The Government is planning to remove the ‘fundamental’ right to free legal advice for people held in police. Under the Legal Aid, Sentencing and Punishment of Offenders Bill, clause 12, the government’s plan is to ‘means test’ suspects before qualifying for public funds.
The right of people detained by the police to speak to a lawyer and have them present during an interview is enshrined in PACE or the Police and Criminal Evidence Act 1984. The Bill threatens to erode a safeguard described by Appeal judges as ‘one of the most important and fundamental rights of a citizen’ Appeal (in R v Samuel (1988) QB 615) and which was introduced in response to a series of miscarriages of justice featuring trumped up evidence and intimidation of suspects in the 1970s and 1980s.
If you are arrested today you are automatically entitled to free advice from a solicitor paid courtesy of the legal aid scheme. If the proposals are introduced suspects would face a means test before qualifying for public funds plus the Bill allows for the extension of telephone advice (as opposed to face-to-face) advice under the CDS Direct helpline scheme.
Why’s the PACE right important? ‘Nearly one and a half million people are arrested by police every year in England and Wales, and many of them will never have been locked up in a cell before, will not know how long the police can keep them there, and have no idea what to do in a police interview,’ says Prof Ed Cape of the University of the West of England and co-author of a damning report (with Lee Bridges) called CDS Direct: Flying in the face of the evidence, 2008. That report’s main concern was the telephone helpline CDS Direct helpline. The pair accused the government of ‘a collective amnesia’ in failing to learn the lessons of history that led to PACE. The helpline has been providing telephone advice to clients detained at police stations since 2005. It covers less serious offences such as drink-driving, non-imprisonable offences and breach of bail. Bostalls, the service’s main provider, was recently wound up by HMRC owing £130,000 earlier this year. As one defence lawyer quipped: ‘Any company can deliver value for money if it doesn’t have to pay its taxes.’
The right to silence was ‘effectively abolished in 1994’ so that a failure to tell the police all the relevant details about a defence that they may not put forward in court until many months, or even years, later can amount to evidence of guilt, explains Prof Cape.
‘However well the police behave, police stations are worrying, even frightening, places. What is often not appreciated is that since the right to legal advice was introduced, police powers have grown enormously – powers to take fingerprints, to force a person to open their mouth so that a DNA swab can be taken, to search their person, to release them on bail subject to conditions – such as curfew and reporting to the police station – without charging them with an offence and for indefinite periods.’
‘I recently asked about 80 prosecutors and judges from across Europe whether, if arrested, they would want a lawyer – all bar three said yes. If a judge or prosecutor believes they need a lawyer that tells us something very important about the right to legal advice at the police station.’
Kim Evans, JusticeGap blogger and a police station rep based in Hastings, spends her professional life as a duty solicitor advising suspects in custody at Hastings and Eastbourne police stations. ‘I’d guesstimate that 90% of my clients have a personality disorder, mental health issues, and/or serious substance addiction be it drugs or alcohol,’ she says. ‘A lot of my work is done at, say, 4 or 5 in the morning,’ she says. ‘You can barely get them to speak to you about what they are there for. They’re distressed, off their heads, angry, aggressive.’ As she points out the chances of getting their financial details to effectively means test them are ‘slim to non-existent’.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award