Advising clients at the police station - Right to legal advice

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Overview

The right to legal advice during police detention is vital for ensuring procedural justice and protecting individuals accused of crimes. For SQE1 FLK2 exam candidates, a solid grasp of this right is essential, as it touches on crucial aspects of criminal law, procedure, and ethics. This guide explores the legal framework, practical applications, and strategic considerations surrounding the right to legal advice, preparing students for exam success and future legal practice.

Legal Framework and PACE

The right to legal advice during police detention is primarily established under the Police and Criminal Evidence Act 1984 (PACE). Section 58 of PACE grants people in police custody the right to consult with a solicitor. This is further supported by the European Convention on Human Rights (ECHR) under Article 6, which guarantees a fair trial.

PACE Code C

PACE Code C offers detailed guidance on how this right should be implemented by police officers:

  • Paragraph 6.1: Detainees must be informed of their right to free independent legal advice.
  • Paragraph 6.4: Police must secure legal advice promptly if requested.
  • Paragraph 6.6: Delay in providing legal advice is only allowed in specific situations, such as preventing serious harm or damage.

Case Law: Upholding Procedural Integrity

In the landmark case of R v Samuel [1988] QB 615, the Court of Appeal reinforced the significance of the right to legal advice:

  1. It's a fundamental right.
  2. Should only be denied in exceptional circumstances.
  3. Denial must be authorised by an inspector and recorded for review.

This case highlights the importance courts place on protecting the right to legal advice and sets a strict standard for any delays.

Exercising the Right to Legal Advice

When legal advice is requested, the police must facilitate it without unnecessary delays:

  1. The detainee requests advice.
  2. The custody officer contacts the Defence Solicitor Call Centre (DSCC).
  3. Initial contact is made by phone, with in-person meetings as needed.

Delays and Exceptions

While the right to legal advice is vital, there are instances where access may be delayed:

  • To prevent harm or damage
  • To avoid evidence tampering
  • To stop other suspects' escape

Such delays require authorisation by a superintendent and must not exceed 36 hours from arrival at the station.

Example: Authorised Delay

Consider Sarah, involved in a drug trafficking case. Officers fear solicitor contact might lead to evidence destruction at other locations. A superintendent approves a six-hour delay while raids occur, a lawful act if challenged.

Role and Responsibilities of the Solicitor

Solicitors play a key role in protecting detainee rights, with responsibilities including:

  1. Legal guidance: Explaining charges and potential outcomes.
  2. Ensuring compliance: Checking adherence to PACE guidelines.
  3. Advising on interview strategies: Deciding whether to answer questions or remain silent.
  4. Observing interviews: Protecting against inappropriate questioning.
  5. Liaising with police: Seeking evidence and negotiating outcomes such as bail.

PACE Code C and E Compliance

Familiarity with PACE Codes C and E is essential for solicitors:

  • Code C: Covers detention conditions and interview procedures.
  • Code E: Governs audio recording of interviews.

Solicitors may challenge evidence obtained in violation of these codes.

Example: Solicitor Advocacy

In a case involving fraud suspect Emily, her solicitor's actions might include:

  • Introducing themselves and confirming their role.
  • Reviewing Emily's custody record for compliance with PACE.
  • Explaining Emily's rights.
  • Advising on legal strategies.
  • Monitoring the interview for any violations of procedure.

Effects of Remaining Silent

Under the Criminal Justice and Public Order Act 1994, adverse inferences can be drawn if a suspect remains silent during an interview, but this must be handled carefully.

Adverse Inferences

Sections 34-37 allow for inferences if:

  • Facts are not mentioned during questioning but used later in defense.
  • Explanations are missing for objects or presence.

These rules greatly influence the advice solicitors provide at stations.

The Caution

The caution now stated is:

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

Case Law: R v Condron and R v Rattray

These cases established principles for drawing inferences from silence, focusing on fairness and the burden on the prosecution to prove silence is incriminating.

Strategic Considerations

Solicitors must weigh:

  1. Evidence strength disclosed by police.
  2. Risk of self-incrimination.
  3. Potential adverse inferences at trial.
  4. Opportunity for a stronger defense strategy with time and information.

Example: Weighing Silence and Disclosure

When Emma is arrested for insider trading, her solicitor recommends silence due to limited disclosed evidence, planning a written response once more information is obtained.

Conclusion

Understanding the legal framework and strategic use of the right to legal advice is crucial for individuals and legal professionals alike. FLK2 students benefit greatly by understanding these core principles, thereby enhancing their ability to navigate the law both academically and in the field. Mastery of such topics fosters a strong foundation in the practicalities of legal defense.