Liverpool Law Society
Environmental Seminar
14 June 2013
Presenter’s notes to accompany:
“How to represent your client at an Environmental ‘PACE’ interview”.
By John Dyne, Solicitor
Dyne Solicitors Limited
Contents
Introduction
3
Section 1
3
What is environmental crime?
4
The Integrated Pollution Prevention and Control Regime (A brief history)
4
Environmental Permitting (England and Wales) Regulations 2007
6
Environmental Permitting (England and Wales) Regulations 2010
6
Who are the key regulators?
6
Section 2
8
Approaching the environmental PACE interview
8
Preparation for the Environmental PACE interview
8
Before you arrive at the Police Station
8
On arrival at the police station:
8
Speak to the investigating officer
8
Meet with the client and undertake the all important Case Assessment
9
Conducting the PACE interview
9
Remaining silent – i.e. a ‘no comment’ interview
9
Answering questions
10
Selective silence
10
Prepare a written statement
10
Preparing the client for interview
11
Representation at the Environmental PACE interview
11
The legal representative’s role at interview
11
Voluntary interviews
12
Other relevant considerations:
12
Pre-interview disclosure?
12
Any potential statutory defences? – e.g. S 33(7) EPA 1990, Regulation 40 EPR 2010?
12
Aggravating and mitigating features?
13
The regulator’s enforcement and sanctions statement?
13
Follow-up and next steps
14
Options:
14
Each environmental case will require its own unique approach
Water pollution cases
15
15
2
Where has the polluting matter come from?
15
Sample Analysis:
16
Waste Cases
17
Is it waste?
17
Local authority cases
17
Breach of permit cases
18
Conclusions
18
Sometimes the client is its own worst enemy
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Introduction
I have divided this note into two sections. Section 1 provides a little background into
the environmental crime scene and the development of the legislation. You can skip
section 1 and head straight to section 2 on page 8.
Environmental law comprises a large body of law which at times can be highly
technical. Environmental law is a growth area and an increasingly popular option
for many lawyers. Its tentacles pervade everything. Its complexity, scale and rapid
development can be daunting. It is open to any lawyer to become a specialist in
Environmental law but it does require considerable application. A QC once
remarked an Environmental case we had worked on was one of the hardest cases he
had ever handled. Another Barrister recently commented that in his opinion
environmental cases were much harder than fraud cases.
Section 1
This section is aimed at those who may have only recently encountered
Environmental Law Crime and who may be assisted by a ‘penny tour‘ of the recent
development of some of the key legislation. This Section has otherwise nothing to do
with the talk on “How to represent your client at an environmental ‘PACE’ interview”. So
by all means skip this section. However as will be appreciated a grasp of the relevant
environmental legal issues is extremely important in terms of effective case
assessment and representation of the client at interview.
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What is environmental crime?
Environmental crime is focussed on protecting the environment from man’s
activities. The environment is, in simple terms, the surroundings in which we live –
i.e. air, water, and land.
Pollution of the environment essentially distils down to any discharge or emission as
a result of human activity that is harmful to human health, quality of aquatic
ecosystems or terrestrial ecosystems, causes offence to human sense, results in
damage to material property or impairs or interferes with the amenities of other
legitimate users of the environment.
Successive governments have legislated to give powers to executive agencies to
protect the environment and enforce environmental legislation. International
environmental law and principles have been transposed into national law to ensure
compliance with state commitments. Environmental crime has not been codified or
consolidated into a single Act but is found in a range of separate pieces of legislation.
Some of the most frequently used criminal sanctions are still to be found in the
Environmental Protection Act 1990 (as amended) notwithstanding a considerable
consolidation process that had occurred over the past 6 years culminating in the
Environmental Permitting regulations 2010.
The Integrated Pollution Prevention and Control Regime (A brief
history)
Part I of the Environmental Protection Act 1990 gave us Integrated Pollution Control
(IPC) and Local Air Pollution Control (LAPC) and Part II the regulation of waste on
land.
The Pollution Prevention and Control (England and Wales) Regulations 2000 (the
“PPC Regulations”) were introduced under the Pollution Prevention and Control
Act 1999 and built on the existing regimes set up under Part I of the Environmental
Protection Act 1990.
The PPC Regulations transposed the 1996 IPPC Directive the primary aim of which
was to achieve a high level of environmental protection and to prevent or where that
is not practicable, to reduce emissions to acceptable levels.
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The PPC Regulations introduced three separate, but linked, systems of pollution
control and these have been continued within the Environmental Permitting
Regulations (i.e. EPR 2007 & EPR 2010).
1. Integrated Pollution Prevention and Control (IPPC), which covers
installations known as A(1) activities, which are regulated by the
Environment Agency;
2. Local authority Integrated Pollution Prevention and Control (LA-IPPC) which
covers installations known as A(2) activity, which are regulated by local
authorities; and
3. Local authority Pollution Prevention and Control (LAPPC), which covers
installations known as Part B activity also regulated by local authorities.
Where an installation includes A(1) and also A(2) or Part B activities then generally it
will be regulated by the Environment Agency;
Operators of installations carrying out activities that fall within the Regulations are
required to hold an operating permit. The operating permit will specify the
conditions under which the specified activity can be carried out.
Part A(1) and A(2) activities, by virtue of being subject to the IPPC Directive, may
have emission limits and other permit conditions in relation to releases to air, water
and land, waste minimisation, energy efficiency and site restoration.
Part B activities are regulated only in respect of releases to air.
Regulators have to set permit conditions which are based on the use of the ‘Best
Available Techniques’ (BAT), which balances the cost to the operator against benefits
to the environment.
Part B installations regulated under LAPPC, do not come under the scope of the
IPPC Directive. But as with A(1) and A(2) installations Regulators are required to set
permit conditions which are based on the use of ‘Best Available Techniques’ (BAT)
for emissions to air.
Before the advent of environmental permitting, different activities that were harmful
to the environment and human health required different types of permission to
continue. These permissions came in different guises (permits, consents, licences etc)
and had different forms, procedures and processes.
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Environmental Permitting (England and Wales) Regulations 2007
In England and Wales the PPC Regulations were replaced from 6 April 2008 by the
Environmental Permitting Regulations 2007 (EPR2007). EPR2007 brought in the first
phase of environmental permitting and established a common permitting
programme for Waste and PPC regimes bringing the PPC and Waste Management
Licensing Regulations into one new regulatory system.
Apart from combining the two sets of Regulations there were no major changes to
the PPC aspects. A permit issued under the PPC Regulations was now being treated
as having been issued under EPR2007. EPR2007 was extended to cover waste
batteries (May 2009) and mining waste (July 2009).
Environmental Permitting (England and Wales) Regulations 2010
The second phase of environmental permitting was brought in by the Environmental
Permitting (England and Wales) Regulations 2010 (EPR2010) which replaced
EPR2007.
This second phase absorbed further existing environmental regimes and EPR2010
has extended environmental permitting to include:
 discharge consenting;
 groundwater authorisations; and
 radioactive substances regulation.
Who are the key regulators?
The main organisations for securing environmental protection in England and Wales
are the Environment Agency (the Agency) and the environmental health teams of
local authorities (“LAs”). The Agency manages significant environmental impacts
such as waste permitting, water pollution, the integrated pollution prevention and
control regime and radioactive substances. LAs have powers and responsibilities for
looking after the well-being of their communities. They manage local air pollution,
land use, trees and open spaces and matters relating to anti-social behaviour
including noise, dog fouling and fly posting. There is overlap in responsibilities
between the Agency and LAs, particularly in relation to waste, which is governed by
protocol defining the key roles.
In terms of environmental crime, each agency has investigation and prosecuting
powers and must comply with investigating and prosecuting codes of practice.
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Aside from the Agency and LAs other bodies involved in investigation include the
police who are responsible for investigating wildlife crime and certain cases of
criminal damage. The Agency and the LA’s investigate and prosecute their own
cases. The Crown Prosecution Service is the prosecuting agency for the police. Other
prosecuting bodies in this area include the Health and Safety Executive (COMAH
involving dangerous substances sites).
End of Section 1.
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Section 2
Approaching the environmental PACE interview
The majority of environmental criminal cases tend to follow a fairly routine pattern –
infringement / incident, investigation, letter requesting attendance to a formal PACE
interview, interview, decision as to enforcement response and if prosecution is the
appropriate enforcement response then proceedings are instigated by summons.
Regulatory lawyers do however need to be prepared for the more aggressive
investigative approach that may commence with a dawn raid, search of premises,
arrest of individuals, police custody, interview, being charged at the police station,
police bail or release on police bail pending a decision from the Agency as to its
enforcement response (which in such cases is likely to be enforcement).
Preparation for the Environmental PACE interview
Before you arrive at the Police Station
If your client has been arrested and is in custody the approach will be to first contact
the custody officer to establish:
 the alleged offence being investigated;
 has the client already been interviewed if so what has the client said;
 when does the Agency intend to commence or recommence the interview;
 ask to speak to your client;
 advise your client to say nothing or nothing further to the Agency until you
arrive;
On arrival at the police station:
 Speak to the custody officer
 Establish the basis of the client’s continued detention without charge
 Inspect the custody record – (you have a right to see this)
o Establish the client been treated in accordance with Code C
o Establish the client’s rights have been correctly explained
o Establish the client has been provided with appropriate refreshment
Speak to the investigating officer
 What is the client under investigation for?
 What evidence has so far been obtained against the client?
(Obviously lack of evidence or a refusal to disclose might justify the client being
advised to refuse to answer questions)
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 Is the client being interviewed as an individual or is he answering questions on
behalf of the company or both? Note that directors can be personally charged with
‘consenting’, ‘conniving’ or ‘neglect’ or for ‘knowingly causing’ or ‘knowingly
permitting’. Clarity as to the entity being investigated is key.
Meet with the client and undertake the all important Case Assessment
 What are the elements of the offence the prosecution must prove to secure a
conviction?
 What evidence does the Agency have to prove each element of the offence?
 What defence does your client have?
 Advise client on whether or not to answer questions – but make clear to your
client that ultimately it is the clients’ decision. Always make a contemporaneous
note of your advice and get your client to countersign your note so there can be no
later dispute over what advice was given. You may need to justify your advice
later in Court.
Conducting the PACE interview
The options will be:
Remaining silent – i.e. a ‘no comment’ interview
Advice to a client to give a ‘no comment’ interview may be justified where:
 there appears to be insufficient evidence - remaining silent may be the best option
and will avoid risk of the client’s self incrimination
 the client is not fit to answer questions because he is in a vulnerable state remaining silent may be the best option (if you decide the client should not be
interviewed ensure you have your objections recorded on the custody sheet).
Whilst this would be a fairly rare situation in my experience it is not unknown for
directors of companies to be suffering from stress/ depression anxiety.
 the Case is too complex for the client to answer questions without reference to
relevant documents (i.e. internal business records, analysis, correspondence with
the regulator, regulatory position statements issued by the Agency etc)
 the offence took place too long ago to expect the client to remember the relevant
facts and that being the case by guessing or relying on a vague memory or
appreciation of the facts the client may well inadvertently incriminate himself.
Where advice is given not to answer questions and provide a ‘no comment’
interview then the client must be advised of the risk of adverse inferences being
taken. The client must be reminded that giving a no comment interview is ultimately
the client’s decision. As mentioned above keep a record of your advice to the client.
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Answering questions




Answering questions avoids the risk of adverse inferences being taken provided
the evidence at interview is consistent with evidence given later at trial.
Enables the client to get the defence case across early (hopefully resulting in
NFA)
Gives rise to positive inferences (provided the evidence is consistent with that
given at any later trial)
An early admission of guilt may assist with mitigation in terms of cooperation
with the regulator, getting full credit.
Selective silence
If a decision is taken to answer certain questions but not others then this approach
can potentially be troublesome as adverse inferences may be drawn on the grounds
the client only answered questions which he could give a credible answer to thus
inferring there was no credible explanation to the other questions put to him. In
environmental cases which are complex and technical it would be entirely
appropriate for the legal representative to intervene where the evidence being put to
the client is technical evidence that the client is simply not competent to comment
on. The interviewer asking a client to comment on hazardous waste being deposited
on land and referring to a detailed expert report might be a good example where a
legal representative’s intervention and advice not to comment would not give rise to
adverse inferences being drawn under S 34 even where later following the
appointment of a defence expert technical defence points come to light. Quite clearly
a client without the expertise to understand a technical piece of evidence could not
be reasonably expected to comment on it.
Prepare a written statement
A written statement has the obvious advantage of setting out the client’s defence
case without subjecting the client to the pressure of questioning. In such
circumstances it would be normal practice to hand the client’s signed statement to
the Agency and have the client read out the statement that is then recorded as his
interview. No adverse inference can be drawn against a defendant who refuses to
answer police questions after his prepared statement is read out (R v Knight [2003]).
Again provided the statement contains all the facts relied on by the defence at trial
no adverse inference can be drawn (R v Ali [2001]).
It is important to note that whilst there are many benefits to a written statement an
adverse inference can still be drawn if the client gives evidence at trial that is
inconsistent with the statement or mentions a fact which at the time of the interview
it would have been reasonable to include in the pre-prepared statement (R v Knight
[2002]). The risk remains that a pre-prepared statement could be used to cross
examine the defendant if there is any departure from its contents whilst giving
evidence at trial. A pre-prepared statement will be viewed as a self serving statement
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and thus admissible as a previous inconsistent statement. Such an inconsistent
statement would clearly impact on the credibility of the defendant.
Preparing the client for interview
If the client decides to give a ‘No comment’ interview the client should be advised to
use a stock phrase such as ‘no comment’. This makes it clear the client is exercising
the right to silence.
The client should be told never to become drawn into answering any questions
however innocuous they may seem – such as the questioner asking the client simple
questions with a view to opening the client up - i.e. ‘what’s your address’? Or, most
inappropriately to suggest the legal representative’s advice to give ‘no comment’
answers is wrong because of adverse inferences that could be drawn so it would be
better for the client if the questions were answered. A no comment interview means
what it says.
If the client decides to answer questions the client needs to be advised the interview
can be stopped at any time if the client wishes to take further legal advice
Representation at the Environmental PACE interview
The legal representative’s role at interview
The legal representative’s role is to protect the client’s interests and to intervene
whenever necessary. The legal representative cannot answer questions on the client’s
behalf and can be excluded from the interview if there is any attempt to do this.
Code C Note 6 D makes clear the Solicitor’s only role is to protect and advance the
legal rights of their client – i.e. to:




Seek clarification
Challenge an improper question
Advise the client not to reply to particular questions
To give their client further legal advice
It is good practice when intervening for the legal representative to explain, for the
record, why he/ she is intervening.
Intervention may be required for a variety of reasons. It may be because the
questioner has become confused or has misunderstood the law, the facts, the
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difference between a director and shareholder. This is not uncommon with Agency
officers. The question put may be an improper one because it is in relation to
important evidence of which the legal representative is unaware and has no
opportunity to advise on. This would necessitate the suspension of the interview. In
such cases it would be reasonable for the nature of the evidence to be disclosed and
for the legal representative to have an opportunity to discuss and advise on this new
evidence.
Intervention may be required where the questioner is seeking to undermine the
client’s right to remain silent and/ or the client’s relationship with the solicitor.
Voluntary interviews
All the above considerations are equally relevant (with the obvious exception of not
having to deal with the custody officer at the Police Station) to cases where the
investigation is undertaken at a more leisurely pace – usually the Agency will write
to the client inviting them to attend an interview! Usually there is more than enough
time to gather information, understand what the issues are and to carry out a
thorough case assessment. The interview will be voluntary and usually held at the
Agency’s own offices at a date and time agreed between the parties.
Other relevant considerations:
Pre-interview disclosure?
Whilst there is no obligation on the Agency to reveal its case no adverse inferences
can be drawn if the facts were not known to the defendant at the time when the
defendant failed to disclose them at interview or charge. Court of Appeal cases such
as R v Argent [1997], R v Imran and Hussain [1197] and R v Roble have held that if
little or nothing of the case against the suspect is disclosed so that the legal
representative cannot usefully provide advice to their client then this may be good
reason for the legal representative to advise the client to remain silent.
In the vast majority of cases the Agency will provide pre-interview disclosure simply
because it would be counter-productive for them not to do so.
Any potential statutory defences? – e.g. S 33(7) EPA 1990, Regulation 40 EPR 2010?
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An obvious point but given many environmental offences are strict liability where
the statute or regulation provides for a defence this obviously needs to be considered
as part of the case assessment.
Aggravating and mitigating features?
It is also worth giving consideration to sentencing guidelines and what are
aggravating and mitigating factors. The interview may be a useful opportunity to get
the mitigation across.
The regulator’s enforcement and sanctions statement?
e.g.
a. The Agency’s Enforcement & Sanctions - Statement
b. The Agency’s Enforcement & Sanctions - Guidance
c. The Agencies Enforcement & Sanctions – Offence Response Options
Note in particular the Agency’s published guidance on Enforcement and Sanctions.
Whilst somewhat vague and ambiguous the approach to outcomes focussed
enforcement , indicates that prosecution is to be regarded as a last resort. Where the
client has an otherwise good regulatory record, has cooperated fully with the
regulator and addressed the matters complained of and is currently operating in
compliance you may legitimately ask if it is in the public interest to prosecute?
“We aim to provide advice and guidance to assist an operator or individual to come back into
compliance at any point. In the context of enforcement we will normally provide advice and
guidance after an offence is committed or where we consider that an offence is likely to be
committed. Where we provide compliance assistance of this type it is without prejudice to any
other enforcement response that may be required. This compliance assistance may be either
verbal or written, but will be recorded. In the event of continued or further non-compliance(s)
this may influence the subsequent choice of response..”
“We recognise that prosecution is a serious matter which should only be embarked upon after
full consideration of the implications and consequences.”
“Our general approach:
We regard prevention as better than cure. Our general approach is to engage with business to
educate and enable compliance. We offer information and advice to those we regulate and seek
to avoid bureaucracy or excessive cost. We encourage individuals and businesses to put the
environment first and to integrate good environmental practices into normal working
methods. We will give proper consideration to the value of economic progress.
Our approach to non compliance:
If an operator or individual is not complying, we normally provide advice and guidance to
help them do so. Where appropriate, we agree solutions and timescales for making any
improvements. We try to match our response to the circumstances. The use of formal
enforcement powers and sanctions may also be necessary.
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Use of sanctions:
Within this overall approach, where an offence has been committed and the delivery of advice
and guidance has not or will not achieve the necessary outcome, we will normally consider
issuing some form of sanction as well as taking any other preventative or remedial action
necessary to protect the environment or people. We aim to use civil and criminal sanctions in
a manner that is appropriate to the offence, as described in our Enforcement and Sanctions
Guidance.”
Follow-up and next steps
Options:
1. Do nothing? Wait and see?
2. Provide additional documentary material that exculpates client?
3. Make representations to the Agency as regards the appropriate enforcement
response having regard to the Agency’s own Enforcement and Sanctions position
or any other regulatory position statements? (see above)
Frankly the wait and see approach may be the only option post interview. However
it is not unusual for the defence to indicate it has records that are exculpatory (such
as duty of care notes, records, data and analysis certificates). It may be appropriate
to forward this material to the Agency but make sure the duty of care notes are
compliant and the documents provided are not going to assist the Agency in getting
a weak case off the ground. The Agency has powers to require the provision of
‘relevant information’ (i.e. all of the above) in any event.
It is of course right and proper to remind the Agency of its stated position on
enforcement responses (see above) and where appropriate make representations.
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Each environmental case will require its own unique approach
Water pollution cases
These matters are prosecuted by the Agency under EPR2010 or the Water
Authorities under the WIA 1991.
As we have seen the approach taken at the PACE interview is likely to be dictated by
the case assessment exercise. Where matters are investigated at a more leisurely pace
there will be sufficient time and information available to conduct a thorough review
of the case. Obviously the approach must be considered having regard to an
assessment of the Agency’s ability to prove all the elements of the offence and the
extent to which the facts are in dispute.
If the case against the client is clear cut then the interview may well take the form of
a damage limitation exercise where getting the mitigation across is the all important
objective in terms of enabling the defence to make representations at a later stage to
the regulator regarding the appropriate enforcement response. For most clients the
name of the game is to avoid prosecution and £50,000 maximum fines in the
Magistrates. Considerable preparation on the part of the client and legal
representative will be required whether the intention is to defend or to embark on a
damage limitation exercise.
Where has the polluting matter come from?
Usually the immediate investigation will have identified the source of the pollution
to groundwater or inland freshwaters or has it? In one case I recently handled the
Agency was so obsessed with the activities on my client’s premises they failed to
spot evidence of a chemical spill on the public highway leaving a tell tale residue
direct to a road drain which flowed directly to the same watercourse.
Correspondingly there was no evidence of any spill from the client’s bunded storage
area to the surface drains. We ensured this was all pointed out in the interview. The
result - no prosecution. It is often extremely important to look at what other
activities are going on in the vicinity of a client’s business that could account for the
alleged pollution.
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I can recall several other water pollution cases the details of which are now dimmed
by the passage of time where the simple, basic, obvious point regarding the
provenance of the polluting material had been overlooked by the investigation.
However the defence will surely not want to be pointing out an important but
missing element of the prosecution case at the interview in case the prosecution seek
to remedy the hole in their evidence!
Sample Analysis:
The EA will probably have gathered samples and had these analysed. Consider the
sampling practices and chain of custody from the field to the laboratory. Again not
something a client would ordinarily wish to comment on or be asked to comment on
in interview.
Check the analysis or get an expert to undertake this for you. A mistake may very
well have been made in the laboratory. The best sort of expert for this is someone
who audits for NAMAS and UKAS accredited laboratories. Again not something a
client would ordinarily wish to comment on or be asked to comment on in interview.
The analysis will normally be compared to either permitted discharge levels of any
given consent or permit or threshold values set out within the Water Framework
Directive. This requires specialist assistance from an expert. This also requires a very
careful analysis of the permit or consent and the discharge point but again these are
matters for the prosecution to prove and again the client is hardly likely to be asked
to comment.
Are the threshold levels appropriate comparators? Does the analysis support the
prosecution case regarding alleged pollution? Again not something a client would
ordinarily wish to comment on or be asked to comment on in interview.
There may be sufficient time between receipt of sample analysis and interview to
seek expert advice. Failing which unless the client has a great deal of expertise in the
field it would be unwise to comment on the analysis at interview. Even with the
benefit of a defence expert it is simply not a matter upon which a client should be
commenting upon for fear that comments made in ignorance could result in harm to
the defence case.
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Waste Cases
These cases often involve situations where a Materials Recovery Facility has
deposited what the client considers to be fully recovered aggregates.
Is it waste?
The Agency view is that the ‘aggregates’ are controlled waste and have been
deposited without the authority of a permit or that the client is operating a regulated
facility on the land where the deposits of controlled waste are either being recovered
or disposed of. Note the Guidance on the Legal Definition of Waste published by
DEFRA (August 2012) and the European Commission Guidance on the
interpretation of the key provisions of Directive 2008/98/EC on waste (June 2012).
These cases are complex because they usually involve end of waste issues. The
charges can be brought under S33(1) EPA 1990 (depositing) or Regulation 38(1)
EPR2010 (operating a regulated facility). Cases may also involve claims by the
regulator that the materials pose an environmental threat as they exceed thresholds
that need to be met to meet the Waste Acceptance Criteria (which I understand to be
an entirely flawed approach on the part of the Agency). The allegations may also
include breaches of permit conditions under EPR2010 and duty of care requirements
(S34 EPA 1990).
These cases do require considerable care. The case assessment will throw up difficult
issues of law and the facts may well be semi-arcane and convoluted with different
legal entities being involved. This is not the sort of case one is likely to be able to
advise on in the Police Station given records, analysis and other documentary
evidence may need to be considered beforehand. Organisations will rely on
Environmental Managers and admin staff to document and record and undertake
environmental due diligence and surprising as it may seem in such a regulated and
therefore complicated sector business owners and directors will not necessarily have
a magisterial command of key facts that could be very important in terms of
defending the allegations. The likely approach in such circumstances might be to
advise the client to make a no comment statement or to persuade the Agency to
reschedule the interview to allow the defence time to prepare for interview.
Local authority cases
I cannot say I have had to deal with that many LA investigations. But the same
principles apply whether one is dealing with Part B process related investigations
(e.g. no permit) against gold merchants in Hatton Garden or dealing with the
Streetcare team in Reading in relation to depositing / storage of waste. As it happens
I have recently dealt with two LA cases by way of pre-prepared statements. Here the
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issues were legally and factually straightforward and in my view the LA’s approach
was wide of the mark. I haven’t heard anything further from the two LAs so fingers
crossed!
Breach of permit cases
The approach here is not particularly different to waste or water pollution cases.
Breach of permit conditions can be highly contentious issues. Time spent in
reconnaissance is seldom wasted and the usual approach of ascertaining the basis of
the criminal investigation and pre-interview disclosure apply. Often there will have
been Compliance Assessment Reports and correspondence between the client and
the regulator. All this material has to be considered and the client’s case carefully
assessed. The majority of clients will either have in house expertise or external
consultants and these people may well need to be consulted.
Conclusions
Above all remember the regulator does frequently get it wrong - sometimes on a
number of different levels.
Sometimes the client is its own worst enemy
Clients who fail to see the value of preparing for PACE interviews are often their
own worst enemies. Adequately prepared interviews can be game changing in terms
of outcomes. Often clients only approach me after the summons has been served.
The ability for clients to talk themselves into trouble when facing an interview
without legal representation is frankly depressing. Often even when there is a strong
defence case unrepresented clients can make admissions based on a simple
misunderstanding. Some clients tend to approach interviews on the footing that as
they have done nothing wrong (or so they say) they correspondingly have nothing
to fear from the interview. All I can say is that in a sizeable percentage of PACE
Interviews where the client and I have used the time available to thoroughly prepare
for interview these cases have not resulted in criminal prosecutions.
John Dyne
Dyne Solicitors Limited
14th June 2013
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