Law Review: Guest Post by James Vine, barrister, on Clause 12

Clause 12
James Vine, Barrister
Author: The Bung Blog

Clause 12 of LAPSO has already, and rightly, raised the proverbial storm of protest from all corners of the criminal justice community.
There is universal concern at the ConDem’s attempts to reduce, if not eradicate, legal aid for representation of arrested persons in police stations.

BUT THERE IS ANOTHER CRUCIAL ISSUE THAT HAS NOT YET BEEN RAISED ANYWHERE AS FAR AS I CAN SEE.

One thing is very clear. This is NOT about lawyers protecting their own interests. In fact it could be said that if Clause 12 is responsible for reducing the legal aid spend on police station attendance, (which is presumably the reason for passing it in the first place) then lawyers stand to make MORE money rather than less, as they will be able to charge a fee significantly higher than the legal aid rate.

So when Ken Clarke (or the boy Djanogly) tries his usual distractionary bluster by claiming this is all about lawyers looking after themselves, we all know that he is being err… “Economical with the actualite”. (That means what the other Clarke, Alan, meant it to mean Ken.)

So what is it that gets me agitated enough to type a whole sentence in block capitals?
It is simply this.

If a defendant is in custody in a police station accused of crime, they are going to be interviewed by police about that crime.

If they fail to answer questions in interview, or fail to say something in interview that they subsequently rely on in court (in evidence or cross-exam of a prosecution witness) then the jury may be directed that they may draw an adverse inference, i.e. hold it against them.

A defendant is likely to be an amateur interviewee. A police officer is a trained professional and knows in advance what he/she is going to ask. What evidence he has up his sleeve and just as important, what he does not.

Those ignorant of the complexities of the issues usually chip in at this stage with a remark like, “well the defendant knows what he’s done, so why be afraid of answering questions if he’s innocent.”

We’ll come back to that canard later on.

This “crucial” point has its origins in the case of Condron. The defendants there argued all the way to Europe, that if they were advised by a solicitor to remain silent, then no judge could ask a jury to draw an “adverse inference.”

Not so said the court, a defendant can listen to a solicitor’s advice, and decide whether or not to accept or reject it. It’s the defendant’s choice.

The practice now is usually this, based on the authorities I have cited below.

If a defendant is awaiting interview in a police station, and has a solicitor present, the police should (not must) give advance disclosure to the solicitor of the nature of the evidence they have, and a general scheme that the interview will follow. They don’t have to do so in full, and they can try and do it bit by bit. They can even try not to give any disclosure at all, but this is very likely to backfire on them for reasons we shall see below. (R –v Roble)

 

BUT they give this disclosure so that the solicitor can give effective advice to the client on whether or not to answer questions, and if so, how.

NOW THE BLOCK CAPITALS BIT.

If there is no solicitor to give advice to the defendant on what has been disclosed, then THE POLICE DO NOT GIVE DISCLOSURE TO AN UNREPRESENTED DEFENDANT.

What this means is that the unrepresented defendant is at a double disadvantage.

No legal advice, and no idea what is coming.

“Well he knows what he’s done so what’s he got to be afraid of?”

He knows what he’s done, but quite genuinely might not know if it is an offence, or equally might not know that something he has done or said could be relevant to the existence of a lawful defence. In both cases without legal advice, he may fail to mention something of vital importance to his case simply because he has not had proper advice which would have told him how important it was.

The police officer is not there to explore the full ambit of his defence case, and will not do so. He may well finish the interview with the usual “is there anything else you want to tell us?” but that is not enough for someone who is genuinely ignorant of the law.
If he has not had proper disclosure, he may well not be aware, if it be the case, that in fact the police investigation lacks vital evidence, without which they have no case. A solicitor would be able to probe and recognise this, and advise his client that it was not for him to provide evidence against himself, thus plugging the gap.

We live in the real world. We know that police officers are not above “remarking” to defendants already, that if they want a solicitor, they might have to wait for hours for one to get there, thus delaying the interview and therefore prolonging the stay in the police station. Of course the thought that this might persuade the defendant to proceed without a solicitor never enters their head. Ever!

The other issue is this, and it’s one that is going to cause concern to a lot of Custody Sergeants.

Time and again they must be asked the same question when they ask if a defendant wants a solicitor. “well what do you think I should do officer?”

The answer will always be the same. “I can’t give you legal advice.”

There is no-one to tell the defendant that if he has a solicitor, he is more likely to get pre interview disclosure, which is a major factor in the decision.

There is also a massive incentive for the slightly unscrupulous officer who knows he has a weak case which he is hoping to bolster up in interview without a solicitor’s advice, to try to hint at the advantages of going ahead without a solicitor.

Who is going to brief the civil servant to whom the telephone application for legal aid is made, at 3am? The officer.

Is the briefing going to be accurate? Is it going to be recorded? Is the civil servant going to question or test it? Will he care? What balanced input, if any, can the defendant have on the making of this application?

If there is any force at all in the Article 6 “Equality of Arms” argument, then Clause 12 makes a mockery of it.

Has anyone in parliament suggested yet that clause 12 is potentially incompatible with Article 6? Maybe they should.
PACE was introduced to provide safeguards on both sides, to protect police as well as defendants, and introduce a balance between the two sides.

Clause 12, if it leads to a significant reduction in representation at police stations, which it is bound to do, removes that balance.
The inevitable conclusion is a dramatic rise in miscarriages of justice and many more appeals to the Crown Court or Court of Appeal, which the MoJ will have to pay for.

If you want to save money Ken, keep legal aid for police station work!
———–
If anyone doubts my cynicism as to the day to day approach of police to this topic, they need only look at the link below to a discussion thread started by a police officer who posed this question:

http://www.ukpoliceonline.co.uk/index.php?/topic/23945-disclosure-pre-interview/

Hi everyone. With regards to disclosing evidence to the defence before interview, what are the legal requirments? I tend to tell them everything but sometimes I wish I didn’t. If I know the legal grounds for it then I’ll do it. Just don’t want to do it and then be asked by the defence is to why I didn’t tell them.

And then we can look at some of the answers from officers only interested in seeking justice:

Many briefs forget disclosure is at our discretion largely so don’t be bullied into revealing more than you want to. Try dropping the odd bombshell in interview, its great watching their reaction when its really devastating.

But you also get more sensible ones which demonstrate how useful to both side pre interview disclosure is:

For me it often comes down to the brief. If I know it is someone sensible and I’ve got a full deck of cards then I’ll show them all, as I expect then it’s more likely I’ll get a full and frank admisssion and save the criminal justice system and everyone involved a whole load of time, expense and effort.

So even some sensible police officers themselves can see the benefit of legal advice in a police station to all sides.

“Save a whole load of time expense and effort…” (Are you listening Ken and Jonboy?)
———
What about the law?

The Court of Appeal in R. v. Argent (1997),12 stated that the crucial issue is whether the police have given sufficient information to enable legal advisers to advise their clients properly. This was a matter for the jury to consider when deciding the wider question of the reasonableness (or otherwise) of the accused’s conduct.

If there is NO legal adviser  present then there will be no disclosure and no advice.

The kind of circumstances in which the provision of information might be so deficient as to make silence a reasonable response were considered in R. v. Roble (1997) Rose L.J. stated that: “Good reason may well arise if, for example, the interviewing officer has disclosed to the solicitor little or nothing of the nature of the case against the defendant, so that the solicitor cannot usefully advise his client, or where the nature of the offence, or the material in the hands of the police is so complex, or relates to matters so long ago, that no sensible immediate response is feasible.”

And yet as things stand at the moment, if there is no solicitor, there is no disclosure.

If Clause 12 is implemented, there will be far more unrepresented defendants, with no disclosure and no advice.
Advance bookings now being taken for the Court of Appeal.

***

You may find this podcast of some interest…

Lawcast 197: John Cooper QC on legal aid and the pernicious effect of Clause 12 LASPO

10 thoughts on “Law Review: Guest Post by James Vine, barrister, on Clause 12

  1. Funnily enough, I ran into one of my former students over the weekend. she Works at the MoJ. We did have a brief chat about the impact of Clause 12. She tells me there is provision for recourse to an “exceptional circumstances” pot of legal aid cash to cover proof of income difficulties.

    God knows how that’s supposed to work – and it doesn’t take much to see that every circumstance is going to be argued to be “exceptional” for funding.

    The truth – and I am standing by for the onslaught – is that for years, members of the Bar have run every pony case and charged eye-watering fees as a matter of routine in criminal cases. The bill is astronomical, and if you don’t think so, tell me how some senior members of the Bar have become millionaires doing legal aid.

    Labour made cuts. And because of the cuts, some criminal law solicitors wised up and got Higher Rights to keep more fees in-house. The bun-fight began and the Bar thought they’d flummox the Solicitor Advocates by QAA. They never imagined that the rules would also apply to them – and QCs are crying that *their* qualification should exempt them from QAA. Whatever.

    Meanwhile, back at the ranch, Government is cutting Duty Solicitor pay by yanking automatic paid for representation. This is an Article 6 fiasco waiting to happen. When your liberty is at stake, proving income should be the least of one’s worries. If the LSC wants to recoup funds for representation on later discovery that a detainee is a millionaire, then they should be able to demand payment and put charges on property if they don’t pony up.

    Alternatively, there is a wonderful thing called a Public Defender Service – where lawyers are employed by the State to represent the too poor to pay for their own lawyers. No more LSC, no more freelance Duty Solicitors, no more silky pony QCs charging a hundred thousand for your case – unless, of course, you want to pay.

    My former student wondered if I’d responded to the consultation. I admitted I am consultationed out. Besides, nobody’s listening.

    Clause 12 may be in for a rough ride in the Lords, but it will pass – and we will all have to learn to live with clients who pay privately rather than the Government. That train’s left the building.
    :-(

  2. Kris, in my experience the barristers who have made millions have done so through an exceptional amount of hard work rather than by racking up their fees. Indeed, since their pay is based on a graduated fee system that revolves around length of trial and page count it is difficult to understand your claim that they are putting in “astronomical” bills.

    A determined barrister could make more money doing what a lot of HCA’s have been known to do, which is taking cases that are going to end quickly and making sure then end ASAP. You take as many cases as possible so that you are doing several per day and you will quickly find that you are able to earn more than the fictional barristers you point to who are running “pony” cases.

    The PDS system was actually a total failure. It was brought in to show how overpaid defence solicitors all were and what happened? The PDS went pretty much straight to the top of the legal aid fee table. But worse, it then cost the Government several times more to run than it costs people like me to run private firms. The result was that half the PDS office closed quickly transferring their cases, meaning that clients of the Birmingham office were forced to travel to Manchester to see their solicitor. PDS was a farce, costs several times more to run than the traditional model and claimed more than most small firms put together!

  3. A very useful post. The Criminal Justice and Public Order Act 1994 was amended so that drawing of inferences depends on the person being “allowed an opportunity to consult a solicitor” – see s34(2A); s36(4A) and s37(3A).

    No doubt the government will argue that by offering this telephone gateway to advice they are continuing to provide that opportunity. Also, means testing will presumably still not alter the fact that the opportunity has been given.

    I also wonder whether LASPO Clause 12 meets Article 6. MPs do not seem to take much notice of these details. I suspect that few MPs have even read the Bill. This is unfortunate. The Minister usually certifies that the Bill is human rights compliant and the lobby-fodder seem to just accept despite the point that, time after time, provisions are held to be non-compliant once the matter gets to court.

    It is very obvious that a “stitch in time” approach here can save vast expense later. The government is extremely misguided on this and they are taking cuts to legal servives much too far. Poeple must raise this with MPS – the bill goes to the Lords soon and Lord McNally’s job is, according to him, to get the bill through unaltered !! We are lucky to have such democratically minded people in Parliament !!

  4. Listen, we all know the drill. Find a case with an appeal point. A euro points even better. Make the case a runner. Worth it. Roll em out, regardless of genuine prospects if success.

    Im sure millionaire QCs add value. Of course. The point is, people are receiving a rolls Royce service, often for an argument that’s not going to make a great deal of difference to the client.

    Public Defender Service is the norm in the States. If the roll out here tanked, it’s down to managers who couldn’t manage

  5. @ Kris. I think that by conflating the specific clause 12 issue with barristers earning large fees you tend to undermine some of the, in my opinion justified, criticism of clause 12. According to the briefing papers on the Bill the MoJ aim is to save £70M from the criminal element of the overall legal aid budget (currently £2.1Bn). Given that police station fees are fixed (around £34 for telephone advice and between £200-300 for a face to face consultation), and 1.4m defendants used the criminal legal aid system in 2009-2010 at police station and magistrate court level (as compared to only 126,000 cases in the higher courts), it will require some pretty hefty reductions in the numbers eligible for legal aid at the lower crime level to make those sort of savings.

  6. @ObiterJ.
    Some people reading your comments might mistakenly assume that all telephone advice offered to detainees in police stations is provided by solicitors (as s58(1) of PACE states) and therefore meets the s12 LSA definition of legal advice. However, of course a significant proportion of calls are handled entirely by CDSDirect (somewhat comparable to NHSDirect) which is staffed by at best, para-legals, and it has been suggested, on occasions by callcentre staff with no legal training. Some background here: http://www.lawgazette.co.uk/features/criminal-defence-call-centres-may-work-are-they-justice and here: http://www.lawgazette.co.uk/print/49485

  7. and is it really the point to roll out the line that ‘it’s all the bar’s fault’? (fair enough i suppose if that’s what you think), but how many of the cases ever see a silk anyway?
    it is interesting that the figures quoted above are that face-to-face advice in the police station is billed at £200-300. it is worth reminding people that first appearances in the magistrates earn counsel £50. and that at a first appearance, the client will usually need to be advised of whether the advanced information shows that they may or may not be guilty of the offence in law (as usefully pointed out in the article, so much more than ‘they know what they have done’), whether they would be well advised to plead guilty or not and whether they should elect crown court trial where available (yes of course they bloody should). junior criminal counsel are subsidising the entire system from the bottom up.

    and advice at the police station can prejudice an entire case. silence, admissions or partial answers can all come back to bite you in the arse at trial. and believe me, that is not just in cases where the client is ‘obviously guilty’.

  8. Pingback: Rive Gauche: The Bar bites back – UK Blawg roundup – Wife of MP convicted of nicking a kitten « Charon QC

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