At 9.37am on the Friday before Christmas, the display screen in the middle of the open-plan office indicates that 287 calls from police stations have so far been answered.

It is the job of the Defence Solicitor Call Centre (DSCC) in Purley, Surrey (the DSCC’s other site is in Hinckley, Leicestershire), to route these calls concerning the fate of detainees from police stations up and down the country either to the CDS Direct helpline, or to a law firm to send a real, live solicitor to the police station.

‘The morning after the night before can be fairly busy,’ reflects Robert Preston, one of 10 ‘call loggers’ on the early shift. He takes his next call at 9.43am, which is passed on to CDS Direct. It is a breach of bail. His computer tracks the case’s progress and that of all other calls. We see that CDS Direct rings the police station two minutes later, but the line is engaged (as they often are). The system triggers calls at 20-minute intervals until someone picks up. This happens at the next attempt – 10.08am. Later, the adviser on CDS Direct discovers the case is more serious – a section 18 wounding – and a local defence lawyer is duly dispatched.

CDS Direct has been providing telephone advice to clients detained at police stations since 2005, when it was set up to work alongside the DSCC. Both entities are funded by the Legal Services Commission. It covers less serious offences such as drink-driving, non-imprisonable offences and breach of bail. Three firms – Nottingham-based defence firm Johnson Partnership, O’Garra’s in Leeds and, controversially, Bostalls, a police station representatives’ agency in London – won the tender to provide the service in July 2007. Bostalls had to apply for a waiver of Solicitors Code of Conduct rules from the Solicitors Regulation Authority to employ solicitors to field incoming calls to CDS Direct. Until April 2008, the service only related to cases where the suspect requested a duty solicitor but now, again controversially, it covers ‘own client’ cases – even when a client nominates a solicitor, their request is routed first to a CDS Direct adviser.

The service is contractually obliged to answer 95% of calls from police stations within five seconds. John Sirodcar, director of national accounts at the LSC, reckons the average response rate is just two seconds. If a duty solicitor is needed, the first call to a panel member has to be made within five minutes.

‘Friday and Saturday night are two or three times busier than, say, Tuesday afternoon,’ says Sirodcar. ‘Other than that, the peaks are school holidays, where there are a lot more arrests, England football matches and rugby matches, now that they’ve started showing them in the pubs, Notting Hill Carnival, and when the pubs kick out.’

For a visitor, the DSCC, which shares a building and is run by staff at legal expenses insurer FirstAssist, is as unexciting as any call centre. But its role in the criminal justice system is proving hugely controversial. In November 2008, the government was accused of ‘collective amnesia’ over the roll-out of DSCC/CDS Direct and the apparent failure to acknowledge the protections required by law for detainees in police stations. In a damning report by legal academics Lee Bridges and Ed Cape, it was argued that CDS Direct was of ‘questionable legality’ under domestic law, as well as possibly contravening the European Convention on Human Rights.

Under section 58 of the Police and Criminal Evidence Act 1984, any person under arrest and held in custody in a police station or other premises is entitled on request to ‘consult a solicitor privately at any time’. The Bridges-Cape report (CDS Direct: Flying in the face of the evidence, published by the Centre for Crime and Justice Studies at King's College London last year) argues that this universal right has been ‘undermined’ by the introduction of the service, which was piloted in October 2005 and went national in April last year.

‘The first objection we now have is, apart from a few oddities, if a suspect asks for advice at the police station neither they nor the police can contact that lawyer. That seems to be wrong in principle,’ says report co-author Professor Ed Cape. ‘Also, section 58 says you are entitled to consult a solicitor, whereas CDS Direct doesn’t offer solicitors.’ The CDS Direct phones are manned by paralegals. It should be said, however, that the quality of the case-handling appears to be very good, if files the Legal Services Commission offered up for inspection are to be taken as representative (see box).

Cape reckons that, even in a straightforward drink-driving case where a suspect might be willing to pay privately, detainees could go through ‘six stages of referral’ before they can speak to their lawyer.

‘You are faced with this long chain of communication, where the call goes to the DSCC call centre and then if it’s a CDS Direct case it goes there, but if they then decide it’s not appropriate having spoken to the person – for example, the person is mentally disordered – they then have to refer it back to the DSCC,’ he explains. The schemes may save a small proportion of the legal aid budget but, Cape asks, at what cost to access to justice?

According to Sirodcar, CDS Direct saves the taxpayer around £8m a year. The service handles approximately 11,800 cases a month. ‘Private practice would cost us £30.25 a call. We’re getting £18 or £19. That saves us £1m, and the rest of the savings come from the lawyers who used to have to go to a station and now don’t.’

Many of the concerns raised in the Bridges-Cape report are shared by the profession. In October 2008 the Law Society wrote to the Ministry of Justice calling for a ‘full and independent review of the operation of both schemes, with all options, including the possibility of abolition’.

The report pulls no punches. It claims variously that the pilot for CDS Direct was ‘never evaluated independently’, that ‘spurious’ targets were established, public consultation ‘shamelessly abused’ and opposing views ‘simply ignored’. It goes on to say that the ‘barely veiled underlying intent’ of the reforms is ‘to place a cap on any further expansion in the take-up of the right to custodial legal advice’. The academics reckon that to a government, and ‘increasingly an LSC’, that viewed criminal justice ‘only in terms of its efficiency in delivering convictions’, such a reversal of policy as the introduction of telephone advice has become commonplace.

Andrew Keogh, vice chairman of the Criminal Law Solicitors Association and a partner at Wigan-based firm Keoghs, admits to being ‘taken aback by the strength of criticism and the language used’. But, he says, ‘it has confirmed what everybody was screaming about for some time'.

Cape fears that telephone advice represents the thin end of the wedge. ‘We see this as a mechanism for trying to control police station legal aid expenditure if either demand for legal advice at the station or pressure on legal aid expenditure increases. That is likely in the current financial crisis.’

Sirodcar points out that the offences covered by the scheme are in the code for the Police and Criminal Evidence Act 1984 (PACE), and so any expansion of the scheme could not be introduced administratively by the LSC. But, he adds, ‘it is reasonable to assume that the government at any time can choose how to spend its money’.

The Law Society has come to the position of ‘accepting, albeit not particularly happily’, the role of CDS Direct to deal with duty solicitor telephone only calls, says the Law Society’s legal aid manager Richard Miller. ‘However, the whole infrastructure of [using] the DSCC to filter off "own solicitor" cases is just a monstrous bureaucracy that’s seriously getting in the way of advice that they need when they are getting arrested.’

Under the old system, if someone requested their own solicitor, the police would ring the solicitor. ‘What happens now,’ says Miller, ‘is the police phone the DSCC, which means that first of all there’s delay in getting in touch with the solicitor. Once the solicitor has been contacted by the call centre they then have to phone into the police station.’ Reports from practitioners suggest it can be ‘hellishly difficult’ to get the police to answer the phone. ‘We are hearing that anything like a quarter to a half of calls are being answered,’ he says.

On this point the LSC and the profession agree. ‘The worst police stations are getting close to not answering half the time and the best don’t answer 10-15% of calls,’ says Sirodcar. He points out that solicitors could be better at picking up too. When it comes to contacting a duty solicitor, the DSCC ‘on average’ makes two-and-a-half calls per case.

Miller cites ‘growing anecdotal evidence’ that the police are ‘encouraging people not to wait for the solicitor’, which is ‘putting a lot of undue pressure on clients to proceed without a solicitor present’.

‘If you get miscarriages of justice at a low level they can have a really corrosive impact on the justice system, because it is low-level offences that anyone can find themselves down the police station for,’ he says.

This is not to say CDS Direct is the rottenest apple. Tony Edwards, a senior partner at TV Edwards and former legal services commissioner, believes the profession has ‘more important fish to fry’ than CDS Direct. ‘At the correct level it is well-suited. They’re actually providing a better service than private practice.’

But Cape disagrees. He admits to a certain amount of frustration that concerns about such an important part of the justice have been overlooked. ‘Traditionally, it always used to be the court that was the centre of the process, but in many respects it is the police station now.’ The professor flags up the increasing ‘diversions from prosecution’, such as the use of cautions and fixed-penalty notices, as well as police attitudes towards bail – all determined in the station. He also highlights two European Court of Human Rights cases at the end of 2008 which ‘found for the first time the right to a fair trial under article 6 involved having a lawyer give advice to a suspect before they are interviewed by the police’ (Salduz v Turkey [2008] ECHR 36391/02 [Grand Chamber] (27 November 2008), and Panovits v Cyprus).

When it comes to the dilution of PACE, Cape is critical of the solicitors’ role. ‘It was a mistake of the profession historically to use non-qualified staff at the end of the 1980s in its response to PACE,’ he says. It is a point that Keogh picks up. ‘A problem is that the profession does not bear scrutiny very well on the issue of a right to see a solicitor, because with some firms you never see a solicitor at the police station – you only see a rep,’ he says. ‘By making a noise about section 58 rights, the profession has to be careful that it might get a victory that we do not want.’

Miller reckons these arguments about solicitors’ use of reps can be ‘overstated’. ‘The case is in every situation under the direct responsibility of a fully qualified solicitor,’ he insists. ‘The representative is answerable to the solicitor. He will report to the solicitor the following morning. The solicitor will then take on that case if it goes anywhere, so there is direct input at every step. You just do not have that with CDS Direct, with a bank of paralegals.’

The LSC provided nine randomly selected CDS files selected at the request of the Legal Action Group to assess quality. ‘There are issues of principle that are of concern about the growing use of telephone advice in the police, and the Bridges-Cape report squarely nails those,’ says LAG director Steve Hynes. ‘On a practical level, we are concerned about the quality of the telephone advice and how useful and objective it is perceived to be by detainees.’ Defence lawyers Andrew Keogh and Tony Edwards reviewed the files for LAG. Keogh found ‘some minor issues, but taking the sample as a whole, the quality is extraordinarily high’.

‘If they are a true sample, they are truly impressive and working at a standard far above anything that private practice would or indeed, for the fee, could do,’ says Edwards; ‘superb outcomes that I know I would not have achieved if I had conduct of these matters, and I very much doubt many others would have either,’ agrees Keogh.

Edwards found in the sample ‘just one error of law where the adviser needs updating on new prison recall rules under the Criminal Justice and Immigration Act’.

‘On the basis of this sample, I would be strongly opposed to the return of this work to mainstream practice,’ he says.

Jon Robins is a freelance journalist and director of campaigns for LAG