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Police Station Duty solicitors’ attendance at police stations
Tuesday, Aug 06, 2013
We have a statutory function to ensure that solicitors are available to provide advice to suspects held in police stations. Practically, we do this through the operation of the Solicitor Contact Line and the local police station duty plans. We set up the duty plans to ensure that we have a rota of solicitors available to provide advice if a suspect requests it. From time to time we are asked why the duty solicitor has been contacted.
If a solicitor from our Contact Line telephones a duty solicitor then it is because a suspect has requested a personal attendance. Whilst a suspect may not have initially requested an attendance, if our solicitors feel that due to the severity of the charges, or because of vulnerabilities the suspect may have, that a personal attendance is required, this can be suggested as a course of action available to the suspect. However the suspect is under no compulsion to accept this. Therefore, when we contact a local duty solicitor then it is because the suspect has requested or agreed to an attendance. If the suspect has not agreed or requested the attendance then we will not contact duty solicitors about the case, there would be no need to do this.
Section 15A of the Criminal Procedure (Scotland) Act 1995 recognises that a telephone consultation may be appropriate. But the converse is also true. It is now well established that the trial begins in the police station. In this context the legal assistance that the suspect receives, and how it is delivered, can be crucial. As Lord Hope says at paragraph 35 of his Judgment in Cadder –v- HMA Advocate 2010 SLT 1125: “The emphasis throughout is on the presence of a lawyer as necessary to ensure respect for the right of the detainee not to incriminate himself.”
There may well be situations where the suspect might subsequently change his/her mind about the attendance following a discussion with the duty solicitor. If a duty solicitor has agreed to do the local attendance, it is not unreasonable to expect that the solicitor would contact the police about the arrangements for the interview and also to seek to discuss this with the client over the telephone. If it is clear from this conversation that the client no longer wishes the attendance, then this need not be provided, but ultimately that decision must rest with the client.
Grants of advice and assistance for police station interviews – financial verification
Solicitors have given us feedback that sometimes there can be problems with financial verification for grants of advice and assistance for police station advice. The upper income and capital thresholds have been removed from the financial test for advice and assistance given for police interviews. However, solicitors still need to satisfy themselves about the client’s financial status as this will affect any contribution they may be liable to pay towards the costs of the case.
We accept that verification is not likely to be available from the client in the police station. However, if the client is not likely to be back in touch with you, then we can accept the grant of advice and assistance without the solicitor seeing formal verification. This does need to be clearly explained in the application. You can do this in the section of the application where you need to explain if verification has not been seen. You should tell us that it was a police station duty case where the solicitor is not expecting to see the client again. It is not enough to say merely that it was advice provided at a police station. We need to know that there is no likelihood of the client being back in touch with you. Verification of a client’s capital should not be an issue here as there is no contribution due from capital.
Advice and assistance contributions in police interview cases
At present, police station advice is paid for under Advice and Assistance. The Scottish Government’s intention was always to review the payment mechanism as part of the work on the Criminal Justice (Scotland) Bill 2013.
The Scottish Government agreed to the removal of the upper income and capital thresholds so all applicants qualify for advice and assistance for police station advice, but the contribution regime remains in place. For those whose disposable income exceeds the £245 threshold, the maximum contribution of £142 must apply. We have no facility to waive these contribution requirements. However, when the Scottish Civil Justice Council and Criminal Legal Assistance (Scotland) Act 2013 comes into effect in the autumn, this will remove client contributions from police station advice and assistance making eligibility for free advice and assistance available to all suspects who are questioned in police stations. Until then, the contribution payments remain in force.
If you would like further information please contact: Kingsley Thomas, Head of Criminal Legal Assistance, 0131 240 2085, firstname.lastname@example.org
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