As a preamble to this post let me make some disclosures.
I am a Criminal Defence Solicitor, and as such some of my employers and part of my income comes from representing people at the police station. The firm I work for receives about £150 for each person I advise at the police station this includes any travelling to and from the station, any time I spend waiting about for the police to be ready and for actually attending upon the client. The fee covers as many attendances I have to make upon the client on that job until a decision has been made as to how the case should be dealt with, either charge, refuse charge or caution.
There is a complex system for claiming more than the fixed fee if I spend a long time attending on one case, however this is rare and still does not reflect the amount of time spent on the job. When I work outside of office hours I get paid a percentage of the fixed fee by my employers, what in any other job might be called overtime. A lot of my work at the police station is out of office hours, criminals rarely keeping sociable hours.
As a result of my job I have been at the police station at 3am after having worked all day at court, and be expected at my desk again at 8am. I have worked weekends, Bank Holidays, Christmas Day, New Years Eve and New Years Day, family birthdays and anniversaries. I have missed and will miss children’s bed times and school occasions.I don’t mention that to elicit sympathy, I chose to do the job I do.
This is not a rant about the fact that I genuinely don’t think I get paid enough for the amount of work I do, again it’s my choice.
I tell you the above because despite what the papers might tell you, in spite of the intentionally emotive language used by politicians describing me and my colleagues as fat cats, and not thinking about the public purse, I did not become a criminal lawyer for the money. I chose to specialise in criminal law because I like the challenge it presents, I enjoy the arguments in the police station and in the courts about the fine detail. Importantly, without wanting to sound righteous and sanctimonious I chose criminal law because I wanted to play a part in the justice system. I’m not here to make up defences for my clients, to allow rapists and paedophiles to walk free. I’m here to make sure that the justice system is fair and balanced and that not only is justice done but seen to be done.
Recent proposals and actions taken by the Government in the pursuit of cost cutting and deficit reduction mean that there is at least a risk that in some cases that justice may not be done. It is on that point that I want to raise your awareness in this post.
The Police and Criminal Evidence Act 1984 gave the right to all those that were arrested and detained in a police station the right to free and independent legal advice, either in person or on the telephone. The legislation was introduced in part, as a response to some of the miscarriages of justice seen in the 1970s and 1980s involving unrepresented defendants, to make sure that there could be no opportunity for that to happen in the future.
The role of the solicitor was to advise the client on the law and the evidence and to make sure that the police kept to the rules and in some way to restore some faith in the system. Whilst being there for the client, it also means that we are there as an extra measure of security for the police. If a solicitor was present then there could be no question that the police had acted improperly, if they had then any solicitor worth his salt would have objected and raised an issue at the time. No more dodgy confessions, no more suggestions of improper influence or inducements. The right to legal advice was universal, and was not dependant on means or the offence for which you were arrested.
Over the years that right whilst it still exists, has been eroded in a meaningful way. On 21 April 2008 the right to see a solicitor in person where a person had been arrested for a non-imprisonable offence such as some public order offences, some traffic offences and breach of bail has been taken away unless you agree to pay the solicitor privately. You are still entitled to legal advice, but this advice will be on the telephone only, and will usually not be from your own solicitor if you know one, or the duty solicitor. The advice will be given by Criminal Defence Services Direct. In effect a call centre manned by employees of one of three companies contracted by the Legal Services Commission to offer the advice. The advisors do not need to be duty solicitors, or accredited representatives. A review conducted after the service was up and running found no real fault in the methodology or the efficiency of the service.
Yet questions have been and should be raised as to whether this is an appropriate system to work under. I know from experience that face to face contact with the interviewing officer and the custody sergeant gets better results for my client. I know when the officer gives me disclosure whether there is something he is holding back, whether with a few judicious questions the victim has made a statement or is willing to support the case, whether there is any evidence at all in the case.
You may think that this isn’t really relevant to non imprisonable offences, what’s the worse that can happen? To a degree you are right, fixed penalty notices, cautions and charges for minor offences will not result in a prison sentence but it may have an effect on your later life. Whilst cautions and fixed penalty notices are not convictions, they are matters of police record, they will appear on an enhanced criminal record check. The decision as to whether to take a caution or a FPN is often left to the defendant without taking any further advice. There is always the opportunity of later challenging a fixed penalty notice in court, but with no legal aid and perhaps no realisation that a defence may be available it is unlikely that people will take that option.
The recent Legal Aid, Sentencing and Punishment of Offenders Bill has within it a clause that would appear to allow the government to vastly reduce the right to receive your advice in person, extending the number of offences that may only be dealt with by telephone advice. This is a worry, as this leaves open the possibility of a person being charged without ever having had a solicitor properly consider the strength of the case. Clients will and do say things in a police station for all the wrong reasons, because they are scared, bored or simply want to get out of an environment that is by definition hostile or are told by the police that they will have to wait for a solicitor to attend.
The additional worry is that no matter how good the custody staff are they may not pick up on a persons vulnerabilities or special needs. Some people are reluctant to admit to mental health, language or learning problems and have grown adept at putting on a show and are able to convince those they see that they are alright. Telephone advice from an advisor will rarely highlight or discover these difficulties or special needs. The vast majority of the clients that I see have some form of difficulty. There is in the usual way of police and solicitor black humour a running joke that the question on the risk assessment conducted by the police on arrest should not be to ask whether the defendant suffers from depression or a mental health condition, but rather how severe is your depression or mental health condition.
Any extension of advice by telephone only needs to be resisted, it needs to be challenged and opposed. It is in the custody block at the point of arrest and interview that important decisions have to be made that might literally be life changing. A telephone call from someone you don’t know , who will never see you again is just not good enough.
The government has said that at this stage there are no specific plans to extend the telephone advice scheme. In my opinion You may be certain that it will happen, those that draft legislation don’t include clauses on the off-chance the provision may be later needed.
Couple this with the recent discussion in parliament about the opting in or opting out of the EU directive for minimum standards re legal advice and assistance on arrest and the bigger picture becomes clear.
The EU are proposing to impose a directive that would become binding on all signatories to ensure minimum standards of advice in the police station. Key amongst them is the provision of face to face advice by the lawyer, ie not telephone advice. We as a country must decide whether we opt in to this provision and the discussions surrounding it. If we do then advice at the police station must be face to face. The government position at the moment is that we should not opt in, thereby depriving ourselves of the ability to became involved in the shaping of the directive but more importantly meaning we can carry on with the current status quo and allow it to be extended and give advice over the telephone. At a time when we are happy to criticise the police and judicial systems of others in the world can this be right, that we withhold the right of face to face advice from our own citizens?
So with the scope of face to face legal advice being reduced and in some cases being taken away all together. there is a further assault on the right to free and independent legal advice at the police station. The same bill allows the government to introduce means testing as a determinant factor for advice in the police station. Means testing already exists in the Magistrates Court and has been more recently introduced at the Crown Court. As a result those on state benefits are automatically eligible for legal aid and those on a very high income are able to afford their own representation, continue to be represented by me and my colleagues there exists a third section of society. Those who fail the means test and yet still do not have enough money to pay for representation. Many more still are unrepresented as they cannot provide the necessary proof of income to satisfy the LSC. The self-employed having to provide audited accounts, HMRC returns and so forth. What if you have only been trading for six months and dont have those documents? How many of those clients truly know what they are doing and are getting justice.
Introduce the system at the police station and it becomes unworkable. A lot of my work is done very late at night or the wee small hours of the morning. Getting meaningful instructions is bad enough, trying to confirm income and expenditure would be impossible. Half of all my clients who would pass a means test as they receive benefit can’t remember their own National Insurance number, a vital piece of information to assess eligibility. How the system would work has not been considered and the government have indicated again that there are no immediate plans to introduce it at the present time. As before, if there are no plans why is the clause there in the first place.
This is not about protecting criminals, this is not about preserving my income, this is about preserving your rights. A right, I hope, you will never need to exercise but would hope that if you ever do, me or one of my colleagues can ensure that you get the best possible advice and not have to worry how you are going to pay for it. Please consider contacting your MP, make them aware of the proposals and their impact, let them know how important this is and that short-term cost savings often lead to long-term expenses.