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Operation of the Police Station Duty Scheme


Introduction

Outline of the scheme

Eligibility criteria for the police station duty scheme

Responsibilities of solicitors and firms providing police station duty services

Updates on the Police Station Duty Scheme can be found here.


Introduction

The rights of a suspect arrested at common law or detained under section 14 of the Criminal Procedure (Scotland) Act 1995 (the 1995 Act) are now set out in sections 14, 15 and 15A of that Act.

A suspect who is detained, arrested or merely attending voluntarily at a police station has a statutory right to a private consultation with a solicitor (and not any other legal adviser) before questioning begins and at any other time during questioning.

The Criminal Legal Assistance (Duty Solicitors) (Scotland) Regulations 2011 [S.S.I. 2011 No. 163] require the Scottish Legal Aid Board (the Board) to make arrangements for solicitors to be available to provide advice and assistance to anyone to whom section 15A of the 1995 Act applies.

Subject to a suspect’s right of waiver, in all but the most exceptional cases, evidence of an admission made by the suspect before they have been afforded that right will be inadmissible in any subsequent trial.

SLAB has been entrusted by Parliament to ensure that such suspects receive prompt, appropriate legal advice and the object of the police station duty scheme is to enable such advice to be made available in a way which is practical and effective.

This document sets out the scheme, reflecting the mutual understanding of SLAB and the Law Society of Scotland (the Society), created to achieve this objective.

Outline of the Scheme

1. A telephone solicitor contact line operated by SLAB-employed solicitors shall be the initial contact point for relevant notification by the police and shall provide continual 24 hours a day, 7 days a week cover. If the suspect asks for a named solicitor, SLAB staff shall contact the named solicitor/firm so that they can assist the suspect, if they choose to do so.

2. A named solicitor shall always be contacted first by SLAB, even where the solicitor is not a duty solicitor under the police station duty scheme.

3. Where a named solicitor intends to assist the suspect, they shall contact the police station to advise them of this within 30 minutes of receiving the contact line call. If a personal attendance by a solicitor is required at a police station, and from the point they inform the Police that they will attend, it is considered that

- availability of modes of transport and weather conditions; or 
- a mutually agreed time with the investigating officer for attending at the police station.

4. A personal attendance can only be made by a named solicitor if the solicitor appears on a local or an adjacent police duty plan, unless authorised by SLAB staff.

5. A named solicitor who intends to advise a suspect can only be paid for this work under the advice and assistance scheme if they are included in the police station duty scheme. A named solicitor who is not on the scheme can still advise a suspect by telephone or personal attendance, but cannot be paid under advice and assistance.

6. The payment arrangements for both duty solicitors and named solicitors on a police duty plan are prescribed under advice and assistance, with enhanced payments for work carried out between 22.00 and 07.00. There are no longer any financial eligibility tests to be applied, following the removal of client contributions for advice and assistance given in connection with police interviews in April 2016.

7. Payment for all work actually, necessarily and reasonably undertaken in connection with providing advice to a suspect in a police station under advice and assistance shall be paid in addition to any subsequent payments for ABWOR or summary criminal legal aid in the case.

8. If SLAB staff are unable to speak directly to the named solicitor, or another representative at their office, a message shall be left that a client is seeking advice, and the solicitor should advise SLAB that the message has been received within 15 minutes. Where messages are being left on a voicemail facility, case details will only be left if the voicemail message clearly identifies the solicitor concerned. No specific case details will be left where a standard mobile phone operator’s voicemail message is used.

9. If no return call is received from the named solicitor, SLAB staff shall make a further call seeking a response within an additional 10 minutes. If no response is received in this timescale, SLAB shall contact the police station to advise the police that we have been unable to contact the named solicitor, and offer telephone advice to the client or a personal attendance by the duty solicitor. This shall provide the named solicitor with a combined 25 minutes to contact SLAB to acknowledge the call (but not to advise the suspect).

10. Although attempts to contact any named solicitor will always be made first, a SLAB-employed solicitor shall provide telephone advice to a suspect where this is requested, if there is no named solicitor, or the named solicitor cannot provide advice. SLAB-employed solicitors can also provide duty solicitor services for a personal attendance at a police station. Where a personal attendance is required, the SLAB-employed solicitor will contact the police station duty solicitor in the first instance to provide this attendance. The duty solicitor is being called on to provide an attendance at the police station because the suspect has requested it. The SLAB-employed solicitor will also have provided telephone advice.

11. The named solicitor, with the authority of the client, shall be able to request from SLAB details of any advice given directly to a client in police custody, and/or the identity of any duty solicitor who may have advised the client personally. SLAB can be contacted on 0131 240 2696 for this information.

Eligibility Criteria for the Police Station Duty Scheme

12. A solicitor shall hold a practising certificate with no restriction affecting their entitlement to provide advice and assistance as at the closing date for applications. Whilst the restriction on the practising certificate of a second year trainee applies to legal aid, it does not apply to advice and assistance and a solicitor who is a second year trainee shall be eligible, subject to the other criteria set out by SLAB from time-to-time.

13. A solicitor must be accepted on to the Criminal Legal Assistance Register.

14. At the time of applying for inclusion on the police station duty plan (the plan), a solicitor must have a place of business within the sheriff court area for which the police station duty plan is being prepared and conduct the majority of business within that area. However, this requirement can be disregarded where local circumstances necessitate it.

15. A police station duty solicitor must, at least, be able to provide professional services which are of a quality which could reasonably be expected of any competent solicitor conducting criminal business. In order to meet this definition, a prospective duty solicitor must be able to demonstrate that they are regular, competent and knowledgeable practitioners. Such values shall normally be demonstrated by reference to, for example:

16. A solicitor must be able to demonstrate, on application for inclusion on the plan and if called upon by SLAB, that they

17. While it is open to second year trainees to apply for inclusion on a police duty plan, and provide advice to suspects under criminal advice and assistance, it is expected that experienced solicitors at the firm are providing adequate supervision of the trainee who is providing advice at the police station.

18. If a solicitor moves to another sheriff court area they shall be entitled to inclusion in the local plan on application, subject to availability, if they have undertaken similar duties in the previous sheriff court area.

19. If a solicitor moves from one firm to another, the respective shares of the plan(s) shall remain the same until new plans are drafted. If the new firm features on a plan, that solicitor shall still be entitled to provide duty services for the new firm. The allocation of the plan given to the first firm will remain as before.

20. A solicitor shall normally only be included on a duty plan for one sheriff court district at any one time. However, this requirement can be disregarded where local circumstances necessitate it.

21. A solicitor should not have earlier breached these duty provisions. If a solicitor has previously been removed from the scheme for breaching these provisions, an application for inclusion in a subsequent scheme can still be made, but SLAB will take into account the circumstances leading to the earlier removal when considering the new application.

Responsibilities of solicitors and firms providing police station duty services

22. Allocations on the police duty plans shall be made to solicitors’ firms, and not individual solicitors, to allow firms greater flexibility in covering attendances. Applications for inclusion on the Police duty plans shall continue to be made by an individual solicitor, and the allocation given to each firm will be based on the number of solicitors in the firm who are eligible for inclusion on the plan.

23. Firms will be able to use internal systems to allocate a solicitor to attend a police station interview as a duty solicitor when required, but attendances can only be made by solicitors who have been accepted by SLAB on to the duty plan. Each individual solicitor from the firm needs to make a separate application to SLAB for inclusion on the plan, and satisfy the eligibility criteria. Similarly, solicitors can delegate an attendance or the provision of advice to a solicitor in another firm, but again the solicitor to whom the duty work is delegated must also have been accepted onto a police station duty plan. A first year trainee is not a “solicitor” and cannot admit a suspect to advice and assistance nor provide advice to a suspect.

24. If an attendance at the police station is not required, the intimation of a grant of advice and assistance can still be made without the online client mandate form being signed by the client, but a solicitor must advise SLAB in the notification of the application that the client was unable to sign the form in these circumstances.

25. Payment to a duty solicitor for any work providing advice to a suspect in a police station under advice and assistance shall be paid in addition to any subsequent payments for ABWOR or summary criminal legal aid.

26. When a duty solicitor is contacted by SLAB about an attendance and SLAB staff are unable to speak directly to the duty solicitor, or another representative at their office, a message shall be left that a suspect is seeking an attendance. The duty solicitor should contact SLAB to confirm that the message has been received within 15 minutes.

27. If the duty solicitor does not make contact within the 15 minute period, SLAB will contact another duty solicitor (normally the next name on the list) to do the attendance. Whilst it is recognised that the duty solicitor may not be able to answer immediately, the duty solicitor, unlike the named solicitor, should be more readily available to undertake their duty.

28. When a duty solicitor is called upon to attend a police station to provide advice in person to a suspect, it is because the suspect has requested a personal attendance, and not further telephone advice from another solicitor. Therefore duty solicitors must be able to provide face to face advice to the suspect and attend the police interview when requested, and it is anticipated that,

- availability of modes of transport and weather conditions; or
- a mutually agreed time with the investigating officer for attending at the police station.

29. If the duty solicitor is unable to attend within the timescales required by the police for the purposes of the investigation, for example due to previously arranged court commitments, another police station attendance, or family/caring responsibilities, or medical reasons, these circumstances will not be considered as an unreasonable failure to attend.

30. Attendances which are delegated to other duty solicitors in line with paragraph 22 above will not be considered as an unreasonable failure to attend.

31.  Duty solicitors are required to provide the following information to the Board within 48 hours of being notified by the Solicitor Contact Line:

·       if the duty solicitor spoke to the person detained on the telephone prior to attending the police station;

·       at the end of the discussion, their instructions were that they no longer required to attend in person and the reasons why;

·       if the duty solicitor attended the police station in person and whether there was a private consultation with the person detained and whether the duty solicitor was present during the police interview; and

·       whether the duty solicitor granted advice and assistance

 

32. This information is needed to allow the Board to report on its statutory functions, and to assist the Board in planning future developments of the service in light of the changes set out  in the Criminal Justice Act 2016.  Notifications can be sent to a dedicated email address for providing this information – duty@slab.org.uk.  

33. If a duty solicitor wishes to withdraw from the duty scheme for any reason, at least one month’s notice of this must be given to SLAB.

34. Where a solicitor or firm breaches the duty scheme provisions by failing or refusing to undertake attendances or provide advice when required without a reason as outlined at paragraph 28, or by withdrawing from the Scheme without giving the stated period of notice at paragraph 31, this will be taken into consideration and their suitability immediately reassessed for involvement in the Duty Scheme, even if they meet the other eligibility criteria.

35. If SLAB is considering removing a solicitor or firm from the duty scheme, they shall be advised of this in writing. The solicitor shall have the opportunity to make written representations within 14 days. Solicitors who have breached the duty provisions and are removed from the duty scheme will not be prevented from applying to join the duty scheme in the future, but SLAB will take into consideration their previous actions.

36. If a solicitor or firm is removed from the scheme, the solicitor or firm will have the opportunity to apply for a review of that decision.


Further information

If you would like to further information on the Police Station Duty Scheme please contact:

 

Kingsley Thomas, Head of Criminal Legal Assistance,
Tel. 0131 240 2085 or
email thomaski@slab.org.uk

Tracy Brown, Duty Plans Officer
Tel. 0131 240 1945 or
Email
browntr@slab.org.uk

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