Introduction

Section 58 was introduced on the recommendation of the Royal Commission on Criminal Procedure, and established basic safeguards and protections for those detained at police stations, giving them the right to consult a solicitor in private at any time. It took a serious miscarriage of justice – the Confait case – to prompt this realisation of the importance of the provision of access to legal advice from a solicitor to those in custody1.

‘CDS Direct’

In January 2008, the Legal Services Commission intends to expand the ‘CDS Direct’ telephone advice scheme, which is designed to save £6 million per year, or just three per cent of annual expenditure on police station advice. The Home Office has recently consulted on changes to PACE Code C that will be required in order for the expansion to go ahead.2.

CDS Direct has been piloted since October 2005, and provides telephone advice to people detained in the Police Station. It is restricted to cases where a person has been:

• detained for a non-imprisonable offence,

• arrested for failing to appear in court

• arrested on suspicion of driving with excess alcohol (failure to provide a specimen, driving whilst unfit/drunk in charge of a motor vehicle), or

• detained in relation to breach of bail conditions.
  

The largest of the organisations selected to provide the CDS Direct service after January 2008 is a non-solicitor agency – Bostalls - which the Law Society understands has employed an unknown number of solicitors to supervise the accredited representatives who will provide the advice direct to the public.

Bostalls has recently applied for and been granted a waiver by the Solicitors’ Regulatory Authority from Rule 12.01(1)(f). The waiver permits in-house solicitors to provide legal services other than to their employer or as permitted by rule133

Concerns have been expressed by the Law Society that this arrangement represents a pre-emption of the development of alternative business structures (ABS), which will be set up under the Legal Services Act 2007. The service would be provided by a commercial organisation that is wholly unregulated, even though a limited number of employees of the organisation may be regulated. Until the necessary regulatory regime to support the development of ABSs has been put in place, there will be significant risks involved in the provision of legal advice by an organisation run and almost entirely staffed by non-solicitors.

Own Client work

The expansion of CDS Direct heralds a fundamental and worrying erosion of the link between solicitors and their clients, with the inclusion in CDS Direct of ‘Own Client’ advice for the offences listed above. In other words, a client’s request to speak to their own solicitor in one of the specified cases will be declined and will be routed to a CDS Direct adviser instead4.

A client’s right to choose their own solicitor is a fundamental and important one. Even the LSC acknowledges the importance of client choice in helping to maintain quality of service. Solicitors have built up relationships with clients often going back over many years, and the numerous benefits to cases being dealt with by a solicitor with previous knowledge of the client will be lost if this proposal goes ahead.

Private clients

Another aspect of the proposed expansion is that all requests for publicly funded advice will be routed through the Defence Solicitor Call Centre (DSCC), but that requests for privately funded advice will continue to be passed to the solicitor by the police.

Whilst the Commission asserts that such requests will ‘remain unaffected’, this is in fact unlikely to be the case. Under the proposed new system, the police will have to ascertain first of all whether the client wishes to pay privately, before they know whether they should phone the client’s solicitor or not. Code C of PACE includes amendments that were specifically aimed at ensuring that suspects knew that legal advice in the police station was free. The proposed scheme is likely to discourage suspects from seeking legal advice in particular because, depending on how the question about payment is put to suspects, many may believe that legal advice is dependent on payment.

There has been no guidance produced as to what the custody officer is to do if the suspect indicates that they do not know whether they can afford to pay privately. The effect of the proposed changes is to remove the client’s opportunity to negotiate a fee with their solicitor, or even to speak to the solicitor to ascertain what the fee is likely to be, and what part of the case may be covered by the fee.

There will also be cases where a solicitor may wish to provide pro bono advice to a client in the police station, or when a third party is paying for the advice. There is nothing in the proposed scheme which provides for this.

Finally, and perhaps most significantly, if the call centre cannot get hold of the nominated solicitor, the duty solicitor will be sent instead. Because of changes to the criminal contract, the client will then be unable to change to their own solicitor throughout the duration of the investigation, even if that lasts many months. For the LSC to introduce such a significant interference with a client’s choice of solicitor on the back of what purports to be a mere technical administrative change, and with Parliament having had no input into the decision, seems extraordinary.

Section 58

Recent weeks have seen a flurry of questions flying around regarding the structure of CDS Direct, and its relationship with the requirement in Section 58 of PACE, that any person detained by the police should have the right to consult “a solicitor”. Who is the solicitor who has conduct of a matter on behalf of the client, when the solicitor has not spoken to the client? Does the solicitor discharge his/her professional responsibilities merely by being available should an unqualified clerk decide to refer the case up? And is this issue affected at all by the supervising solicitor being an employee in an unregulated non-solicitor organisation rather than being in a regulated firm of solicitors?

From the information provided to the Society so far, the relationship between the accredited representatives providing the advice under the CDS Direct scheme and any supervising solicitor(s) is unclear; in particular any lines of accountability for the advice provided by the CDS Direct representative.

For the arrangements under CDS Direct to satisfy Section 58 of PACE, provision must be made for detainees to have access to advice from a solicitor should they so request. On paper, the arrangements appear to meet this requirement, but the Society has concerns about whether the theoretical safeguards are present in practice. If and to the extent that the service is provided by unregulated commercial providers, there is no independent means of verification.

Conclusion

The knock-on effects of what at first sight appears to be merely an extension of the existing system for telephone advice in the police station may have profound constitutional implications. There is a serious risk that many detained persons may be denied their right to legal advice, and the protection for detained people introduced by the Police and Criminal Evidence Act will be significantly undermined.

PACE was introduced in order to safeguard the rights of detainees to access legal advice. By involving the police in discussions about the funding of the suspect’s advice, and by denying suspects their choice of solicitor on the basis of pure chance as to whether a Government bureaucracy can contact a named individual within a short period of time, these proposals are in danger of undermining the principles on which PACE was founded.