Evading Access to Legal Advice
| DOI | 10.1177/002201839505900206 |
| Date | 01 May 1995 |
| Published date | 01 May 1995 |
| Subject Matter | Article |
EVADING
ACCESS
TO
LEGAL
ADVICE
Helen Fenwick*
This article will argue that anumber of invisible barriers lie in the path
of
obtaining legal advice in police custody and that the suspect least able to
overcome them is also the suspectmost in need of legaladvice. The barriers
to be explored are, it is suggested, invisible in the sense that they do not
consist of the straightforward breaches of the legal advice scheme which
seemed to occur in the early days of PACE,l but rather of more subtle
manipulation or evasion of the rules.'
It
will be contended that the revision
of the scheme which has already occurred;' and which will be taken further
in
1995,4
has had and will have some impact in curbing such evasion, but
that there will still be too much scope for it within the scheme. Finally,
suggestions willbe put forward for more radical reform
of
the scheme.
Notification
Notification of the right to legal advice under para 3.1 of Code C5will still
be reserved for arrival at the police station under the proposed 1995 revision
of the PACE Codes of Practice, thus disadvantaging certain suspects not
already aware
of
it at the point when admissions may be made."
It
is probably fair to assume that many suspects, including those who are
criminally experienced," are aware of the right to legal advice, but that the
group who are not so aware would tend to include some of the more
vulnerable members of society.
• Lecturer in Law, University of Durham.
ISee RvSamuel
[1988)
I QB 615; RvA//adice (1988) 87 Cr App R 332; RvAbsolam
(1988) 88 Cr App R 332.
2See A Sanders 'Access to Legal Advice and Police Malpractice'
[1990)
Crim LR 494, at
pp 501 and 504 discussing findings of the research mentioned below. The police failed to
inform the detainee of the right to have advice in only 2.6 per cent of the cases observed
while outright denial of advice occurred in only 3 per cent of the cases of those requesting
it. The research in question undertaken by A Sanders, L Bridges, A Mulvaney and G Crozier
entitled 'Advice and Assistance at Police Stations' (November 1989)-hereafter 'the Sanders
research'-found
that in contrast one or more method of persuading a suspect to forego
advice was used in 41 per cent of cases: op cit, p 56.
3Code of Practice C was revised in 1991.
4Aproposal for the further revision of Code of Practice C was issued in draft form in
August 1994; the revised Codes are expected to come into effect in April 1995.
5All references to paragraphs are to Code of Practice C made under the Police and
Criminal Evidence Act 1984 (PACE).
6Softley's research into this issue indicated that when suspects were informed of this right
requests for advice were three times as high as when they were not so informed (Softley,
Police Interrogations (1980».
7The Sanders research supports this suggestion: out of 60 suspects who knew that they
had a right to legal advice, only 23.3 per cent did not know this before informed of it by the
police: op cit, p 46.
198
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