Learning Outcomes
After studying this article, you will be able to explain the defence solicitor’s responsibilities when advising clients at the police station, including protecting client rights, providing legal advice during interviews, managing conflicts of interest, and upholding confidentiality. You will also be able to identify and apply the relevant legal and ethical rules that govern solicitor conduct in this context, as required for SQE1.
SQE1 Syllabus
For SQE1, you are required to understand the practical and ethical aspects of advising clients at the police station. Focus your revision on:
- the defence solicitor’s role in protecting client rights during police detention and questioning
- the provision of legal advice, including the right to silence and the implications of adverse inferences
- the conduct of solicitors during police interviews, including when and how to intervene
- the identification and management of conflicts of interest and the duty of confidentiality
- the requirements for appropriate adults and special considerations for vulnerable clients
- the professional conduct rules and ethical obligations relevant to police station advice
Test Your Knowledge
Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.
- What are the main rights of a suspect at the police station that a defence solicitor must protect?
- When might a solicitor advise a client to remain silent during a police interview, and what are the possible consequences?
- What steps must a solicitor take if a conflict of interest arises between two clients at the police station?
- How does the duty of confidentiality affect what a solicitor can disclose to the police or others about a client’s case?
Introduction
When a client is detained at the police station, the defence solicitor plays a critical role in safeguarding their rights and ensuring fair treatment. This includes providing clear legal advice, intervening when necessary during interviews, and upholding professional and ethical standards. The Police and Criminal Evidence Act 1984 (PACE) and its Codes of Practice set out the legal framework for police procedures and the rights of suspects. Solicitors must be familiar with these rules and the Solicitors Regulation Authority (SRA) Code of Conduct to advise clients effectively and ethically from the outset of the criminal process.
The Defence Solicitor’s Core Responsibilities
Protecting Client Rights
The solicitor’s first duty is to ensure that the client’s statutory rights are respected throughout detention and questioning.
Key Term: PACE Codes The Codes of Practice issued under the Police and Criminal Evidence Act 1984, setting out rules for police conduct and the rights of suspects in custody.
Key Term: Caution The formal warning given to a suspect before questioning, informing them of their right to silence and the possible consequences of failing to mention facts later relied on in court.
Key Term: Disclosure (at police station) The information provided by the police to the solicitor and client about the nature of the offence and the evidence against the suspect, enabling effective legal advice.
Providing Legal Advice
Solicitors must give clear, practical advice on the client’s options in interview, including whether to answer questions, remain silent, or provide a prepared statement. This advice should be based on the available disclosure, the strength of the evidence, and the client’s circumstances.
Key Term: Adverse inference A negative conclusion that may be drawn by the court if a suspect fails to mention a fact in interview that they later rely on in their defence at trial.
Attending and Intervening in Police Interviews
Solicitors should attend interviews to protect the client’s interests. They may intervene to:
- challenge improper or oppressive questioning
- clarify misunderstandings or ambiguous questions
- request breaks if the client is distressed or unfit
- advise the client privately if new evidence is disclosed
Solicitors must not answer questions on behalf of the client or provide written answers for the client to read out.
Managing Vulnerable Clients and Appropriate Adults
Special care is required when advising juveniles or vulnerable adults. An appropriate adult must be present for interviews with such clients.
Key Term: Appropriate adult A responsible person (e.g., parent, guardian, social worker) present to support and safeguard the rights of juveniles or vulnerable suspects during police detention and questioning.
Key Term: Vulnerable person A suspect who, due to age, mental health, learning disability, or communication difficulties, may have difficulty understanding or participating in police procedures.
Identifying and Managing Conflicts of Interest
Solicitors must be alert to potential conflicts between clients, especially when representing co-accused. If a conflict arises, the solicitor must withdraw from acting for both clients or, in rare cases, may continue for one client only if confidentiality is not at risk.
Key Term: Conflict of interest A situation where a solicitor’s duty to one client conflicts with their duty to another client or their own interests, requiring careful management or withdrawal.
Upholding Confidentiality and Legal Professional Privilege
Solicitors owe a strict duty of confidentiality to their clients. Information obtained from a client must not be disclosed to the police or others without the client’s consent, unless required by law or to prevent serious harm.
Key Term: Confidentiality The obligation to keep all information relating to a client’s case private, unless the client consents to disclosure or disclosure is required by law.
Key Term: Legal professional privilege The protection that prevents disclosure of confidential communications between a solicitor and client, encouraging full and frank discussion.
Advising on the Right to Silence and Interview Strategy
Solicitors must explain the right to silence and the possible consequences of remaining silent, including the risk of adverse inferences at trial. The advice given should be tailored to the client’s circumstances and the available evidence.
Worked Example 1.1
Scenario: A client is arrested for theft and the police provide minimal disclosure. The client denies the offence but is anxious about the interview.
Question: Should the solicitor advise the client to answer questions or remain silent?
Answer: If disclosure is inadequate and the client is at risk of self-incrimination, the solicitor may advise a “no comment” interview to avoid damaging admissions. The solicitor should record the reasons for this advice.
Worked Example 1.2
Scenario: Two clients are arrested for burglary. One privately admits guilt to the solicitor, while the other denies involvement.
Question: What should the solicitor do?
Answer: The solicitor must recognise a conflict of interest and withdraw from acting for both clients, ensuring each is referred to separate legal representatives. Confidentiality must be maintained.
Worked Example 1.3
Scenario: A juvenile client is to be interviewed. The client’s parent is present as the appropriate adult but repeatedly interrupts the interview.
Question: Can the police remove the parent as appropriate adult?
Answer: Yes, but only if an officer of superintendent rank (or inspector if a superintendent is unavailable) authorises removal after warning the adult and giving them a chance to respond. Another appropriate adult must be arranged before the interview continues.
Professional Conduct and Ethics at the Police Station
Solicitors must comply with the SRA Code of Conduct, which requires acting in the client’s best interests, upholding the rule of law, and never misleading the police or the court. If a client intends to lie in interview, the solicitor must not assist and should withdraw from acting.
Exam Warning
If a solicitor knows a client intends to give a false account in interview, they must not participate in misleading the police. The solicitor may attend if the client gives a “no comment” interview, but must withdraw if the client insists on lying.
Special Considerations for Vulnerable Clients
Solicitors must ensure that vulnerable clients understand their rights and the process. An appropriate adult must be present for juveniles and those with mental health or communication difficulties. The solicitor should check that the appropriate adult is suitable and understands their role.
Revision Tip
For SQE1, remember: the solicitor’s duty of confidentiality overrides the duty to explain withdrawal to the police. If you withdraw for professional reasons, do not disclose the reason.
Key Point Checklist
This article has covered the following key knowledge points:
- The defence solicitor’s primary role is to protect client rights and provide clear legal advice at the police station.
- Solicitors must ensure clients understand their rights, including legal advice, silence, and the implications of adverse inferences.
- Solicitors should attend interviews, intervene when necessary, and never answer questions for the client.
- Conflicts of interest must be identified and managed; withdrawal may be required.
- Confidentiality and legal professional privilege are fundamental; information must not be disclosed without consent.
- Special care is required for vulnerable clients; an appropriate adult must be present for juveniles or those with mental health issues.
- Solicitors must comply with professional conduct rules and withdraw if a client intends to mislead the police.
Key Terms and Concepts
- PACE Codes
- Caution
- Disclosure (at police station)
- Adverse inference
- Appropriate adult
- Vulnerable person
- Conflict of interest
- Confidentiality
- Legal professional privilege
