Anyone arrested by the police is entitled to free legal advice at and before interview. The access to free advice is not means-tested, though people can privately pay for a lawyer if they want.
The stakes for the suspect are high. After they are arrested and detained they will be interviewed under caution and a decision will be made as to charge, as to whether to grant bail or whether to release under investigation. Some suspects walk free, though there is nothing to stop the police asking them back for a voluntary interview. Some people go straight from police custody to prison without even going to court – they can be remanded by the police then convicted or remanded in custody via a video link to a magistrates’ court. All these outcomes could be influenced by whether you have legal advice in police custody.
But new research from Dr Vicky Kemp (Criminal Law Review 2020.2) suggests that too few people are taking up the offer of free legal advice and suggests why not. There is no routinely collated and published data on how many suspects get legal advice but extensive FOI requests by Dr Kemp suggest that only 56% of those detained requested legal advice. Previous research suggests that a much lower percentage of people actually receive advice since people change their minds. Dr Kemp has designed an app to increase awareness of people’s legal rights on arrest. In testing this, she has discovered much more about why people look the gift horse of free legal advice in the mouth.
The most important reason is that people think they don’t need legal advice – that it won’t make any difference to their outcome. Its pretty alarming to read how unaware people are about the complexity of the law and the challenge of defending your legal rights. Understanding of the basics is woeful. Some people thought you only needed a lawyer if you were guilty, others only if you were innocent.
‘I haven’t had a solicitor because I don’t need one, I haven’t done anything wrong. I can see why someone would want a solicitor if they were guilty, but not if they haven’t done anything.’ (G.14)
‘I don’t want a solicitor because I’m guilty. If I wasn’t guilty I’d have one.’ (K.44)
Unfortunately both are wrong. You need a lawyer to help prove your innocence and, even if you did whatever you are accused of, you may have a viable legal defence which means you are not guilty. Few non lawyers understand what a viable legal defence might be.
Some suspects said they would get legal advice if it was a serious offence, or for the court hearing if they ended up being prosecuted. Again the suspects were acting against their own interests. A lawyer or representative in a custody suite can sometimes persuade the police to use an out of court disposal or to divert altogether – meaning the accused avoids court and/or a criminal record.
If those detained in policy custody turn down the offer of a lawyer to come to the station in person, they should automatically be offered the opportunity to speak to a lawyer on the phone. This is so that the suspect can get some, rather than no, legal advice. If they speak to a lawyer on the phone they can then change their mind about getting legal advice in person. But Dr Kemp found this just didn’t happen – that suspects were not offered this crucial phone call.
A minority of those who said they didn’t want legal advice said they feared it would lead to more time in custody. Suspects do indeed spend a really long time in custody – in the two custody suites analysed by Dr Kemp the average wait was 17 hours, up from just over nine hours in 2009. No-one likes the experience of waiting in a custody cell. It is uncomfortable and there is nothing to do. It is not surprising so many suspects try to self harm, or get angry or, in desperation to get out, turn down or give up on legal advice.
It is questionable whether getting legal advice does add much to the considerable time suspects spend in custody. But that is the strong perception: ‘The last time I was here for 20 hours and it was all because the solicitor was delayed. If I hadn’t asked for one I’d have been out the same day. I don’t need a solicitor because I know what’s happening.’ (G.14).
Dr Vicky Kemp heard from some suspects that the police themselves dissuade suspects from seeking legal advice because of potential delay some respondents said they were told by the police that they would be dealt with more quickly if they declined legal advice. This respondent said, ‘they brought me in at 2am and I was told I’d be dealt with by 8am, so I didn’t bother having a solicitor. It’s now 12 hours later and I still haven’t been interviewed’ (K.66).
The delays in getting a lawyer to the custody suite have been exacerbated by the introduction of a standalone call centre to deal with duty lawyer requests. In the past the police would have a list of duty solicitors and would call them direct. Now they are forced to put the request though the Duty Solicitor Call Centre, which is run by a private provider. The whole system has gone into meltdown more than once recently, meaning that no calls have got through and suspects who wanted legal advice have been interviewed without any. Even on a good day the DSCC has few fans. Police and solicitors’ firms say it was more straightforward and quicker using the old system.
Those giving legal advice in the police station are poorly paid and this means they need to focus their efforts on turning up for the police interview. They cannot afford to hang around outside or in the police station waiting for the police interviewing team to be ready (though they do sometimes ending up doing this). So the police call when they are ready and then the lawyer sets off from home/the office. Lawyers don’t want to keep clients waiting but the scheduling seldom seems to work smoothly. No wonder suspects don’t bother.
People complain about cuts to legal aid but good lawyers are available to give legal advice free to anyone arrested by the police. So its such a pity that so many eschew legal advice. We need to eliminate the actual and perceived delays in getting a lawyer to turn up, to use ‘nudge’ strategy to get people to accept the gift horse and we need better public legal education so everyone understands the important of legal advice.