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It is highly unlikely that the ECtHR would accept anything like the narrow views expressed in Argent and Imran and Hussain as justifying limitations on police disclosure during custodial interrogation, and certainly not where sections 34-37 CJPOA are operative.
(278) Belloni and Hodgson consider that at least some of the poor quality legal assistance is due to systemic problems within defence firms, which "are structured towards the production of guilty pleas." (279) Regardless, it is evident that the additional complexities injected into custodial interrogation by sections 34-37 CJPOA mean that only an experienced and robust defence at custodial interrogation will ensure that the suspect's best interests are fully advanced.
It should be recalled here that the ECtHR has found legal advice at custodial interrogation to be necessary to counterbalance the inequalities that exist at interrogation under the CJPOA silence provisions.
Non-disclosure and the CJPOA Silence Provisions: Is Effective Assistance Possible?
(301) As shall be shown below, this also may be sufficient to bring the relevant CJPOA silence provisions into operation when police questions are put to the suspect.
Under such circumstances, where the CJPOA silence provisions are operative, a court might conclude that effective legal advice is simply not possible.
This same question has been addressed indirectly by the Court of Appeal under the CJPOA silence provisions.
(315) The great uncertainty injected into custodial legal advise by the CJPOA silence provisions is now obvious.
This should be done whether or not Parliament decides to repeal the troublesome CJPOA restrictions on the right to silence.
(335) There has been a suggestion that the police do so not out of concern for procedural fairness, but because it provides the suspect with evidence sufficient to permit police questioning, thereby ensuring the CJPOA silence provisions come into effect.
For a full discussion of CJPOA's operation, see Rosemary Pattenden, Inferences from Silence, 1995 CRIM.
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