PACE in the real world

Dr Vicky Kemp examines PACE protections and access to legal advice

For more than a quarter of a century the Police and Criminal Evidence Act 1984 (‘PACE’) and its Codes of Practice have provided legal protections for those arrested and detained by the police; including access to free and independent legal advice. How has it worked in practice? Why do so many refuse to take up the offer of free legal advice?

As a Principal Researcher with the Legal Services Research Centre, which had been the independent research division of the Legal Services Commission, from 2008 to 2012 I had undertaken a number of studies into police station legal advice. The first study involved a survey of over 1,000 users in the criminal justice system, which was conducted in six cities during 2008. Further research was undertaken, including a small-scale study of eight police custody suites (one station was in the city where the survey was conducted and the others based in five different areas) and interviews with defence practitioners. In 2009 we carried out a statistical analysis of over 30,000 police custody records drawn from four police force areas. There followed in 2010 a qualitative study of the main police station in each of these four police force areas. In one of the police stations observed an initiative was set up to help improve access to legal advice. This involved duty solicitors based full-time in the police station and the initiative was subject to a three-month review in 2011 and then again in 2012.


The take-up of legal advice
In a 1997 Home Office study of police station legal advice, based on 1995/96 custody records, it was shown that 40% of suspects requested legal advice and 34% received such advice. In 2009 we looked at police custody records drawn from 44 police stations and we found that 45% requested advice but only 36% received it. The seriousness of the offence was a crucial driver of requests for advice, but of those suspected of serious offences only 57% requested advice. For those being dealt with for rape and homicide offences, 23% declined legal advice. In our survey of users in the criminal justice system we asked them about their choice and use of a solicitor. Of those who refused legal advice, around two-thirds said this was simply because they did not need one. Most went on to say there was, ‘nothing I needed to know’, but others said they declined advice either because they were ‘guilty’ or ‘innocent’. In addition, one-in-five said they refused legal advice because they were concerned about delays, a significant increase in the 4% who said this in the 1997 Home Office study.

Custody sergeants’ attitudes towards legal advice
In our qualitative study of the main police station in the four police force areas this included 18 days observing suspects being booked into custody and conducting interviews with 50 custody sergeants. All said they had to be ‘impartial’ when reading suspects their legal rights. When asked if they would encourage advice when dealing with suspects arrested for very serious offences, such as rape or murder, the majority said they would do so, although most qualified their response by saying that such ‘encouragement’ would be no more than reiterating to suspects their legal rights. As one respondent put it, “Occasionally I have encouraged someone to have advice. It’s usually when they have been arrested for the first time and it is for a relatively serious offence, like rape or that sort of thing. If they tell me that they have done nothing wrong then I will explain that they are entitled to legal advice and it’s free. I can’t advise them anymore than that.” Just two out of the 50 custody sergeants said they would actively encourage advice in certain circumstances. Highlighting their reluctance to do so, one custody sergeant said, “I know when I’m doing it that this is completely unlawful.”

There were a small number of custody sergeants who said that under no circumstances would they encourage a suspect to see a solicitor, although they acknowledged they were under a duty to inform suspects of their legal rights. This was the comment from one respondent, “They might be in here for mass murder and I won’t influence them one way or another. As long as I’m happy they understand their rights and have made an informed decision, that’s what counts.” However, there were occasions observed when suspects would ask custody sergeants questions in order to assist them in coming to an informed decision. The standard response was for custody sergeants to say that they were not in a position to comment as they had to remain impartial. Nevertheless, on other occasions, particularly when dealing with suspects who were confused or unsure about what to do, custody sergeants were seen to be influential in sometimes encouraging or discouraging them from having legal advice. The extent to which custody sergeants might seek to influence the take-up of legal advice seemed to depend on their assessment as to whether the suspect was ‘deserving’ or ‘needing’ of legal advice.

Managerial influences in the pre-charge process
Two factors were identified in causing defence practitioners to be marginalised in the pre-charge process. The first is the influence of police performance targets and, the second, is the introduction of fixed fees for police station work. It was the police target to increase the number of detections which was seen in some stations effectively to drive a wedge between the police and legal advisers. This target was first implemented in 2002 and by 2008 it had the desired effect of increasing significantly the number of people ‘brought to justice’. However, the target began to be discredited in Parliament when the Home Affairs Select Committee noted its ‘net-widening’ effect. This became evident because from 2003 to 2008, while the number of convictions remained stable, there was an increase of 135% in the number of out-of-court disposals. In all four stations custody sergeants complained about people being criminalised unnecessarily, particularly for imposing cautions in cases where the legal criteria had not been met. One queries whether the involvement of legal advisers would have been welcomed here. Since the police have been under pressure from performance targets it seems that restrictions have been placed on legal advisers entering into some police custody suites. This was my finding after observing suspects being booked into custody at ten different police stations (17 days were spent in eight stations in 2009, 18 days in four stations in 2010 (two of these stations had been observed in 2009) and six months spent in one station in 2011/12 (this was one of the four large stations)). Indeed, legal advisers had been excluded from entering into the custody suite in three out of the ten stations. In most of the other stations it was generally police practice only to allow solicitors access into the custody suite when they were ready to conduct the interview. There was an exception in one station where legal advisers had open access to the custody suite.

The introduction of fixed fees in 2008 for police station work seems to have exacerbated this situation. As part of the study into users’ perspectives, interviews were conducted with 24 defence practitioners based in the six cities where the survey was undertaken. In addition, and as part of the initiative to help improve access to legal advice, 12 defence solicitors were interviewed. These defence practitioners acknowledged that the payment of a single fee meant that they had to minimise the amount of work undertaken on cases, as well as the time advisers spent waiting around in police stations. One said, “I’m not going to pay my staff to spend five hours or more at the station when we get a £200 fee.” Instead it seemed that legal advisers tended to wait until the police were ready to conduct an interview before attending at the station.

In the four large stations where we interviewed custody sergeants, the time that elapsed between requesting legal advice and seeing the solicitor ranged from five hours and 40 minutes to seven hours. In addition, solicitors seemed to be accepting of the police timetable, even when there were unduly long delays and even though this breaches the PACE requirement for advice to be provided ‘at any time’ and ‘as soon as practicable’ following a request.

Potential barriers to legal advice
The result is to create a number of barriers to legal advice. In particular, the absence of legal advisers in police custody suites removes an important ‘check and balance’ on police powers. Their absence also means that the police may themselves actively discourage suspects from having legal advice. For example, on a small number of occasions we observed custody sergeants go through a suspect’s legal rights quickly and unintelligibly. More commonly, police advised suspects that they were ready to go straight into interview but they would have to wait in a cell if they were to have a solicitor. Such tactics were noted in cases involving offences such as cultivating cannabis, assault by penetration, robbery and rape.

Of concern more generally, was the apathy with which most suspects responded to being offered legal advice. For those arrested and detained for serious offences, there was seen to be a reluctant acceptance that they would have to spend many hours waiting in a cell while the police investigation was ongoing. Since solicitors were acquiescent to the police timetable, there was no incentive for suspects to ask solicitors to try and reduce their time spent in custody. On the contrary, there was a common and sometimes strongly held perception among suspects that solicitors were the main cause of delays. This meant that in many cases there was little the police had to do in order to discourage legal advice, apart from perpetuating the myth that solicitors were the main cause of delays.

All this was compounded by what we observed to be a lack of understanding on the part of suspects about how solicitors could assist them in the pre-charge process. The result is that even suspects accused of serious offences were discouraged from having legal advice. In one recent case, for example, an 18 year old suspected of murder declined to have a solicitor and was interviewed three times without one until a solicitor, acting on third-party instructions, contacted the police station. In another case a 17 year old, also arrested for an offence of murder, declined legal advice saying, “I just don’t want one”. Despite his young age, and the seriousness of the offence, he was interviewed by the police without a solicitor or an appropriate adult.

These issues raise questions about the extent to which PACE provides sufficient legal safeguards for those held in police custody. It also highlights once again the inappropriateness of the police continuing to act as gatekeepers of police station legal advice. There are also concerns raised due to the increased marginalisation of legal advisers from the pre-charge process. It is often due to what is said in the police station which can lead to cases later on in court being either won or lost. It is inappropriate, therefore, that legal advisers are effectively being side-lined from this important first stage of the criminal process.

The full LSRC studies can be downloaded from the publications page of www.justice.gov.uk.

Dr Vicky Kemp, PhD (Cantab) Visiting Scholar, University of Nottingham

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