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December 05, 2007

CDS Direct - call centre advice for suspects in custody: Jan Davies - author of The Criminal Advocate's Survival Guide - explains how a little noticed reform of the legal aid system will undermine a suspects' right to legal representation

Posted by Jan Davies

The Thatcher government's 1984 Police and Criminal Evidence Act has been much maligned for bureaucratising the police. But as Jan Davies - a solicitor in the criminal courts for over 20 years and the author of The Criminal Advocate's Survival Guide - explains, for the first time suspects were guaranteed the right to independent legal representation while in police custody. Now the Brown government - through a little noticed reform of the legal aid system - is threatening to radically curtail that right.

In 1984 the Police and Criminal Evidence Act gave people in police custody the right to consult a solicitor in private at any time. Next January that right will for many people be removed. In a little publicised change the Legal Services Commission (LSC) which administers the legal aid scheme has taken away the right of detainees to have their own solicitor contacted directly. The police will be obliged to route all calls through a call centre where unqualified staff will decide whether or not the person’s solicitor should be contacted. To bring in the changes the legislation will have to be amended: whether MPs will be sufficiently aware of what is intended is doubtful.

I can remember from my work as a defence solicitor the problems there used to be before the 1984 Act came into force. Firstly, the police very often did not notify a person's solicitor that he was in custody. Information came from the family or friends of the person arrested, and you then had to telephone the police station, usually more than once, to get confirmation that they were holding your client in custody. Then somehow you had to persuade the police to let you in to see him. This was not an easy task, and only if your client insisted would you be able to sit with him in interview.

The records of interview usually consisted of a statement signed by the suspect, but not written by him. The language was almost always that of the police. There were constant arguments at trials about whether the statement had been made voluntarily, with allegations of police malpractice. Defendants often said they had been told they could not be released from the police station until they had signed it.

So then contemporaneous notes were introduced. Each question and answer was written down. I have sat in on many interviews in which this method of recording was employed. With the best will in the world an officer's pen could not keep up with a garrulous suspect. Details were lost. I take shorthand and sometimes the interviewing officer would ask me

What did he say next?
I would have to refer to my shorthand notes. Very often I would myself say to the suspect
Slow down. No one can keep up with you.
It was very far from satisfactory.

The interviews changed radically after the 1984 Act. Suspects had a right to their solicitor being with them in police stations. There had to be very special circumstances for a solicitor to be kept out, and the decision had to be taken by a very senior police officer. The other major change was tape recordings. No longer could a suspect easily say that he had made admissions under compulsion, that his words had been twisted or that he had given an explanation for his conduct which the police had simply not bothered to record.

The result seemed to be that often defendants pleaded guilty far earlier at court and that we got rid of what I would call the fatuous not guilty pleas. It was no longer possible for a defendant to convince himself, before he started lying to his solicitor, that he had been tricked or coerced into admitting a criminal offence.

At first most police officers were angry about the new Act which they saw as limiting their powers. Gradually it became apparent that the presence of solicitors in police stations, while being a hindrance to the more weaselly tactics that had been employed, was a protection for the police. They were less likely to be blamed for having hoodwinked a vulnerable person into making admissions against his will. The evidence of a taped interview was far less likely to be challenged in court. Everything could be done properly and be seen to be done properly.

Now the Government's attack on the legal aid scheme is likely to change some of this. A person will be asked when he comes into custody whether he is able to pay for his solicitor privately or whether he wants help from legal aid. Most suspects are people with no means and are dependent on getting help from public funds. It is hardly appropriate for someone to have to discuss his finances with the police but that is what the custody sergeant booking the person in is going to be obliged to do. There will doubtless be conversations along the line of:

"Well, how much would it cost to have my own solicitor?"

"I don't know, you will have to talk to your solicitor about it."
Will there then perhaps be conversations with solicitors and clients suffering from the effects of alcohol or drugs in the middle of the night about possible fees? It hardly seems appropriate.

If the person then says that he wants Mr So-and-so who always represents him but he cannot pay, then the police are going to be obliged to route the call to the duty solicitor call centre. If the offence is one which is tried by a magistrates court, and therefore not deemed serious, then the call gets referred to CDS Direct, another call centre where an assessment will be made by someone not legally qualified.

There are all manner of rumours circulating at present about who will be staffing CDS Direct. One firm with a contract is said to consist of ex-police officers who will give telephone advice. What is certain is that the person at CDS Direct will have no local knowledge and no knowledge of the suspect. The suspect who trusts his own solicitor but not someone he has never met is going to be confused and distressed.

If there is to be an interview CDS Direct may contact the client's own solicitor. By the time all this rigmarole has been gone through the person in custody, who has been sitting in a cell not aware of the phone calls, may well have decided it is not worth waiting for advice. It is doubtful whether the call centre will have the same persistence in tracking down the suspect's own solicitor as the local police. I was telephoned one evening at a club in Watford where I was washing up behind the bar. I was told,

We know you always go out singing on Tuesdays.
The threat of delay is often employed by police officers as a means of coaxing a person into not asking for legal advice. Some years ago when I was duty solicitor I saw a person in custody who had done a burglary. As he came into the police station and once he had been booked in, he was punted into a side room so that we could have a private word. He readily admitted that he was going to have to plead guilty but said he was nervous, not having been in custody before, and wanted me with him when he was interviewed. I told him:
They will possibly tell you that asking for me will cause a delay, but that's not true. I shall either still be in here or else only a ten minutes' journey away.
Some hours later when I was sitting on a bench at the back of the charge office waiting for something else to happen, he was brought out of his cell and produced to the custody sergeant as ready for interview. The investigating officer, who had not seen me sitting on the bench, said:
You don't want a solicitor, do you. We could get you one, but it would cause a long delay.
The suspect replied stoutly:
Yes, I do, and Mrs Davies said you would say that.
For someone who has been stuck in a cell for an hour or two the prospect of being released is often too much for a person who really should have legal advice.

It has to be admitted that there are many situations where attendance at the station is not necessary. One night the telephone went and I was half way down the stairs in my pyjamas to hear my husband telling the person at the other end of the phone:

…she's asleep at the moment…no, I am not waking her up, just blow into the machine.
Drink drivers can be a real pest. There is usually nothing any solicitor can do for them. They have to take the breath test on the intoximeter machine and by law the police do not have to wait for a solicitor to attend. The test has to be done as soon as possible, and if the person is significantly over the limit the police will keep him in until he has sobered up. There is no way they will want to be responsible for him injuring himself in a drunken state or getting behind the wheel immediately after being released. Usually a solicitor will speak to the person on the telephone and do nothing else.

However, there are many situations which appear not to be serious where the person does need help. The person at the other end of the line at the call centre who does not know the suspect will have no idea whether he is suffering from drug withdrawal, mental health problems such as Aspergers or mild autism and whether he has a long criminal history. The police will very soon wise up to how the call centre makes its assessments.

I can remember being called out some years ago for what was said to be an offence under Section 5 of the Public Order Act (conduct likely to cause harassment, alarm or distress) which carries only a small fine as a penalty. I knew the suspect and I knew the police officer so I put my jeans on top of my pyjamas and headed down to the station. By the time I had arrived it had miraculously become an allegation of attempted robbery. With no solicitor around it will be very easy for the police to manipulate the situation, to say they have arrested a person for something that is not serious and then by the time they get to interviewing - by which time the person will often have been in custody for several hours and is desperate to get out of the station - to disclose the true state of affairs.

The Government will doubtless say that they need to save money. Whether setting up call centres and having to staff them through the night is money saving needs to be investigated. If they really wanted to save money, they could consider scrapping the Legal Services Commission with all its insistence on bureaucratic trivia and its highly paid staff. That would be radical - but that is another story!

Article 6 of the European Convention on Human Rights gives a defendant the right to defend himself through:

legal assistance of his own choosing
and if he has insufficient means to pay for legal assistance
to be given it free when the interests of justice so require.
The criminal proceedings start in the police station, not just after charge. Section 58 of the Police and Criminal Evidence Act states unequivocally that a person in police custody has the right:
to consult a solicitor in private at any time.
There is nothing private about a telephone conversation on a phone in a busy charge office in a police station where all phone conversations are taped. An unqualified person is not a solicitor.

The Act, passed by the Thatcher government, is going to have to be changed, as is the police Code C which accompanies it. It remains to be seen whether those Conservative MPs who profess admiration for Lady Thatcher are going defend her legacy on human rights, or whether Gordon Brown, who made such a show of inviting her to tea, is going to jettison her reforms. The signs are not hopeful.

Jan Davies has been practising as a solicitor in the criminal courts for over 20 years. She was a founder member of Reading Solicitors Chambers and between 2001 and March 2007 was a senior crown prosecutor in Oxfordshire. She now practises as an advocate in both magistrates and crown courts as an associate member of Reading Solicitors Chambers. She is the author of The Criminal Advocate's Survival Guide (Carbolic Smokeball Company, 2007).

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An excellent article outlining the position as it is likely to be in the near future. What do the Government expect to save by these reforms - 3% or about £6million pounds. A cost far outweighed by losing a couple of discs of tax payers information or to put it directly in context the amount of money paid out by the government for wrongful convictions and the like in the near future. And there is not proof it will save the 3% in any event.

Posted by: Ian Vesey at December 6, 2007 04:11 PM

The LSC's plan (encouraged by the Ministry of Justice) is to further limit the right to access to a solicitor by only amending the PACE Codes of Practice. Rights to access to a solicitor have been limited by stealth through funding arrangements and costs compliance regulations and Duty Solicitor Arrangements so attending at a Police Station for a client whether as Duty Solicitor or on an "own client" basis can lead to an argument with the LSC many years after the event as to whether the fee earned was earned appropriately. Therefore telephone advice for some minor offences has become standard, never mind the detainee's right as expressed in section 58 PACE 1984.

Police Officers regularly place individuals in a Police cell, go and "make enquiries", then, after a few hours, ask the detainee if he'd like a Solicitor but indicating that there may be a delay. This "advice" should be made a criminal offence. The truth is that a Solicitor must attend no later than 45 minutes after being told that a detainee is ready for interview.

The Ministry of Justice and the LSC would be better off concentrating on the real issues that affect justice and cause waste and delay and leave Solicitors alone to get on with the job.

Posted by: Michael Robinson at December 7, 2007 12:07 PM

Why do we have to pay at all for habitual petty criminals to be defended ? Provided the interview is recorded , why not let the police conduct interrogations in their own way ? Why is it necessary for a lawyer paid for by us to be present? What is needed is more convictions and the lawyers just get in the way of this. There is far too much nonsense about the rights of the suspect. If he had not been up to something suspicious he wouldn't be there in the police station in the first place.

Posted by: Jack at December 10, 2007 10:08 PM

What seems not to be appreciated is that a suspect doesn't "have to be up to something suspicious" to find himself facing a police interrogation. Anyone who gets behind the wheel of a car runs the risk of being involved in an accident and it doesn't have to be your fault. That interrogation is vital to you, your son or daughter in that position. Police officers are only human and if "your" interview comes at the end of a difficult and stressful shift or if there is local press interest in a fatal accident, then there is pressure on that human policeman to get someone charged quickly. The presence of a lawyer ensures fair questioning and fair procedures are adhered to. That's all. If there is strong evidence against a suspect then the presence of a lawyer does not diminish that. It is an essential safeguard in a civilised society and an innocent person in a police station will be grateful for the reassuring presence of an experienced and qualified professional to support them. We do NOT need "more convictions". We may need more SAFE convictions but that is another issue

Posted by: J H Smith at December 12, 2007 07:41 AM

You need to be careful Jack, in the current climate some people may not realize you are joking. Oh, you're not; I see. If you had ever been arrested, you would realize why legal representation is necessary. We used to do things your way which provided a great deal of work for the court of appeal dealing with false confessions which had been bullied out of a suspect or simply fabricated. Recording the interview by itself provides little protection against this mischief - a lot can go on when the machine is turned off. And, no, you don't necessarily have to have done something suspicious; it's enough that someone else says you have. Still, fair point, if convictions are all you're interested in, I have to concede your approach would improve that aspect of things. Whether those convictions would be safe is another matter.

Posted by: martin salloway at December 12, 2007 12:51 PM


Colin Stag, Stefan Kiszko, a large number of people in Birmingham dealt with by the serious crime squad. Some names that prove the fallacy of your argument. They are the well known examples, but there were lots of others pre-pace.

I don't recall Mrs Thatcher being soft on crime but she put Solicitors into the police station. There must have been a reason for that....

The odd thing is we assist the suspect but also to a certain extent if the person is guilty of something we indirectly protect the police's conviction. They know that too. I was involved in a murder case where the suspect did not want a solicitor, the police did and so he did call the duty solicitor out.

We only stand in the way of convictions where minor things are not present, things like evidence or proof of someone's guilt.

Posted by: Ian Vesey at December 12, 2007 09:08 PM

It is obvious that those trying to contradict me are all of them lawyers, with a view conditioned by and constructed from their own narrow professional outlook and experience. Mr Brown and his colleagues do not see it that way, nor do Mr Cameron and his advisers. They take a broader view of justice and see it as being that which is to the overall good of their constituent publics and not merely that of the accused. Social justice must prevail over mere individual or procedural justice You lawyers are going to lose because our political leaders are determined to defeat you, not just on this issue but on the conduct of trials and on the extended detention of suspects. Why do you not simply accept that this is what is going to happen and stop trying to obstruct the will of our elected leaders.

Posted by: Jack at December 12, 2007 09:51 PM
"obstruct the will of our elected leaders"

Hugo Chávez, Ahmadinejad, Old Uncle Mugabe and a-a-a-a-lllll...???

Posted by: HedgehogFive at December 14, 2007 08:48 PM

Jack, when various politicians were arrested over "cash for honours" or when a certain politician's son was arrested over a small matter of supplying cannabis (I won't go on and on and give further examples but you will get my drift) do you imagine that they didn't bother having a lawyer present when they were questioned? If the police kick the door in at your daughter's student flat at 6.00am because a neighbour says that she has a lot of visitors and the neighbour thinks that she must therefore be selling drugs, would you tell her that she needn't bother with a lawyer? Of course, if she was innocent, she wouldn't need one at Court either would she? She could just go and tell the Court that it was all a big misunderstanding and they would believe her and let her go......... wouldn't they?

Posted by: J H Smith at December 15, 2007 12:25 PM

Thank you, Jan Davies, for drawing our attention to another piece of stealth legislation. I am a scientist, and it seems to me that the brains of scientists and of lawyers are wired very differently. Nevertheless, I think that observations from people working “at the coal face” such as Jan Davies are what we call “raw data” and are more reliable than protestations based on a general suspicion of lawyers.

Posted by: Robert H. Olley at December 17, 2007 07:17 PM

We have just been told by Justice Secretary Jack Straw that "The legal aid bill for England and Wales is the highest in the world and it has to come down....Legal aid costs have risen from £138m in 1980 to £2.2bn in 2005 - a rise of 429%. ....
It can not be right that in England and Wales £34 was spent per head on legal aid, compared with £10 in New Zealand, £7 in the Irish Republic, £4 in Germany, £3 in France and £1 in Sweden."
In view of our leader's comments, are you going to tell me that there is more injustice in Ireland and Sweden than in Britain ? Where does the money go? It goes into tricks to acquit . No wonder so few rape victims get justice. No wonder fraudsters get off. Good for Jack Straw, man of the people !

Posted by: Jack at December 17, 2007 10:26 PM
Where does the money go?

One's first answer is that there seems to be a more-than-random chance that public spending will be inefficient. Most of that extra money, I guess, simply goes down a drain somewhere.

But on further thought, may not the problem lie with the legislators rather than the lawyers?

Hard cases make bad law
And bad laws make hard cases
Posted by: Robert H. Olley at December 19, 2007 07:48 AM
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