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An Opening Statement is sometimes made by the solicitor at the very beginning of an interview. The purpose is to set out their role and lay down the ground rules for interview. In effect it demonstrates that the rep is going to take an active role.
I am not a fan of them. However that is only my opinion. Opening Statements are not without support. They are championed by Ed Cape no less. His opinion in this industry carries significant weight. He is the leading expert. He maintains they should be used. Moreover, other significant academics and legal experts champion the cause. They are also recommended by Eric Shepherd.
The police training manuals forewarn police officers to expect Opening Statements. Some interviewing officers are expecting them and will invite the legal adviser to make an Opening Statement. The CLAS and SRA Standards of Competence includes Opening Statement as a method for ensuring the proper conduct of an interview.
In Defending Suspects at Police Stations Ed Cape puts forward an outline for Opening Statements and recommends the lawyer should explain the following: Explain the Role: to protect and advance my clients legal rights and to advise the client in interview where necessary. Formality: to address the client and rep with appropriate formality Comment or No Comment: “On my advice my client will/will not be answering questions. Please do not undermine my clients decision or I will intervene.” Reasons to intervene: the client asks for advice introduction of new undisclosed evidence any pressure put upon the client a break is necessary Summarise the disclosure Request more information: Ask for the purpose of the interview Ask for undisclosed evidence Whether there is sufficient evidence to charge Intentions post-interview My opinion is just that: an opinion. Far be it for me to disagree with the real experts but I have several issues with the use of an Opening Statement. Firstly, I simply cannot see the point. Interviewing Officers know full well what the solicitor or there for. They understand his role. I cannot see a reason for spelling it out. If I intervene in an interview I do so when and if it is necessary.
My major issue though is with the risk to privilege. Opening Statements do not breach privilege. Saying my client will not answer questions is not a breach. My worry is that at that at 3 o'clock in the morning we all say things we later regret. My concern is that a tired or inexperience rep could easily say too much and inadvertently breach privilege. The statement is on a corridor of thought that might best be avoided as there are so many doors that should remain locked. Moreover clients do not always follow advice. If my client was advised to give a full comment interview but then gives a no comment interview (or vice versa) has the Opening Statement undermined his position?
Another issue I have is that I cannot see a route to providing an Opening Statement in PACE. Code C 6D says,
“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.”
If the OIC says you cannot provide an Opening Statement what would I respond?
Finally, we have been made aware of a candidate who used Opening Statements in their Portfolio. They were failed for using them. They are not taught on the courses.