Ed Cape in his biblical tome, Defending Suspects at Police Stations says that the solicitor should make an opening statement. Do not do this! Like the Bible you should not take everything Ed Cape says too literally.
I cannot see the point of the solicitor making an opening statement.
I like Ed Cape's book but I do not agree with everything he says. He is an academic and he is not working at the coal face. He is great at law in the lecture theater. But he is not a practitioner. Police station advice is not given in a rarefied university library, its in the custody suite down at Holborn and Stainbeck. We do law at 3am with grumpy officers and crap coffee. We do PACE in practice not in proposition.
If use an Opening Statement in your portfolio, exam or CIT you may well fail.
1. its arguably not lawful and its not in PACE 2. there is an arguable breach of privilege 3. its not taught on courses or in any guidance notes
1. In edition 5 Ed Cape justifies the use of an opening statement not via PACE but via the Shepherd book and the police training manual.
PACE Code C is pretty clear: “6D The solicitor’s only role in the police station is to protect and advance the legal rights of their client. On occasions this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification, challenge an improper question to their client or the manner in which it is put, advise their client not to reply to particular questions, or if they wish to give their client further legal advice.”
Our role does not include making speeches at the top of the interview. We do not lay down rules. The rules are contained in PACE and our role is to ensure the police abide by them. I could go on but suffice to say that PACE gives the 'opening statement' to the interviewing officer.
2. In the opening statement Ed says you should say something like, 'my client is not answering questions'. Its horribly close to a breach of privilege. Yes, yes, yes, I know what you are thinking. I am sure we could argue the toss on that. You did not give the reasons for the advice so its not a clear cut breach. But why take the risk? Why go so near the cliff edge? What is the advantage to your or the client?
3. You were not taught to do opening statements on the courses you did. Why do it? We know how to pass exams. Surely, we have done enough of them to understand the game. Give the examiner what they want. Tick boxes and score points. I am not sure you were very sensible. Its not a philosophy course, its a practical exam.
I do like Ed Cape's book. Its authoritative certainly but like all law its an opinion not a definition.