ABSTRACT
As discussed in Chapter 3, the police station is a closed environment and historically, the police have expressed mistrust or dislike of ‘challengers’, those whose role is to scrutinise their work (Holdaway 1983:71-77), in particular legal representatives. There was also a fear that legal representatives would prevent the police from achieving their objectives. As McConville et al. argued (1994:102, citing Walkley 1987): ‘[a]ccording to police mythology, the presence of a solicitor in an interrogation destroys the relationship between the officer and suspect under which a “dominant persuader” is able to exercise pressures on the suspect to conform to police wishes’. The right to legal advice at the police station was the fulcrum of the exchange abolitionist argument to curtail the right of silence. As then Home Secretary Douglas Hurd recognised, the right to legal advice would be difficult to curtail, so attention was focused on the right of silence (HOWG 1989:4). This chapter examines the claims about overly adversarial advocates; levels of legal representation; the effects in terms of disclosure and how the changes to the right of silence have undermined the benefits of legal representation in interview. The Police and Criminal Evidence Act 1984 (PACE) gives detainees the right to free and independent legal advice, in private, by telephone, in writing or in person (s58 PACE and Code of Practice C). This entitlement has been described as a ‘fundamental right of a citizen’ (Samuel 1988 at 144). The fair trial provision of the European Convention on Human Rights (ECHR) further provides that everyone charged with a criminal offence has the right: ‘to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require’ (Article 6(3)(c) ECHR). The European Court of Human Rights (ECtHR) has ruled that the right to legal assistance extends to pre-charge police detention when evidential consequences may attach to the behaviour of the suspect there (Murray v UK 1996; see also Imbrioscia v Switzerland 1993). This was extended in Salduz v Turkey (2008) based on the implied right of the accused not to incriminate themselves, and has become firmly
established in the jurisprudence (Lord Hope in Cadder v HM Advocate 2010). As discussed in Chapter 2, the additional protections provided by PACE provoked an immediate backlash from the police, some judges and certain politicians, who claimed that the changes, in particular the right to legal representation, had made it too difficult to prosecute and convict ‘criminals’. This led to the suggestion that the right of silence should be ceded to restore the equilibrium. The ‘re-balancing’ rationale was flawed for a number of reasons, but particularly in relation to legal advice. When the Royal Commission on Criminal Procedure (RCCP 1981) recommended statutory access to legal representation, it was alongside the right of silence, as a counterweight to the proposed increase in police powers. The equation also appeared to rely more on instinct and anecdote than empirical evidence. Whilst there are discrepancies in the methods of collating statistics,1 the overall trend was that the numbers seeking legal advice rose after the introduction of PACE and after each subsequent revision of the associated Codes of Practice. For a free service, however, it was – and still is – taken up by surprisingly few suspects. Although the right to consult a solicitor existed at common law,2 very few suspects exercised this right. Estimates of pre-PACE rates of legal advice range from 3 per cent to 20 per cent (Baldwin and McConville 1979), most were under 10 per cent; (Bottomley et al. 1989; Brown 1991; Softley 1980; Willis 1984). After PACE this rose to about 25 per cent (Brown 1989; Morgan et al. 1991; Sanders et al. 1989), and to 32 per cent after the 1991 revisions to Codes of Practice (Brown et al. 1992).3 Not all of those who requested legal advice received it; most requests were denied before PACE (Baldwin and McConville 1979; Softley 1980) and between 25 per cent (Sanders et al. 1989) and 33 per cent afterwards (Brown 1989; Dixon et al. 1990). Some researchers suggested that there was a greater likelihood of the police refusing or delaying access to a solicitor in more serious cases (e.g. Dixon et al. 1990). There were significant variations in the take-up of legal advice between and within regions. Rates in London were consistently higher than elsewhere. Provision of legal advice differed according to a number of factors, the most significant being the offence type – those suspected of robbery and sexual offences were three times more likely to seek legal representation than those arrested for shoplifting and motoring offences – but this varied considerably by the police station involved (Brown
1989). Local factors, such as the ways in which individual custody sergeants offered legal advice to suspects, may have been significant (Maguire 1988; discussed in Chapter 3). In addition, Phillips and Brown (1998) have argued that certain interviewing officers would advise suspects that they did not need legal representation as they were unlikely to be charged – which, of course, turned out not to be the case once the suspect had made incriminating admissions in interview. The efficiency of the local legal aid provision was also likely to have had an impact, as delays may have deterred suspects from seeking consultations (Brown 1989). Black and Asian suspects, those with previous convictions, the unemployed and those whose appearance gave ‘cause for concern’ on arrival at the police station, were more likely to seek representation (Philips and Brown 1998).4
