36 hours (72 hours in all).

Once the maximum time has elapsed you must be either charged or released.

C. The need for a solicitor

If arrested, whether at the scene of crime or at the station, it is unwise to talk to the police about any alleged offence, without expert guidance.

Once you ask for a solicitor the custody officer will straight away get onto it (unless the offence is a "serious arrestable offence" when the officer can delay obtaining you a solicitor for up to 36 hours.)

You should give, if asked, your correct name, address, date of birth, name of spouse/partner but do not talk about "the case".

The police should not attempt to interview you at the scene of crime, in the police car or before formal interview on tape at the station - but sometimes try to!!!

Give only the details above and tell the police that you do not want to say anything else until you have seen a solicitor.

Your discussions with the solicitor (who is entirely independent from the police) will be confidential and should be in private.

Note that there have been reports in a small number of stations where the police "listen in"; check this out with your solicitor.

D. Intimate/non-intimate body samples

Non-intimate body samples may be taken from you without your permission (mouth swabs, head-hair samples, for example) but the taking of intimate body samples needs your consent. Blood, semen, urine, pubic hair, non mouth orifice swabs and dental impressions are all intimate samples.

Refusal, without good cause, to give an intimate body sample, can be adversely commented on at trial by the judge.

E. In certain cases, it may help your defence to refuse to provide an intimate body sample (for example where the police might have nothing else against you but the sample itself placing you at the scene of crime)

F. Fingerprints and photographs

Fingerprints can be taken without your consent if -

a) a superintendent or above reckons the prints will tend to prove or disprove your innocence or
b) if he believes you are involved in a crime or
c) if you have previously been convicted of an offence or
d) you have been charged.

The offence must be a "recordable" offence, for example, one punishable by imprisonment. The rules on taking photographs without consent are similar. With your consent, fingerprints and photographs can automatically be taken.

G. Searches

If thought necessary by the custody officer you may be searched. Strip searches can be authorised if the officer considers it necessary to remove an article you would not otherwise be allowed to keep.

Only women officers can strip search a female suspect and vice versa. If drugs or a concealed article are involved a G.P. or registered nurse must be present. Your consent is not needed for a strip- search; it is needed from you however (and in writing) for the taking of an intimate body sample.

H. The custody officer and your legal rights

At the police station you will be questioned by the custody officer. He is there, in theory, to look after your rights. In practice he usually does.

Tell him about –
*any disability (language problems, illiteracy, deafness, blindness, mental illness e.g.) you may have.
*any medical requirements you have, (insulin, methadone etc.).
*show him any injuries (including bruising) you might have (and insist on the police doctor being called to make a record).
*insist that you see your solicitor or the duty solicitor.
*if the police's conduct has troubled you make sure the custody officer writes down your complaint on the custody record.
If he will not do this, ask your solicitor to get it done.
When you first speak to the custody officer he will be looking for your consent to the taking of fingerprints, photographs, will ask you about any disability and your views on consulting a solicitor among other things.

I. Take it all slowly. Insist on time to gather your thoughts.

You are entitled to make a phone call, to be fed and to be placed in a clean cell. If not, - complain and have your complaint logged on the custody record (Note that if the offence is a "serious arrestable offence" then the right to telephone can be denied for up to 36 hours).

J. The taped interview at the police station

The interview with the police will be taped. Every word will be picked up. If you do not speak English an independent interpreter will be obtained for you by the police. If you are a juvenile your parent(s)/guardian will be asked to attend or a social worker. If you are deaf or blind you will be allowed a deaf or blind worker to help you.

K. Making mistakes at the interview

Even one word out of place can do serious damage to your case.

A "yes" answer when you mean "no" can be insurmountable later on - no matter how good the representation.

The police attend training courses in interview technique. What chance do you have without your own advisor?

L. Police pressure not to consult a solicitor.

You may receive pressure not to see a solicitor. "You might as well get it over with" or" if you want a solicitor he'll be ages" or "why don't you just tell the truth, it'll be better all round" - you might be told.

M. Do not give in. Wait - even if the solicitor takes time. An hour or two spent wisely at the station waiting for your solicitor can save years in prison.

A duty solicitor is paid to be on stand-by and to be available quickly. He or she will normally arrive within the hour.

It depends what your own solicitor is doing on how long he or she will take to get down.

N. The greater the pressure from the police not to consult a solicitor the bigger the chance that you will be prejudiced without instructing one.

O. At the very least, ring your own solicitor or the duty solicitor for advice - it is free!

P. Otherwise get the duty solicitor to attend whether it is the middle of the afternoon or 3am at night - he or she is usually very experienced - and, again this is free.

Do not think you know it all. You don't!

Q. Gone-is the right to silence

The decision whether to keep quiet with a "no comment" interview on the one hand or an interview in detail on the other has been complicated by new rules denying the simple right to silence.

As the right to silence has gone the police now have a duty to appraise you and your solicitor of all material evidence they have about you before the interview.

You may still be silent at interview however this may lead to adverse comment about you at the trial from the judge.

You can insist on seeing the written evidence against you. Do ensure that the custody officer complies with this duty so that you know what others are saying about you.

R. Now, if you keep quiet, and then at trial tell the court matters you could have detailed at the station, the judge can tell a jury -"you the members of the jury, might question that if what he says is true, why did he not say so months ago at the police station?"

As an alternative you might be advised to give a written statement at the start of the interview and go "no comment" on tape.

This requires tremendous skill on not only the solicitor's part but on your part also.

S. If you're guilty?

If you are guilty but the police cannot make a case against you then you should keep quiet and give a "no comment" interview.

If, however the case is strong against you then you may be advised to admit all to obtain the advantage of a reduced sentence for the earliest of admissions.

Is your solicitor able to protect your "innocence" if he knows you are guilty?

The solicitor can advise you to give a "no comment" interview in these circumstances however the solicitor cannot make up a story for you or assist you with comments which he knows to be false.

NEVER ADMIT TO SOMETHING YOU HAVE NOT DONE

Developing your defence

If the solicitor only believes that you are guilty but does not know it (you have told him you are innocent) he should assist you to develop (but not make up) your defence. The solicitor is not the jury -they decide on guilt or innocence; your solicitor is your advocate, employed to help you gather your thoughts. Your solicitor is skilled in the clever use of language.

Full explanations, documents and memory

If you have a good explanation why you were not involved and are not guilty, then, in general terms, you will be advised to give a full explanation- if you can.

Sometimes though, if the matter is complex with lots of documents to examine, before you can give a full interview you will need to see and consider the papers some of which might go back years, with memories needing to be refreshed. In these circumstances, you are best asking the police to adjourn the interview until, with your solicitor, you have considered the papers.

If they will not adjourn, then at trial, you may have a good reason why you gave "no comment".

Suspicions and coincidences.

Remember, that no matter who you are, the police will have a natural suspicion about you. Straight-forward explanations from you might be thought to be nonsense by the officer questioning you. Coincidences between you and the real culprit might suggest your guilt and place you in jeopardy. This will result in the interviewing officer suspecting you to be guilty.

You will find these circumstances infuriating. Losing your temper is hopeless. It leads to more trouble and the police have seen it all before. The police may try and question you at the interview about other matters on their books and take you by surprise. Your solicitor should firmly stop such questioning.

The end of the interview

At the end of an interview, the interviewing officer(s) will consult with the custody officer to decide what to do with you.

Police options on how to deal with you
* You might be charged, and kept in custody, until the next day's court,
* bailed conditionally or unconditionally to a court date in the future,
* released unconditionally without charge
* released on bail to go back to the station weeks hence after the police finish their enquiries.

The police caution

If you have admitted guilt in interview you may be offered a police caution. This is not a criminal record as such. A caution is only offered following an admission of guilt.

You cannot say "I didn't do it" on the one hand, and expect a police caution.

Bail conditions

Of police bail might be
* that you do not contact prosecution witnesses,
* comply with a curfew,
* live and sleep at a certain address.
* report to the station regularly
* hand in your passport -or a combination of the above

Correct advice and proper conduct at the station is invaluable in safe-guarding your interests.

If someone alleges that you have raped a person, the first thing you need to do is ask yourself whether the allegation is true. If it is true (and you know you did it), you should seek expert legal advice immediately and say nothing until you have seen a legal expert.

All allegations, true and untrue, could have serious consequences for you and your family. You could find yourself being reported to the Police and Social Services. This might result in you being barred from having contact with your own children (or having them taken into care), or facing a criminal investigation and trial. You may well be suspended from work.

If the allegation made against you is false, here is some advice that you may find helpful.

Always obtain immediate legal advice. If necessary consult your trades union, professional association, or citizen’s advice bureau. Make sure you get a solicitor, and if necessary a barrister, who is experienced in defending cases of rape. If the complaint made against you has arisen from a police investigation into historical abuse (that is abuse which took place several years ago or in an institution make sure you obtain the services of a solicitor, and if necessary a barrister who is experienced in this particular field such as members of Historical Abuse Appeal Panel.

Never speak to the police without your solicitor being present. You may think that because you have nothing to hide, there is no harm in talking to the Police. Sadly this is not always the case — what you say may be misunderstood or misrepresented. This is particularly likely if you are asked about events you no longer remember, and about people you no longer recall.

When responding to allegations, only give answers you are sure of. Do not be tempted to 'fill in the detail' unless you are certain of your answers. If you do not know the answers to the questions say so. If you asked about any other person or incident only give accurate information. Do not sign anything unless you are 100% confident it is true.

You have a right to know what it is that is being complained about. If the investigative authorities are reluctant to give details of the allegations made against you make it clear that you cannot possibly defend yourself against such allegations.

Keep a detailed note of all that happens to you whilst under investigation. Share this information with your solicitor. You might not feel up to it but you can do a lot to help yourself.

Write down everything you know about the period under investigation. Gather as much evidence as possible as to your movements, dates of leave or other absence. Make a list of all the colleagues (including social workers etc) who worked with you at the time of the alleged incident, and of the clients you came into contact with. Draw up rough sketches of the location and environment in which you worked and where the alleged offences took place. Make a note of all the different records systems (e.g. diaries, log books, registers, case files etc.) that were in use at the time of the alleged offence, so that your solicitor can apply to see them. Enlist the help of family, friends, colleagues and anybody who can help. Their memory of key events in your career may be better than yours. Seek the help of someone who understands the context of your working environment at the time of the alleged complaint.

Never talk to the persons who have accused you, or their relatives. It may appear as though you are seeking to intimidate them, or put undue pressure on them.

Try to discover if your complainants have featured in other trials, and whether they have been motivated by a claim for compensation. If your case goes to Trial make sure your solicitor obtains as much unused evidence from the Police/Crown Prosecution Service as possible.

Under the sexual offences bill a rape defendant can no longer be acquitted on the grounds that he believed consent had been given, regardless of the circumstances. Instead, a new test is to be introduced, of whether a "reasonable man" would believe consent had been given.