Written 7th May 2012 by Olliers Solicitors

Anyone involved in the Criminal Justice System will be aware of the right for a person about to be interviewed by the police to be informed of their right to free and independent legal advice.

Police and Criminal Evidence Act

It is a right, along with many others, that is provided to suspects by virtue of the Police and Criminal Evidence Act 1984, or PACE, an Act that, for the large part, confers a number of protective measures upon those unfortunate enough to be accused or suspected of a crime.

PACE contains a number of separate provisions which deal with the right to consult a solicitor.

Section 58 provides a general right, for those detained in a police station to consult a solicitor at any time whilst detained.

Legal Advice

Clause 3.21 Code C, provides a right to legal advice for individuals voluntarily attending a police station to be interviewed under caution and Clause 11.2, Code C, states that, following a decision to arrest, an individual must be taken to a police station (thereby invoking the rights under section 58) and must, specifically, be reminded of their right to legal advice immediately prior to interview.

In recent weeks, however, the Law Society has become increasingly aware of the exploitation of a loophole by the police, by interviewing suspects at home, in the knowledge that the rights described above only apply to those interviewed in a police station.

Richard Atkinson, chair of the Society’s criminal law committee told the Law Society Gazette:

‘The police are not acting unlawfully, but exploiting a loophole in PACE to circumvent people’s rights to independent legal advice. Section 58 of PACE, specifically provides that a person ‘held in custody in a police station’ is entitled to consult a solicitor, but it does not mention suspects interviewed elsewhere’.

Extending Access

In light of recent publicity, the Home Office has agreed with the Law Society that it is to propose an amendment to Code C, soon to be heard in Parliament, effectively extending the right of access to a solicitor to an interview under caution in any environment, even the home, and to ensure that a suspect is advised of that right. Additionally the Home Office told the Law Society that the police should make it clear to any suspect who speaks voluntarily to the police, that free legal advice is available to him or her at any place, and not just at a police station.

It remains questionable as to whether the proposed measures are sufficient. Current legislation does not provide for automatic exclusion of improperly conducted interviews unless it can be demonstrated that the resulting interview was unfair, or that the defendant has been prejudiced. How can that ever be properly assessed when it is impossible to determine what a suspect would (or would not) have said had he or she received legal advice?

It helps to know your rights, if you are about to be interviewed by the police. Even at home, you should request a solicitor.

Tim McArdle

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