It is essential for all police station reps and solicitors to keep up to date with the law.
Whilst we are not the best or most comprehensive legal resource on the web we do not aim to be.
We have simply tried to include a few cases and bits of legal information that we think all reps should have at their fingertips.
Feel free to mail us with any cases or other information which you think are essential reading.
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From 2nd April there is a National Protocol for police station attendances. You can read it in full here: National Protocol or download it in the link below.
The protocol basically says interviews, discloure and consultation will be remote. Solicitors and Reps do not need to be at the police station. Defence Lawyers will use video technology and phones. You no longer need to be physically present unless the matter is severe.
For most matters solicitors will not physically go to police interviews.
Minor matters will be straight charged or postponed by bail or RUI
Representaton of most clients will be via video or phone.
Severe matters will require physical attendance
Short interviews with no visual evidnce can be done by a written interview: Questions and answers by email with instructions by phone.
The Officer in the case will decide if an interview is required.
The LAA will pay a full fee for remote attendances.
There are various interpretations and its going to take time to settle the many issues that arise.
The protocol is a bit vague but a sensible step forward
The document identifies three categories of offences:
Minor matters: clients should be released under investigation if remote interviews are not possible. Essentially, interviews for minor matters are postponed or straight charged without interview where the evidence is overwhelming. Only matters which have a statutory time limit which is unlikely to be met will proceed to interview.
Mid Level Matters: for most matters solicitors should not attend in person. Interviews will use technology to provide a virtual attendance by video where possible.
Severe Matters: if the matter is really serious then solicitors still need to atttendan interview. The police will provide gloves and masks.
STEP BY STEP GUIDE
Read the protocol and get to grips with it
Appreciate its limitations and holes
Talk to the OIC and custody to get their views and practice
Discuss it with the officer and agree a process
Discuss the process with the client
You will need a comprehensive file note justifying your inattendance in person.
Call custody and get the front sheete information
Ask custody to email the entire custody record to you
Call the OIC to get disclosure and obtain documents by email
Custody should be able to facilitate a private call with the client to obtain instructions and give advice
You need to satisfy yourself that any privileged conversations are private
Advice and instructions need to be clearly understood
Finally call the OIC. Put a device on the interview room desk and ensure you can be heard
Remote interviews are difficult. Active listening techniques will help
PROBLEMSThe intentions are laudable but there are going to be problems. The protocol was issued on 2nd April. Whilst many rank and file officers are unaware of it, most custody officers are aware but not up to speed. There is wide spread confusion as one would expect. The document is hastily drafted and not comprehensive. Police forces and individual officers are interpreting the document in different ways. for example some allow a mobile phone set to speaker phone while others do not.
Civil Liberties - defendants have a right to put forward a defence in interview. Yet the police are being encouraged to charge matters without interview. In the early days of my career an interview could be avoided with sufficient evidence. Later under Michael Howard interviews were mandatory. More recently PACE has been in two minds. But now we will see people charged and remanded to court who will have defences which will go uninvestigated.
Human Rights (ECHR) - It is quite tricky to give advice over a video link. It is hard to properly represent a client in interview without actually being there and damn near impossible by phone. Were an officer to make threatening gestures to a client off camera it would go unchallenged. A detainee would be well within their rights to refuse interview on the grounds he had not had access to legal advice in preson. The ECHR position is well tested by the courts. Remote attendance is not sufficient in law as it could breach article 6 right to legal assistance. A defendant can sue the individual puporting to represent him.
Security - Clearly the technology implemented needs to be secure. With no common standards there will be a serious risk of consultations being eaves dropped not only by the police but any agency capable of such snooping. That includes the family of any solicitor working from home. Whether accidental or intentional maintaining legal privilege will be a challenge. Moreover many forces will only email solicitors with a CJSM account. Most reps do not have one. This is a serious problem as numerous forces have been caught over the years listening in to privileged conversatons. Here are links to just two such cases but there are many many more:
PACE - There are numerous issues with PACE. These come to mind but there will be others:
Under Code C 6.6(c)(iii) the police can interview a suspect without a solicitor where that solicitor refuses to attend. The definition of 'attend' and 'refuse' is moot. By following the protocol is a rep refusing to attend? Is a whatsapp call an attendance? Is an Inspector required to sign off every remote interview?
Code C 13.13 Confidentiality - it is impossible to know if advice calls are being intercepted or listened to by officers.
Money - The LAA have sensibly agreed to pay full fees for remote attendance (it is a breach of the Crime Contract nevertheless). But the LAA also want signed Legal Aid forms. They accept both digital and handwritten signatures. Its a shame they have not simply authorised solicitors to sign on a client's behalf.
Tech Troubles - At present the technology is simply not in place. The protocol envisages interviews by video link. But solicitors do not have the technology at their disposal. Some but by no means many interview rooms do have screens for live links to interpreters. None have two or three screens. If the client needs an appropriate adult, interpreter and solicitor three screens would be needed. It will take some time to get the hardware in place.
Disbs - it is not clear if the LAA will pay for what could be very long phone calls. Microsoft Teams has been favoured by the police but will the LAA pay for the licence or is it a business expense? Laptops, cameras, microphones and the like are other considerations as are VPNs and internet charges and the like.
Ethics - Representation at the police station is a vital part of our criminal justice system. Ethically the cleint must always come first. Yet we are giving wider society precedence over legal rights.
Many stations simply cannot or will not accomodate remote solictiors at interview. The last page of the protocol is Annex 3 which at first glance looks mad and complex actually its the easiest solution to the problem.
PACE already allows wirtten contemporaneous interviews where recording equipment is not available. Ordinarily the interviewing officer would write down the questions and then put them to the cleint with the solicitor present. The officer then dilligently writes down the answers. The protocol makes this available to us.
Simply put the officer emails the solicitor a list of questions. The lawyer puts them to the client by phone and emails back the answers. The officer can email the questions one by one or all at once. Follow up questions can be emailed of course as well. The genius of this system is that none of the parties meet at any point. Its well worth considering where the police insist an interview is necessary but cannot facilitate a remote solicitor.
RACE TO THE BOTTOM
There is an ugly Keynseian truth to this document that worries me. It carries with it a economic momentum. With remote working there comes a pressure on price. Normally a routine plice station attendance will take a couple of hours. Traveling is arduous and time consuming. But a remote attendance will take a fracton of the time. No waiting, no travel. A rep can realistically attend three police stations in a day physically. But working remotely a single rep can be at home covering matters anywhere in England and Wales. Jobs will take 40 minutes and a rep could easily do 10 or more a day.
It is true to say that the protocol is a life line to self isolating reps who were facing financial ruin. But it is inevitable that the laws of economy of scale will bring pressure on the reps to drop thier fees. Firms are under enormous financial burdens as well. Undoubtedly the number of police station attendances will fall. The senior partners at every criminal law firm will look to the bottomline. Cash flow is always king but in these uncertain times cash flow is a mighty emperor. Bank accounts across the business world are shouting an inconvenient truth. Many lawyers have been furloughed. Some dismissed. Many work from home of course. But in the cold light of a spreadsheet glowing on screen it is clear that a self-employed rep is cheaper than a member of staff.
I sincerely hope that the there is not a Keyensian race to the bottom. Much will depend on how long this crisis continues.
BEST BEFORE DATE
This is a dangerous time for us all. Lives are being lost. Incomes are disappearing and we are consiously and knowingly indeed we are supporting and accepting an assault on our legal rights that is wholly unprecedneted outside of war. My single biggest concern is that the protocol is not time limited. It will be reviewed monthly and it is only intended to be effective during this covid19 crisis. We all need to be vigilant to ensure that our rights are not eroded. I am not the only person who will flag this issue. The protocol should clearly state it is for a period of one month. Without an expiry date it is a risk to us all.
Despite the hurried nature of the protocol it is a step in the right direction. It is to be welcomed.
We would have expected around 600,000 people to be in custody this year so remote working prevents
50,000 journeys by solicitors and reps every month. To save the NHS from being overwhlemed and to
save lives we need social distancing to be as comprehensive as possible. This protocol is flawed but
as a jumping off point it does the trick. Most of the problems can be overcome but we do need a few
tweeks to the law and rules of ethics.
We will not be exposing wider society to the virus but we will be inviting litigation. Lets hope the
courts never see this document. If the courts find out what is going on we will hear gavels like jack hammers.
It looks like a conspiracy to breach PACE. Maybe that is a bit too
dramatic a description but it is certainly not in the cleints best interests. We are doing all this as it is in
society's best interests. To that end it is essential we work collaboratively to acheive a fair balance.
Working with the police within an adversarial system is not easy at the best of times. These are not the best of times....
Best of times? Worst of times? I am no Sydney Carton but we will need to do our best to honour his
selflessness and eschew his cynicism.
Duty Solicitors are now required to jump through a complex set of hoops in order to maintain their Duty qualification
The Crime Contract is poorly drafted and hard to understand. Essentially you need to do 12 court attendances and 12 police station each year. On top of that you need to do an additional 12 attendances which can be a mix of police and or court attendances. The court attendances can be at the magistrates or crown court. Thats a total of 36 attendances each year.
But you also need to do 14 hours of relevant work. On top of that you need to do four police station duties each year. Bizarrely there is also a requirement that you do three police stations and three court attendances in each rolling month. To be clear that means for example in March the LAA will look back to see if there were 3 police & 3 court attendances over the preceding 3 months and then in April they look to see if there were 3 police & 3 courts in the proceeding 3 months and then in May we look back to see if there were 3 police & 3 courts in the proceeding three months, etc etc..
Here is the contract itself:
6.22 Your entitlement to deploy Duty Solicitors to undertake Duty Solicitor work and retain Duty Slots issued to you in their name under this Contract is dependent on them each:
a. undertaking at least two hours CPD annually on issues relevant to the law, practice and procedure in the Police Station or magistrates’ courts;
b. undertaking a minimum of 36 court hearings and Police Station attendances in each rolling 12 month period to include:
a minimum of 12 magistrates court hearings
a minimum of 12 police Station attendances (excluding telephone advice) and
a further 12 hearings or attendances which may be made up of any combination of:
Crown Court hearings;
magistrates’ court hearings;
Police Station attendances;
magistrates’ court Duty Slots including the representation of at least one client
with at least three magistrates’ court or Crown Court hearings and at least three Police Station attendances in each rolling three month period; and
c. continuing to undertake Duty Solicitor work generally by, in each rolling 12 months period, undertaking Police Station Duty Solicitor attendances (excluding telephone advice) on no less than four Duty Slots allocated by us in that Duty Solicitor’s name.
6.23 Subject to Paragraph 6.24, all Duty Solicitors you use to obtain Duty Slots must undertake a minimum of 14 hours’ Contract Work for you per week from the Office for which those Duty Slots have been obtained.
6.24 The 14 hours’ requirement in Paragraph 6.23 will be measured on a rolling monthly basis to accommodate different working patterns.
OPINION: The LAA are obsessed with rooting out what they call the ghost duty solicitors.
This follows years of complaints from the firms. In my opinion this is a misguided and foolish thing to do.
The firms think that removing duty solicitors will make them more profitable by forcing the ghosts inhouse.
The effect is the reverse though as the ghosts are not getting jobs. They are leaving. They do not go and get in house jobs at all.
They simply leave the profession.
The effect is a double whammy as it also means that with dwindling numbers the remaining in-house duty solicitors have
increased bargaining power. In house staff are demanding and getting higher wages. The firms are suffering and they already have
massive financial problems. Case loads are dropping, fees are falling and now staff are demanded higher wages.
On top of that it is a complex set of rules. They are hard to understand. They are really difficult to monitor. The administration
is an issue not to mention a headache. It is likely, even inevitable, that at some point a leading practiitioner is going to be caught out.
I can forsee a partner at a large firm tripping over one of these rules and losing his or her Duty status.
These rules are simply unfair. If a Duty Solicitor spends his time on marketing or administration or compliance then his hours will
not count towards the 14 hour rules. Spending a month on GDPR compliance or network secutiry or hiring new staff would mean risking your
The rules seem to presume firms are awash with work. They are not. A quiet month at court and you could be kicked out.
The most bizarre requirement is that One Duty Client Only Counts. We call it OD-COC. The Odd-Cock rule is bizarre as it
means Duty Solicitors need to rely on Own Client work to be Duty Solicitors. But Odd Cock also means that sitting in a court on a duty
court slot day will only count if there is a client for you. Why? How is that in the control of the Duty Solicitor?
Thats worth of Kafka!
The LAA have been foolish to accept the role of removing the ghosts. They are already pretty unpoular and this will hardly
help thier image. But its more serious than mere PR. This purge puts them at odds with the Law Society who have been pointing out
that we have too few criminal practitioners and growing advice desserts.
Taking Offences Into Consideration is normally refereed to by the acronym TIC.
Not all crimes can be proven. A client may be asked to admit offences which he has not been prosecuted for. Such crimes may well be known to the police but are unresolved. The police may suspect the client is responsible but are not in a position to prove it. A suspect may be asked to admit these offences. The courts will take such admissions into consideration when sentencing. The police will often emphasise that a court will look favourably on a defendant who resolves a number of outstanding crimes by such an admission.
As a general rule there is nothing preventing an offender who is denying involvement or pleading not guilty to ask for offences to be taken into consideration, however, in practice it is unlikely.
After admissions are made normally a list containing all of the offences is prepared by the police. Then the offender has the opportunity to inspect and sign it in affirmation.
AT TRIAL At the trial after the offender has pleaded guilty to the offences appearing on the indictment, the prosecution take the judge through the facts before sentencing. It is then that the judge is told about the existence of the TICs. The judge will always seek confirmation from the defendant personally and not through counsel before sentencing him and upon such will nearly always comply with that request. If the offender has changed his mind by that point about the offences, his wishes are again to be respected.
Normally TICs will be offences of similar nature to the ones already appearing on the indictment. It is nevertheless possible to ask for consideration of a different type of offences, however, there is no guarantee that the judge will agree to take any such into account. In any event a mere agreement by the prosecution and defence about a list of such offences is not binding upon the court.
Furthermore, a charge should not be taken into consideration where the court is of the view that the public interest requires it to be subject of a separate trial.
In addition, the court should not take into consideration an offence which it is not empowered to try. For example, the Crown Court has no jurisdiction hearing or taking into consideration summary offences. Further, an offence is not to be taken into consideration if it is one where the court is required to disqualify the offender from driving or endorse his driving licence in the event of conviction. The restriction exists since those steps will not be available if the offence is taken into consideration.
CONSEQUENCES The consequences are twofold. Firstly, the suspect will not be prosecuted for each individual offence. In fact, only the original offence or offences for which he was being questioned will appear on the indictment when he is being tried. Any other offences to which he has acknowledged responsibility will be listed for the judge’s consideration on sentencing.
As such it will only have an impact in increasing the sentence to an extent. However, the sentence will still remain significantly lower than if he had been charged and convicted of each offence separately. In passing sentence where there are TICs, the court may impose a maximum sentence of the total maximum for the offences of which the offender has been convicted. Therefore, for example, when a person is charged with two offences of theft the maximum sentence he can receive will be 14 years (7 years each) irrespective of the number of TICs. This is another element to be considered by the judge before deciding whether to take the offences into consideration or not.
Secondly, in practice he will not in future be prosecuted for the TICs. However, it is important to emphasise that TICs do not have a statutory foundation and exist on the basis of practice. As such there is generally nothing to stop the police from investigating into those admitted offences and charging the person separately after they have been taken into consideration. The situation is possible since TICs are not convictions as such and therefore, the rule against double jeopardy cannot come into effect and protect the offender. Nevertheless, in practice such outcome is highly unlikely as it would defeat the object of creating the trust between the police and the offender.
When assessing the impact of the TICs on the sentence to be passed, the court is likely to attach weight to the fact that the offender has assisted the police and helped clear up offences which might otherwise not have been brought to justice. The court is generally to have regard to the context of all offences when determining their effect on the sentence.
BENEFITS The benefit for the offender of asking for other offences to be taken into consideration is that it eliminates the risk of him later being prosecuted and convicted of those offences individually. Therefore, it protects from the full sentence for the individual offences while at the same time the increase in sentence he is to receive is not likely to be significant.
SUMMARY It is our view that there is very little reason to admit to TICs. In effect admitting offences which cannot be proved will only increase a sentence handed down by the court. The sentence will remain significantly lower than if he had been charged and convicted of each offence separately of course but we are talking about offences that by and large the police cannot prove.
There are some very rare situations where admitting TICs does make sense. A client who is going to totally and permanently change their lifestyle may well decide to clear the slate. Its rare but it does happen.
I our view all reps should carry a recognised ID card. The issue first arose at Lewisham some years ago after a member of the public gained access to a client simply by claiming to be a rep. All reps should carry a card as it is simply practical to do so.However it is not mandatory for all police station work.
PACE (February 2017 revision) only says the police under Code C 6.12 that the police officer should be of a rank of Superintendent or above to exclude a rep. They should check the rep against the LAA list. The LAA list is not up to date of course so its a bit daft. The only reason for exclusion at 16.12A is hindering the investigation.Moreover under 6.13 the Superintendent should take into account whether the identity and status of an accredited or probationary representative have been satisfactorily established.
It is a common misconception that DSCC have a role in the identification of solicitors and reps. Not all reps will have a listing on the DSCC. The correct list is maintained by the LAA.
The General Criminal contract (6.63) does stipulate the need for an ID card. It basically says reps covering duty cases should have ID cards. The contract also (9.46) says that ID cards are required where there are local instructions in place. Presumably the cards are not needed for own client matters or where there are no local instructions.
6.63 You must ensure that all staff undertaking Police Station Duty Solicitor work carry an identification card as specified by us for production when attending Police Stations.
9.46 Where required by local instructions, all staff undertaking Police Station Duty Solicitor work must carry an identification card as specified by us for production when attending Police Stations.
In summary reps do not always need ID. But that's just me being a pedantic lawyer! We still advise reps to carry ID. Its just sensible when custody decide to be daft.
1. First off you need to find a Supervising Solicitor. Your supervising solicitor needs to sign a form (see below) confirming that they are acting as your supervising solicitor and that you are a suitable person. The attached form was the one used during the Validation Exercise from a few years agoso it is not up to date but it should get you started at least. If you find a copy of the correct form do please send me a copy.
To be a Supervising Solicitor you must be employed by a holder of the General Criminal Contract and be a current police station duty solicitor or alternatively a solicitor who is acceptable as meeting the Crime Category Supervisor Standard.
The supervising Solicitor signs the certificate of fitness declaring that to the best of their knowledge the rep is of suitable character to provide legal advice at police stations.
In determining this, the supervisor should consider any criminal convictions and read the relevant guidance produced by the Criminal Law Committee of The Law Society and make a professional judgement as to whether the individual is of suitable character to provide advice and assistance at police stations.
A candidate with a criminal record is unlikely to be suitable unless the conviction was for a minor offence and is not of recent date e.g. speeding. A serving police officer, a special constable or an individual who is employed in any other capacity that may cause a conflict of interest when undertaking criminal defence service work is not eligible to become a representative.
2. The application form must be submitted to the PSRS and will need to be signed by your supervisor. The form is below
The form should be sent to:
Police Station Representative Service (PSRS) Selectapost 45 Sheffield S97 3FS
3. You should of course check that you are on the list. We often find errors and omissions on the list. Any amendments can be requested by sending an email to:
4. Its also worth noting that to remain an accredited rep you need to keep the Police Station Representative Service (PSRS) up to date at all times. You must advise the PSRS when:
Your or your employer's address changes or Your Supervising Solicitor changes
5. You must of course also do the minimum police station attendances per year and at least the minimum CPD hours per year.
6. Finally apply for the ID card. Two organisations issue cards:
a. The Criminal Law Solicitors’ Association (CLSA) card cost is £25 for CLSA members and £35 for non members. The cards need to be renewed annually. The form is below or click the link www.clsa.co.uk/index.php?q=idcard
b. The London Criminal Courts Solicitors’ Association (LCCSA) are renewed annually. The cost of the card is included in the annual membership subscription or for non-members, an annual fee of £36 is charged. The form is below or click the link www.lccsa.org.uk/id-card
New Bail Arrangements (Policing and Crime Act 2017) come into force on April 1st 2017 but are being rolled out earlier by some forces.
The aim of the new bail rules is to put fewer people on bail and for a shorter period.
Clients are often left languishing on bail for months or even years before charge.
The intention is to improve decision making and reduce distress and injustice for individuals placed on bail.
Applies to Pre-Charge Bail only
Presumption of no bail unless it is necessary and proportionate
Bail needs to be authorised by an inspector or above
28 day maximum
Extendable up to three months where authorised by a superintendent
More than three months with judicial authorisation. A decision by a single justice of the peace on the papers will suffice.
In exceptionally complex cases it will be possible to extend bail administratively to a total of six months before seeking judicial authorisation.
Legal representatives must be informed and all representations must be considered.
Bail Conditions can still be imposed
CPS or Police must inform clients promptly in writing when a case is concluded.
In summary you need to be aware that most clients will now not be bailed while an investigation continues. In effect where the police know a clients address they will simply ask them to attend a police station for charge or further interview rather than giving a specific bail date.Its worth noting that the police can arrest a client in order to charge them. But a further interview without new evidence would be problematic.
Where bail is granted, conditions may still be imposed, but they must be necessary and proportionate.
If the conditions are breached clients can still be arrested, although the breach will not in itself be an offence.
The CPS and Police will have a duty of Notification of Decision. A failure on their part notify the client when a decision
has been made to conclude the investigation and not to prosecute has led to distress and injustice.
The existing statutory duty has been strengthened, and the notification must be made promptly and in writing.
Cases will as ever not proceed if there is insufficient evidence and no realistic prospect of conviction and public interest must
always be taken into account where appropriate.
Continuing Professional Development (CPD) has changed and you no longer need to get a certain number of points. Basically its now all self-assement. You have to review your strengths and weaknesses and then make a plan based on the training you think you need. Finally you keep a record of the development you undertook along with the reasons and its effectiveness. The SRA guidelines are below. Its all a bit wholly but its a pretty sensible approach.
Legal Aid Applications now only require you to complete the e14. The CRM14 and 15 forms are no longer used.
You shoulde provide financial information for all clients. To apply for Legal Aid the firm need some basic financials for all clients. The bare minimum would include the following:
Clients income (per week)
Income Source (benefits or employment)
Cohabiting partner name
Client National Insurance Number
Partner National Insurance Number
All clients should sign the e14 CRM form
The financial information is needed by the firm to apply for Legal Aid. In effect we now sign one form and make a note of all the details that used to be captured on the CRM 14 and 15.
You can also do this on the No Comment App. If you are using an Android mobile device please download our app. The client provides a signature on your mobile phone. You only need add a few details and the e14 is done. You can also do your notes and the app contains all the custody suite telephone numbers along with a copy of PACE and much much more. Just go to the Google Play Store and search for No Comment.
The things every rep needs to know about milage claims:
Outside of office hours you can claim up to 45p for mileage. Mileage payments up to 40p are taxfree. Everything over 40p is taxable as income.
Inside office hours Mileage is the distance from the instructing solicitors office to the venue or the actual mileage, whichever is the shortest. The expectation is that you will use public transport. You can still use you own car but payments are capped at 25p per mile. To claim 45p per mile you will need to show a justification. The Criminal Bills Assessment Manual gives the following reasons:
Getting to the station within 45 minutes.
Security & Confidentiality: sensitive material that you carry must be safe from interference or theft.
Carrying large numer of bulky documents.
No public transport available.
Use of a private motor vehicle was otherwise reasonable
The LAA are trying to crack down on inflated or spurious travel claims. They are being a bit nutty and are querying even very small claims. Invoices & receipts should always be produced in support of claims for travel expenses.
Under the contract, claims for for travel of up to £20 do not require receipts but even those are being queried so it is best to keep all reciepts with your notes.
Its vital that reps have a clear understanding of what can and cannot be claimed. The Boris campaign poster should help you and your colleages get to grips with the terms of the crime contract.
Boris - a simple 5 letter mnemonic to get it right every time.
B - Budget for Buses: The presumption is travel will cost no more that the public transport cost
O - Outside Office Hours: You can claim up to 45p for mileage.
R - Receipts: Evidence is essential. Keep receipts and note it in your report
I - Inside Office Hours: Mileage is the distance from the instructing solicitors office or the actual mileage, whichever is the shortest and capped at 25p
S - Share: Do not double claim. If you have three clients , apportion the travel costs
If it helps, please feel free to distribute thsi Boris Campaign image that has been provided by those lovely people over at No Comment, the largest police station rep agency in the UK.
Below is a copy of the Criminal Bills Assessment Manual which you will find a terrific and thrilling read. Take a look at s3.9 Travel and Waiting. There are three versions but they are all identical just in different formats. If you can't open one then try another. If you cannot open any of them or need them in a different format please feel free to get in touch:
The judgement in McDonagh v Leicestershire reaffirms the position that the police cannot interfere with a solicitor's prerogative to attend each of his clients whenever necessary to do so. The police cannot place a condition upon that right. They cannot insist that a co-accused must be interviewed before attending another client involved in the same investigation.
The police are often under the misapprehension that they can prevent us from attending a co-defendant first. So an office may say you cannot talk to Client B until they have interviewed Client A. This was never a police power. It might be helpful to keep this authority handy.
This is a very handy site for information on juveniles in custody. When it comes to dealing with juveniles it is fair to say that we are generally not as clued up as we ought to be.This site is well worth a look: www.youthjusticematters.info/
Under the s152 of the Drugs Act 2005 there is provision for extended detention of suspected drug offenders.The police have the same powers as HM Customs. On application to a magistrates' court a detainee can beheld for up to 192 hours so that any swallowed items can be seized.
The High Court has found that the PACE provisions for juveniles should apply to those under the age of 18. The UN Convention on the Rights of the Child defines a child as anyone under 18. It would be sensibleto make the appropriate representations for any clients afffected.
One of the best ways to keep up to date is to subscribe to the e-mail updates provided CrimeLine. The emails are written by Andrew Keogh. He now has over 12,000 subscribers including criminal lawyers, judges and academics. Each issue provides legal updates including the latest cases, legislation and news. Best of all its FREE!. Click here to sign up or point your browser at www.wikicrimeline.co.uk. The CrimeLine CPD scheme is also well worth checking out.
ACPO have come to the conclusion that there is a presumption that solicitors hang on to their mobiles in custody. That does not mean that the custody sergeant has been over ruled. The sergeant can still refuse to let you keep your mobile but he does at least have to justify himself and explain his reasoning. Our opinion is that the rep is only in custody to assist the client. If the custody officer demands your mobile then you should hand it over. But if you want to argue the matter this is an essential document to keep in your brief case.
SUMMARY: Everyone should carry a copy of this case, Richardson v Chief Constable West Midlands 2011. It makes plain that on a voluntary attendance the police cannot presume to arrest. They must consider a voluntary interview. PACE clearly states that the police need to establish the necessity for an arrest. Without a compelling reason there is unlikely to be such a necessity and voluntary attendances should be dealt with by way of a voluntary interview.
Its worth noting that this case was brought by one of our mebers, Dilaor Miah. The judge fell over himself to point out what a good job he had done for the client. Our job matters and we can make a big difference.
RICHARDSON In Richardson v West Midlands Police 2011 a teacher was alleged to have assaulted a pupil and voluntarily attended two police stations. On his arrival at the second police station he was arrested by the investigating officer 'to allow the prompt and effective investigation of the offence.
The court found that the suspect had fully co-operated, and had attended the second police station knowing that he would be arrested and interviewed. There was no basis on which the investigating officer could have concluded that he might leave before the conclusion of the interview. The court held that the arrest had been unlawful.
It is not permissible to operate a blanket policy whereby everyone voluntarily attending a police station to be interviewed has to be arrested; instead, the decision whether or not to arrest must involve a consideration of the facts of the particular case; a conclusion that a suspect might leave before the conclusion of an interview must be based on evidence, taking into account the relevant circumstances, rather than on general propositions; where there is no such evidence, such a conclusion is not warranted and cannot be used to justify arrest; and if the arrest cannot be so justified, then in the absence of any other grounds justifying arrest it will be unlawful.
ARREST FIRST & QUESTION LATER The High Court ruled that common practice of arresting voluntary attenders at police stations is unlawful unless there are clear reasons why the arrest is necessary. The Richardson case relates to a teacher who was arrested depite attending for a voluntary interview. The police have to establish that:
the arresting officer subjectively believes they have proper grounds for believing that arrest was necessary, and
that the grounds were objectively reasonable.
If they fail on either limb the arrest will be unlawful. If they establish both limbs the arrest can only be impugned on Wednesbury grounds. This means that the police will no longer be able to rely on pro forma phrases to justify the necessity for arrest, and it appears that in the majority of cases where a suspect attends at the police station by appointment the necessity for arrest will not be made out.
In Alexander Bull Farrelly and Fox  NIQB 2, the court held that, when carrying out a criminal investigation, every officer must consider if it is necessary to make an arrest and have regard to all relevant circumstances. There must be some evaluation of the feasibility of achieving the object of an arrest by alternative means. It does not require that there is no viable or practical alternative.
An officer who therefore arrests as a matter of course will be acting unlawfully and strong representations should be made.
The Serious Organised Crime and Police Act 2005 substitutes the powers of arrest found in section 24 and 25 of PACE and makes all classes of offence 'arrestable' if the 'necessity criteria' applies.
PACE CODE G PACE Code G governs powers of arrest. The need for the code is to balance individual rights and the need for investigative powers by the police. The use of powers of ‘arrest must be fully justified’ and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means.
The exercise of arrest powers is subject to a test of necessity based around the nature and circumstances of the offence and the interests of the criminal justice system. Arrest must never be used simply because it can be used.
When the power of arrest is exercised it is essential that it is exercised in a non discriminatory and proportionate manner. Prior to making an arrest police Officers need to be satisfied that there are reaonable grounds and that the arrest is necesary s24(5). Code C 10.3 states that a person who is arrested must be informed as soon as practicable after their arrest of the fact of their arrest and the grounds for it. The Note for Guidance 10B clarifies that this means that the suspect must be informed of the nature of the suspected offence, when and where it was committed and the reasons why arrest is considered necessary.
1.1 This Code of Practice deals with statutory power of police to arrest persons suspected of involvement in a criminal offence.
1.2 The right to liberty is a key principle of the Human Rights Act 1998. The exercise of the power of arrest represents an obvious and significant interference with that right.
1.3 The use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Arrest must never be used simply because it can be used. Absence of justification for exercising the powers of arrest may lead to challenges should the case proceed to court.
LORD HANNIGFIELD In the case of Lord Hannigfield v Essex Police 2013 the judge says summary arrest was never going to have any impact on the prompt and effective investigation of Lord Hanningfield's council expenses. In his decision, Mr Justice Eady said he had considered whether the arrest was necessary 'to allow the prompt and effective investigation'.
'The prospect of Lord Hanningfield attempting to 'bully' any of the police officers visiting his home that morning does seem somewhat remote. It was further mooted that, unless he was arrested, Lord Hanningfield might seek to destroy or conceal evidence relating to his expenses. It seems that the officers were under the mistaken impression, for example, that he was still in possession of a council computer.' Mr Justice Eady said he felt the police officer concerned believed the arrest was necessary. But he said: 'I have come to the conclusion that the requirement of 'necessity' as laid down by Parliament has not, on any realistic interpretation of the word, been met.'
THE HAYES NECESSITY TEST Hayes v Chief Constable of Merseyside Police 2011 established a two stage test to determine the validity of an arrest. The meaning of PACE s24(4)-(5) was also consdidered.
The case involved an action for false imprisonment. The claimant was alleged to have been a drug dealer who had intimidated a drug user on the street and had thereby committed a common assault. A police officer arranged to meet the claimant at a railway station and arrested him upon arrival, stating that the arrest was necessary in order to obtain his mobile telephone, to detain him for further questioning and to impose bail conditions upon his release. Subsequently, the complainant withdrew his complaint and the claimant was released by the custody officer. The court rejected the claimant’s argument that the arresting officer had to have considered and rejected every possible alternative to arrest.
The relevant consideration when deciding if an arrest is lawful is what was in the mind of the arresting officer. The arresting officer must subjectively believe that the arrest is necessary.
In addition, the arresting officer’s decision to arrest 'must be one which, objectively reviewed afterwards according to the information known to him at the time, is held to have been made on reasonable grounds'This does not mean that the arresting officer has to actively consider all possible courses of action – taking into account all relevant considerations and excluding all irrelevant considerations. However, the arresting officer should give at least a 'cursory consideration' to options other than arrest, but only because 'the officer who has given no thoughts to alternatives to arrest is exposed to the plain risk of being found by a court to have had, objectively, no reasonable grounds for his belief that arrest was necessary.'
By the same token, if an arresting officer fails to consider PACE Code G 1.3 ('officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means') this does not automatically make the arrest decision unlawful. Such a failure merely acts as an indicator that the officer did not have objectively reasonable grounds for concluding that the arrest was indeed necessary.
The language of s24(4) provides a straightforward reasonableness test. If the Officer believes an arrest is necessary, clear reasons should be documented in the Pocket Book and on the Custody Record. Simply reciting 'Prompt and effective investigation' is insufficient, specific reasons must be identified.
When a person attends the police station voluntarily to be interviewed by arrangement, their arrest on arrival at the station prior to interview would only be justified if new information has come to light after the arrangements were made which indicates voluntary attendance has ceased to be a practical alternative, their arrest is necessary and it was not reasonably practicable for the person to be arrested before they attended at the station.
The powers of arrest do not enable officers to arrest all suspects in all circumstances.
The court laid down a two stage test for assessing the legality of an arrest in each case:
Did the arresting officer actually believe that the arrest was necessary for an identified s.24(5) reason?
If he did, was that belief objectively reasonable?
In applying this test, the relevant facts for considering the reasonableness of the officer’s belief are the facts known to that officer at the time of making the arrest: facts which, had he been aware of them, would have justified the arrest are not relevant.
UPDATED PACE GUIDANCE The decisions in Richardson and Hayes prompted the Government to revise Code G and issue fresh guidance in order to ensure that the police comply with these guidelines. The following principles relating to the arrest of voluntary attendees emerge from that guidance:
An officer intending to interview a suspect must consider whether voluntary attendance is a practical alternative to arrest, and, if it is, arrest will not be necessary
When making arrangements for voluntary attendance, the officer should tell the suspect that his arrest will not be necessary if he attends a police station voluntarily to be interviewed
When the suspect attends the police station voluntarily for interview, his arrest prior to interview will only be justified where new information has come to light since the interview arrangements were made which indicates that voluntary attendance has ceased to be a practical alternative, but it was not reasonably practicable to arrest him before he attended; and
If a suspect decides to leave before the conclusion of an interview, the position can be reconsidered, but the possibility that he might decide to do so is not a valid reason for arresting him before the interview has started. This fresh guidance should now make it clear to the police that it is unacceptable to justify the arrest of a volunteer interviewee purely on the basis that the interviewee may leave the interview before its conclusion.
CONCLUSION If you think about it nothing has changed. PACE always said it was unlawful to arrest someone who attended voluntarily. These cases merely clarify what we all had been arguing for years. The real question is what would amount to a sufficient, reasonable, necessity to arrest a volunteer? That is hard to say, but perhaps some new evidence turning up at the very last minute like DNA or fingerprints at the scene of a crime. Even then the defendant should really be asked to provide the evidential samples first rather than being arrested. It would have to be some new evidence that was pretty compelling.
The important lesson to take from all this is that if a client who attends voluntarily is subsequently arrested you should immediately make representations. Simply invite the custody officer to note your representations. No song an dance simply ask him to consider Richardson and Hayes. Ask custody for the reason for the arrest and then point out that a necessity has not been established. Clients can sue for wrongful arrest. Clients tend to be very happy when the police pay for a holiday in Florida!
There is a great deal of confusion surrounding this issue. But its pretty straight forward now. Hopefully, we can try to make the position clear. In summary claiming a second fee is very, very rare.
RULE OF THUMB:
Put very simply a second police station fee will be payable only when there are:
TWO DISPOSALS AND
TWO DISTINCT MATTERS AND
TWO NECESSARY ATTENDANCES AND
TWO PERIODS OF DETENTION
Not only are the LAA simply not paying second fees but most firms are simply not claiming them.
THE RULES: Under the General Crime Contract you would expect two fees to be payable where the matter would attract two distinct legal aid
certificates. But the LAA do not assess bills as one would expect. The LAA guidance is pretty clear. As a starting point a second fee is only going to
be paid where there were two distinct disposals. Where one matter is bailed and the other charged that will attract two bills.
But the second fee only kicks in if there is a second attendance. The second attendance must be justified. If a client is to be rebailed or charged
you cannot attend simply to claim a second fee. The second fee is only available where the second attendance is necessary.
Neither NFA or caution are considered to be separate disposals.
THE LAA GUIDANCE: The rules are contained in the Criminal Bills Assessment Manual. You can download the whole document here or just s5.9 which is the relevant section:
Below is a list of the situations where reps often think they are entitled to a second fee. Second fees are now rare. A second fee needs two attendances and two matters.
One Continuous Period of Custody
Second attendance during one continuous period of custody
Second interview for a different matter during one continuous period of custody
Second interview with a different police forces during one continuous period of custody
Further arrested for new matters during one continuous period of custody
Two Disposals but one attendance
Two Disposals but one was NFA
Two Disposals but one was a Caution
Second attendance for charge only
Second attendance for rebail only
Second attendance for ID Capture only
Second attendance for an interview for a separate matter
One continuous period of custody means the client was not released even if that means he was held overnight and was in custody over several dates. If your go to a second interview during that period there is no second fee. But you are still ethically obliged to attend. You cannot refuse to attend on a client under those circumstances. Our primary duty is always to the client not our wallets.
The Double Bubble campaign poster should help you and your colleages get to grips with the terms of the crime contract. Please feel free to download and distribute it.
SO WHAT CHANGED?: We often hear reps complaining that a second fee should be payable as it has been paid under the same circumstances in the past.
That is ture. The Crime Contract has not changed much and second fees were relatively common until recently. But the contract was
never uniformly applied across England & Wales. Different LAA areas always understood the contract in different ways.
But since June 2018 the approach has been increasingly consistent. Second fees are now very rare.
The confusion amoungst
solicitors and reps arises because the way the contract has been implemented by the LAA has developed over time. The LAA used to pay
a second fee in a wide variety of circusmtatnces. Its just not paying them now. A second fee is only going to be paid where there are two disposal and two necessary attendances.
The LAA are clearly under pressure to spend less money. Legal Aid is harder to obtain at court and mileage claims are now
scrutinised to a faintly ridiculous degree. This push to keep a lid on Legal Aid spending is not gonig to end any time soon.
JUSTIFIED & NECESSARY
Two bills can still be claimed but generally only if there are two attendances. The second needs to be a necessary and
justified attendance. Clearly a second interview would be necesasry and justified. To attend a client for a second time for
a rebail or charge is rarely necessary but it could be; justification would be that the client is vulnerable or you could not
get the determination of the case in advance from the police.
BUT EVEN IF YOU CAN CLAIM... A word of warning: although you may think a second bill is appropriate your instructing solicitor may not actually claim it.
The firm may agree with you in principal and still not claim a second fee. Much of a firm's billing is down to a
its relationship with the LAA. Its a relationship they do not want to jeapardise. They are not going to sue the LAA. They are not
gonig to argue for a second fee. They will not put up a fight on your behalf.
Don't forget the firm has only 48 hours to obtain the second DSCC. No reference, no fee! You should always talk to your instructing
solicitor and get them on board first.
Hopefully that answers your question in a clear as mud sort of way! If you need any help with a particular situation
please feel to email me with the details of the case.