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There is no magic to the phrase no comment.  It is simply a device for a suspect to indicate that they have no intention of answering police questions.  It allows the police to put questions and the interview to progress easily.  An alternative would be to stay mute for the duration of the interview, but that would only prolong matters!

Advice on your decision to answer no comment

The decision whether to answer police questions or make no comment replies in police interview can be a difficult one.  There are many different considerations to balance.  Since the changes brought in by the Criminal Justice and Public Order Act 1994 many more suspects are advised to answer police questions than previously.

This Act allows Magistrates’ or a jury to draw conclusions from a no comment interview in certain circumstances.  There are four conditions, including whether an accused failed to mention a fact later relied on in their defence and whether it was reasonable at the time for the accused to have mentioned this fact in interview or on charge.

Our advice is subject to legal privilege and cannot be disclosed

There is still, however, a place for the no comment interview but you are best advised to seek free and independent legal advice from a specialist solicitor or accredited police station representative before making the decision not to answer questions in police interview.  As we are entirely independent of the police any advice suggesting that you reply no comment to police questions will be in your best interests.

Any advice that we give to you and your instructions that allow us to give that advice are confidential and subject to legal privilege.  We can only disclose your instructions and our legal advice with your permission.

Your police station representative will always make a note of the instructions that you give, so even if you make ‘no comment’ replies they can give evidence to the court if necessary to show that you haven’t made up a defence once you are charged and papers are served.

Our advice will always be tailored to the circumstances of your case

 Our police station advisers know that each case will turn on its own facts.  Our advice will balance any risks and benefits to you of a no comment interview.  You will be fully advised of the advantages and disadvantages of such a course of action to allow you to make a final decision.

Opportunity for a confidential consultation about the evidence

Before providing advice allowing you to make that decision your legal representative will always seek a confidential discussion with you about the evidence. That will allow them to take your instructions in private and give you advice.  It could be that the police choose not to provide the private facilities necessary.  That in itself could mean that a full discussion of the allegations is not possible and a no comment interview would be advised.

Your police station solicitor will be alive to factors that might affect whether you should answer questions – these could include youth, mental vulnerability, a hearing or speaking disability, poor command of language, a severe nervous state or other condition.

What if I am guilty of the allegation?

 It may be that although you are guilty of the offence the police may not have enough evidence to put before a court to convict you without your admission. There might be concerns about the level of disclosure of evidence from the police which could suggest that the evidence to convict you simply isn’t there. As a suspect is ‘innocent until proven guilty’ you are perfectly within your rights to choose not to answer questions.

Alternatively, it might be that the police do not know the full extent of your offending and answering questions would make matters far worse for you.  Again, this would be a valid reason for replying no comment to police questions in interview.

As the caution only talks about inferences rather than any benefit of an early admission, the Court of Appeal has stated that you cannot lose discount for early guilty plea on the basis of a no comment interview.

Our free and independent legal advice will balance these considerations against other concerns that you might have.

If you admit the offences in police interview then you will have the benefit of demonstrating remorse for your offending.  True remorse can significantly reduce any sentence that you receive.  The greatest demonstration of remorse might be the strongest evidence it is genuine.

Alternatively, an early admission might mean that a prosecution can be avoided and you can be diverted from the court system.  To receive a caution or a restorative justice disposal an admission will normally be required from you.

What if I have a defence to the charge?  Shouldn’t I tell the police?

There may be a number of reasons why you would choose not to answer questions if you are innocent of the charge.  For example

• You may know who the true culprit is but not want to name them
• Your defence might involve admissions to some other damaging or embarrassing conduct but that is not illegal
• We are unable to fully advise you as the police have not given us enough information about your case
• The case is too complex or old to provide an immediate response

Other factors that might be relevant could include:

• Your state of mind at the time of interview. Perhaps you were suggestible or in a state of shock?
• You might be easily confused and liable to make mistakes in your account
• There is a need to refer to information that isn’t to hand in police interview to check an alibi
• We identify that there is some other good reason why you might not come over well in police interview

Our specialist police station advice will include whether there is a good reason for making no comment in interview, including whether a prepared statement should be used instead to control the manner in which the police are told about your defence.

We will advise you as to whether there are likely to be issues of admissibility at court relating to such matters as comment that you have made to the police upon arrest or any informal identification that might mean you should exercise your right to silence.

Always seek our free and independent legal advice in police interview

As you can see there are many factors that affect a decision whether to answer questions in police interview or answer no comment to any questions put.  It is vital that you seek our advice which is free of charge before you commit to a decision that could provide the evidence to secure a conviction or lead to problems in any future court case.

A number of other benefits to seeking legal advice can be found here.

We provide nationwide advice and assistance in the police station from our offices across the East Midlands.  You can find your nearest office here.  Our expert representation is available 24 hours a day, 7 days a week.

Alternatively you can use the contact form below:

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Many in the medical profession have been up in arms following the recent High Court decision involving Dr Bawa-Garba (General Medical Council v Bawa-Garba [2018] EWHC 76 (Admin), overturning the decision of the Medical Practitioners Tribunal.

The case had followed on from proceedings before the Medical Practitioners Tribunal which had ruled that Bawa-Garba should be suspended from practice for a period of one-year. That ruling was challenged by the General Medical Council, resulting in Bawa-Garba being erased from the medical register, which brought to an end her right to practice medicine.

The High Court observed that it reached ‘this conclusion with sadness but no real hesitation’.

Medical Practitioners Tribunal Decision Appealed

On appeal against this decision, the Court of Appeal has heard her removal for a “one-off mistake” had robbed the NHS of a “young and talented” doctor.  The original decision to suspend rather than dismiss the doctor was argued to be “humane and balanced”, whereas the GMC have argued that  “any other sanction undermined its rules and her manslaughter conviction.”

So, what is the background to this unhappy story?

In November 2015 Bawa-Garba was convicted at Nottingham Crown Court for an offence of manslaughter by gross negligence. She was sentenced to two years imprisonment, which was suspended.

This conviction came about due to her negligent care of a six-year-old boy, who died. An appeal against conviction in December 2016 failed.

In the later High Court proceedings, it was observed that ‘her failings on that day were “truly exceptionally bad” and that this must be reflected in the sanction.

So, why did the Medical Practitioners Tribunal (MPT) only order a suspension?

When the MPT heard the case, it had the benefit of hearing a substantial body of evidence about the pressures placed on Dr Bawa-Garba and the failings of others. In essence counsel for the GMC submitted that the Tribunal had in effect allowed evidence of systemic failings to undermine Dr Bawa-Garba’s personal culpability, and to do so even though those failings had been before the Crown Court which convicted her.

The Tribunal had therefore decided to find the Doctor less culpable than the jury had as a matter of law, and for that reason, the decision could not stand.

The High Court observed:

“The day brought its unexpected workload, and strains and stresses caused by IT failings, consultant absences and her return from maternity leave. But there was no suggestion that her training in diagnosis of sepsis, or in testing potential diagnoses had been deficient, or that she was unaware of her obligations to assess for herself shortcomings or rustiness in her skills, and to seek assistance.

There was no suggestion, unwelcome and stressful though the failings around her were, and with the workload she had that this was something she had not been trained to cope with or was something wholly out of the ordinary for a Year 6 trainee, not far off consultancy, to have to cope with, without making such serious errors. It was her failings which were truly exceptionally bad.”

A crowd-funding campaign to assist Dr Bawa-Garba was set up. One of the doctors behind the crowdfunding campaign, Dr Moosa Qureshi, said:

”There needs to be greater transparency as to why these decisions were made and who made them. Many of us feel that Dr Bawa-Garba was unfairly discriminated against and scapegoated for multiple system failings that could easily have happened to any of us in the current political crisis of the NHS. We want patients to be protected and for this doctors need to be able to look after patients without fear that they will be blamed or worse struck off when working in unsafe and dangerous conditions.’

So, many believe that Bawa-Garba has been made a scapegoat for systemic failings in the NHS.

In a further twist to this story, the previous Health Secretary Jeremy Hunt ordered a review into criminal manslaughter so far as it affects medical practitioners.  The health secretary stated that clarity was needed about drawing the line between gross negligence and ordinary errors, and that ‘Doctors should learn from – not fear – mistakes.’

The review, led by Sir Norman Williams (a former President of the Royal College of Surgeons), reported in June 2018.  In the introduction to the report, Sir Norman wrote:

“We hope our recommendations will change the environment by establishing a just culture and providing reassurance to healthcare professionals, patients and their families that gross negligence manslaughter cases will be dealt with in a fair and compassionate
manner.”

The full report can be found here.

By any measure this is a sad case for all concerned and criminal practitioners will be keeping a watchful eye on the outcome of the Court of Appeal case.

Contact a crime and regulatory law specialist

If you are a professional person facing criminal proceedings then please contact our criminal and regulatory partner Martin Hadley immediately.

Martin will be able to provide free and independent legal advice in police interview.

If charged, we will provided affordable representation before either the Magistrates’ or Crown Court, and be able to provide advice with an eye to any future potential disciplinary proceedings such as those before the Medical Practitioners Tribunal.

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In the UK we have not had the death penalty for over 50 years. The last hanging in England took place in 1964 when Peter Allen and Gwynne Evans were hanged for the murder of John West, 15 months before the death penalty was abolished.

Since then there has been a long-held opposition to the death penalty which has been applied in extradition cases.

What is extradition?

Extradition means legal proceedings for the return of a person in the UK to another country to face criminal proceedings (or proceedings abroad to return a person to the UK).

How is the death penalty relevant?

When the requesting country has the death penalty available, and it could apply to the criminal proceedings in question the UK would usually seek an assurance that the person will not face the death penalty if extradited. If an assurance is not given, then UK law would prohibit the removal from the UK of that person. The death penalty is forbidden under the European Convention of Human Rights.

Why is it in the news now?

Alexander Kotey and El Shafee Elsheikh are alleged to have been involved in the torture and beheading of more than 27 victims as members of a cell of Isis executioners in Syria and Iraq. They are not subject to extradition as they were not arrested in the UK.

They have been stripped of their British citizenship, and discussions have been taking place as to whether they should be returned to the UK for trial or taken to the USA. Victims have been both UK and US citizens.

In an unusual move Sajid Javid, the UK Home Secretary, told the USA that he would not seek an assurance over the use of the death penalty and agrees to the US request for mutual legal assistance. This decision is now on hold pending a legal challenge.

What is mutual legal assistance?

Mutual Legal Assistance is a method of co-operation between states for assistance in investigating or prosecuting criminal offences. The guidelines for Mutual Legal Assistance are similar to the law in extradition outlined above, in saying that if the death penalty is a possible sentence, an assurance will be sought that such a sentence will not be carried out in the event of a conviction.

What are the implications?

Commentators are questioning whether this is a relaxation of the policy of opposition to the death penalty in the UK.  Javid apparently stated in his letter that this does not alter the stance of the UK, but it certainly raises questions as to whether assurances would not be sought in the future and in what circumstances.

The Howard League for Penal Reform has already indicated that it may bring legal proceedings to challenge the decision of the Home Secretary.

How can we help?

Fortunately, individuals cannot receive the death penalty in the United Kingdom.  The alternative, however, is that those convicted can face very lengthy prison sentences and severe restrictions on their liberty if convicted.

We not only help those who are suspected of offences but also provide advice on all aspects of prison law for those already sentenced.

If you would like to discuss any aspect of your case please contact your nearest office or use the contact form below.

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The government has published an Offensive Weapons Bill.  The legislation is designed to signal a more stringent approach to the possession of weapons and liquids that can be used to cause harm, such as corrosive substances.

The Offensive Weapons Bill forms part of the government’s response to the recent rise in serious violence, set out in the £40m Serious Violence Strategy.  This places a new focus on early intervention alongside robust law enforcement.

What is proposed in the Offensive Weapons Bill?

The following provisions feature in the bill:

• a new criminal offence of selling – both online and offline – a corrosive product to a person under the age of 18. The substances and concentration levels of what constitutes a corrosive product are set out in the Bill.
• a new criminal offence of possessing a corrosive substance in a public place. There is a defence of possessing the corrosive substance for a good reason. There is a minimum custodial sentence in England and Wales where a person is convicted for a relevant offence a second time. The offence will carry a maximum sentence of 4 years imprisonment.
• where a corrosive product or bladed product is sold online, the defence of having taken reasonable precautions can only be relied on where the seller meets certain conditions in terms of age verification and packaging and delivery of the items
• new criminal offences prohibiting the dispatch of bladed products and corrosive products sold online to a residential address. The offence for bladed products is limited to those that can cause severe injury and includes defences for made to order items and those for sporting and re-enactment purposes. The offence will carry a maximum sentence of 6 months imprisonment.
• new criminal offences in relation to delivery companies delivering a bladed article or a corrosive product on behalf of a seller outside the United Kingdom to a person under 18
• updating the definition of a flick knife and prohibition on the possession of flick knives and gravity knives (their sale etc. is already prohibited)
• amending existing law to make it a criminal offence to possess certain weapons (such as knuckledusters and death stars) – the sale and importation of these is already prohibited. It provides for compensation of owners
• extending the existing offences of possessing a bladed article or offensive weapon on school premises to cover further education premises in England and Wales and Northern Ireland
• amending the legal test for threatening with an offensive weapon in England and Wales
• prohibiting high energy and rapid firing rifles and a device known as a “bump stock” which increases the rate of fire of rifles. Existing owners will be compensated.

How we can help

Although the contents of the Offensive Weapons Bill are yet to be made law, in recent months the rhetoric around knife-crime has been ramped up by politicians seeking to respond to public concern about knife-crime.

Judges hear this and often react by imposing increasingly long prison sentences.  These concerns have been reflected in the new guideline relating to sentencing those convicted of possessing offensive weapons.

It is our role to ensure that firstly our clients only enter guilty pleas when such a plea is appropriate.  We will begin to prepare your defence from the very beginning of the investigation, so take advantage of our free and independent legal advice in police interview.

If you are to be sentenced for an allegation involving a weapon or a blade then we will make sure that relevant factors from the background to the offending is properly advanced in mitigation.  The lives of young people in particular may be complex and some of the factors contributing to offending may be hidden.

It is our job to ensure that the full picture is presented to the court.

We provide nationwide advice and representation in criminal cases from our offices across the East Midlands.  You can find your nearest office here.

Alternatively you can use the contact form below:

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A recent report from the House of Commons Justice Committee entitled “Criminal Legal Aid” has made the following observations and recommendations after hearing evidence across a wide range of issues.  The conclusions are below.

Recent changes to the LGFS

1. The evidence we have received suggests that solicitors have serious grievances about the Litigators’ Graduated Fee Scheme, given the absence of index linking for two decades, the 8.75% cut in fees imposed in 2014, and the recent reduction to the cap on pages of prosecution evidence.
2. The Law Society’s judicial review of the Government’s decision to revise the LGFS means that it would not be appropriate for us to offer comment on the details of the scheme at this point in time. However, we have received evidence indicating a worryingly high level of demoralisation among criminal defence solicitors and threats to the economic sustainability of criminal defence firms, with negative implications for the criminal justice system—especially for defendants. We return to this issue below.
3. We consider it regrettable that the Law Society has had to resort to bringing a judicial review to pursue its grievances about the LGFS. We recommend that the Ministry of Justice take urgent steps to avoid this dispute having to be resolved by the courts. Whatever the outcome of the judicial review, we consider there should be a wider review of criminal legal aid.

Recent changes to the AGFs

1. We consider it regrettable that the Criminal Bar felt compelled to take direct action in response to the new Advocates’ Graduated Fee Scheme, given the potential for adverse impact on defendants and complainants, as well as on the functioning of the courts. However, the underlying reasons for the dispute can be understood, including the failure to ensure that fees keep pace with inflation, the staged fee reductions from April 2010 onwards, unhappiness about aspects of the revised AGFS and the Criminal Bar’s genuine and heartfelt concerns about the future of their profession and under-funding of the criminal justice system.
2. While we welcome the Government’s decision to offer additional funding for the AGFS and the Criminal Bar’s decision to accept the offer, we do not believe that ending this specific dispute has resolved the underlying issues and it is clear that many barristers remain deeply unhappy about their situation and about the future of the criminal justice system.
3. We acknowledge the challenges facing the Ministry of Justice in reworking the AGFS so that it is fair to advocates at all levels of seniority, and in ensuring that it is future-proofed against inevitable changes in the profile of Crown Court cases. We also recognise that the Ministry of Justice has made genuine efforts to address the concerns of the Criminal Bar. To provide for ongoing collaboration with the legal profession on refinements to the AGFS, we recommend that, without any further delay, a system of annual review be built into the AGFS, overseen by a panel which incorporates representatives from the Criminal Bar and solicitor organisations, Criminal Legal Aid 39 alongside Government representatives. The panel’s remit should include considering the inter-dependency between the AGFS and the LGFS, and the impact of changing the former on the operation of the latter.

Expenditure on criminal legal aid

1. As we have observed, there is a common law right to legal advice, together with a right to legal representation for an accused person under Article 6 of the European Convention on Human Rights. We conclude that there is compelling evidence of the fragility of the Criminal Bar and criminal defence solicitors’ firms placing these rights at risk; we conclude that this risk can no longer be ignored.
2. We also conclude that current difficulties in recruitment to the Criminal Bar could potentially have a negative impact on future recruitment to, and diversity within, the judiciary—in particular for judicial office holders in the criminal courts.
3. Given these risks, we welcome the decision of the Ministry of Justice to consider legal aid for criminal law within the LASPO post-implementation review, as a first step in understanding the crisis that criminal legal aid is facing. We recommend that the output from this workstream be used to underpin a comprehensive and independent review of criminal legal aid, with the aim of devising a scheme that is sustainable and user-focussed; the review should adopt a similar approach to that of the recent independent review in Scotland. This review should be launched no later than March 2019 and should be concluded within 12 months.

Declining expenditure on the Criminal Justice System

1. An effective criminal justice system which successfully prosecutes those who commit crime but which also protects the innocence of the accused unless the prosecution can prove their guilt is one of the pillars on which the rule of law is built. The effectiveness of the system also demands that the fabric of the criminal courts is properly maintained. We conclude that the under-funding of the criminal justice system in England and Wales threatens its effectiveness, and in doing so undermines the rule of law and tarnishes the reputation of the justice system as a whole.
2. Our justice system is widely admired and the UK is a jurisdiction of choice for many individuals and corporate bodies that need to resolve disputes; nonetheless, it faces competition from other jurisdictions. We conclude that the under-resourcing of the criminal justice system undermines the prospects of successfully promoting our legal system abroad, a stated objective of the Government.
3. We recommend that that the Government conduct an urgent cross-departmental review of funding for all elements of the criminal justice system, including criminal legal aid and the Crown Prosecution Service, with the aim of restoring resources to a level that enables the system to operate effectively; the details of this review should be published in advance and its timetable must ensure completion in time to influence the conclusions of the 2019 Spending Review.

Criminal Legal Aid Disclosure of unused material

1. We conclude that the pressure placed on defence lawyers to fulfil their professional obligations by reviewing unused prosecution material without remuneration is fundamentally unfair and—with the continual increase in the amount of such material—likely to become unsustainable, and increasingly prejudicial to the defendant. We recommend that restoring legal aid payments for reviewing unused material above a certain page threshold be considered as part of the comprehensive and independent review of criminal legal aid that we have recommended above.

The link to the full justice committee report can be found here.