The ongoing saga of Helen Titchener’s arrest and prosecution for the attempted murder of her husband has started a lively debate about whether she has received good legal advice.
One question asked by readers who have yet to encounter our creaking criminal justice system first hand is “where would she find a legal team who are right for her?” Most people in Helen’s position would probably, like Helen, accept a rota solicitor suggested by the police or arranged by family outside. Police station legal advice is free, and there’s no means test. Of course anyone is free to ask for a solicitor that they know, but the chap who wrote your will and sold your house would quite likely be out of his depth in a police station. Choice of Crown Court advocate – which these days can be a barrister or a solicitor with “higher court rights” – is usually left to the solicitor. Generally speaking they have a pretty good idea of who the suitable and unsuitable advocates are likely to be. Again though, there is nothing to stop you deciding for yourself.
Helen’s solicitor, Dominic Farrell, has come in for quite a bit of stick, in particular for advising her not to answer police questions.
Why, critics ask, would he stop her giving her account at the earliest possible stage? After all, hasn’t he now laid her open to the accusation that once she does reveal her defence she’ll be accused of having had time to think up something dishonest, crafted to deal with whatever evidence the prosecution produce?
There is some force in that. After all, like anyone arrested, she had been given the warning that “it might harm your defence if you fail to mention when questioned something that you later rely on in court.” The first instinct of most solicitors would probably be that she should answer questions.
But it’s not so simple. Mr Farrell told the police that in his opinion she was unfit to be interviewed. It is true that she had been examined by a doctor and a mental health expert, who pronounced her fit to be detained and interviewed. The police custody officer – who takes the ultimate decision on whether an interview takes place – must also have formed the same opinion: but a solicitor needs to make his own mind up. If he believed her unfit to be interviewed it was Mr Farrell’s professional duty to say so. In fact he would probably have been acting improperly if he had given her any other advice.
There is a code of practice under the Police and Criminal Evidence Act 1984 dealing, amongst other things, with when a person is fit to be interviewed. It boils down to saying that great caution needs to be exercised if either an interview might damage a suspect’s mental health, or (and this seems to be the likely issue here) if her
“replies may be affected by her physical or mental condition rather than representing a rational and accurate explanation of her involvement in the offence.”
Listeners were excluded from Helen’s initial legal consultation so we cannot judge her fitness for ourselves, or even whether she was able to say anything significant at all.
On the other hand we do know, that when she met her conscientious – if annoyingly right-on – barrister Anna Tregorran earlier this week, she was unable to give a coherent account of the incident. If Miss Tregorran’s gentle and sympathetic coaxing still couldn’t elicit satisfactory instructions two weeks after the event, that rather suggests that her solicitor’s advice in the far more intimidating context of the police interview was sound. It might also explain why he didn’t at least prepare a written statement for her to sign in lieu of answering questions: he simply didn’t know what her side of the story was.
Mr Farrell might well have had in mind the 2005 case of Howell, in which the defendant was accused, like Helen, of attempted murder by stabbing. Mr Howell’s solicitor advised him not to answer questions simply because there was no statement from the injured party (as indeed there was not from Rob). The Court of Appeal did not find that a good reason for advising silence but suggested that:
“The kind of circumstance which may most likely justify silence will be such matters as the suspect’s condition (ill-health, in particular mental disability; confusion; intoxication; shock, and so forth ….”
For practical purposes the reason for his advice is probably less important than the simple fact that it was given. Although prosecutors, the police and many judges don’t much like it, juries are generally receptive to the argument that a woman who has received legal advice shouldn’t be criticised for following it.
Sadly, instead of following it to the letter and saying “no comment” to every question, needled by the police she eventually blurted out that she had once threatened to kill her husband. That was not really her solicitor’s fault, although perhaps someone more on the ball might have been able to intervene as Helen started to become distressed.
Some Times readers have also been shocked by the fact that Helen has been remanded in custody, without even making an application for bail. More laziness and incompetence from the useless Dominic?
On the contrary. Appalling though it is to keep a heavily pregnant woman in custody, you don’t get unlimited chances to apply for bail so it’s sensible to wait until you have the strongest possible grounds.
When she applies she is likely to get bail – she has a statutory right to it unless there are very good reasons to the contrary – but the current reason for keeping her locked up is that she may “interfere with witnesses.” Interference with Rob isn’t the main issue: a condition that she doesn’t contact him should be more than adequate.
The main issue is contact with Henry, her 5 year old son and a crucial prosecution witness. The prosecution are worried that if Henry lives with Helen she may – consciously or otherwise – influence his evidence. Helen’s friend Kirsty is also an important witness, and the prosecution want to reduce as far as possible the chance that she will communicate with anyone connected to the case. For this reason, Miss Tregorran is planning to argue that she should be accommodated in a bail hostel far away from Ambridge.
At the moment she may be right, but Henry’s evidence in chief has been recorded on video and it isn’t going to change in the months before the trial. What’s more, it may turn out not to be in dispute anyway. If (as seems probable) the issue is self-defence, or defence of Henry, it would be asking a great deal to expect a 5 year old child to have noticed, let alone remembered the subtle signs that could have led Helen to believe that she or her son was in danger. These days advocates are not even required to “put” their case to a young child witness, and positively discouraged from any lengthy cross-examination. If there is no need to cross-examine him anyway, the fear that she may “interfere” with Henry evaporates and she should be able come back to Ambridge to await her trial.
There is also the unappealing prospect that the fast-recovering Rob will try to get Henry to come and live with him. The fact that this might make her bail application a bit easier would be scant compensation for losing her son to a man who would doubtless quickly set about manipulating both Henry’s emotions and his evidence.
It’s not just in Helen’s interest to get bail: it’s also very much in Miss Tregorran’s. In a case like this the legal aid authorities would pay her for just one conference with Helen in prison, which of course she’s now had. From now on, if she wants to see Helen behind bars she won’t be paid for it. On the plus side though, she will get £87 for arguing Helen’s bail application. After she’s paid 23% to her chambers and £20 for her travel from Birmingham to Borchester, she could make as much as £50.00.
(This article first appeared in The Times 21 April 2016)