Advising clients at the police station - Right to legal advice

Learning Outcomes

This article outlines the fundamental right of a detained person to access legal advice while in police custody. After reading this article, you will understand the statutory basis for this right under the Police and Criminal Evidence Act 1984 (PACE), the key procedural requirements outlined in PACE Code C, the limited circumstances under which access to legal advice may be lawfully delayed, and the significance of this right for suspects facing police questioning, enabling you to apply this knowledge to SQE1 assessment questions.

SQE1 Syllabus

For SQE1, you are required to understand the practical application of a detainee's right to legal advice. This includes knowing the procedures the police must follow and the solicitor's role in safeguarding this right. Key areas for revision include:

  • The statutory right to legal advice under s 58 PACE 1984.
  • The procedures for informing detainees of their right to free and independent legal advice under PACE Code C.
  • The role of the Defence Solicitor Call Centre (DSCC).
  • The specific and limited grounds upon which access to legal advice can be delayed.
  • The maximum period for which legal advice can be delayed.
  • The consequences of a breach of the right to legal advice.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. Under PACE 1984, s 58, a person arrested and held in custody is entitled to consult a solicitor:
    1. Only if they can afford to pay for it.
    2. Privately, at any time upon request.
    3. Only after the initial police interview.
    4. Only if suspected of an indictable offence.
  2. Who can authorise a delay in allowing a detained suspect access to legal advice?
    1. The Custody Officer
    2. Any police officer involved in the investigation
    3. An officer of at least Inspector rank
    4. An officer of at least Superintendent rank
  3. What is the maximum period for which a suspect's access to legal advice can be lawfully delayed under PACE 1984?
    1. 12 hours from arrival at the police station
    2. 24 hours from the time of arrest
    3. 36 hours from the relevant time
    4. 48 hours from the relevant time

Introduction

One of the most fundamental rights afforded to a person detained at a police station is the right to consult privately with a solicitor. This safeguard is essential for ensuring fairness within the criminal justice process and protecting individuals from potential miscarriages of justice. For the SQE1 assessment, you must have a detailed understanding of the scope of this right, the procedures governing its exercise, and the limited exceptions permitting its delay.

The Right to Legal Advice: Statutory Basis

The primary statutory basis for the right to legal advice is found in the Police and Criminal Evidence Act 1984 (PACE).

Key Term: Right to Legal Advice
The entitlement, under s 58 PACE 1984, for a person arrested and held in custody at a police station or other premises to consult a solicitor privately at any time upon request.

This right must be communicated clearly to the detainee upon arrival at the police station and before any interview commences. The advice provided is free and independent of the police.

PACE Code C: Procedural Requirements

PACE Code C provides detailed procedural guidance on implementing the right to legal advice. Key requirements include:

  • Informing the Detainee: The Custody Officer must inform the detainee of their right to legal advice (both in person and by telephone) and the fact that it is free and independent (Code C, para 6.1). This must be done upon arrival and before any interview.
  • Enabling Access: If a detainee requests legal advice, the police must act promptly to secure it. This usually involves contacting the Defence Solicitor Call Centre (DSCC).
  • Private Consultation: The consultation between the solicitor and the detainee must be private (s 58(1) PACE).
  • Interviewing: Generally, a suspect who has requested legal advice should not be interviewed until they have received it (Code C, para 6.6).

Key Term: PACE Code C
A Code of Practice issued under PACE 1984 detailing rules for the detention, treatment, and questioning of persons by police officers, including procedures for accessing legal advice.

Key Term: Defence Solicitor Call Centre (DSCC)
The central body contacted by the police when a detainee requests publicly funded legal advice. The DSCC arranges for advice, either by telephone or by allocating a solicitor (duty or own choice) to attend the police station.

Delaying Access to Legal Advice

While fundamental, the right to access legal advice is not absolute and can be delayed in specific, limited circumstances.

Grounds for Delay

Under s 58(6) and (8) PACE 1984, access can only be delayed if:

  1. The person is in police detention for an indictable offence (this includes either-way offences); AND
  2. An officer of at least the rank of Superintendent authorises the delay; AND
  3. The authorising officer has reasonable grounds to believe that the exercise of the right to legal advice at that time will lead to specific consequences.

Key Term: Delay (of legal advice)
The temporary postponement of a detainee's access to a solicitor, permitted only under strict conditions defined in s 58 PACE 1984 and Annex B of Code C.

The specific consequences justifying delay are:

  • Interference with or harm to evidence connected with an indictable offence.
  • Interference with or physical injury to other persons.
  • Alerting other suspects not yet arrested for an indictable offence.
  • Hindering the recovery of property obtained as a result of an indictable offence.

Authorisation and Duration

Authorisation for delay must be given in writing (or orally, confirmed in writing) by a Superintendent or higher rank. The delay must be proportionate and last no longer than necessary. Importantly, the maximum period for which access to legal advice can be delayed is 36 hours from the 'relevant time' (usually the time of arrival at the designated police station) (s 58(5) PACE).

The reason for the delay must be recorded in the custody record, and the detainee must be informed (Code C, Annex B). Once the reason for the delay no longer applies, access must be permitted.

Worked Example 1.1

Anjali is arrested on suspicion of conspiracy to supply Class A drugs, an indictable offence. The police believe she is part of a larger network and that if she contacts her solicitor immediately, the solicitor might inadvertently (or deliberately) alert other members of the network who are currently under surveillance and about to be arrested. Superintendent Sharma considers delaying Anjali's access to legal advice.

Is Superintendent Sharma likely to be able to lawfully authorise a delay?

Answer: Yes, potentially. The offence (conspiracy to supply Class A drugs) is indictable. If Superintendent Sharma has reasonable grounds to believe that Anjali consulting her solicitor at this specific time will lead to other suspects being alerted before they can be arrested, then a delay could be authorised under s 58(8)(b) PACE 1984. The authorisation must be properly recorded, and the delay cannot exceed 36 hours from Anjali's arrival at the station ('relevant time').

Practical Considerations and Consequences

  • Waiver: A detainee can waive their right to legal advice, but this must be voluntary and informed. Police officers must not dissuade a suspect from seeking legal advice (Code C, para 6.4). If a suspect changes their mind after initially requesting advice, specific procedures involving an Inspector must be followed (Code C, para 6.6(d)).
  • Breach: Unlawfully denying or delaying access to legal advice is a significant breach of PACE and Code C.

Exam Warning

A denial of legal advice under s 58 PACE 1984 is a very serious step. Remember that the grounds are specific to indictable offences and require authorisation by a Superintendent. Furthermore, the belief must be that consulting the solicitor will lead to one of the specified consequences, not merely that it might. Inferences from silence under s 34 CJPOA 1994 cannot usually be drawn if the suspect was denied legal advice (s 34(2A)). Evidence obtained following a breach of s 58 may be excluded under s 76 (confessions) or s 78 (unfairness) PACE 1984.

Revision Tip

Focus on the precise requirements for delaying legal advice: (1) Indictable offence, (2) Superintendent authorisation, (3) Reasonable grounds for believing specific consequences will occur (s 58(8)), (4) Maximum 36-hour delay. Contrast this with delaying the right to have someone informed (s 56), which requires only Inspector authorisation.

Key Point Checklist

This article has covered the following key knowledge points:

  • Detainees have a fundamental right to free, independent, and private legal advice under s 58 PACE 1984.
  • Police must inform suspects of this right promptly upon arrival and before interview (Code C).
  • The Defence Solicitor Call Centre (DSCC) facilitates access to publicly funded advice.
  • Access to legal advice can only be delayed for indictable offences, requires Superintendent authorisation, and must be based on reasonable grounds relating to specific potential consequences (s 58(8)).
  • The maximum delay permitted is 36 hours from the relevant time.
  • Breaches of the right to legal advice can lead to the exclusion of evidence obtained subsequently.

Key Terms and Concepts

  • Right to Legal Advice
  • PACE Code C
  • Defence Solicitor Call Centre (DSCC)
  • Delay (of legal advice)
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Pleased to share that I have successfully passed the SQE1 exam on 1st attempt. With SQE2 exempted, I’m now one step closer to getting enrolled as a Solicitor of England and Wales! Would like to thank my seniors, colleagues, mentors and friends for all the support during this grueling journey. This is one of the most difficult bar exams in the world to undertake, especially alongside a full time job! So happy to help out any aspirant who may be reading this message! I had prepared from the University of Law SQE Manuals and the AI powered MCQ bank from PastPaperHero.

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Senior Associate at Trilegal