Choice, Privacy and Publicly Funded Legal Advice at Police Stations

DOIhttp://doi.org/10.1111/j.1468-2230.2010.00799.x
Publication Date01 May 2010
AuthorRosemary Pattenden,Layla Skinns
THE
MODERN LAW REVIEW
Volume 73 May 2010 No 3
Choice, Privacy and Publicly Funded Legal Advice at
Police Stations
Rosemary Pattenden
n
and Layla Skinns
nn
Section 58 of the Police and Criminal Evidence Act 1984 confers on all suspects held in police
custody a right to consult a solicitor in private. The free legaladvice which suspects arrested for
certain minor o¡ences can request is restricted to telephone advicefrom a call-centre operated by
CDS Direct.It is lawful for the Legal Services Commission to restrict the deliveryof legal advice
in this way. Empirical research, however, reveals thatthere are police stations that lack the facil-
ities for suspects to speak by telephone with legal advisers secure in the knowledge that what is
said will not be overheard. It is unlawful and incompatible with the European Convention on
Human Rights to expect suspects tospe ak bytelephone to a legal adviser under such conditions.
INTRODUCTION
Since the coming into force of the Police and Criminal Evidence Act 1984 (PACE),
access without delay to legal advice for those detained at a police station has been
considered a due process right. Its statutory foundation is section 58 of PACE: A
person arrested and held in custody in a police station .. . shall be entitled, if he so
requests, to consult a solicitor privately at any time.
1
Anationwide24-hourduty
solicitor scheme with no means test allows suspects to take advantage of this right.
2
Alternatively, a suspect may seek advice from a legal aid practitioner or private soli-
citor of their own choice. Free legal advice has undoubtedly contributed to the
growing proportion of suspects requesting and consulting a legal advisor while in
n
Professor of Law, Universityof East Anglia. This author is responsible for the legal analysis.
nn
Teaching Associate, Institute of Criminology and Adrian Socio-Legal Research Fellow, Darwin
College, Universityof Cambridge.This author isresponsible for the empiricalresearch that underpins
the article, as well as contributing to parts of the concluding sectiono nthe way forward.The authors
wouldl ike to thank Roger Leng and Jessica Skinns for the ir comments about this article and Professor
John Spencer for the suggestions he madedur ing the research phase.
1 See also Code of PracticeC, 3.1 and 3.2. and 6.
2 As at 31 March 2008, 2,230 solicitors’ o⁄ces hadbe en awarded Criminal Defence Service (CDS)
contracts by the Legal Services Commission (LSC) to provide duty solicitor services at police
stations: Legal Services Commission Annual Report and Accounts 2007/08 HC 841 (London: LSC,
2008) 27.
r2010The Authors. Journal Compilation r2010The Modern Law ReviewLimited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2010)73(3) 349^370
police custody. Consultation rates (which are lower than request rates) have risen
from approximately 5.6 per cent in the 1970s to 48 per cent in 2007.
3
The right to legal advice has bee n further strengthened by the i ncorporation of
the ECHR’s fair trialright (Article 6) intoEnglish law by the Human Rights Act
1998. Article 6’s relevance extends to the police custody stage. Of particular
importance is Article 6(3)(c), which states:
Everyone charged with a criminal o¡ence . . . [has the right] . . . to defend himself in
personor throughlegal assistanceof his ownchoosing,or if he has not su⁄cientmeans
to pay for legal assistance, to be given it free when the interests of justice so require.
The EuropeanCourt of Human Rights (ECtHR) has stressed that Article 6(3)(c)
applies to suspects in police detention‘if and in so far as the fairness of the trial is
likely to be seriously prejudiced by an initial failure to comply with its provi-
sions’.
4
Should a suspect be interviewed by the police, the ‘concept of fairness
enshrined in Article 6 requires that the accused be given the bene¢t of the assis-
tance of a lawyer already at the initial stages of police interrogation’.
5
This is
because the suspect’s silence
6
or words
7
may be used as evidence at the trial,as well
as in£uence the numberand content of the charges.
In the1980s there was a £urry of research on the police custody process which
included notable studies on access to legal advice
8
and legal advice from defence
solicitors.
9
In the last12 years, there have been only four empirical studies of the
custody process,
10
just one of which is speci¢cally about legal advice. This
research, by Kemp and Balmer, emphasised the importance suspects attach to
3 L. Skinns, ‘‘‘Let’s get it over with’’: Early Findings on the Factors A¡ecting Detainees’Access to
Custodial Legal Advice’ (2009) 19Po licing a nd Soc iety 58; ‘‘‘I’m a detainee get me out of here’’: Pre-
dictors of Accessto Custodial Legal advice in Public and Privatized PoliceCustody Areas’ (2009)
49 BritishJournal of Criminology 399.
4Magee vUnited K ingdom App No 28135/956 June 200 0 at[41]. See further, R.Toney,‘Disclosure of
Evidence and Legal Assistance at Custodial Interrogation: what does the European Convention
on Human Rights require?’(2001) 5 E & P 39, 44^7.
5Pan ovits vCy prus App No 4268/0411 December 2009 at [66]; Salduz vTu r k ey App No 36391/02, 27
Nov2008 at [50]. Denial of earlyaccess is notmade good by later access: BrennanvUnit ed Kingdo m
(2001) 34 EHRR 18at [57], [61].
6Averill vUnited Kingdom (2001)31 EHRR 36 at [58]; Criminal Justice and Public OrderAct 1994, s
34. If access to legal advice is legitimately delayed, no adverse inference from silence may be
drawn, see RvIbrahim[2009] 1 WLR 578 at [77].
7Brennan vUnited Kingdom n 5 above at [62]. But cf RvIbrahim ibid where the Court of Appeal,
¢nding no ‘irretrievableprejudice’apparently because the suspecthad notexplicitly incriminated
himself, upheld the admissibility of evidenceof l ies toldat a safety interview by a terrorist suspect
whose request to consult a lawyerhad been denied. Whyshould inferences from exculpatorylies
be considered acceptable when inferences from silence are not?
8 A. Sanders, L. Bridges, A.Mulvaney and G. Crozier,Advice and Assistance at Police Stationsa nd the
24-hourDuty SolicitorScheme (London: Lord Chancellor’s Department,1989).
9 J. McConville, L.Hodgson, L. Brides and A. Pavlovic, StandingAccused:TheOrganizationand Prac-
ticesof Criminal DefenceLawyers (Oxford:OUP,1994).
10 C.Phillips and D.Brown,Entry into the CriminalJustice system:A Survey of PoliceArrestsand their Outcomes
(London: Home O⁄ce,1998); T. Newburn and S. Hayman, Policing, S urveill ance an d Soci al Con trol:
CCTVandPolice Monitoringof Suspects (Cullompton:Willan, 2002);V. Kempand N. Balmer, Crimi nal
Defe nce S ervic es: UsersPerspectivesResearch Paper No 21 (London: Legal Services Research Centre,
2008)and the research ofone of the authors (Layla Skinns),which is describedin the text.
Legal Advice atPolice Stations
350 r2010The Authors. Journal Compilation r2010The Modern Law Review Limited.
(2010)73 (3) 349 ^370

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