Just one reason why telephone advice is not g


telephone-2

As a follow up to my last blog and in response to why just telephone advice can’t be given and in particular to the question well if he did it just admit it.

Let me introduce you to Brian…

Brian is 6’4″ tall, weighs 22 stone, shaves his head and has tattoos covering about two-thirds of his body. Brian suffers from a number of physical difficulties including epilepsy and has been categorised as having a borderline personality disorder and takes a cocktail of medication each day.

He speaks slowly and has a broad West Country accent. First impressions on meeting Brian are rarely positive. Physically he is intimidating and his speech and mannerisms often give the impression that he is slow to comprehend things.

As a result the contact he has had with authority figures whether that be police, doctors, social services or courts rarely go smoothly. People treat him as being stupid, and he becomes frustrated, voices are raised and one thing leads to another, usually badly for Brian. Brian is certainly not stupid, just unable to communicate very well.

Three years ago Brian met Sheila. Sheila was the love of his life, his first girlfriend. For ten months Brian spent all his time with and all his money on Sheila; flowers, chocolates, fancy meals, clothes, jewellery and a myriad of other gifts. All was well with his life.

At the end of ten months Sheila left Brian and there was no reason given, no real explanation, she just stopped answering his calls, texts were not responded to and her Mum told him she was never in. Brian became depressed, his medication was upped and over time he found a level to build from.

Then two months later Sheila contacted him again.

A text, would he meet her, she wanted to talk.

Delighted, he met her in their cafe and she told him she was pregnant. Not for a minute did he question whether he was the father. In his head he straight away made plans as to what the baby would need, where they could go and what he would do with her. Sheila made it clear that she didn’t want him to have any involvement at all, he could provide for the baby and that was that. Nothing Brian could say would change her mind.

Resigned to the fact he may never see his child he nevertheless started buying clothes, toys and other essentials from his Disability Living Allowance. He opened an account and put £10 a week into it, “For when she was 18 and needed a car”.

Six months later, Hazel was born.

Brian was not present at the birth and was only told he had a daughter two weeks after the actual birth by way of a text message. Brian immediately went to see Sheila but she wouldn’t see him. He didn’t see Hazel but was sent a blurry picture to his mobile phone.

At that point someone told Brian that he was entitled to see his daughter, he had rights.

There then started eight months of assessments; court, doctors and social workers and various distressing court hearings where Brian’s life was dissected.

You see, not only did Brian have various medical issues he had a caution when he was 17, for sexual assault. He had kissed a girl, a fifteen year old, who he thought was his best friend. She told her Mum, she told the police and he was arrested. The circumstances were not in dispute but it meant Brian was a potential risk to a child, even his own.

Finally the court ordered that Brian be allowed three two hour contact sessions a week, supervised and in a child friendly environment.

For three months all went well. Brian had his contact and he thrived from it. He had a new tattoo on his arm proudly proclaiming his daughters name and date of birth. He was in his own words, “as happy as I had ever been”.

Then, through no fault of his own his benefits money changed and he had less to live on. Some weeks he could not afford to pay the maintenance he had been paying to Sheila.

Suddenly Hazel was ill, she was away, she was asleep and so he was no longer having his contact. She wasn’t, they were all just excuses made up by Sheila. For a while Brian accepted these reasons and did not make a fuss. As the days went by his frustration increased, calls were made to Sheila, texts sent and visits made. Still no contact.

Battling with his emotions; the frequency of the calls increased, texts filled Sheila’s inbox, he knocked on her door more and more often. Frustration moved to annoyance and then anger. Words were said in desperation and sent in texts for all to see.

Brian was arrested for harassment and I turned out at 11pm to represent him. I spent forty minutes and gleaned all the information above. I was able to judge who Brian was and where the root cause of the problem came from.

After advice and an interview, representations were made to the Sgt and a caution given. Brian was also told how he could enforce his court order for contact, and an appointment made for the following day.

I went on to the next client and forgot about Brian. I saw him a few weeks later pushing a pram, fussing about a blanket over his baby daughter. We stopped and chatted for a few minutes, made the obligatory comments about a beautiful baby, wished him well and went on with my day.

A few days ago I was called to the police station for a “lump of a man” who had been difficult from the moment he came in and was still being difficult in his cell. He had been arrested for common assault.

I went straight up to the station. I was told that the client was Brian and was told that four weeks ago he had punched his ex partner over a contact visit, they were both in the middle of a busy shop, people and children had been scared. He was asked to leave and he had walked off.

I was told that he had admitted it when he was arrested and that the interview was a formality. There was no injury but having in mind his previous caution on the same victim, he was likely to be charged.

I was able to find out by speaking to the officer, although he was reluctant to tell me, that the statement had only been made three days ago.

I spoke to Brian. He was in tears, a monster of a man sobbing into his fists in the corner of the interview room.

It seemed that, on the day, he and Sheila had made the usual arrangements for a contact visit, but one of them had made a mistake and having waited twenty minutes Sheila had gone off shopping. Brian had called her and when she said she was in the supermarket shopping, he had gone down to speak to her and hopefully persuade Sheila to allow the contact visit.

He had gone to the shop where he had found Sheila with her head in a freezer choosing a pizza. When he called her name he said she didn’t answer him but thought she may not have heard him, it was after all a busy shop and her head was in the freezer.

“So what did you do?”

“I tapped her hard on the shoulder to get her attention so i could speak to her. She shouted at me and the Manager asked me to leave”

He denied that he had on he had punched her, and maintained that he was not angry with her.

He went on to say that he hadn’t seen Hazel since, and he had not paid Sheila maintenance for three weeks because he had not had contact. Three days ago she said she was going to report the assault.

He was scared that he would lose all his contact with Hazel because of more lies. He said that Sheila did not need him now as she had a new boyfriend. He said he didn’t want to talk to the police officers as they wouldn’t let him speak and thought he was stupid.

I explained that in law he had committed an assault by touching her without her permission, even if he had not punched her. I told him he needed to explain his history with Sheila to the officers and that the officers had not let him speak before because they wanted to protect him and themselves as the comments needed to be on tape.

Brian wasn’t certain whether he could say all he wanted to say properly, he didn’t think he could talk to the officers and let them know all they needed to know. He was scared that he would make his situation worse and by admitting an assault Sheila would go back to the court and he would lose his contact.

I drafted a prepared statement, Brian signed it and I read it out for him at the start of the interview. I made it clear that Brian was happy to answer any clarification questions. With patience and cajoling from me and the AA Brian got through the interview.

The officer told the Sgt that he had made a full admission to the offence, that he had been frustrated by the contact being messed up and he had hit Sheila on the shoulder.

She was factually correct, that’s what he had said in his statement, and in the questions he had then answered. The meaning of what he had said was different, a fact I explained to the Sgt and the officer.

After much discussion and thought, it was agreed that on the balance of the evidence, the lack of corroborative witnesses and taking Brian himself into account that there should be no further action and Brian was released.

He still has to resolve the issue of contact but at least he does not have the additional burden of a charge to deal with.

There are several points to make here about one case, on the face of it a seemingly simple case of assault.

If the changes set out in the Legal Aid and Sentencing of Offenders Bill are put into place, simple common assault is very likely to be taken out of the scope for face to face advice. Brian would have only ever received telephone advice. If the Government does not opt in to the EU directive on minimum standards of advice at the police station then the ability to reduce advice to telephone advice only is unfettered.

In Brian’s case I could spend time with him initially at the time of his first arrest and obtain the vital information about his personal circumstances. I developed a relationship of trust with him, and even as an authority figure he felt able to ask for me again.

I knew his history and knew his difficulties. Had he had telephone advice only on the first or second occasion he would not have spoken to the same advisor, he would not have spoken to me, even if he had asked for me by name, telephone advice being provided by three companies with contracts with the LSC.

They would have been unlikely to spend the time I did with him to get the information I did. The intercom system to the cells through which the calls are directed are cut off after six minutes anyway!

They would not have been able to draft a prepared statement, or read it out in interview. They would not have been able to make representations to the Custody Sgt at the end of the interview, to correct the officer who was factually correct. They would not have been able to reason with the Sgt or have been able to rely upon the good and sensible relationship I have spent time developing with him and his colleagues.

None of that would have happened and Brian would have been facing a charge in court. I was able to use my knowledge of my client, his circumstances and my working relationship with the police to prevent a possible injustice and more importantly save money for the public purse.

For the outlay of £150, Brian has no convictions. He will be able to continue to see Hazel and that means he remains stable and happy and does not push him off the rails where who knows what it might cost to put right. The cost of a court case has been avoided.

Your right to face to face legal advice is important. Make sure that you can exercise it in the future and let your MP know how you feel.  This is a really important issue.   Whilst the Govt have voted through the legislation that would allow means testing and the extension of telephone advice it will still need secondary legislation to implement.  It is not too late to make this issue more widely known.

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Author: crimsolicitor

I am a Criminal Defence Lawyer, committed to providing the best defence I can for those who need it, regardless of their ability to pay...

18 thoughts on “Just one reason why telephone advice is not g”

  1. This is a powerful and beautifully-written post that has moved me from a position of total ignorance about telephone advice to suddenly feeling like I need to tell everyone I know about this. Will now be following this blog with great interest…

  2. My husband, a police Detective Sergeant, had need for a defence solicitor last year when he was arrested following a false allegation made against him. Even though he is an intelligent, educated person who knows the law, he still needed the knowledge, strategy and understanding of his defence solicitor at the police station when he was interviewed following the arrest.

    One cannot underestimate the isolation, stress and anxiety caused by an arrest. My husband, an experienced police interviewer himself, was in a bewildered, anxious state of mind during interview, and relied heavily on the help and guidance of the solicitor by his side. The solicitor remained with my husband for 10 hours at the police station on a Sunday, and received £150 payment.

    My husband’s case was later NFA’d, finding ‘no evidence of any wrong doing’. However, the impact of the investigation on my husband has been far-reaching. It would have been worse without a solicitor.

    My husband has now experienced both sides of the custody sergeant’s desk, and feels very strongly that EVERYONE is entitled to a legal defence to ensure fair treatment and to avoid miscarriages of justice.

  3. I deal with civil and I could not take instructions or give advice adequately over the telephone. Communication is not only verbal.

    I’ve had women who cannot stop sobbing. I’ve done a committal hearing with a highly agitated man accused of breaching an injunction because of previous violence to his girlfriend.

    I cannot tell you the number of times I’ve found the right path to follow because of the way the client looked at me – and how I’ve been able to communicate I’m on their side by my own look or my “body language”.

    This cannot be duplicated by non-qualified “paralegals” from a call centre.

    I look forward to the Euro Article 6 argument that “phoning it in” is not an adequate substitute for legal assistance as most of us know it.

  4. I am an independent custody visitor. I and my colleagues speak to many detainees every week. First time detainees are often bewildered and disorientated by their experience. Although we do not talk about why they are in custody, we always ask if they have asked for legal advice and impress on them it is their right to change their mind if when being booked in they refused advice. On some occasions we find that the police have told them that electing to speak to a solicitor will delay their case and increase the time they are held in custody. While this is technically often true, for anyone who just wishes to get their ordeal over, this can have the effect of putting undue pressure on the detainee to not seek advice. Because we do not have an follow-up contact with detainees we speak to, it is impossible to know if this results in miscarriages later in the judicial process. For this reason, telephone advice can often be better than nothing (ie an election not to speak to a solicitor), but I would agree that nothing can beat a face-to-face consultation.

    1. The point I hope to have made is that if the Govt proposals are put into place then the only form of Legal Advice would be telephone advice and that simply cannot cover the multitude of issues that arise on even a simple offence.

  5. Interesting valid stuff here. Got to pick you up on one thing, though:

    “They would not have been able to draft a prepared statement, or read it out in interview.” My officers would have prevented you reading out a prepared statement anyway – a police interview is the questioning of a person about their suspected involvement in a criminal offence. It is nothing else.

    Notwithstanding the client’s right to add or state anything at the end of the interview, there is no basis for demanding the right to make prepared statements in lieu of being questioned. And there are sound investigative reasons for this position.

    New to your blog – really good stuff.

    1. Er, where are you in the Country? Because prepared statements, the making of and reading out are a regular facet of Police interviews in GMP and certainly in other forces I have represented in in the North West!

      The client is perfectly entitled to put forward a prepared statement and there are sound legal reasons for advising this course of action, not least vulnerability of client.

      1. What I was trying to illustrate is that the preparation of a prepared statement was not something that could have been done over the telephone as advice. I work in Kent and Sussex, never has been an issue on using them, but in order to ensure they properly cover the various issues then need to be face to face with the client.

      2. Whether or not something is a regular facet of practice or not, it doesn’t alter the fact the investigating officer is entitled to decline to allow speeches, prepared statemtents or anything else which obstructs them putting their questions to the suspect once the introductions of the interview are complete. After all, an interview is “the QUESTIONING of a suspect” etc., etc., and if repeated obstructions to the investigating officer putting their questions are created by the solicitor, then PACE has a well documented method by which the police should deal with this.

        The fact that GMP or anyone else allows this practice (it is also widespread in my force) means nothing whatsoever about the legitimacy of officers insisting upon controlling and conducting their interviews for the best advantage in maximising evidence.

        Of course, if an investigating officer wishes to permit the making of a prepared statement they are at liberty to do so; and where they do not permit it, suspects should be offered the opportunity to add or state anything they wish to do so at the end of an interview, as required by PACE. (If such comments or statements are then given at the end, they should then be subject to consideration by the interviewing officers as to whether it then necessitates further questions being put in light of those comments / statements.)

        Many things are common practice: this does not mean they amount to a ‘right’ which can be insisted upon.

    2. I would suggest it would be in everyone’s best interests to allow a statement at the beginning of an interview. Clearly in this case if I was a solicitor and you decided to prevent my client from making a statement I would simply advise my client to remain silent until my client was asked if he had anything to add (as required by PACE) and then to make his statement. It would create unnecessary hostility but it would achieve the same result.

  6. Is it also a concern to you that in many custody suites there are currently no facilities for private telephone calls to be made by detainees?

  7. Good work Crimsolicitor. I’m civil too but the gradual introduction of telephone advice (indeed making the telephone the gateway to the service, rather than letting clients chose the adviser they want) is happening to us too. Phone advice can be fine for triage, and many can get what they need from it- rather less so for criminal law I suspect- but it is no substitute. My own blog focuses on the impact of cuts in Hackney

    http://frontlinehackney.blogspot.com/2011/01/case-for-legal-aid.html

  8. For an academic perspective on this (in housing) see
    ttp://ilegal.org.uk/index.cgi?board=you&action=display&thread=3805
    Similar concerns regarding telephone advice

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