The Cadder effect

“[A] person being questioned by the police is in a position of disadvantage. He is unlikely to be properly aware of the legal intricacies of the situation, to understand, for example, the legal concept of intent or the desirability of exercising his right to silence, or to know what the penalty is likely to be for the offence of which he is suspected. Only an experienced lawyer can give him this kind of information and advise him how best to proceed. In the interests of justice he should always have that advice, unless he chooses to forgo it.”

These were the conclusions of the Royal Commission, reporting in 1980 on The Investigation and Prosecution of Criminal Offences in England and Wales: The Law and Procedure (Cmnd 8092-I). They led to the drafting of the Police and Criminal Evidence Act 1984 (PACE), its accompanying police codes of practice, and the Police and Criminal Evidence (Northern Ireland) Order 1989. The Thomson Committee on criminal procedure in Scotland, which reported only two years prior to the establishment of the Royal Commission, concluded (Second Report (1975), Cmnd 6218) that suspects should not be allowed to stand on their rights, and accordingly a period of detention was legislated, replicating the very s 62 of the Criminal Law Act 1977 that the Royal Commission had recommended was inadequate. That same section survived the Criminal Procedure (Scotland) Act 1995 and remains in law today.

Positive development

As no doubt readers are aware, the Cadder appeal before the Supreme Court in May visited this issue. It came in the light of Salduz v Turkey, in which a unanimous Grand Chamber confirmed in November 2008 that article 6(3)(c) together with article 6(1) ECHR require a suspect to be given access to a lawyer as from the first interrogation by the police, if a confession is to be used to support a conviction.

While their Lordships did indicate that it would be helpful for the Government to consider the effect of Salduz over the summer recess, we were pleasantly surprised to find that the Lord Advocate published interim guidance requiring police to allow suspects access to a solicitor during detention. There is no doubt that the guidance brings a sea change to the practice of the profession, and JUSTICE has been concerned to reiterate in all its observations that this must be seen as a positive move for the protection of the rights of suspects. Our concern has been that what appears positive becomes the opposite if suspects request assistance and then do not receive it; not only are their raised hopes for assistance at this most crucial stage dashed, but they also lose the opportunity of raising a devolution minute.

Twenty years ago, solicitors in England & Wales found themselves in the position that their Scottish colleagues now face. It took some time working out, but the scheme that is now in place is one worthy of consideration. A key difference is that all police station advice and assistance is free of charge: there is no awkward assessment of means at 3am at this stage in the other UK jurisdictions.

Research has shown that there is a real need: in 2007, 48% of arrested people obtained consultation in the police station. In the 1970s, when, like Scotland, there was no right to a lawyer, only 5.6% of suspects obtained advice.

Publicly funded work in the police station is a complex system orchestrated by the Criminal Defence Service (CDS) of the Legal Services Commission (equivalent to the Scottish Legal Aid Board). Three schemes have evolved to deal with the volume of requests.

Three branches

First, the duty solicitor scheme. Duty work is administered by the CDS either by rota or panel system or a mixture of both (panel during daytime, rota out of hours). The rota system obliges a particular solicitor to be available on specific days and times through the year, subject to illness and limited swapping, while a pool gives the Duty Solicitor Call Centre Service a list to choose from; the solicitor contacted the longest time ago will be approached until one is available to attend. The call centre deals with all requests for advice and assistance, whether own solicitor or duty. This is operated entirely independently of the police. Each area decides which scheme to follow, dependent on whether they can satisfy the minimum amount of hours the rota scheme demands.

Because of this scheme, there is no confusion about whether a solicitor can act in a given case. Furthermore, the Duty Solicitor Manual confirms that duty cases can be converted into own solicitor cases after initial advice. This is because duty solicitor rates only apply to either the period of duty or the initial period of custody.

Equally, where a suspect requests their own solicitor and they are not available, the scheme allows for the suspect to request the duty solicitor. This is the case even if the requested solicitor cannot be contacted at all, so as to ensure that the suspect receives advice. Where a solicitor is on duty and one of their clients is brought for detention at the police station, they may represent them under the duty scheme. There is no rule under the Code of Conduct which prevents advice being given at the police station where another solicitor has initially been requested. Such a request is not seen as establishing a client relationship in England, Wales or Northern Ireland.

Secondly, from April 2008, CDS Direct operated a telephone helpline across the country. For certain summary offences (non-imprisonable, driving matters, bail or fine breaches), only the CDS Direct service can take cases. Private firms maintain the helpline under LSC contracts and are largely staffed by paralegals.

Very little research on telephone advice has been conducted. In some circumstances it can be seen as acceptable, where the offence is trivial, guilt is not in doubt and the advice is about a limited aspect of the case.

This has been observed in relation to breath tests in driving cases, for example. However, where an interview is intended, the suspect is vulnerable, there is an issue of police maltreatment or communication problems, CDS Direct must pass the case to a duty solicitor.

Of real concern is the practical impact of giving advice over the telephone. In most cases there will be at least some telephone advice, but there is no requirement for the telephone to be located in a private area, out of sight or hearing of the custody suite (charge bar). This raises practical difficulties for the giving and receiving of effective advice by telephone, particularly when that is the only option available.

Thirdly, once the own or duty solicitor is contacted and has given initial telephone advice, police station attendance can be conducted by an accredited representative. The Police Station Representatives Accreditation Scheme is administered by the Solicitors Regulation Authority and taught by private schools. Anyone can train to be accredited, but must find a duty solicitor who is willing to supervise them for the period of training. Trainees must shadow solicitors and submit case reports – both observation and advice under supervision. They must pass written tests in criminal procedure and role play examination.

There is little evidence about the quality of this or CDS Direct advice, but according to academic research, there is nothing to suggest that employees lack the necessary skills to provide legal advice. The LSC requires both schemes to be fully accredited, but it is a difficult area in which to carry out any comprehensive empirical study. English solicitors have expressed frustration at delays through the call centre when clients request own solicitor advice.

Challenges ahead

We responded to the Lord Advocate’s guidelines, identifying the areas which would need to be considered to enable effective representation, with reference to the PACE codes and English case law. This can be read here: http://www.justice.org.uk/images/pdfs/JUSTICE

The approach in England & Wales provides one approach for the way forward in Scotland. This is not to say that it has all the answers, or is the best option for client care. For example, the UK Government has announced further cuts to legal aid to be imminent and we are aware that the Minister for Justice is contemplating a further rollout of telephone advice to limit spending. We consider that any further limitation on the right to direct representation would be in breach of the Salduz principle.

There are, of course, many wider substantive questions which solicitors will have; these include the effect on the right to silence, still a key protection under English law despite the ability to draw inferences from silence in some cases. It is worth noting that most other common law and European jurisdictions allow access to a lawyer at this stage, without adverse inferences from silence, and their systems should also be considered to inform the way forward in Scotland. The JUSTICE Scotland Advisory Group, we hope with the assistance of the Law Society of Scotland, aims to hold a training seminar and produce a guidance manual next month where these issues can be discussed.

The right to a fair trial is now enshrined in article 47 of the EU Charter of Fundamental Rights, which obtained binding force on the adoption of the Lisbon Treaty. The Charter must be interpreted, as a minimum, in accordance with the ECHR and the ECtHR’s jurisprudence.

The European Union is already considering the question of legal representation and legal aid as part of a legislative framework on procedural rights for suspects in criminal proceedings. The Netherlands has amended its legislation to reflect the Salduz principle and Belgium is considering doing so. On 30 July 2010, the French Constitutional Conseil declared the garde a vue procedure to be unconstitutional and required the French Government to amend the law by July 2011.

Whatever approach Scotland takes, it is clear that the law must change and the duty of the profession is to remain squarely focused on ensuring the effective right to a fair trial for its clients. After all, is that not the reason why we became lawyers?

• Jodie Blackstock is a barrister and senior legal officer at JUSTICE. She acted as junior counsel for their intervention in Cadder v HMA. In Scottish matters, JUSTICE is assisted by its Scottish Advisory Group.

Ready or not… 

“I’ve been called out at ungodly hours, as have many of my colleagues. We’re effectively on call 24/7. I worry that the profession doesn’t have the resources to cope.” So says Bill McVicar of Dumfries, convener of the Society’s Criminal Law Committee, on being asked for his experience to date under the Lord Advocate’s guidelines.

Similarly, Ian Bryce of the Legal Aid Negotiating Team describes the guidelines as a “seismic change” that will cause severe difficulties to a profession not designed to operate in shifts – though the police, he believes, are currently being cautious about exercising their powers of detention.

At least all interested parties are now talking regularly to each other, even if differences remain as to the rate of progress.

The Crown perhaps has some fences to mend. Having brought the first set of guidelines partly into force before their existence was even revealed to the profession, it has to face up to the feeling among defence lawyers, according to McVicar, “that there is a growing trend of the defence bar just being ignored and expected to cope with whatever is thrust on it”.

As for progress, a Crown Office spokesman assured the Journal that the Crown is “preparing for all possible outcomes on 20 October – we are taking every step we can to protect prosecutions”.

He expressed confidence that the Crown would be ready; several weekly meetings involving all parties have already taken place and these are continuing.

However, Bryce and McVicar, who have both been involved in the talks, expressed concerns that the approach to date has been “piecemeal”, and were sceptical as to the chances of Scotland being ready if the appeal decision goes against the Crown.

Different perspectives also exist in relation to whether there is a conflict between the guidelines and the Code of Conduct for criminal work. The Crown believes that no issue should arise, whereas the frequently asked questions on the Society’s website (at www.lawscot.org.uk/Members_Information/legal_aid/) set out a whole series of questions that a solicitor who is not the suspect’s nominated solicitor may have to ask to avoid a possible Code offence.

Looking at the wider picture, any move towards a system such as the English one could have significant knock-on effects, according to John Scott, Vice President (Crime) of the Society of Solicitor Advocates and a member of JUSTICE’s Scottish Advisory Group.

“The Solicitor General and ACPOS have both gone public with what they think may need to change in order to prevent the police and Crown from being unduly hampered in their efforts to investigate crimes and secure convictions”, he commented.

“The six-hour limit on s 14 detentions seems almost certain to go, if only to deal with practical considerations. Beyond that, however, mention has been made of allowing adverse inference where no comment is made at interview. For many, the most worrying thing is that corroboration has been added to the hit list of protections and safeguards which may be up for grabs.

“I have discussed these issues with lawyers from all over the country. This has included Crown lawyers who have expressed specific concerns about prosecuting rape cases without having admissions from interviews.

“We may not have very long to work out where we go. I am worried about how we proceed. Is this not an issue for urgent consideration by the Scottish Law Commission?”

Scott has a real concern that if some threatened changes are introduced, “we could end up with a system that is less fair than what we have already”.

In McVicar’s view, additional support will be essential. “The profession will do its best in the meantime, but I fear for the future, especially if resources are not put in place.”

• Peter Nicholson, Editor