Thursday, September 8, 2011

Ken Clarke wants to remove the automatic right to a lawyer upon arrest

There are a lot of topics I wanted to write about before, but this one that caught my eye yesterday has taken precedence. The Guardian published a human interest story about duty solicitors that dropped a bit of a bombshell for many who are interested in the rights of suspects. It revealed that the Justice Secretary, Ken Clarke, has tabled a motion announcing that the UK will opt out of an EU directive guaranteeing access to a lawyer upon arrest. A lawyer friend of mine questioned whether this was a misprint, and several of us investigated what this might be all about. It turns out that this is indeed true, and the reasons arise from a new legal aid bill under consideration that replaces the automatic right to representation on arrest with a new system of means testing and red tape before a suspect in custody can qualify for public funds. Section 12 of the Legal Aid, Sentencing and Punishment of Offenders Bill sets out the new provisions.

In a nutshell, instead of a suspect in custody being quickly provided with publicly funded legal advice upon arrest, s/he will have to make a written or oral representation requesting it, with a determination made by a civil servant. This is set out in clause 12(6), which states:
Regulations under subsection (5) may, in particular, include——
      (b) provision permitting or requiring applications and determinations to
      be made and withdrawn in writing, by telephone or by other
      prescribed means,
So basically, you're arrested and you're poor, yeah? Unless you've been arrested before, you will probably not understand what is expected of you and what your rights are when detained at a police station. You are quite possibly not in a very good state of mind. You are hopefully told that you can request legal advice. You are then expected to fill out a form and send it off to some civil servant or speak on the telephone (hopefully not your one phone call), and wait for that civil servant to take some amount of time to decide whether you qualify for legal aid. In the meantime you have no legal representation. That doesn't sound very good to me. What if it's the middle of the night? What about weekends? Bear in mind that you are at this point entirely innocent in the eyes of the law.
From the Guardian piece:
Nearly 1.5 million people are arrested every year. "Many will never have been locked up before, won't know how long the police can keep them, and have no idea what to do in an interview," says Professor Ed Cape, a law professor at the University of the West of England, and a Pace expert. As the academic explains, the right to silence was effectively abolished in 1994 and a failure to tell the police relevant details that may not come up in court until months or years later can serve as evidence of guilt. "However well the police behave, police stations are worrying, even frightening, places," says Cape. "The right to legal advice is now more important then ever, but with the planned cuts to legal aid, it's under threat like never before."
Lawyers and bloggers such as The Defence Brief have been criticising the new legislation for months, though it's managed to mostly escape my attention until now. The Defence Brief argues that this type of legislation likely serves two purposes: "a) to reduce the legal aid bill by making it harder to solicitors to claim; and b) to increase the conviction rate by reducing the level of representation suspects receive." Worse than that though, these provisions will probably end up costing more by pushing up the administrative costs of funding legal aid and giving rise to lengthier legal arguments in court that certain interviews should be excluded because they were not properly conducted. It may even result in reduced conviction rates as more police interviews are likely to be excluded.

So it probably won't even achieve its stated objectives. Why would we want this legislation that effectively removes one of the most important safeguards in the criminal justice system? Simply put, if we can't afford to provide free legal representation when suspects are arrested, then we can't afford to arrest people. To place such obstacles in the path of access to basic legal advice is to undercut the fundamental presumption of innocence. I've said this a bazillion times; I'll say it again. The primary duty of law enforcement and the criminal justice system is to protect the innocent. Every single person who is arrested, no matter how persuasive the evidence, is innocent until a court pronounces guilt. Every single person is entitled to understand how police interviews work and how to avoid incrimination. Most people, especially those who regard themselves as innocent, will not know what to do when arrested. Everyone needs protection. Everyone deserves an advocate.

1 comment:

  1. For some examples of why talking to the police with out legal advice (from a US perspective) is generally a bad idea see videos here: