IUCs and disclosure of evidence

Just come back from our local Vulnerable Customer Group meeting with DWP et al.  The fraud team were saying that following a very recent change anyone called in for an IUC is able to have disclosure of the evidence before the IUC. As I understand it prior to this disclosure was only made to legally qualified representatives like solicitors

It was.  Any idea of the source of this change?

No legal reference was given but it was one of our local Fraud team speaking to an audience from various ‘partner’ organisations so I have to assume its correct- she said it only came in in the last month

Interesting.  Perhaps you can ask for the source of this?

As a general rule I am firmly of the view that advisers who are not skilled in criminal law should not attend IUCs on their own.  Under the PACE Code of Practice advisers not employed within a solicitor’s practice/contract have no rights to assist a client and I have seen cases where welfare rights advisers have actually caused harm in IUCs because of their lack of knowledge of criminal law.

Equally, I’ve seen numerous IUCs where criminal law specialists haven’t had a clue about benefit entitlement and so have not been able to properly advise their clients.  Ideally, it’s a process in which both welfare rights adviser and criminal lawyer play their part and work in tandem.

I am concerned about the latest version of the DWP leaflet which goes out with IUCs which states that people will only be offered one IUC (no such authority for this in the law AFAIK).  This has the (deliberate?) effect of pressuring people to attend and to do so on their own - which is a really bad idea.

The notes and pwerpoints from the meeting should be sent to me in the next few days and I think these will show email addresses of the individuals doing the presentations. I should be able to get confirmation of what I presume must be amendments to either the regs or PACE.

I agree with Neils point about people not being au fait with criminal law- I have been an official Council ‘appropriate adult’ for over twenty years and the difference in approach is marked, especially the use of the right to say ‘no comment’ to points put to the accused.

If a welf attends an IUC in the role of appropriate adult and there is no solicitor present they do have the right to call a halt to the interview and, in private, ask the client if they want to change their minds about having a solicitor present.

Many clients seem to be willing to say anything, however unwise, to explain themselves and to get the IUC over with as soon as possible and I have used the right to ask the client to consider a solicitor to protect the clients interests - it is the approapriate adult’s duty to see ‘fair play’ and this must include being sure that the client has access to advice before saying something that might incriminate them.

In my opinion it is safer for the client to say ‘no comment’ on the advice of a solicitor who is able to weigh up the pros and cons rather than just say ‘no comment’ off their own bat.

I also agree with the comment about some solicitors. I am currently dealing with an overpayment case which might also lead to a prosecution where, in my humble opinion, the solictor present could reasonably have advised the claimant to make no comment to at least some of the points put to him

PACE codes C and H were revised with effect from 2 June 2014 in respect of disclosure, the new code confirms that before being interviewed, a suspect and his/her solicitor if the suspect is represented, must be given sufficient information to enable him/her to understand the nature of the suspected offence and why the suspect is suspected of committing it, in order to allow for the effective exercise of the rights of the defence (Code C para 11.1A). One of those rights is the right to silence, therefore the information disclosed should be sufficient to enable the suspect to decide whether to exercise that right.

NB. the right to disclosure is to claimant and/or solicitor (not reps unless you hold a practicing certificate).

See:
http://www.lag.org.uk/magazine/2014/10/police-station-law-and-practice-update.aspx

Pete, I too saw a power point presentation last week however the DWP said ONLY a solicitor can have advance disclosure so I have asked the DWP to confirm that they have revised their ways of working (as the power point suggested not).

The disclosure of information does not have to be complete at that stage.  Only sufficient information need be given so that if the accused does choose to stay silent then it’s reasonable to draw an adverse influence.

A common tactic with disclosure of evidence by police and investigators is to drip feed disclosure to try and outwit the adviser and client and/or to also ask questions about issues where there has been no advance disclosure.  I understand that the correct approach then is ask to suspend the interview and ask for fuller disclosure so that advice can be given before the interview is recommenced.

A prepared statement handed in after advance disclosure instead of answering questions may also be helpful and may avoid the court drawing an adverse inference from not answering.

I think the role of WR adviser as an appropriate adult is interesting and useful, however, not all interviewees require an appropriate adult.

One big problem as Pete says is clients trying to ham or fib their way through an IUC - often because they don’t understand the rules of the game and just how serious it is.  It usually ends in tears.

I concur with Neil and Pete over the need to instruct a suitably experienced Criminal Solicitor for IUC’s especially in cases which may result in substantial overpayments.

Legal Aid for Interview Under Caution is still available to instruct Criminal Solicitors, subject to eligibility, so Advisors should attempt to work and create links with good Criminal Solicitors.

Having worked in both Criminal Law and now predominantly in Civil, it is shocking to see benefit claimants make admissions to offences despite being accompanied by a Criminal Solicitor where legislation is clearly on their side. 

Furthermore, it is shocking to see the questions that some Solicitors allow to be asked without considering the oppressive and leading nature.

A recent scenario was a case whereby a client of mine had accumulated adoption allowance well over the prescribed limits and the DWP fraud team and Local Authority were prosecuting for a substantial amount with the case getting as far as the Crown Court for final hearing without anyone noticing that Adoption Allowance was entirely disregarded as income and capital.  Fortunately, we were able to resolve everything, doing a forensic trail proving disregard and got the Crown Court Case dropped plus reinstatement of benefit, removal of overpayment and the cherry on the cake was the hefty arrears payments owed - all quite swiftly without the need for tribunal. 

It is important to note that under Criminal Law credit for an early guilty plea starts from interview under caution so sometimes right advice is to plead guilty at earliest convenience - but if and when possible a benefit claimant should try and seek welfare rights advice pre- any admissions. 

Furthermore, a client should always be advised on the mechanisms of appeal via the mandatory reconsideration and SSCS1 appeal route as entitlement decisions can be flawed and overpayments are often inflated, incorrect and would therefore have an impact on the level of criminal conviction and sentencing. 

Without rabbiting on too much a Criminal Solicitor should be familiar with the multiple benefit offences i.e Fraud, Theft, Misrepresentation, Dishonesty Failing to Declare and Failing to Declare scattered around different legislations - your Criminal Solicitor should at first instance be able to distinguish the level of the offence and not coerce you into agreeing to say a charge of Fraud when it clearly does not meet the Fraud threshold. 

With the removal of legal aid for welfare benefits a number of benefit claimants, alleged to have committed benefit fraud, have been advised by Criminal Solicitors that with the removal of legal aid, help and assistance in challenging the DWP/Local Authority is no longer exists thus pointless disputing which ultimately leads to early pleas of guilt - which creates an injustice and is of course wrong as many in our Sector are suitably experienced to provide advice on the civil aspect and able to work in tandem with Criminal Solicitors.

Apologies about length, I know a lot of non specialists, including benefit claimants, that read rightsnet and it is important to ensure they are familiar with the rules and know their legal rights.

I hope some of this proves useful to our forum users.

Manik Miah

Totally agree with all of the above (clicks the ‘like’ button).

Part of the problem with criminal lawyers is that not only do they not usually know much about benefits law, but actually, they usually only deal with a small number of benefit fraud cases - sometimes one or two a year. 

As a criminal lawyer once told me” Give me a rape or a murder and I’m fine with it.  This stuff [benefit fraud] is far too complicated”. 

I have promoted the idea that this is a specialist area so criminal law firms should get certain fee earners to specialise in benefit fraud matters, in the same way that they specialise in motoring offences, corporate fraud, juvenile offenders, etc.

Where firms have done this, I have seen how the lawyers in question not only deal with benefit fraud cases to a higher standard but also much more efficiently from a fee-earning point of view.  Paradoxically, this also helps the DWP and CPS because they get fewer irrelevant interventions.