The purpose of this article is to highlight what I believe is a determined effort to undermine the right to free and independent legal advice, this is practiced by some police officers and condoned by the cost cutting establishment. The abuse is the use of Body worn camera securing apparent admissions, without the necessary protection given to suspects including being informed of the right to independent legal advice.
How real is the problem? Very real in the view of many legal practitioners. I will give a couple of examples.
One from my own colleague Clair Wynn:
‘A few weeks ago I was sat in an interview room at ******* PS, typing up a million PS booklets whilst waiting for an officer to come down for disclosure. There were a group of four or five Police officers outside talking in the corridor. One of them was waiting for a solicitor to finish his consultation with a detainee and the other officers were telling him that he should have interviewed the guy out on the street so that he didn’t have a lawyer, telling him what he should say such as ‘well you can have a lawyer mate if you want to sit in a cell for a few hours….or we could just get it done now’. This conversation followed around 15 minutes of laddish banter about how drunk they had all gotten the night before and about one of the officer’s girlfriend’s, who was referred to as an ‘it’ being ‘well-trained’ as she cooked him breakfast, so by the time they got on to conversing about their tactics to dissuade people from having lawyers I was somewhat wound up, as you can imagine.
I stormed out of my room, read them the riot act, told them all of the reasons that they were a disgrace to the Kent Police and informed them that the only reason I wouldn’t be taking badge numbers and making a formal complaint was because I was too busy. I have never been more outraged at the police station in my whole time working in criminal law’
This from experienced solicitor Mark Savage:
‘One example is a client – police attend his home address, all on body cam, tell him that he can answer their questions, or be arrested, and wait in the police station for hours. “I will no comment” – the police respond “In that case, if you don’t answer our questions, we will arrest you”. The client has a panic attack, seen on body cam, he then wanders all over his flat while they record the interview on body cam. It is obvious that he is not compos mentis, in fact he has massive mental health issues. He was questioned for cultivation of cannabis, they would not let him adduce duress. He should never have been questioned. CPS view, he made admissions!!!’
No mention of the right to legal advice just the risk of detention for hours.
As State Information technology moves forward Justice Moves backward.
As State Information technology moves forward Justice Moves backward.
At least in the manner in which it is being used by public agencies. Whether this is in the use of Virtual Courts(VC’s) or other courtroom links. Some use of ‘video’ links is helpful e.g. on formal remands to avoid unnecessary production of prisoners. But on other occasions most people in the CJS remain quite rightly sceptical in terms of the fairness of the process. A flickering image on a screen in the VC depersonalising a suspect and reduces justice to the level of a video game. Whereas presence in court enhances the personal connection between the suspect and the court which more readily views the former as a real flesh and blood human in a tense if not distressing predicament.
I am not a Luddite. I love technology. Our firm is state of the art in relative terms in its use of IT. One aspect of criminal justice that I personally welcomed was the recent introduction to the police forces across the UK of Body Worn Cameras (BWC). It seemed to me that it could only enhance justice to see what actually happened upon arrival at a scene of an incident and arrest. Certainly this to some extent has reduced disputes as to what occurred and tedious challenges over ‘verbal’s’ i.e. what was said or not said by a suspect to the police. However I and others strongly feel that the use of BWC is now being misused in a way that we had not envisaged to circumvent the protection of S58 PACE, which introduced the right to free and independent legal advice.
Briefly it should be recalled why this protection was brought in. It came about because Parliament recognised that there was a need to prevent further false confessions and police abuse as took place in cases that discredited our criminal Justice system. The names of the cases are well known and referred to as The Guildford Four, Birmingham Six, Judith Ward, and poignant tragic case of Stefan Kiszko who died shortly after release from prison for an offence science proved he could not possibly have committed.
After the introduction of these PACE protections the situation in police stations at least improved with the concomitant introduction of the Duty Solicitor service. But let us not deceive ourselves that all was perfect because many solicitors become aware after or sometimes before the fact that some police officers use a number of techniques to dissuade suspects from exercising their right to legal advice. The quiet word with the suspect ‘well of course we would like to get this over and done with but if you really want to wait hours for a solicitor to arrive?’ In fact so frequently did this occur that a special amendment to the PACE codes was introduced to specifically forbid this abuse. See para 6.4 of the code:
‘No police officer should, at any time, do or say anything with the intention of dissuading any person who is entitled to legal advice in accordance with this Code, whether or not they have been arrested and are detained, from obtaining legal advice.’
Supplemented by note for guidance 6ZA ‘No police officer or police staff shall indicate to any suspect, except to answer a direct question, that the period for which they are liable to be detained, or if not detained, the time taken to complete the interview, might be reduced’ etc.
Many of us believe that this rule is being circumvented often cynically but possibly in some cases because officers are just not that familiar with the provision (as strange as that may appear). Why I think that some are cynically circumventing PACE has its origins in the improper tactic used by police to abuse voluntary interviews at home or out of the police station. This to deter legal advice by not mentioning that right to suspects. I highlighted this some time ago here: https://www.lawgazette.co.uk/analysis/police-interviewing-loophole-must-be-tackled-urgently/65336.article.
After a short sharp campaign together with my partner Richard Atkinson at the Law Society and Professor Ed Cape we swiftly achieved reform so that these out of police station interviews under caution do now require the offer of legal advice. ACPO were receptive and subsequently introduced PACE code 3.21 B providing this new safeguard (after 2011) for suspects –
‘If they are not arrested but are cautioned as in section 10, the person who gives the caution must, at the same time, inform them they are not under arrest and they are not obliged to remain at the station or other location, but if they agree to remain, they may obtain free and independent legal advice if they want’. Etc.
I have never seen the statistical ‘take up’ of this right that we fought for. It is quite rare for solicitors to receive a call from the call centre (DSCC) asking us to attend a suspect’s home or elsewhere in non-police station location. Again although we recognise suspects understandably would prefer a home interview many of us believe, that probably in breach of PACE Para 6.4 (see above) they are dissuaded from contacting a solicitor because they are told this will involve being taken to the police station to wait (possibly for hours) for a solicitor. By the way a Duty Solicitor is obliged to attend within 45 minutes and it is more usually the police delaying the interview not the solicitor impatiently waiting for the call to attend for interview. That is another issue so I will move on for now.
The addition of the use of BWC as a means of securing admissions is undermining the S58 PACE right to independent free legal advice. As can be seen from the examples given at the top of this piece the issue is real and is an increasing threat to the integrity of the investigative and court process. It is not necessarily motivated ‘at the top’ by a desire to undermine the right of suspects but as the furious Clair Wynn revealed is clearly now part of a growing police culture ‘on the ground’ at local level to achieve exactly that.
Chief Constable Andy Marsh when he announced plans for a pilot project testing the potential use of the technology for interviews outside police station said, at the time, that the pilot should lead to “swifter, fairer and, more importantly, cheaper justice”. Note the expression ‘cheaper Justice’. I don’t think the message has sunk in that justice on the cheap leads to no justice at all because without proper safeguards justice is denied. We are slipping back to the days that led to those horrible miscarriage of justice cases that so disfigured our criminal justice system. Not having legal advice properly available due to police dissuasion renders the PACE codes and the S58 right to it at times useless and inoperable.
Of course people will often consent to a swift interview. Who can blame them? Lawyers may feel that to be a reckless decision by the suspect or their parent if young. But we cannot impose legal advice on a compulsory basis. (Although there is an argument to be had on that with vulnerable suspects) What we can do is to at least ensure the suspect in the street or at home is told about the right to legal advice in accordance with the PACE code change we secured (see above PACE code 3.21 B).
What is chilling is that the use of body worn camera evidence of interviews is planned to become routinely based outside police stations with all its safeguards (initially at least for less serious crimes.). There has recently been concluded (6th December 2017) a consultation into a proposed amendment of PACE (https://www.gov.uk/government/consultations/revising-pace-codes-c-h-e-and-f. This would enable police officers to carry out interviews with suspects away from the police station altogether. That is a very slippery slope in my view.
The thrust of my argument here is that body worn camera interviews are being abused now. The suggestion of making them routine is worrying in the extreme given the problems we now see. This will lead to many more miscarriages s of justice.
What is also astonishing is the marginalisation of the role of (at least nominally) the independent Custody officer who tend to be experienced and at least are supposed to look at the welfare of the suspect. How much effort will a non-independent arresting officer put into that evaluation? How will this impact on the mentally ill? Where is the second independent opinion? Where is the custody Nurse and referral process?
It seems the focus of interviewing suspects is shifting to the streets and the casualties of this are the welfare of the suspect and the right to legal advice. I propose a halt on this extension of the proposed use of BWC interviews until a thorough independent investigation is carried out and reported to Parliament with these matters reported upon.
I also suggest in the meantime that no evidence of alleged consent to be interviewed can be admitted in evidence unless all discussion about access to legal advice is recorded including acknowledgement by the suspect that there had been no off camera discussion about this. That may enhance the protection of PACE somewhat by ensuring as far as possible that no attempts are made to dissuade a suspect from having legal advice by reference to delay in breach of PACE code Para 6.4. That might stop a police officer culture developing or becoming yet more entrenched, (as revealed at the top of this article) where legal advice becomes rarer by the day.
We are heading back to a something of a pre-PACE dark age. We know this is happening. It has to be stopped.
Friday, 23 March 2018