10 January 2018
We have prepared the following information to address concerns raised by the profession about its ability to manage the level of calls and attendances resulting from the changes to police station arrangements being introduced on 25 January.
At the same time, we are continuing to work with the profession to address practical issues related to the Criminal Justice Act or the role of the police station duty solicitor.
We are hopeful that these issues can be resolved, meaning that the role of the duty solicitor can be clarified and the perceived burden of being duty solicitor reduced.
The main change brought about by the 2016 Act is that a wider range of people in police custody will have a right to consult with a solicitor, not just those being questioned.
There will be no increase in requests to the duty solicitor for telephone advice. The Solicitor Contact Line (SCL) will continue to deal with all requests for telephone advice for those without a named solicitor. This is intended to minimise the burden on private solicitors and ensure speedy access to advice for this group.
Duty solicitors will continue to deal with attendance where they are required. Attendances may be for interviews or for a person assessed by the police as vulnerable, who requests an attendance.
Current projections suggest that around 25 attendances across Scotland will be required in any given 24 hour period, with around a third of those going to solicitors on one of the 40 active duty plans.
On average, this would suggest that each duty solicitor might be asked to attend about once every five days, although the work is unlikely to be evenly distributed amongst the 40 plans given variations in business volumes.
In an area like Edinburgh, where each solicitor is on the duty rota for one week every 18 months or so, our projected figures suggest an average of two or three extra attendance requests a week after 25 January, in addition to the four or five a week seen at present.
In less urban areas, there will be fewer solicitors on each duty plan and so each will be on duty more often or for longer periods. However, the call volumes can also be expected to be very much lower.
The Edinburgh Bar Association (EBA) has highlighted the experience of one of its members who received 17 calls from the police between 9pm and 6am one night during the run up to Christmas.
Calls requesting advice from the duty solicitor are made by the SCL, of which there were five during that particular duty week. Where the police call at the moment they are intimating that a person is in custody – these will be known as s43 calls after 25 January 2018.
There is no requirement to acknowledge s43 calls; all that is required is for the police to leave a voicemail message.
If you are both court and police duty solicitor then you will receive some s43 intimation calls as the court duty solicitor in addition to calls from the SCL asking you attend as the duty solicitor.
We are preparing some information about possible arrangements that could be put in place to minimise disruption from s43 intimation calls while allowing you to continue to respond to duty or own client calls. This will be sent shortly.
Where a person asks for you by name – either because they are an existing client or know you by reputation, then the police will call you if that person seeks s44 advice or an attendance at an interview.
The volume of calls you can expect will depend on the size of your current client base. There is no obligation on solicitors to respond to requests for such advice. Our discussions with the profession over the last two years have suggested that some will choose to do so, while others will do so some of the time and rely on the SCL or the duty solicitor at other times.
The current and projected call volume figures make clear that there is no need for every firm to be on call all of the time to ensure that people in custody have ready access to advice.
The system that has emerged from our discussions over the last two years seeks to allow those in custody to choose their solicitor, but it also enables solicitors to choose whether to respond where they are the named solicitor, or to participate in the duty scheme.
This flexibility inevitably creates some uncertainty. The alternatives, including obligations on solicitors to make themselves available to their existing clients, were rejected by the profession.
Each business must decide for itself how to respond to such requests.
Alternative arrangements could include collaborative and/or reciprocal arrangements with other firms (local or otherwise), formal or informal consortia, the development of dedicated commercial out of hours services that a number of firms could utilise or other forms of shared resources.
We are not aware of any such arrangements being developed to date. The result is that each firm – many of which have only one or two solicitors – will either have to provide cover for police station work for existing clients internally or rely on the SCL and the duty scheme to provide that service on their behalf.
For more information, please contact: Kingsley Thomas, Head of Criminal Legal Assistance,
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