A ‘perfect storm’ engulfing the criminal justice system together with ‘an addiction’ to the use of custody was creating a crisis in police station representation, a new Westminster investigation heard last week.
Witnesses told a new committee of the All-Party Parliamentary Group on Miscarriages of Justice about their concerns over poor quality legal representation and a failure to adequately respond to suspects’ neurodiversity in a session in the House of Lords.
‘A number of different things are happening that are a perfect storm – cuts to the number of police officers and a criminal defence profession is on its knees,’ commented Dr Roxana Dehaghani, a lecturer Cardiff University who researches focuses on the vulnerability of the accused. ‘There needs to be some sort of royal commission backed up by academic research and a system-wide deep-dive into everything that’s going wrong.’
- The APPG’s legal profession committee was looking at issues of concern in relation to legal advice at police stations
- Committee members: Dr Lucy Welsh (chair), senior lecturer at the University of Sussex; Rhona Friedman, a solicitor with Commons Law CIC; Penelope Gibbs, director of Transform Justice; Mark Newby, solicitor at Jordans Solicitors LLP; Dr Vicky Kemp, principal research fellow at the University of Nottingham; and Prof Ed Cape, professor of law at University of the West of England.
- Witnesses: John Curtis, head of legal at the Criminal Cases Review Commission; Kim Evans, paralegal and police station Representative at Tuckers Solicitors; Dr Roxanna Dehaghani, senior law lecturer at Cardiff University; and Police Sergeant Nathan Neville, Surrey Police and National Police Chiefs’ Council.
Rhona Friedman, a committee member and a defence lawyer, said that many of the issues raised by witnesses could be solved by ‘curing the addiction to arrest and detention’. ‘If police stations were only designated for urgent triage instances where life and limb are at immediate risk, or there’s a planned interview where officers have the evidence at their fingertips and there’s been proper disclosure, we would save millions of pounds from the public purse and stop many people being traumatised by the experience of being put in detention – not just children.’ She pointed to the disproportionate use of custody against the Black community and ‘the adult-ification of particularly Black boys’.
Lack of oversight
Kim Evans, a police station representative of 20 years’ experience, warned the committee about the impact of the funding crisis in the criminal defence profession. ‘I’m very, very fearful of the future,’ said Evans, a former Metropolitan police officer. ‘Unless solicitors’ firms can afford to employ and properly train in-house staff, I fear the situation is going to get very much worse in a fairly short period of time.’
Evans explained that the ‘ageing solicitor population’ and a 20-plus year legal aid freeze was leading to an unhealthy dependency on freelance police station representatives, often former police officers, who were failing to provide adequate protection for vulnerable suspects.
It was a theme picked up by a number of witnesses. ‘There are spots in the country where it’s almost non-existent and duty solicitors aren’t there,’ Nathan Neville of Surrey police told the committee. He described quality of representation as ‘very varied’.
John Curtis, head of legal at the Criminal Cases Review Commission, said that the watchdog saw ‘the role of a police station representative as one that is demanding’ and the quality of representation was ‘variable’.
Curtis said that the CCRC had ‘identified numerous cases where the existence of defences was overlooked by representatives’. ‘Most notably this has been in immigration offences where the individual was seeking and successfully claimed asylum.’ He claimed that the CCRC saw similar issues in cases involving human trafficking and modern slavery cases where ‘notwithstanding some involvement in apparently criminal acts, the individuals concerned were subject to abuse, compulsion, and in fear of their lives’. Curtis also highlighted a dramatic collapse in legal representation at the CCRC – five and 10% of the cases under review by the CCRC presently have legal representation. ‘That compares to a figure of around 40% from about 15 years ago,’ he added.
Kim Evans argued that police station reps needed to have ‘specific training and accreditation for advising young vulnerable and neurodiverse clients, particularly children’. ‘At the moment freelance reps are self-certified for their ongoing professional development and whether people do it or not is, frankly, anyone’s guess. I’m concerned about the lack of oversight.’
She pointed out that the only ‘oversight’ was provided by the supervising solicitor but that was ‘simply somewhere for the SRA (Solicitors Regulation Authority) to have a postal address’.
‘Police station reps vary in experience,’ John Curtis said. ‘We understand that they receive little or no meaningful information ahead of attending the police station and have to think on their feet… Fatigue coupled with stress and relatively low pay does not make this attractive work.’
In the CCRC’s view, the problem was compounded by the huge variety in appropriate adults ‘who can range from family members and volunteers to qualified intermediaries’. Curtis added that the CCRC was ‘acutely aware’ that, even if a ‘no comment’ interview was correctly advised, the consequences are ‘significant and difficult to overcome’. ‘It can be difficult to repair and recover,’ he added. ‘… We are concerned about the demands made on police station representatives. No other advisory role would be randomly assigned to individuals irrespective of the situation or the skills and experience required.’
A lack of trust
Kim Evans talked about ‘jaw-dropping practices’ in police stations. She cited a recent report from a colleague of a busy custody centre where there were 10 detainees in custody. One police station rep obtained all 10 custody records and went to advise all ten ‘without getting disclosure and gave them the benefit of his “advice” based on the custody record’. ‘He walked away with a fee for all 10 only having attended actually two interviews,’ Evans said.
Nathan Neville confirmed that he was also aware of reps taking multiple cases ‘then trying to progress 10 matters within the PACE clock’. ‘It’s a real struggle to get a solicitor to hand cases back and get the Duty Solicitor Call Centre to then re reallocate the cases. We can try and expedite matters but it causes further delays for us.’
The officer talked about the crisis of confidence in policing in the wake of the Casey review into the Metropolitan police and long-standing concerns. He said such negative perceptions on the part of the public ‘filter down to the detainee’ and the perception that the duty solicitor is a service that ‘the police are offering’. ‘We say it is independent of the police – and it is – but it’s whether they wish to take that up. That’s definitely a factor.’
Dr Roxanna Dehaghani talked about her research, with colleague Dr Dan Newman, which involved interviews with suspects. ‘There was an overwhelming sense of a lack of trust and a feeling that solicitors and barristers were part of the system,’ he said.’… They also didn’t trust the police to gather evidence in a fair and impartial manner. They felt that the police were always looking for inculpatory evidence and not exculpatory evidence.’
Evans flagged up the police’s failure to fairly disclose evidence. ‘In advising someone at the police station, you can often be working on a mixture of intuition, gut instinct, experience. It seems that the evidence which would tend to undermine prosecution case seems to be actively withheld from you at that point. I don’t understand what the incentive is for the police to, for want of a better phrase, try to trick you at that point into making admissions.’
Professor Ed Cape, a committee member, asked the CCRC ‘how inadequacies at the police station’ were dealt with by the courts at first instance and on appeal. The Court of Appeal is extremely reluctant to accept arguments to do with the competence of lawyers – see here.
‘The best answer I can give is that convictions are overturned and that’s as a result of judges being prepared to accept that things were missed, sometimes with the representatives accepting that they weren’t up to date with the law and hadn’t contemplated it,’ John Curtis replied.
He added that the watchdog can access defence files by applying to court for a waiver of privilege. ‘Generally, there is good cooperation with that,’ he said. ‘People are usually quite happy to sign a waiver of privilege and reps may remember the detail but occasionally due to the volume of work may not.’
Another theme was concern about the use of remote police station via video link piloted during the pandemic – and criticised in report by Transform Justice, the National Appropriate Adult Network and Fair Trials (here). Kim Evans described her experience of advising remotely through the pandemic as ‘absolutely exhausting’ because ‘the brainpower involved in trying to recreate that in person experience was so difficult’.
‘Short of another pandemic, God forbid, it’s not something I would want to see as a norm,’ she said. ‘You can’t adequately support clients, recognise vulnerabilities, prepare them for interview and provide the reassurance that you do when you’re there in person.’
Nathan Neville worked on the protocol signed between lawyers, the police and CPS to implement the remote scheme during the pandemic and worked through COVID as a custody officer. He described the use of the remote interviews as ‘worrying’. ‘We feel that “in person” advice should be the gold standard, it should be the default position,’ he said.’… We do understand that it can be done. It does work. But what is the effect on the detainee?’
Dehaghani said that there was concern about excluding vulnerable suspects from remote advice. ‘That’s all well and good, if vulnerability can be appropriately identified.’ She pointed to a College of Policing ‘high vulnerability’ training package which focused on vulnerability ‘broadly conceived – so not necessarily on neurodiversity or mental ill health or intellectual cognitive impairment’.
The article originally appeared on the Justice Gap website on 7th July 2023. It is written by Abdallah Barakat.
