Ed Cape explains why moves to extend CDS Direct will jeapardise the right to legal advice at police stations


Twenty-one years ago, the Police and Criminal Evidence Act 1984 (PACE) came into effect, introducing for the first time a statutory right to legal advice for all suspects at police stations. This was on the recommendation of the Royal Commission on Criminal Procedure that was set up following the notorious Confait case, in which three young people were wrongly convicted of murder on the basis of flawed and improperly obtained confessions.



Section 58 of PACE gave, and still gives, all persons arrested and held in custody at a police station a right to consult a solicitor in private at any time. Recognising that a right is of no value if it cannot be exercised through lack of money, a non-means-tested legal aid scheme was introduced at the same time. Coupled with the other provisions of PACE, legal advice has played a major role in developing a fairer criminal justice system, improving police conduct and reducing allegations that the police have obtained confessions and other evidence by illegal or unfair means. About half of suspects detained at police stations now ask for legal advice.



These major advances will be put in jeopardy by a scheme to be introduced by the Legal Services Commission (LSC) in January 2008, which is designed to save £6 million per year, or just 3% of annual expenditure on police station advice. Known as CDS [Criminal Defence Service] Direct, it will mean that any person arrested and detained for a non-imprisonable offence, on a warrant, or for certain drink-driving offences, and who cannot pay privately, will not be able to choose their lawyer, and will have to be satisfied with telephone advice from a CDS Direct call centre adviser who is unlikely to be a solicitor.



The scheme provides for a number of exceptions, such as where there is to be a police interview or identification procedure, or where the suspect is a juvenile or mentally vulnerable, or complains of serious police maltreatment, in which case a lawyer may visit them in person. Incredibly, this decision will not even be made by a CDS Direct adviser, but by a duty solicitor call-centre operative who has no legal training or experience.



Viewed superficially, it might be thought that, given the small range of offences covered by the CDS Direct scheme, the impact will be limited. This would be to ignore the history of ‘initiative creep’ in the sphere of criminal procedure: offences being reduced to summary-only to deny the right to jury trial, the increase in offences covered by the ‘penalty notice for disorder’ policy, the incremental increase in the nature and scope of police powers to stop and search, arrest, take fingerprints, photographs, and samples, and so on. However, it would also be to ignore some fundamental consequences for all people arrested and detained by the police.



When the CDS Direct scheme was first piloted, it applied mainly to duty solicitor cases, where historically there was a tendency to provide telephone-only advice more often than in own-solicitor cases. That pilot was never independently evaluated. The consultation on the new scheme gave only six weeks for responses and, as the LSC admits, ‘the tone of the comments was largely negative’. There were 135 responses and only seven were in favour of the proposal.



Yet, as the LSC’s own final response to the consultation makes clear, the majority are to be ignored. Since the scheme will require changes to PACE Code of Practice C, the Home Office also embarked on a consultation on the revisions at the end of September 2007, giving less than a month for responses, and limiting circulation to the police, the Bar Council, the Law Society and the Institute of Legal Executives. It was only by chance that others concerned by it came to know of its existence. The new scheme is to be piloted in three police force areas – Greater Manchester, West Midlands and West Yorkshire – before being rolled out nationally on 21 April 2008. This gives three months for the pilot to be conducted and evaluated and for any changes to the scheme, and to Code C, to be made. This is an unrealistic timetable.



A wholly unsatisfactory element of the CDS Direct scheme is that it requires custody officers to ascertain from all suspects who want legal advice whether they intend to pay for it privately. Research evidence following the introduction of PACE showed that the police used a variety of ploys to discourage suspects from seeking legal advice, one of which was leading suspects to believe that it would be expensive or that it would lead to longer detention. This led to amendments to Code C designed to ensure that suspects knew that legal advice was free. The new scheme will discourage suspects from seeking legal advice in particular because, depending on how the question about payment is put to suspects, many are likely to believe that legal advice is dependant on payment.



The proposed revisions to Code C give no clear guidance on how officers should approach this task, which is far from straightforward. Most suspects will not know what the cost of paying privately would be. How is a custody officer to respond if asked to advise on possible cost? How will the custody officer know if the nominated solicitor would be willing to act on a pro bono basis? What is the custody officer to do if the suspect indicates that they will pay privately, even though it appears that they would be unable to do so? What is to be done where a suspect does consult with a private solicitor, by telephone or in person, and it transpires that they are unable to pay privately but still wish to have legal advice?



If the suspect cannot, or does not intend to, pay privately, the scheme requires the custody officer to contact the duty solicitor call centre, which, as noted earlier, will then decide whether the case comes within the CDS Direct scheme. If it does, they will contact CDS Direct, but if it does not, they are to contact the nominated solicitor, assuming that this information has been provided. In addition to the fact that a call centre operative is not qualified to make such a decision, they will make it by speaking to the police and not the suspect. So, for example, a suspect who is entitled to consult with their own solicitor because they complain of serious police maltreatment will have to rely on the custody officer passing this information to the call centre.



While the scheme may save the LSC money, it will almost certainly increase both cost and aggravation for the police. Even if the system works as intended, where a suspect is not paying for legal advice, the initial call will have to be made to the duty solicitor call centre, which will, if the case is covered by the scheme, pass on the request to CDS Direct. If, as will often be the case, the matter is such that a private solicitor has to be contacted (because the case is not limited to telephone advice), that solicitor may well need to contact the police and/or ask to speak to the client on the telephone before attending in person.



In addition, custody officers may have to spend time explaining (or doing their best to explain) to a suspect why they cannot speak to their nominated solicitor, and to deal with expressions of distress or dissatisfaction that will no doubt follow in the case of some suspects, which may lead to them being unco-operative in any police interview or other procedure conducted.



In addition to the problems of how the scheme will work in practice, there is an even more fundamental objection to it. Section 58 of PACE gives a right to a suspect to consult with a ‘solicitor’. ‘Solicitor’ is defined for the purposes of Code C as including a solicitor’s representative, but historically this was directed at ensuring that where a representative attended a police station on behalf of a solicitor, they were treated no less favourably than a solicitor. It is not authority for asserting that an arrested person does not have the right to consult with a solicitor as opposed to a legal representative. The Solicitors Act 1974 makes it clear that a solicitor is a person who has been admitted as such and whose name is on the roll, and that a person who does not satisfy those conditions must not pretend to be, or represent themselves as, a solicitor.



The CDS Direct scheme does not provide any assurance that a suspect covered by the scheme will be able to consult with a solicitor, as opposed to a representative. This concern is exacerbated by the fact that at least one of the contracts let by the LSC for provision of CDS Direct services – yes, contracts were agreed even before the consultation process was completed – is with an organisation that employs only representatives and not solicitors, and by the fact that most people staffing CDS Direct will be representatives.



The CDS Direct scheme is wrong. It is arguably unlawful and the police, in insisting (in accordance with Code C) on contacting a call centre rather than a solicitor, risk judicial review or the exclusion of evidence. Although the scheme, initially at least, is limited to minor offences, all suspects will be affected and it risks destroying the right to legal advice at the police station for very limited financial gain. It is not too late to think again.



Ed Cape is professor of criminal law and practice at the University of the West of England, Bristol, and a former member of the Law Society’s criminal law committee