The issue of whether criminal lawyers can attend a Police Interview has a couple of very simple answers: "yes they can" and "yes we do".
I was contacted recently by a man who was struggling because his criminal lawyer told him that criminal lawyers could not attend Police interviews because they would then be a witness and not able to represent them.
I must say, I have never understood whether lawyers say this because they are reluctant to attend Police interviews or because they truly do not understand the law.
I drew in my breath and repeated what I have said now and what I have had to say hundreds of times over the years.
People have a right to be represented in an interview by a lawyer attending with them. There are limits on what the lawyer can do in the interview, but they are certainly allowed to be there. There are a number of advantages in having a lawyer with you (from starting to discuss resolution with police or getting a clearer view of the case against you, to reducing the stress and anxiety in being questioned in a police station).
The police might object to a certain lawyer's presence, for example if they were acting for a number of people in an organized crime ring.
However, if you are a normal citizen and your lawyer is not appearing for many people in the same case, then you should be attending an interview with a lawyer.
It is a financial decision, in part. If you cannot afford to have a lawyer, then you can get by without one but do get advice prior from a legal aid lawyer.
People need to understand that if you are being formally interviewed, it is not really a "search for the truth". The Police are trying to find admissible evidence to convict you of an offence.
Many Police also wrongly believe that lawyers cannot attend a police interview.
There are two ways that a lawyer can approach that.
- Indicate that you understand the law and you are willing to attend the interview and take your chances
- Tell them to call the Police Legal Department because they are wrong and any interview they do might be inadmissible.
Both work as techniques.
The first approach always works because generally speaking a lawyer would only become a witness to a case if the Police assaulted their client in the interview.
That is incredibly unlikely, as that very tiny portion of bad police seem only to assault people or pressure them unduly where there are no witnesses. Most police officers are just doing their job and not being criminals themselves.
We have attended hundreds of interviews mainly in Victoria and in some other states for various offences, and there has never been a client assaulted in our presence.
If a Police Officer is saying a lawyer cannot attend the interview, it is prudent that the lawyer get the Officer's email address and email them immediately from their phone or tablet something like:
"I note that we have attended the Police Station and you have refused us entry to the interview. Our client wants us in the interview so that we can give legal advice with an understanding of what is being put to them. They also want us there to support them.
We urge that before you conduct the interview you speak to the Police Legal Section. They will tell you (as they always tell Officers who do not understand this) that you should allow us in the interview."
Interestingly, the smarter police squads, like the Homicide Squad, are generally keen to arrange lawyers to be present so that there can be no assertion that the interview was flawed in any way.
This is just about the threshold question about whether a lawyer can attend an interview. What you do at an interview is a whole other topic. There are situations where you would talk in an interview and there are situations where you might " no comment" the interview. These are questions of nuance and understanding that are informed by discussions with your lawyer.
If you have any lead time before an interview, call your lawyer and arrange a consultation as soon as possible. It is at this stage that people make many mistakes that cost them dearly in the long term.
