Legal advice for children in police stations should be opt-out rather than opt-in

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Legal advice for children in police stations should be opt-out rather than opt-in

The Ministry of Justice is ‘exploring the potential’ of making legal advice opt-out rather than opt-in for children in police stations. However, the MoJ remains unwilling to give defendants a choice of duty solicitor.

The government recently published an update on the progress it has made in response to Labour MP David Lammy’s 2017 review of the treatment of BAME people in the criminal justice system, as reported in Legal Futures. The Shadow Secretary of State for Justice’s review highlighted that the disproportionate representation of BAME young people in the youth justice system was its biggest concern.

The report found that children and young people do not always use the right to free legal advice – often because they do not always understand what this means, what the role of a solicitor is, or how advice could benefit them.

The 2020 update stated that there are Independent Community Youth Workers in Camden and Islington police stations to explain information to young people in familiar language. Elsewhere, to avoid having too many professionals present, which could potentially overwhelm young people, the MoJ stated that they are focussing on ensuring that those professionals who are already present (i.e. solicitors and appropriate adults) are ‘appropriately trained to engage and communicate with young people’.

This comes as the MoJ is conducting a wider review into legal aid, including how the fees paid to police station solicitors could be reformed to provide legal advice for children. The University of Nottingham is involved in initiatives to provide better information to young people at police stations for interviews, and Dr Vicky Kemp is developing an app to be used in interviews.

Trust was also a central theme of the Lammy Review. BAME defendants mistrust the police, judges and magistrates, but the lack of trusts by BAME defendants in their solicitors leads to BAME men being more than one and a half times more likely to enter a Not Guilty plea, and therefore are at risk of more severe sentences.

Lammy had recommended more scrutiny and accountability of the criminal justice system, better representation, and demystification of legal rights and options in order to increase trust in the system. He also recommended that the Home Office, MoJ and Legal Aid Agency should collaborate with the Law Society and Bar Council to find different approaches to explaining legal rights and options, including giving a choice between different duty solicitors and giving earlier access to advice from barristers.

The government has expressed reservations about giving defendants a choice of duty solicitors in the past, and there was no mention of this possibility in the 2020 update.

Lammy had recommended creating a system of online feedback on how judges conduct cases to combat mistrust in the judiciary, which was rejected by the MoJ. Instead the 2020 update said that the judiciary would continue ‘to work to further extend use of appraisals’.

The Lammy review recognised that the impact on BAME people in the criminal justice system occurs also at the point of sentencing. In January 2020 the Sentencing Council published research in relation to the sentencing of three supply-related drug offences in the Crown Court between 2012 and 2015. This research showed that the sex and ethnicity of offenders were associated with different sentencing outcomes.