The 12th Clause

There have been several blogs recently on the issue of legal aid at police stations. I have blogged here , @_millymoo blogged here, @lifeincustody hosted by me here and @crimsolicitor blogged here.
There is also a 30 minute podcast where @CharonQC interviews John Cooper QC

Listen to Podcast

The following blog is by fellow tweeter @JamesPSVine  James has been a  practising barrister for the last 34 years both defending and prosecuting criminal cases and almost all of which have been publicly funded.

His chambers are in London and he also blogs  on the Bribery Act here


Clause 12 of LAPSO has already,and rightly, raised the proverbial storm of protest from all corners of the criminaljustice community.

There is universal concern at theConDem’s attempts to reduce, if not eradicate, legal aid for representation ofarrested persons in police stations.
One thing is very clear. This isNOT about lawyers protecting their own interests. In fact it could be said thatif Clause 12 is responsible for reducing the legal aid spend on police stationattendance, (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 tocharge a fee significantly higher than the legal aid rate.
So when Ken Clarke (or the boyDjanogly) tries his usual distractionary bluster by claiming this is all aboutlawyers looking after themselves, we all know that he is being err…“Economical with the actualite”. (That means what the other Clarke, Alan, meantit to mean Ken.)
So what is it that gets meagitated enough to type a whole sentence in block capitals? It is simply this.
If a defendant is in custody in apolice station accused of crime, they are going to be interviewed by policeabout that crime. If they fail to answer questionsin interview, or fail to say something in interview that they subsequently relyon in court (in evidence or cross-exam of a prosecution witness) then the jury maybe directed that they may draw an adverse inference, i.e. hold it against them.
A defendant is likely to be anamateur interviewee. A police officer is a trained professional and knows inadvance what he/she is going to ask. What evidence he has up his sleeve and justas important, what he does not. Those ignorant of thecomplexities 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 answeringquestions if he’s innocent.”
We’ll come back to that canardlater on. This “crucial” point has itsorigins in the case of Condron. The defendants there argued all the way toEurope, that if they were advised by a solicitor to remain silent, then nojudge could ask a jury to draw an “adverse inference.”Not so said the court, adefendant can listen to a solicitor’s advice, and decide whether or not toaccept or reject it. It’s the defendant’s choice.
The end result was effectively acompromise.
The practice now is usually this,based on the authorities I have cited below.
If a defendant is awaitinginterview in a police station, and has a solicitor present, the police should (not must) give advance disclosure to the solicitor of the nature of theevidence they have, and a general scheme that the interview will follow. Theydon’t have to do so in full, and they can try and do it bit by bit. They caneven try not to give any disclosure at all, but this is very likely to backfireon them for reasons we shall see below. (R –v Roble) BUT they give this disclosure sothat the solicitor can give effective advice to the client on whether or not toanswer questions, and if so, how.
If there is no solicitor to giveadvice to the defendant on what has been disclosed, then THE POLICE DO NOT GIVEDISCLOSURE TO AN UNREPRESENTED DEFENDANT. What this means is that theunrepresented defendant is at a double disadvantage. No legal advice, and no idea whatis coming.
Well he knows what he’s done so what’s he got to be afraid of?”
He knows what he’s done, butquite genuinely might not know if it is an offence, or equally might not knowthat something he has done or said could be relevant to the existence of alawful defence. In both cases without legal advice, he may fail to mentionsomething of vital importance to his case simply because he has not had properadvice which would have told him how important it was.
The police officer is not thereto explore the full ambit of his defence case, and will not do so. He may wellfinish the interview with the usual “is there anything else you want to tellus?” but that is not enough for someone who is genuinely ignorant of the law. If he has not had properdisclosure, he may well not be aware, if it be the case, that in fact thepolice investigation lacks vital evidence, without which they have no case. Asolicitor would be able to probe and recognise this, and advise his client thatit was not for him to provide evidence against himself, thus plugging the gap.
We live in the real world. Weknow that police officers are not above “remarking” to defendants already, thatif they want a solicitor, they might have to wait for hours for one to getthere, thus delaying the interview and therefore prolonging the stay in thepolice station. Of course the thought that this might persuade the defendant toproceed without a solicitor never enters their head. Ever!
The other issue is this, and it’sone that is going to cause concern to a lot of Custody Sergeants. Time and again they must be askedthe same question when they ask if a defendant wants a solicitor. “well what doyou think I should do officer?” The answer will always be thesame. “I can’t give you legal advice.”There is no-one to tell thedefendant that if he has a solicitor, he is more likely to get pre interviewdisclosure, which is a major factor in the decision. There is also a massive incentivefor the slightly unscrupulous officer who knows he has a weak case which he ishoping to bolster up in interview without a solicitor’s advice, to try to hintat the advantages of going ahead without a solicitor. Who is going to brief the civilservant to whom the telephone application for legal aid is made, at 3am? Theofficer? Is the briefing going to beaccurate? Is it going to be recorded? Is the civil servant going to question ortest it? Will he care? What balanced input, if any, can the defendant have onthe making of this application?
If there is any force at all inthe Article 6 “Equality of Arms” argument, then Clause 12 makes a mockery ofit. Has anyone in parliamentsuggested yet that clause 12 is potentially incompatible with Article 6? Maybethey should. PACE was introduced to providesafeguards on both sides, to protect police as well as defendants, andintroduce a balance between the two sides. Clause 12, if it leads to asignificant reduction in representation at police stations, which it is boundto do, removes that balance. The inevitable conclusion is adramatic rise in miscarriages of justice and many more appeals to the CrownCourt or Court of Appeal, which the MoJ will have to pay for. If you want to save money Ken, keep legal aid forpolice station work!
If anyone doubts my cynicism asto the day to day approach of police to this topic, they need only look at thelink below to a discussion thread started by a police officer who posed thisquestion:
Hi everyone. With regards to disclosingevidence to the defence before interview, what are the legal requirements? Itend to tell them everything but sometimes I wish I didn’t. If I know the legalgrounds for it then I’ll do it. Just don’t want to do it and then be asked bythe defence is to why I didn’t tell them.
And then we can look at some ofthe answers from officers only interested in seeking justice:
Many briefs forget disclosure is at ourdiscretion largely so don’t be bullied into revealing more than you want to.Try dropping the odd bombshell in interview, its great watching their reactionwhen its really devastating.
But you also get more sensibleones which demonstrate how useful to both side pre interview disclosure is:
For me it often comes down to the brief. If Iknow it is someone sensible and I’ve got a full deck of cards then I’ll showthem all, as I expect then it’s more likely I’ll get a full and frankadmission and save the criminal justice system and everyone involved awhole load of time, expense and effort.
So even some sensible police officersthemselves can see the benefit of legal advice in a police station to all sides.
“Save a wholeload 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 sufficientinformation to enable legal advisers to advise their clients properly. Thiswas a matter for the jury to consider when deciding the wider question of thereasonableness (or otherwise) of the accused’s conduct. If there is NOlegal adviser  present then there will beno disclosure and no advice.
The kind of circumstances in which the provision ofinformation might be so deficient as to make silence a reasonable response wereconsidered in R. v. Roble (1997)Rose L.J. stated that: “Good reason may well arise if, for example, theinterviewing officer has disclosed to the solicitor little or nothing of thenature of the case against the defendant, so that the solicitor cannot usefullyadvise his client, or where the nature of the offence, or the material in thehands of the police is so complex, or relates to matters so long ago, that nosensible immediate response is feasible.” And yet as things stand at the moment, if there is nosolicitor, there is no disclosure.If Clause 12 is implemented, there will be far moreunrepresented defendants, with no disclosure and no advice
Advance bookings now being taken for the Court ofAppeal.

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