We thought the offer of access to free and independent legal advice to suspects, prior to police questioning, was automatic under the Police and Criminal Evidence Act 1984 (PACE) codes.
This right was introduced to address the many miscarriage of justice cases resulting from police misconduct, including the manufacture of false confessions. However, the most serious and scandalous assault by police upon the rights of suspects since the introduction of PACE is currently being practised. This clear abuse takes the form of conducting interviews at the suspect’s home.
It is seductively attractive to a person frightened of attending a police station to agree to an interview being conducted at home. At the police station, when cautioned before an interview, a suspect has to be told of his right to consult a lawyer, whether under arrest or if attending as a volunteer (code C paragraph 3.21). Unscrupulous officers are exploiting a gap in the PACE codes because there is no corresponding obligation on the police to remind a suspect who is interviewed away from the police station. What then follows is a written account (no electronic recording safeguard) of the interview signed by the suspect who is then reported for summons.
I have been contacted by other solicitors with examples of vulnerable suspects interviewed at home without appropriate adults. This clear abuse is less likely to occur at a police station if a solicitor or even the custody sergeant is able to intervene. The Criminal Law Solicitors Association (CLSA) has collated evidence of these incidents and, of course, individual firms are challenging instances to establish unfairness under section 78 of PACE. There has been a positive government response to this problem following pressure from the Law Society and CLSA. Hopefully this practice will now stop in anticipation of a promised change in the codes and, I would argue, the forthcoming change will be very persuasive in arguing section 78 unfairness in current cases where this attempt to circumvent the right to legal advice has occurred.
This brings me on to the hot topic of European law and access to justice as a basic human right. The Home Office has wisely learned some lessons by moving so swiftly to prevent this abuse by agreeing to a change in the codes. The alternative to change would have resulted in not just repeated challenges in our courts, but potential humiliation at a European level. It will be recalled how chaotic a scramble it was to bring Scotland in line with the rest of Europe by urgently implementing the right to legal advice at the police station when its absence was ruled unlawful by our Supreme Court (Cadder v HM Advocate). That left open the question of whether this right extends to interviews outside the police station. This question is now before the European Court of Human Rights (ECtHR).
Although it is fashionable on radio phone-ins and in the popular press to castigate the ECtHR, it should be remembered that our Supreme Court simply followed the Turkish case of Salduz v Turkey  49 EHRR 421 in holding that the prosecution’s reliance on admissions made by an accused without legal advice gave rise to a breach of the right to a fair trial. It was the ECtHR that led the way on upholding this important safeguard to our liberties.
The government has acted with commendable decisiveness on this occasion, but it has sent an appalling signal to the police by declining to opt into the new draft directive of the European Parliament and of the council on the right of access to a lawyer. This draft under proposed article 3 reflects ECtHR jurisprudence. This has established that a suspect must be offered the assistance of a lawyer at the initial stages of police interrogation (wherever occurring) and free of charge where there is no ability to pay. It was shameful for the government to recently attempt to row back on the availability of free legal advice. Police misbehaviour demonstrates how necessary legal representation remains.
Robin Murray is a criminal solicitor and founding partner at Kent firm Robin Murray & Co. He is a member of the Criminal Law Solicitors Association national committee