Authors:Ed Cape
Last updated:2023-09-18
PACE and beyond
Marc Bloomfield
Description: LAG 50 Years
Ed Cape reflects on LAG’s five decades and the development of police station law and practice following the Police and Criminal Evidence Act 1984.
Thinking about Legal Action Group’s first 50 years, I realised that for half of its life, legal aid fees paid to lawyers for advising and assisting clients at police stations have not increased. Not only have they not gone up in real terms, but remuneration for police station work has not increased in actual terms. In real terms, lawyers are paid far less now than they were in the mid-1990s. That is a shocking truth that discloses successive governments’ attitudes towards legal aid recipients and their lawyers. It is even more unpalatable when one considers the context: legal aid remuneration has declined during more than two decades in which the number of criminal offences has multiplied, police powers have been routinely increased, police investigations have become more complex and the job of the defence lawyer has become more challenging.
I first subscribed to the LAG Bulletin (the forerunner of Legal Action) in 1973. It was the Bulletin, together with the work of Michael Zander (then legal correspondent at the Guardian), that inspired me to become a legal aid lawyer. A training contract at a south London Law Centre followed – it was closed down in 1979, just as I qualified as a solicitor, by an incoming Conservative council. Following spells managing a Citizens Advice Bureau in South Wales and as an assistant solicitor in a Bristol law firm, I set up a legal aid firm in the St Pauls district of Bristol, together with Roy Douglas, in the same year that the Police and Criminal Evidence Act 1984 (PACE) came into force. Police station work rapidly became a significant part of our practice, as it did for many other criminal law firms.
LAG played a key role in supporting the development of the role of the police station lawyer, a specialism that became possible after PACE introduced a statutory right for suspects to consult a solicitor, enabled by a free legal aid scheme. I remember attending a LAG course on PACE run by Fiona Hargreaves (Fairweather) and Howard Levenson, who wrote the first LAG book on the subject, published in 1985, and who authored a series of articles for Legal Action on the Act over the next few years. Three years later, LAG published The Duty Solicitor’s Handbook (written by Allan Blake, Lee Bridges and me), and I think my first article for Legal Action was a short one on revisions to the duty solicitor scheme in 1989.
Description: LAG at 50 police station law 2
In 1993, LAG published the first edition of my book, Defending Suspects at Police Stations (now in its eighth edition, for which I had the great fortune to be joined by Matthew Hardcastle and Sandra Paul as co-authors). It was the then LAG publisher, Paul Crane, who perceptively suggested the use of the term ‘defending’ in the book title – defending, not merely advising. LAG ran regular courses on police station law and practice; in the mid-1990s they were often attended by hundreds of delegates, and were inspiring, exciting (even joyous) events as lawyers learnt new skills and explored the possibilities of their new-found role. The rapid rate of change led to the idea of a biannual police station law and practice update in Legal Action, and that is still going strong after almost 20 years (also with co-authors Matthew Hardcastle and Sandra Paul).
PACE was based on the report of the Royal Commission on Criminal Procedure (the Philips Commission), published in 1981. The commission had explicitly adopted what it described as a ‘balanced’ approach – while police powers were to be increased, this was to be ‘balanced’ by a range of procedural rights for suspects. PACE encompassed a number of positive, and enduring, features – most obviously the right to consult a lawyer, but also clearer and detailed regulations in codes of practice – and also led to the electronic recording of police interviews (which largely eradicated the scandal of routine acceptance by the courts of clearly fabricated or embellished police accounts). In other respects, though, PACE has clearly failed, especially in effectively regulating stop and search.
However, I fear that PACE marks the last substantial legislative recognition of the fact that a fair and just criminal process requires effective procedural rights for those suspected of crime, and that ensuring a fair process for both victims and those accused of crime is not a zero-sum game. Many police officers were very resistant to what they regarded as the strictures of PACE. This resistance took a number of forms – conducting interviews in police cars, discouraging suspects from asking for a lawyer, delaying access by lawyers and stopping lawyers from intervening in police interviews. At the institutional level, the police immediately began lobbying for removal of the right to silence – even though this had been ruled out by the Philips Commission – and they found a sympathetic ear with the then Conservative home secretary, Michael Howard, leading to the Criminal Justice and Public Order Act 1994 (despite the fact that the Royal Commission on Criminal Justice (the Runciman Commission), reporting a year earlier, had recommended its retention).
Description: LAG at 50 police station law 1
In the three decades since then, police investigative powers have been regularly enlarged, expanding the circumstances in which they can be used and lowering the level of authorisation required to use them. When PACE was first enacted, fingerprints could only be taken for investigative purposes on the authorisation of a superintendent; now, no authorisation is required. The general power of arrest only applied in respect of offences carrying five or more years’ imprisonment, but now applies to all offences. Detention without charge beyond 24 hours was only possible if the suspected offence was a serious arrestable offence, but since 2005 it has not been so limited. There are many more examples.
At the same time, while the right of a suspect to consult a lawyer remains, a variety of attempts have been made to restrict the impact of legal advice. The police station building programme has ‘designed out’ defence lawyers, distancing them from the decision-makers. Prosecutor charging restricts the opportunities for lawyers to negotiate over charge and other outcomes. The introduction of CDS Direct limits legal advice to ‘telephone only’ for less serious offences. The Court of Appeal, having failed to induce lawyers to advise silence only on ‘good’ grounds of which it approves, has ensured that while the law was changed in 2003 so that inferences cannot be drawn if a suspect is not offered the opportunity to consult a solicitor, if they do have a lawyer, the jury is told that in deciding whether to draw an adverse inference from silence on the advice of that lawyer, the defendant was entitled to ignore their advice.
In 1993, the Runciman Commission was rightly critical of the standards of some police station lawyers. The Law Society responded positively by working with the Legal Aid Board to introduce the Police Station Accreditation Scheme, by articulating in detail the role of the police station lawyer and by promoting ‘Active Defence’. Lawyers responded (not always willingly!) to attempts to improve and assure quality through contracting mechanisms, and also by specialisation. However, to return to the point made at the beginning, both Labour and Conservative governments have reneged on the deal. Having upskilled, specialised and introduced management structures to deal with contracting, criminal law firms have been stranded by grossly inadequate fees that make profitable business all but impossible.
Experience over the past two decades or so means that I am not confident that the government’s response to Sir Christopher Bellamy QC’s Independent Review of Criminal Legal Aid will substantially change things for the better. What public service is better now than it was in 2010? What I am confident about is that LAG will continue to dedicate itself to supporting legal aid lawyers in the best ways it can.