Code C- Right to Legal Advice

Question 1

Q: What right does s58 PACE provide for a detainee?

Answer 1

S58(1) PACE- Access to legal advice
A person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.

Question 2

Q: What does s58(4) PACE add?

Answer 2

If a person makes such a request, he must be permitted to consult a solicitor as soon as is practicable except to the extent that delay is permitted by this section.

Question 3

Q: What timing does a detainee have the right to consult a solicitor within?

Answer 3

S58(5) PACE
In any case he must be permitted to consult a solicitor within 36 hours from the relevant time, as defined in section 41(2) above

Question 4

Q: What does Code C add about informing detainees of their right to legal advice?

Answer 4

All detainees must be informed that they may at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone.
They should be told that free, independent, advice is available.

Question 5

Q: What is free advice?

Answer 5

Free advice would be available from a duty solicitor.
Now accessed by the Defence Solicitor Call Centre or Direct Schemes.
This does not stop the detainee from paying for their legal advice privately.

Question 6

Q: Do you have to display a poster advertising the right to legal advice?

Answer 6

Paragraph 6.3 Code C
A poster advertising the right to legal advice must be prominently displayed in the charging area of every police station.
The poster should be in English and other commonly used languages.

Question 7

Q: Can a police officer try to change someone’s mind on free independent legal advice?

Answer 7

Paragraph 6.4 Code C
No police officer should, at any time, do or say anything with the intention of dissuading any per-son who is entitled to legal advice in accordance with this Code, whether or not they have been arrested and are detained, from obtaining legal advice
No police officer or police staff shall indicate to any suspect, except to answer a direct question, that the period for which they are liable to be detained, or if not detained, the time taken to complete the interview, might be reduced:
- if they do not ask for legal advice or do not want a solicitor present when they are inter-viewed; or
- if they have asked for legal advice or (as the case may be) asked for a solicitor to be pre-sent when they are interviewed but change their mind and agree to be interviewed without waiting for a solicitor

Question 8

Q: When must a custody officer act if legal advice is requested?

Answer 8

Subject to the rules permitting delay, whenever legal advice is requested, the custody officer must act promptly to secure the provision of such advice.
Where an arrested person does seek legal advice and requests a private consultation with a solicitor, the request time and the time it was granted must be noted in the custody record.

Question 9

Q: What are the rules permitting a delay?

Answer 9

Similar to the rights to delay someone being informed under s56 PACE.
HOWEVER, the right under s58 PACE can only be delayed by a Superintendent or above, whereas an Inspector or above can authorise the right for someone to be informed under s56.
S58(6) PACE
Delay in compliance with a request is only permitted
(a) in the case of a person who is in police detention for an indictable offence and
(b) if an officer of at least the rank of superintendent authorises it

Question 10

Q: Can a Superintendent give authorisation orally?

Answer 10

S58(7) PACE
An officer may give an authorisation under subsection (6) above orally or in writing but, if he gives it orally, he shall confirm it in writing as soon as is practicable.

Question 11

Q: What are the specific circumstances where reasonable delay is permitted?

Answer 11

S58(8) PACE
A Superintendent may only authorise delay where he has reasonable grounds for believing that the exercise of the right conferred by subsection (1) above at the time when the person detained desires to exercise it—
(a) will lead to interference with or harm to evidence connected with an indictable offence or interference with or physical injury to other persons; or
(b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
(c) will hinder the recovery of any property obtained as a result of such an offence.

Question 12

Q: What does s58(8A) add to this?

Answer 12

A Superintendent or above may also authorise delay where he has reasonably grounds for believing that-
(a) the person detained for the indictable offence has benefitted from his criminal conduct and
(b) the recovery of the value of the property constituting the benefit will be hindered by the exercise of the right conferred by subsection (1) above.

Question 13

Q: What does Annex B, Note B3 say in relation to delaying access to a solicitor?

Answer 13

A decision to delay access to a specific solicitor is likely to be a rare occurrence and only when it can be shown the suspect is capable of misleading that particular solicitor and there is more than a substantial risk that the suspect will succeed in causing information to be conveyed which will lead to one or more of the specified consequences.
The detainee must then be given the choice of another solicitor. If he refuses, then the right may be delayed.

Question 14

Q: What did the case of Samuel rule?

Answer 14

COA- denying access to legal advice on the grounds that the solicitor ‘may’ alert other suspects is not sufficient.
Must be a reasonable belief and not just a reasonable suspicion.

Question 15

Q: Can this right to legal advice be delayed?

Answer 15

This right can be delayed for up to 36 hours but cannot be denied entirely.

Question 16

Q: What happens if a delay is authorised?

Answer 16

S58(9) PACE
If delay is authorised-
(a) the detained person shall be told the reasons for it; and
(b) the reason shall be noted on his custody record

Question 17

Q: What happens if the delay ceases to exist?

Answer 17

S58(11) PACE
There may be no further delay in permitting the exercise of the right conferred by subsection (1) above once the reason for authorising delay ceases to subsist

Question 18

Q: Can the court draw any adverse inferences if the detainee’s right to legal advice is delayed?

Answer 18

There will be a restriction on the court drawing any adverse inference from the detainee’s silence in interview, as he did not have the opportunity to consult his solicitor.
Any interviews conducted in such cases will have to be justified at court if it is to be admissible as evidence.

Question 19

Q: When can an interview take place in the absence of a detainee’s solicitor?

Answer 19

In exceptional cases, excluding in cases of delay, an interview may be conducted in the absence of a detainee’s solicitor in accordance with paragraph 6.6 and Annex B of Code C.
A detainee who wants legal advice may not be interviewed or continue to be interviewed until they have received such advice unless:
(b) an officer of superintendent rank or above has reasonable grounds for believing that:
(i) the consequent delay might:
- lead to interference with, or harm to, evidence connected with an offence;
- lead to interference with, or physical harm to, other people;
- lead to serious loss of, or damage to, property;
- lead to alerting other people suspected of having committed an offence but not yet arrested for it;
- hinder the recovery of property obtained in consequence of the commission of an offence
(ii) when a solicitor, including a duty solicitor, has been contacted and has agreed to attend, await-ing their arrival would cause unreasonable delay to the process of investigation.
(c) the solicitor the detainee has nominated or selected from a list:
(i) cannot be contacted;
(ii) has previously indicated they do not wish to be contacted; or
(iii)having been contacted, has declined to attend; and
- the detainee has been advised of the Duty Solicitor Scheme but has declined to ask for the duty solicitor;
- in these circumstances the interview may be started or continued without further delay provided an officer of inspector rank or above has agreed to the interview proceeding.
(d) the detainee changes their mind about wanting legal advice or (as the case may be) about wanting a solicitor present at the interview and states that they no longer wish to speak to a solici-tor. In these circumstances, the interview may be started or continued without delay provided that
(i) an officer of inspector rank or above:
- speaks to the detainee to enquire about the reasons for their change of mind and
- makes, or directs the making of, reasonable efforts to ascertain the solicitor’s expected time of arrival and to inform the solicitor that the suspect has stated that they wish to change their mind and the reason (if given);
(ii) the detainee’s reason for their change of mind (if given) and the outcome of the action are recorded in the custody record;
(iii) the detainee, after being informed of the outcome of the action in (i) above, confirms in writing that they want the interview to proceed without speaking or further speaking to a solicitor or (as the case may be) without a solicitor being present and do not wish to wait for a solicitor by signing an entry to this effect in the custody record;
(iv) an officer of inspector rank or above is satisfied that it is proper for the interview to proceed in these circumstances and:
- gives authority in writing for the interview to proceed and, if the authority is not recorded in the custody record, the officer must ensure that the custody record shows the date and time of the authority and where it is recorded, and
- takes, or directs the taking of, reasonable steps to inform the solicitor that the authority has been given and the time when the interview is expected to commence and records or causes to be recorded, the outcome of this action in the custody record

Question 20

Q: Does a detainee HAVE to consult a solicitor, even if only briefly?

Answer 20

Paragraph 6.5 Code C
If the detainee has the right to speak to a solicitor in person but declines to exercise the right the officer should point out that the right includes the right to speak with a solicitor on the telephone. If the detainee continues to waive this right, the officer should ask them why and any reasons should be recorded on the custody record or the interview record as appropriate

Question 21

Q: How many times should a detainee be informed about the right to legal advice?

Answer 21

Should be informed about this right throughout their time in police detention during reviews and reminded during the introduction of the interview.

Question 22

Q: Do juvenile’s also have the right to consult their legal representative in private? Does their appropriate adult need to present?

Answer 22

Yes! They have the same rights as adults and must be offered the opportunity to speak with their solicitor in private and away from the appropriate adult.