The Timing of 'The Special Warning'

Timing of the ‘special warning’ is a matter for the interviewing officer. The warning can only be given in a post arrest, post caution interview. There is no guidance in the Act as to when the ‘special warning’ should be given but Codes E. 4.3C and C. 10.5A of the Codes of Practice are helpful. Code C concerns the detention and questioning of suspects and Code E concerns the tape recording of interviews with suspects: both state,

“when a suspect who is interviewed after arrest, fails or refuses to answer certain questions, or to answer them satisfactorily, after due warning, a court or jury may draw a proper inference from this silence under ss. 36 and 37 of the Criminal Justice and Public Order Act 1994”.

The use of “after due warning” indicates that the ‘special warning’ should be given before questions are put to the suspect concerning objects, marks or substances or marks on such objects or being found at a place or about the time an offence has been committed. This is a common-sense approach. It would be an unnecessary burden for interviewing officers to be expected to judge, or know, whether an answer to questions is unsatisfactory or not. In many cases, the police only achieve discovery of an unsatisfactory answer after further enquiries. If a ‘special warning’ is given then any later discovery of an unsatisfactory answer could be the subject of a proper inference using the statutory provisions of ss. 36 and 37.

The chronology of the Act is also an indicator of when the ‘special warning’ should be given. Section 36(1) has four parts:

• is the fact of the possession of objects, substances and marks;
• the belief of the officer that possession indicates participation in an offence;
• informing the suspect of the belief and the request for an explanation;
• the refusal or failure to explain.

Item (c) is clearly the ‘special warning’. The warning must therefore come before any failure or refusal to answer. The Police National Crime Faculty states that “test” questions should be asked before applying a special warning in their September 1996 update when they assert “however, a special warning should not be used in any circumstances until after a suspect has failed or refused to answer certain questions (Code C10.5A)”. This assertion makes no sense and flies in the face of the intention of the legislators. The legislator’s interpretation is clearly right, the suspect should be warned of the sanction that could be applied, before questions begin, about incriminating articles or presence at a particular place.

Useful analogies can be drawn: police have the power to take intimate samples, e.g. blood for the purpose of confirming or disproving a suspect’s involvement in a recordable offence. Before a person is asked to provide the sample he must be warned that if he refuses without good cause, his refusal may harm his case if it comes to trial. Is there any essential difference between this provision and special warnings? The warning comes before the request: the suspect is informed of the sanction to be applied if he refuses the request.

Another analogy would be a section 34 caution. “A person whom there are grounds to suspect of an offence must be cautioned before any questions about it are put to him regarding his involvement or suspected involvemen[t]”. In this case, the caution comes before the questions. Again, is there any essential difference between this provision and a special warning? It makes clear and common sense to apply the warning before questions are put.

Comments by Police when Solicitor advises suspect to make no comment.

I agree it is right not to undermine the legal representative by stating to the suspect that remaining silent may not be in their interest. However, the Royal Commission study in 1993 identified that legal representatives at police stations were frequently unqualified and untrained. The Legal Advice and Assistance Regulations 1989 permit delegation by a solicitor to such unqualified clerks. The Royal Commission study also found that the incidence of advice to exercise the right to silence increased at police stations where the adviser was wholly experienced.

The case law to date clearly indicates that a mere assertion that a suspect should not answer questions on legal advice will not save them from an adverse inference. Police should not be passive where non accredited or probationary representatives, unsuited to provide legal advice, advise suspects to remain silent to cover their own lack of knowledge or experience. In those cases, police should consider contacting the solicitor to give them the opportunity to make alternative arrangements.

Reference is made in the memorandum to R v Condron and Condron. It is suggested that the judgement simply gives guidance at court when the defence wish to challenge the drawing of inferences. That is not the meaning of the judgement. It clearly deals with a solicitor giving his clients advice not to answer questions from the police. The appeal court dealt with that by stating inter alia “If the accused gave as a reason for not answering questions that he had been advised by his solicitor not to do so, that advice did not, in their Lordship’s judgement amount to a waiver of privilege. But equally that bare assertion was unlikely by itself to be regarded as a sufficient reason for not mentioning matters relevant to the defenc[e]”.

Prepared statements presented before interview or on charge.

The memorandum refers to detailed advice prepared by the Criminal Justice office. I have read the detailed advice, which appears to state that suspects cannot be interviewed after charge except on “information obtained after charge from sources other than the suspect”. I am unable to discover the origin of this interpretation. Code C. 16.5 states that questions can be put “where it is in the interests of justice that a person should have put to him and have an opportunity to comment on information concerning the offence which has come to light since he was charged or informed he might be prosecuted”. There is no exclusion on information from the interviewee.

It would be likely to be in the interests of justice where, for example, a suspect produced a detailed written explanation, after charge, especially where matters are raised, not previously covered by the interview.

Need to record information disclosed before interview/charge.

I agree with the sentiment of the paragraph. It would be a mistake to set a precedent requiring written disclosure in every case. Legal representatives frequently assert that all the prima facie evidence should be produced before interview or the suspect will be advised to remain silent. The origin of this advice are the recommendations of the Royal Commission that such a requirement be placed in the 3rd edition of the Codes of Practice. The recommendations were not ratified and no such requirement exists. However, Doctor Eric Shepherd wrongly included the recommendation as a fact in his advice to legal representatives. Police officers should be given guidance to equip them to deal with legal advisors who make assertions not based on legal requirements.

Conclusions

I have only briefly covered the matters raised in the proposed memorandum. I am willing to provide information that is more detailed if required. I hope that my views will be accepted in the way they are offered, i.e. helpful and qualified.

The enclosed book is an in depth study of the matters mentioned above. The book contains critical comment about the stance taken by the Criminal Justice Office and the National Crime Faculty. It is the job of a “master” to critically comment. As uncomfortable as it is for the persons concerned I believe the comments are justified. It is to be hoped that the bodies criticised do not treat the comments personally, thereby clouding their judgement.