The police have charged your client with a criminal offence. Your client receives the prosecution disclosure and has seen the evidence against her. She knows precisely what the police say she has done wrong.
You can seek further particulars if the charges are not clear. She has considered your advice about the merits of the charges and comes to your office for a discussion. She tells you (a seasoned criminal practitioner), “I have an explanation and I think it’s a good one. Should I talk to the police before trial?”
You consider her explanation against all the evidence and give further advice. It’s up to her whether and when she wants to speak to the police or, alternatively, give nothing away until trial.
If she decides to make a statement to the police, that statement is voluntary and will be admissible against her at trial. But it might persuade the police to drop the charge or remove the need for her to give evidence at trial and be subject to cross-examination.
If she so chooses, she steps into the police interview room understanding the case against her and knowing the questions she could be asked. She can stop talking if she thinks she will say something that incriminates her. Legal aid will fund your time for accompanying her to the interview.
For your client, this is a tactical decision. There is a certain level of control over the process that she can use to her advantage. Should the police try to speak to her before laying charges, she can also refuse to make a statement.
Draconian powers
But the above scenario doesn’t apply if your client is being investigated by another regulatory body. A suite of legislation gives various regulatory bodies extraordinary investigative powers that override traditional protections such as the right to silence.
A good example is when Serious Fraud Office (SFO) investigates your client. She will usually receive a notice from the SFO, demanding that she produce various documents, on pain of imprisonment if she refuses.
The notice will contain scant information about why your client is being investigated. After she hands over the documents, there may be further notices requesting documents. She must keep the existence of the investigation a secret, limiting the independent inquiries she can make.
Eventually, towards the end of the investigation, she may be sent a further notice requiring her to attend an interview. If she does not attend, she will be charged with a criminal offence.
When she steps into the SFO’s interview room, she may know very little about the substance of the investigation and why she is being accused. She will be asked a series of questions by two investigators who may have spent months (or even years) working on the investigation. She is likely to be shown a screen with complex documents she has never seen before and asked questions about them. She has no privilege against self-incrimination and she cannot refuse to answer the questions, on pain of imprisonment.
Her answers are admissible against her if (inter alia) she is charged with an offence and gives evidence at trial that is inconsistent with what she has said in the interview room. In short, her answers during the interview can be used to impeach her answers at trial.
The interview effectively commits her to a particular account of events, even before she knows of the substance of the charges. Dishonesty offences under the Crimes Act 1961 have maximum penalties of up to 10 years’ imprisonment.
When looking at a notice requiring her to attend an interview, your client (and you, assuming she can afford to engage you privately as legal aid does not fund lawyers at the investigative stage) will be faced with a very different question. Instead of considering whether there is any advantage to be gained in speaking to the police, it becomes a question of how to minimise the damage to your client’s defence at trial.
Blunt instrument
There are variations of this scenario, depending on the regulator, although the powers under the Serious Fraud Office Act 1990 are the most draconian.
The legislative justification for these powers is blunt – that the crimes are simply too difficult to investigate and prosecute without these powers and preventing the public losing confidence in the administration of justice is worth the trade-off in terms of preserving previously sacrosanct rights.
However, a criminal practitioner looking at this legislative set-up may wonder whether this rationale is the top of a slippery slope and makes palatable more grievous incursions into our rights, ostensibly in the name of the public good.
Tracey Hu is a barrister at City Chambers and a member of The Law Association’s Criminal Law committee.
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