Is it lawful to exclude a particular solicitor from an interview with a suspect but to allow the suspect to be represented by a different solicitor?

This issue was considered by a High Court judge in R. (Malik) v. Chief Constable of Greater Manchester (CLW/07/09/9).

A suspect had been arrested in connection with offences of terrorism and conspiracy. In the course of their investigation, police officers had recovered a video recording of an event described as an Al-Mojahedeen recruitment drive. That recording was possible evidence.

In addition to other inflammatory content, part of the recording was of a lecture given by a solicitor concerning the law relating to terrorist offences, and in relation to the detention and interviewing suspects. That same solicitor was the solicitor that the arrested suspect wished to have present when interviewed.

The senior investigating officer excluded the solicitor from the interviewing process and arranged for a different solicitor to take over. The defendant brought an action before the High Court seeking to challenge the decision.

Dismissing the claim, the judge held that the police officer had been entitled to exclude the suspect from the interviewing process. It would not be open to a police officer to exclude a solicitor from an interview where there was nothing more than a possibility that the solicitor might be called either by the defence or the prosecution as a witness in subsequent criminal proceedings brought against the suspect.

However, this case was different. What had taken place at the event recorded on the video tape might be of central relevance to the alleged conspiracy. Therefore, the fact that the solicitor had been present at that meeting and that his role at the meeting was not clear, justified the decision to exclude him from the interviews.

CLW Comment

The judge’s reasoning is anything but clear.

The veiled suggestion seems to be that the police had reason to believe that the meeting in question was conspiratorial in nature, the solicitor in question was present, his role was unknown and, therefore, there was a possibility that he might himself come under suspicion.

There is, however, no suggestion that the solicitor was a suspect, in which case – whatever his role – the position remained that he was a potential witness.

Any solicitor, who realises that he was present at a meeting said to be at the centre of the case the police wish to question his client about, might very well regard his position as legal adviser to the suspect as untenable, but that, surely, as the judge held, is a matter for the solicitor?

The codes of practice (Codes C and H) do, of course, contain justifications for delaying access to legal advice (e.g. that granting the suspect access to legal advice will alert a person suspected of a criminal offence but who has not yet been arrested).

But none of these grounds were relied on. And although the codes only address the question of delaying access to initial legal advice, and not the situation where, after the suspect has had access to legal advice, the police become aware of reasons why access to a particular solicitor might have one of the adverse consequences identified in the codes, the police would surely be able to justify a denial of further access to that particular solicitor, so long as they offered alternative arrangements?