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October 18, 2010

Don't limit access to solicitors for those in custody - it won't save money, argues Jan Davies

Posted by Jan Davies

Limiting access to solicitors for those in custody is a false economy, argues Jan Davies.

Police officers must have been cheering in the wings when Theresa May made her speech at the Conservative conference. Her promise to scrap the "alphabet soup" of police powers invented by Labour to deal with anti-social behaviour means an end to the tedious work of putting together the paperwork for applications to courts. As she explained to the conference, there are ISOs, ABCs, ASBis, ASBOs and CRASBOS, and whether any of them do any good is very doubtful.

ASBOs (Anti-Social Behaviour Orders) were supposed to be Labour's "flagship" for dealing with yobbish behaviour in communities. Latest figures show that 50% of them are breached. I suspect that the percentage of actual breaches is far higher than that: the orders are sometimes drafted in terms that are difficult to observe, prohibiting a youngster from going to his local parade of shops or entering an area defined by a map. They criminalise activity which is not in itself criminal, and thus are not respected.

For many concerned with criminal justice the coalition government has made an excellent start. Dismantling the Soviet-style control of the Labour government was long overdue. We are hoping for an end to council employees rifling through rubbish bins looking for items which have accidentally not been put out for recycling and to heavy handed surveillance of people taking their dogs for walks. The identity cards scheme, with its intrusive database, has gone.

Theresa May - while saying it is not her job to tell the police how to do theirs - has indicated that there will be an end to obsessive monitoring of targets and a return to common sense policing. For too long officers have been hounded by the demands of their superiors to increase the numbers of "sanctioned detections" - arrests for cases suitable for charge. I should like to hope too that this will lead to more discretion in dealing with domestic disputes so that where all that has happened is some trivial pushing or plate-throwing and a couple want to get back to normal as soon as possible, there will no longer be the pressure to charge a criminal offence, though that is perhaps too much to hope for.

Mrs May is sensibly looking at other simpler options: individual acts of vandalism will perhaps attract more severe penalties. She could, for example, increase the penalty for Section 5 of the Public Order Act 1986, a charge much beloved by some police officers when they feel that their dignity is under threat, so that the really bad cases can be dealt with by something more severe than just a fine which the impecunious yob will rarely pay.

Cutting back on form-filling and paperwork generally will be welcomed in police stations. Considering the effect of shutting local stations on police travelling time might also be a good idea. In Thames Valley we have the ludicrous situation where the custody cells are in one place and the CID in another.

But as so often in the criminal justice system, while one arm of government is looking for common sense solutions and attempting to improve standards another is contemplating an act of vandalism. It was the government of the supposedly hard-nosed Mrs Thatcher that introduced the Police and Criminal Evidence Act in 1984 which had the effect of putting solicitors into police stations. Section 58 gives every person arrested and held in custody at a police station the right

to consult a solicitor privately at any time.
Only in very carefully defined circumstances can this right be withheld. Where a person refuses to answer questions when interviewed, a court can draw an "adverse inference", but this effectual curtailing of the right to silence has been balanced by the right to consult a solicitor before the interview and for the solicitor to be sitting in on the interview.

When a person comes into a police station under arrest and is "booked in" by the custody sergeant he is immediately told that he has the right to consult a solicitor in person or on the telephone, and at the start of any tape-recorded or DVD-recorded interview he will be told that this right is an on-going one and that if he has decided not to have a solicitor present he can change his mind.

Now the coalition government has said it is considering withdrawing that right. Perhaps instead of officers asking a suspect before an interview starts "You decided not to have a solicitor. Are you sure you are happy for this interview to go ahead without a solicitor present?" we shall hear introductions like "Yes, I know you said you wanted a solicitor... well, you see legal aid no longer pays for someone to come. You will have to manage without..."

Advice on the telephone is rarely adequate in any serious situation: there is no security that the conversation is not recorded, and unless the suspect knows his solicitor very well indeed he will usually be reticent about why he is in custody.

No one in the Conservative party said before the election that they were considering this draconian move. Dominic Grieve, who was the spokesman on legal aid before the election, gave the impression that he understood the problems of legal aid solicitors and was aware that many of them were "as poor as church mice". Many solicitors voted Conservative in the expectation that with the threat of competitive tendering for legal aid contracts having been removed, some common sense solutions would be sought for any problems.

Sadly, being in charge of legal aid is not a highly prized position, although no one would seek to blame Mr Grieve for being punted off to be Attorney General. The position does not attract stars - Geoff Hoon started his career making a speech to the Criminal Law Solicitors Association annual conference which I recall being full of clichés. Now we have Jonathan Djanogly, of whom little seems to be known other than that he is said to be a multi-millionaire who was in trouble with his Commons expenses, and was supposedly "privately condemned" (if you believe the Daily Mail) by Sir John Major for making greedy claims.

I would like to think that before any move is made to scrap the right to legal advice in police stations Mr Djanogly will look at the reasons why it had to be introduced in the first place, the miscarriages of justice, the complaints of bullying and mendacious tactics by investigating officers. It is no good thinking that just because interviews are tape recorded this is a sufficient safeguard. It is what happens outside the interview room that can be the problem, and a solicitor barging in and looking at the custody record to see what has been going on is a brake on abusive behaviour - and can also protect the police from scurrilous complaints.

Kenneth Clarke, now Justice Secretary, is intending to cut the number of firms able to do criminal legal aid, proving that "Unto him that hath shall more be given". Larger contracts, according to a report in the Law Society's Gazette, will be awarded to a small number of providers. We should not be surprised perhaps that someone who said he had not managed to read the Maastricht Treaty cannot be bothered to look beyond the plans that Labour had before the election.

There were nasty rumours before the election that Jack Straw was cutching up to the large firms. Some of these are thought to be desperate. Criminal work has little security. It fluctuates. (I have noticed, incidentally, that the number of arrests plummets at the end of the police financial year when there is not much overtime available, and a senior police officer told me "You could have something there, you know".) Criminal legal aid does not mix well with large overheads, long office leases and staff to pay. It is the small practitioners who have been keeping the system going at a time when rates have been frozen and even substantially cut. Now it seems they are to be punished by being put out of business altogether. How does this fit in with Conservative support for small businesses?

If the Government really wants to make sensible cuts in expenditure, it could scrap the Duty Solicitor Call Centre and CDS Direct, who channel all the requests for legal assistance in police stations to individual solicitors. Far too much time, and presumably money, is wasted in phone calls. It was far simpler and cost effective when the police had all their local solicitors' home numbers and simply called them direct. The call centres are far too inefficient for their employees to be relied on to give evidence if there were ever a dispute, and it wastes the time of the police having to phone the call centre and then wait around for a solicitor to phone back while the call centre call the wrong number and sometimes the wrong solicitor altogether. (I have had numerous bizarre calls over the years but it is beyond the scope of this article to go into details. Suffice it to say that criminal practitioners all have farcical stories to tell.)

They could pay two tiers of fee for police station work: one where there was an attendance and another where it was all sorted out over the telephone. Before the Legal Aid Board (now the Legal Services Commission) started its control freakery we were able to decide whether an attendance was needed. Often, when someone tells you that yes, he went into ASDA or Waitrose, nicked a bottle of whisky and hid it under his jacket and was caught, and when it is the umpteenth time he has been interviewed by police, his situation is not going to be improved by a solicitor attending. Let us, as experienced solicitors, decide whether an attendance is required and the costs will go down.

Interestingly the EU is trying to introduce a directive giving detainees a right to a lawyer while in custody. Our government is opposing this move. So obsessed are they with cutting costs that they are not considering where the cuts should sensibly be made.

Cut the bureaucracy and with it costs, leave small practitioners alone and let the market decide who should be in practice, with the market being dependent on the right of detainees to choose who they wish to instruct. Those who are known in their localities to be incompetent will find themselves without clients and will have to find something else to do. Remember why solicitors were introduced into police stations in the first place, and keep faith with the legacy of Mrs Thatcher.

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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Excellent stuff. Most criminal legal aid solicitors will agree with every word Jan has written.

Posted by: Clive Rees at October 18, 2010 06:37 PM
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There are so many ways in which removing solicitors from the police station will waste money, not save it. The number of cases, for example, which are now concluded in the police station one way or another as a result of detailed instruction taking and legal advice, which would otherwise end up in court. Problems which are now sorted in the police station will be dealt with at much greater cost later. Also at the expense of the rights of individual suspects - who are more often than not very far from hardened criminals.

Posted by: Harriet Balcombe at October 18, 2010 06:55 PM
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Excellent article. Think of the pre-PACE miscarriages such as the Birmingham 6 and Stefan Kiscko, not only in terms of imprisoning the wrong people (affecting them and the victims, or relatives of the victims, of the original crimes) but also the financial cost to the state of all the appeals.
Also the recent research commissioned by the LSC suggests solicitors in police stations aid investigations at times. I know a Crown prosecutor who is very keen on discussions with defence pre-charge.
I work in Humberside where none of the police stations even allow for private telephone advice, something I have taken up with the police and LSC to no avail.

Posted by: Ben Hibbert at October 18, 2010 07:05 PM
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Imagine what the police may be tempted to get up to if there were no solicitors milling around their custody suites!

Posted by: andrew julian storch at October 18, 2010 07:52 PM
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It is downright dishonest to say that people have rigths if every oppourtunity is then taken to refuse them practical access to them.

Solicitors need to be there to protect citizens from the police.

Posted by: IXION at October 18, 2010 08:01 PM
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Why should suspects have a solicitor present when interviewed by the police. Instead of confessing and saving us all the cost of a disputed trial, they just go ' No comment'
No wonder the police hate defence lawyers for slowing everything down.
In the old days it was left until the case went to court and given to any barrister who happened to be hanging around as a dock brief.
Why not have a CDS a crown defence service like the Crown Prosecution Service? It would be far more rational than the present anarchy of attorneys. The CDS would have no incentive to get people off but would be impartial like the admirable CPS. The two could even be merged into the CPDS to ensure fairness and effeciency.

Posted by: Hilary at October 18, 2010 08:20 PM
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An informative and very interesting article. In addition thought provoking.

Posted by: John Turner at October 19, 2010 09:03 AM
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It is very clear that solicitors in police stations assist rather than delay the course of justice - it protects police and defendant aliike and enables cases that go to court to progress more smoothly through the system. The recently published report from the Legal Services Research Centre - Transforming Legal Aid - provides a wealth of evidence to support this view.

Posted by: Geoff Bell at October 19, 2010 09:27 AM
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It is very clear that solicitors in police stations assist rather than delay the course of justice - it protects police and defendant aliike and enables cases that go to court to progress more smoothly through the system. The recently published report from the Legal Services Research Centre - Transforming Legal Aid - provides a wealth of evidence to support this view.

Posted by: Geoff Bell at October 19, 2010 09:28 AM
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It is hard to imagine how frightening it is to be arrested and detained and put in a cell in an unfamiliar environment knowing that your whole way of life could be at stake.
It is a civilised society that recognises how even strong individuals are vulnerable in this situation and provides the assistance from a qualifeid lawyer to give supportive and immediate legal advice. To dispense with this would be a very dangerous step.
Has any thought been given to the inevitable cost that would arise in subsequent challenges to "admissions " made without legal assistance in interview. The vast majority of prosecutions are dealt with by way of a guilty plea and this often follows early legal advice. It is extremely rare to succesfully challenge the accuracy of admissions made when a solicitor is present during interview.
Rather than save public funds the scrapping of proper legal advice in the police station could actually increase the burden on the public purse !
However the most compelling argument against this proposal is surely the protection of the vulnerable in what is potentially the most frightening of experiences and the phrase "the vulnerable " includes every single member of society. Noone knows just how frightening it is to be in custody and alone until they have been there !
One final thought ... how many of those politicians making the decision on these proposals would, if arrested, seek independent legal advice ?

Posted by: Simon King at October 19, 2010 09:51 AM
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Perhaps as an American from Birmingham, the real Birmingham, I should not intervene but I have to point out that these things are managed much better in Alabama. The state pays for the representing of the indigent but those who are earning must pay for themselves. Ours is trully Mr Cameron's selective welfare, what he is doing with child benefit. Welfare is for paupers, it must be stand on your own feet for others suspected of crime.

Posted by: James at October 19, 2010 08:20 PM
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Isn't it curious how the government always seems able to find money for spectacular ephemera such as hosting the football World Cup matches but is always too poverty stricken to build a good foundation for the workings of the people being governed?
The points made in this article illustrate this perfectly!

Posted by: C Dawson at October 20, 2010 09:11 AM
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