Our first Working Party report in Scotland was published on 7 June 2018. Chaired by the Rt. Hon. Lord Eassie, the Working Party focussed on the uptake and provision of legal advice during police detention. The report concludes that the importance of legal assistance during police detention needs to be better understood, not only by suspects but also by the solicitors tasked with providing that assistance. The nature of the criminal justice process has been changing and cultural shift is required in order fully to realise the importance of this early stage in that process.
Practitioners have long considered that the safeguards for vulnerable suspects within the Scottish system are inadequate. However, the impetus for the Working Party came from the evidence collected by the Bonomy Review on the provision of legal advice to suspects.
A number of explanations for the high level of waivers have been suggested: the belief of suspects that they will be kept longer in custody; the complexity of the Solicitor Access Recording Form; the financial contribution required of some suspects; or efficiencies or ploys by the police. These are, however, largely speculative and unsupported by research.
If suspects do seek legal advice, data from the advice line operated by the Scottish Legal Aid Board suggests that the majority receive this over the telephone. Few solicitors actually attend at the police station to assist their client. The Law Society of Scotland issued guidance for members last year on giving advice in police detention, but there is no comprehensive training programme available on the role of advice at this stage.
It is against this background that JUSTICE considers that there is value in examining the reasons behind the high waiver rate and the quality of the advice and support provided to individuals in police custody. Our Working Party is well placed to examine and report on this area and, importantly, produce practical recommendations capable of implementation. We intervened in the Scottish case of Cadder v HM Advocate in the UK Supreme Court in 2010, which brought the right to legal assistance into being and jointly conducted research on how rights are provided in police custody in four jurisdictions including Scotland. We have long advocated the importance of legal advice during the early investigative stage. We now seek to ensure that the right is effective in practice.
The Working Party
Working Party members were drawn from academia, legal practice, Police Scotland and the Crown Office Procurator Fiscal Service. The strategic aim was to examine the current processes by which advice is provided to suspects and to present recommendations to increase their effectiveness. The Working Party was administered by JUSTICE staff, in particular Legal Director Jodie Blackstock. With the assistance of Lloyds Banking Group and Pinsent Masons, the Working Party comprised of solicitor, advocate and academic JUSTICE members in Scotland, as well as police and prosecution experts:
- The Rt. Hon. Lord Eassie (Chair)
- Chief Inspector Alexander Brodie
- Professor James Chalmers
- Jim Cormack, solicitor advocate
- Liam Ewing, solicitor advocate
- Fraser Gibson, Procurator Fiscal
- Professor Pamela Ferguson
- Gordon Martin, senior solicitor advocate
- Niall McCluskey, advocate
- Tina McGreevy, solicitor
- Derick Nelson, advocate
The Working Party had three sup-groups to look at:
1) Notification of rights and why suspects decline legal assistance
2) Organisation and quality of legal representation
3) Comparative review from other jurisdictions to identify good and bad practice
The report concludes that the importance of legal assistance during police detention needs to be better understood, not only by suspects but also by the solicitors tasked with providing that assistance. The report confirms that 70% of suspects in Scotland still continue to waive the right to receive legal assistance at the police station, seven years after it was introduced, and six months after recent legislation re-affirmed the right. Moreover, of those who request legal assistance, only around 25% receive this in person at the police station and during police interview. This means that solicitors are providing telephone advice, but far less often, personal attendance at the police station.
The report makes 17 recommendations seeking to improve informed and effective exercise of the right to legal assistance.
This should start with making information available to the public, as well as clear and simple notices to communicate the rights available to suspects in a way they will understand. A key recommendation is that personal assistance by solicitors should be standard. Face to face consultation and the presence of a solicitor during the police interview to represent the client’s interests are important, if not essential, safeguards. Currently, many solicitor practices are not organised to enable this. Nor are most solicitors suitably trained for this broader role. The report concludes that with innovation, skill-based training and appropriate legal aid funding, solicitors can both be properly equipped to carry out this important role and make profitable business out of this work.
Already, we have received interest in the report, and a commitment to implement our recommendations from many of the relevant bodies that can effect change. As a result of our work, Police Scotland has significantly improved the way it informs the right to legal assistance, the Law Society is developing skill-based training and Scottish Government is looking to improve public information on rights in police custody.
Lord Eassie, Chair of the Working Party, said, “Much useful work to facilitate the right to legal assistance in the police station has already been undertaken – not least by Police Scotland, the SLAB Solicitor Contact Line and by solicitors in responding to a broadening role. Nevertheless, the take up of the right is far lower than it should be. The nature of the criminal justice process has been changing and cultural shift is required in order fully to realise the importance of this early stage in that process.”
Chair of JUSTICE Scotland, Shelagh McCall QC, said, “JUSTICE intervened in Cadder v HM Advocate, the UK Supreme Court case which brought the right to legal assistance into being and jointly conducted research on how rights are provided in police custody in four jurisdictions including Scotland. JUSTICE Scotland has long advocated the importance of legal advice during the early investigative stage. This timely report now seeks to ensure that the right is effective in practice.”