Legal advice and waiver in police detention


Our first working party in Scotland is up and running. Chaired by the Rt. Hon. Lord Ronald David Mackay Eassie, it is focussed on the uptake and provision of legal advice during police detention. With the assistance of Lloyds Banking Group and Pinsent Masons, the Working Party comprises ten legal professionals: Richard Blann, Chief Inspector Alexander Brodie, Professor James Chalmers, Jim Cormack, Liam Ewing, Fraser Gibson, Professor Pamela Ferguson, Gordon Martin, Niall McCluskey, Tina McGreevy, Derick Nelson and Ronnie Renucci. The Working Party is supported by JUSTICE staff, in particular Legal Director Jodie Blackstock.

The challenge

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. Police Scotland confirmed that a startling 75 per cent of suspects waived the right to legal advice prior to police interview. In expressing its concern at this development, the Review noted that the corresponding figure from England was 55 per cent.

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 are drawn from academia, legal practice, Police Scotland and the Crown Office Procurator Fiscal Service. The strategic aim is to examine the current processes by which advice is provided to suspects and to present recommendations to increase their effectiveness. Evidence will be taken from relevant individuals and a report produced.

The recommendations of the Working Party will seek to:
• Increase the number of suspects seeking legal advice through informed decision making; and
• Increase quality legal representation, where it is required, at the police station

The Working Party has 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