Many people, including lawyers, would have watched yesterday’s first episode of National Treasure in which Robbie Coltrane portrays a character named Paul Finchley, an elderly comedian who is arrested on suspicion of an historic rape allegation back in the 1990’s.

One has to allow for poetic licence in a programme like this, but the poor job of the solicitor representing Paul Finchley at the police station deserves comment. I sat in horror as he failed to obtain any pre-interview disclosure and allowed his client to answer some questions and not others. If that was not bad enough, he appears not to have considered Paul Finchley’s assertion that he had never met the complainant, Rebecca Thornton, in his life.

Moreover, there was no attempt by the solicitor to argue that Paul Finchley’s arrest was not necessary. Under the codes of practice for the Police and Criminal Evidence Act 1984, the investigating officer must demonstrate that it is “necessary” to arrest the suspect. In these circumstances, where the allegation is 25 years old and where the officer had already obtained a warrant to conduct a search of the home address, it is hard to imagine why it would be necessary for Paul Finchley to be arrested. Perhaps the makers thought it would add to the drama, as a shell-shocked Paul Finchley is whisked away in a police car, in full view of his neighbour.

Instead, the solicitor should have done as follows:

  1. make representations to the custody officer that the arrest was unnecessary and thereafter seek the de-arresting of Paul Finchley;
  2. hold a pre-interview meeting with the officer, in this case with the solicitor alone, to attempt to obtain disclosure as to the nature of the allegations his client is facing and the identity of the complainant. He should also try to ascertain whether the police have any supporting evidence for the historical allegation in terms of complaint witnesses at the time, and whether they have any independent evidence for Paul Finchley meeting the complainant in the manner she describes;
  3. meet with his client to obtain his instructions as to whether or not he is familiar with the complainant and, if possible, determine his whereabouts at the relevant time; and
  4. advise Paul Finchley not to answer questions at this stage but provide a prepared statement at the end of the interview denying the offence, stating that he could not recall ever having met Rebecca Thornton and that the picture did not jog his memory.

The makers may well have intended this scene to exhibit Paul Finchley’s devastation and bewilderment at being thrown into the world of the accused. The effect, however, has been to portray his solicitor as incompetent and ineffectual at this highly important stage of the investigation.

Nonetheless, National Treasure looks to be an interesting series, exploring what it is like to be at the centre of a historical rape case. So far, we have seen Paul Finchley’s reputation mired in the press, a tactic often used by the police to appeal to potential complainants, and often before the first allegation has been fully investigated (see my blog on Potential for miscarriages of justice in historic sex claim investigations). Next week his legal team will be developing a strategy. Although with that disastrous first interview, which will have been recorded, they will find it an uphill struggle.