A Review of Brydges Duty Counsel Services in Canada

5. THE DUTY SOLICITOR SCHEME IN ENGLAND AND WALES: AN ALTERNATIVE MODEL FOR DELIVERING LEGAL ADVICE AND ASSISTANCE TO SUSPECTS IN POLICE CUSTODY

5.1 Introduction

The Police and Criminal Evidence Act 1984 (PACE) and its accompanying Codes of Practice have painstakingly delineated the nature of police powers in England and Wales. In particular, these legal instruments have clearly articulated the rules and procedures that should govern the manner in which the police deal with suspects in the course of their investigation of crime. The Codes of Procedure were significantly revised in 1995. One important provision concerns the requirement that all suspects who have been detained by the police be given a notice that provides information about their right to free legal advice and assistance (Code of Practice C 3.2).[18] Moreover, PACE, s. 58(1) provides that “A person arrested … shall be entitled, if he so requests, to consult a solicitor privately at any time.” Code of Practice C provides that this right also extends to individuals who attend a police station voluntarily (Sanders 1996, p. 256). In addition, under Code of Practice C 6.3, it is a requirement that every police station must prominently display an information poster “in the charging area” (Legal Services Commission 2002, p. 14).

In order to implement the right to legal assistance in police stations, a 24-hour duty solicitor scheme was established (Easton 1998, p. 111). This scheme made free legal advice and assistance available to all suspects without any reference to their private means. A distinctive feature of this system is that duty solicitors are not the only individuals who may give legal advice at the police station. Indeed, properly accredited “ legal representatives ” may also perform this function. According to Bucke and Brown (1997), “legal representatives” are defined as follows:

Legal representatives refers to a range of non-solicitor staff including articled clerks, former police officers and employees of outside agencies supplying legal advice services on contract to solicitors. [p. 26]

However, it is important to recognize that the majority (approx 75 percent) of those individuals who are providing such legal advice are nevertheless duty solicitors (Bucke and Brown 1997, p. 26). Finally, the duty solicitor scheme must be viewed within the context of the right of a suspect in police custody in England and Wales to have his or her lawyer present during police interrogation.

5.2 Description of the Duty Solicitor Scheme in England and Wales.

The Duty Solicitor Scheme is a generous one, insofar as suspects are granted three options afforded under the Duty Solicitor Manual: they may choose to consult their own solicitor; the duty solicitor; or a solicitor from a list maintained by the police (Legal Services Commission 2002, p. 61 and National Equal Justice Library 2002, p. 4). Where the duty solicitor is requested, the police must ring the Duty Solicitor Call Centre, which will allocate a duty solicitor from a rota or panel (Legal Services Commission 2002, p. 15). Where the suspects chooses a specific solicitor (so-called “own client cases ”), the police will call that individual directly and not deal with the Call Centre (Legal Services Commission 2002, p. 61). Different rules apply to “own client cases ” and “duty solicitor cases ” insofar as the use of representatives is concerned. These rules have been summarized as follows (Legal Services Commission 2002, p. 61):

9.4 Providing Initial Advice by Telephone for Police Station Cases:

  1. For duty solicitor cases, only the duty solicitor may give the initial advice which may be provided over the telephone or, if more conveniently, at the police station.
  2. For own client cases, initial telephone advice must be provided by a solicitor (who may or may not be a duty solicitor), or a probationary or accredited representative.

9.5 Attendance at the Police Station:

  1. For duty solicitor work, once the duty solicitor has given preliminary advice, any attendance at the police station must be undertaken by the duty solicitor or an accredited representative.
  2. For own client work paid by the CDS, initial attendance must be undertaken by a solicitor (whether or not a duty solicitor), a probationary or accredited representative

It is important to note that, as a consequence of the restructuring of the entire legal aid system in England and Wales, the duty solicitor scheme for police stations has recently been subjected to a series of significant changes. On April 2, 2001, the old system of criminal legal aid was replaced by the Criminal Defence Service (CDS), which was created by the Access to Justice Act 1999. The CDS is administered by the Legal Services Commission (2001, p. 1), and all legal aid services are now provided under the provisions of the so-called “ General Criminal Contract ” (Legal Services Commission 2001, p. 2). Within this detailed contractual framework, private solicitors' firms that provide duty solicitor services are routinely monitored in order to “ensure that they continue to meet quality assurance standards.”

Prior to the establishment of the CDS, all legal aid services in England and Wales were provided by private firms of lawyers. However, the Legal Services Commission has started a four-year pilot project, under which six “ public defender offices ” have been established, and research will be conducted to investigate the advantages and disadvantages of a so-called “ mixed ” model for the CDA (private practice and staff lawyers) (Legal Services Commission 2001, p. 2). Salaried public defenders will be allocated positions within the relevant police station duty solicitor schemes (Lord Chancellor's Department 2001(b), p. 6). However, it has been made clear that public defenders “will have to take their turn on the duty solicitor rotas and compete on a 'level playing field' with private suppliers in that area” (Lord Chancellor's Department 2001(b), p. 3). The U.K. Government has indicated (Lord Chancellor's Department 2001(a), p. 3) that it continues to support the principle that, in most circumstances, a suspect should have a right to choose his or her own lawyer who has a contract with the Commission.

Moreover, there is now an elaborate system of accreditation for duty solicitors who attend police stations, as well as a parallel system for the accreditation of legal representatives (Easton 1998, p. 115; Legal Services Commission 2002, p. 23; and Sanders 1996, p. 271). Duty solicitors themselves must meet a number of criteria, including the requirement of “12 months experience of police station and court work” (Legal Services Commission 2002, p. 30). Applications for accreditation as legal representatives must be made to an independent organization approved by the Legal Services Commission (2002, p. 27). The Duty Solicitor Manual (Legal Services Commission 2002, p. 23) states that:

An accredited representative can give preliminary advice and attend the police station in own solicitor cases and, in duty solicitor cases where the duty solicitor must always give the preliminary advice, attend the police station. The duty solicitor has an unrestricted right to delegate to an accredited representative …

5.3 Empirical Research and the Duty Solicitor Scheme

The duty-solicitor scheme for police stations has recently been subjected to extensive reforms. It is important, therefore, to recognize that the academic research that has been conducted in relation to the “old” system might not paint an accurate picture of the scheme as it exists at the present time. However, there is a fairly substantial body of research that nevertheless provides some valuable insights into the operation of the duty solicitor scheme for police stations.

In general, research findings suggest that, over the past decade, there has been a significant increase in the number of detained persons contacting a lawyer while at the police station (Bucke and Brown 1997, p. 23). Although it is not entirely clear as to why there has been an increase in the request for legal advice by detained persons, it has been suggested that it may be the case that police officers are making more sustained efforts to ensure that accused persons contact a lawyer, or that there may have been an increase in the number of solicitor's representatives who are now available to offer advice at police stations (Bucke and Brown 1997, p. 23). It is significant that Phillips and Brown (1998, p. 77) found that those suspects who obtained legal advice were considerably more likely to maintain their right to silence (20 percent) than those who did not seek such advice (3 percent). The authors state (1998, p. 77) that “it is highly likely that those who plan to fight the case and who are not inclined to assist the police by answering questions are more likely to seek legal advice.” In an earlier study, Brown, Ellis and Larcombe (1992) shed some light on the specific characteristics of those cases in which detained suspects exercised their right to request legal advice and assistance. The primary factors that influenced a detained suspect's decision whether or not to seek the assistance of a solicitor were: the nature and serious of the offence; the time that he or she arrived at the police station; and his or her previous record. Significantly, 60 percent of those detainees who sought legal advice consulted with their own legal advisors, while 40 percent consulted the duty solicitor (Bucke and Brown 1997, p. 26).

In spite of these apparently positive findings, outlined above, the empirical research has nevertheless raised a number of weighty concerns. For example, the overall number of detained persons receiving legal advice is still relatively low and, in the majority of cases, suspects do not have a solicitor present while undergoing interrogation (Easton 1998, p. 112 and Sanders 1996, 273). Indeed, different studies have found that over half of the persons detained at a police station did not request legal advice (Bucke and Brown 1997, p.32). Phillips and Brown (1998) studied the duty solicitor scheme, as it functioned in ten police stations between late 1993 and early 1994 (4,250 detainees). The researchers found that only 37 percent of all persons detained by the police actually exercised their choice to seek legal advice (at p. 59). However, Phillips and Brown point out that this was an average figure and that there was a considerable degree of variation between police stations. The main reason why suspects did not seek legal advice was that they did not feel this course of action was necessary in the particular circumstances of their case (Bucke and Brown 1997, p. 28).

Another critical issue in the evaluation of the duty solicitor scheme must be the quality of the service provided. More specifically, researchers have questioned the quality of legal advice given by “unqualified legal representatives.” However, this concern is not confined to these individuals (Easton 1998, p. 112 and Sanders 1996, p.261). Moreover, the quality of legal advice furnished by many of the legal representatives may not be impartial. Indeed, many of them are former police officers - a circumstance that may mean that, instead of identifying with the suspect, they might sympathize more closely with the interest of the police (Easton 1998, p. 113). Time constraints may also have an impact upon the quality of information that is provided to detained persons. In the study by Bucke and Brown (1997), most consultations with solicitors were completed within the space of 15 minutes: indeed, only 1 percent of such consultations lasted for more than an hour (Bucke and Brown 1997, p. 29).

Furthermore, it appears that the type of legal consultation that is furnished to a detained person is largely dependent on the facilities available at the police station (Bucke and Brown 1997, p. 25). For example, in police stations where there was no designated room for legal consultations, a significant number of detained persons received legal advice only by the phone, while in police stations in which there was a designated room for legal consultations, legal advice was more likely to be given in person at the station (Bucke and Brown 1997, p. 25). For example, Sanders (1996, p. 261) found that up to 30 percent of detained suspects received legal advice only over the phone. Similarly, Phillips and Brown (1998, p. 65) discovered that approximately 20 percent of the group of suspects, who ultimately received legal advice, did so only over the telephone, and not in person. One of the problems that often arises when suspects receive legal advice only over the phone is that they may find it exceptionally difficult to follow the lawyer's injunction to remain silent, whereas the physical presence of a duty solicitor may provide them with the encouragement that they need to refuse to answer police questions (Sanders 1996, p. 263).

Finally, it is a matter of considerable concern that some researchers have found that, in many cases where a lawyer is present during police interrogations, the latter remained passive and did very little - or nothing - during the police interrogation (Easton 1998, p. 113; and Sanders 1996, p. 263). This issue has even surfaced as a matter of grave concern in the courts. For instance, in Glaves (1993), the Court of Appeal sharply criticized defence lawyers by stating that “there is no point in a solicitor's representative just going along and simply taking notes.” Furthermore, in Miller (1990), the Court stated that defence lawyers should act courageously and challenge improper police interrogations (Easton 1998, p. 113).

It might well be contended that duty solicitors can do very little to rectify the stark imbalance of power between the police and a suspect who is detained in their custody. Indeed, since duty solicitors are involved in an ongoing relationship with the officers in particular police stations, they are required to exercise a certain degree of cooperation with the police if they are to obtain the most desirable outcomes for their clients. In this respect, Sanders (1996, p. 273) has asserted that duty solicitors are placed squarely on the horns of a particularly uncomfortable dilemma:

… if solicitors wish to do the best for their suspects they have to compromise by becoming acceptable to the police; and if they wish to help their clients by retaining their adversarial purity, they forfeit cooperation and fail to do their best for their clients.

[18] It is worth noting that, in some Commonwealth jurisdictions, such as Queensland, the police are under no duty to inform suspects that they have a right to consult a solicitor (Edwards 1997, p. 227).