Written evidence from Dr Vicky Kemp

Background

Throughout my career, spanning over four decades, I have been involved in criminal legal aid, either as a practitioner, policy officer or as a researcher. My interest in this topic began in the 1980s when I was working for a firm of solicitors as a paralegal, providing police station legal advice and managing Crown Court cases. After studying for an M.Phil. in Criminology at the University of Cambridge, I became a Policy Advisor with the former Legal Aid Board, working directly to the Chief Executive in bringing about criminal legal aid reforms. Subsequently, having studied for my doctorate on youth justice reforms, also at Cambridge, I returned to the Legal Services Commission (LSC), working as a Principal Researcher in the Commission’s independent Legal Services Research Centre. Following the LSC’s abolition in 2013, I am now a Principal Research Fellow at the University of Nottingham, continuing to undertake research into criminal legal aid and the legal rights of suspects.

Evidence submitted

In responding to this call, the evidence submitted is focused on my research findings that impact on criminal legal aid issues.

1. How LASPO has impacted access to justice and for views on the post-implementation review and the legal aid review

Both the post-implementation review of LASPO and the criminal legal aid review highlight the financial difficulties that practitioners face in providing criminal defence services. In relation to police station work, the financial difficulties for solicitors’ firms began in 2008 with the introduction of a fixed fee. While based on a ‘swings and roundabouts’ approach, solicitors complain that the fee is not sufficient to cover the cost of providing advice and assistance to detainees, particularly when dealing with serious and complex cases. Solicitors income for this work has reduced significantly, not only because of the 8.75% cut in legal aid fees imposed in 2014, but also due to the number of arrests having fallen by over half, from 1.4 million in 2010/11 to 670,000 in 2018/19.

These changes have not only impacted on the financial viability of solicitors’ firms but have also had a negative impact on the quality of criminal legal aid services and in providing access to justice. In relation to police station work, for example, many firms now concentrate on the police interview only and do not get involved in the wider issues concerning the detention of their clients. Cuts to policing budgets have also had a negative consequences for the treatment of detainees and access to legal advice. Set out below are key findings arising out of recent research studies, including interviews with 100 detainees, asking about their legal rights as suspects in two large custody suites.[1]

These research findings show how PACE safeguards are not always operating as intended. When working in the Legal Services Research Centre, such findings would have been reported to senior officers in the LSC and the Ministry of Justice. When dealing with major legal aid reforms, an Advisory Board would be set up under the auspices of the Lord Chancellor, providing a strategic framework through which an holistic approach (involving the police, CPS and defence lawyers) could be taken when considering wider implications of changes proposed.

2. The role of the Legal Aid Agency (LAA)

As an executive agency of the Ministry of Justice, the Legal Aid Agency’s role is to commission and administer legal aid services. This is a narrower focus than that undertaken by the former Legal Services Commission (LSC) which, when acting as a non-departmental public body, was to establish and maintain the overall strategic direction for legal aid, within a framework agreed with the Lord Chancellor. The Legal Services Research Centre (LSRC), an internationally recognised and influential leader in the field of access to justice research, was embedded into the LSC. By undertaking high-quality research projects, and bringing together a group of experts, both nationally and globally, the LSRC had a key role to play in assisting the LSC to determine the strategic direction for both civil and criminal legal aid. The abolition of the LSC and the LSRC has had a detrimental impact on the strategic direction of legal aid policies and practices.

When conducting research, I continue to adopt an holistic approach, which includes working with government and criminal justice agencies in seeking to provide a robust evidence base from which to help inform changes in criminal legal aid. This work includes engaging with those drawn into the criminal process so that their experiences can be taken into account. Set out below is a summary of two studies where I am currently working with policy makers and practitioners in seeking to bring about positive change in access to justice and the delivery of criminal legal aid services.

Impact of PACE on young suspects

Having undertaken research into police custody and legal advice for over twenty years, I have found it frustrating not to be able to engage with children when held in police custody. While there are important ethical and safeguarding issues to address, without listening to their experiences in the criminal process we are likely to continue with an adult-centred system of justice. This is despite youth justice reforms proposed by government requiring a ‘child-friendly’ approach to be adopted, which puts the ‘child first and offender second’. International standards, including the UN Convention on the Rights of the Child, also require a ‘child-centred’ system of justice, including in the police investigation, and for decisions to be made in the best interests of the child. The Convention also requires practitioners who are involved with children in the criminal process to be trained, which is not the case in this jurisdiction.

In PACE, the only concession as to age is the mandatory requirement for an appropriate adult to be involved, which is often a parent or guardian who has little or no understanding of suspects’ legal rights. From the age of 10 years, a child can be arrested and brought into custody but there are no child-centred requirements stating how they should be dealt with. The Nuffield Foundation are funding this research project and, by engaging with children who have experience of being a suspect, we will explore how changes can be made to bring about a ‘child-friendly’ system of justice within the police investigation. Arising out of discussions with the Ministry of Justice, this is to include testing an ‘opt-out’ rather than ‘opt-in’ approach to legal advice for young suspects, potentially making it mandatory for children to have a lawyer.

From the outset, recognising the transformation required in bringing about such change, we have set up a Steering Group which includes key agencies responsible for PACE safeguards and those providing support to children in the youth justice system. Chaired by Lord Carlile QC, and including Professor Michael Zander QC, there are representatives from the Ministry of Justice and the Home Office, the National Police Chief’s Council and the College of Policing, the Law Society, CPS, Legal Aid Agency, Youth Justice Board, the National Association of Appropriate Adults, children’s rights groups and senior academics. The Steering Group will take on a role similar to that undertaken by Advisory Boards set up by the Lord Chancellor to oversee criminal legal aid reforms.

Suspects legal rights in voluntary police interviews

The police are increasingly using voluntary interviews instead of having to arrest and detain suspects for the purpose of conducting an interview. While it is accepted that suspects in voluntary interviews are entitled to the same PACE safeguards as those detained, including access to free legal advice, the government has not provided any information publicly about these rights. There is also no information available on how to access a publicly funded defence lawyer and, instead, the procedure required is the same as that used in custody, with the police to passing on a request for legal advice to the Defence Solicitor Call-Centre (DSCC) and the referral then being passed on to either a nominated solicitor or the duty solicitor. This approach is problematic outside of police custody for two key reasons. Firstly, not all police officers know how to contact the DSCC, which means that some requests for advice are not met. Secondly, it is often not until the start of the interview that suspects are told they can have a lawyer and, knowing that a request will lead to a delay, many will decline as they just want to get on with the interview. Despite a high volume of voluntary interviews, which include serious offences, there are no statistics available to show how many are taking place, whether or not a lawyer was involved, and the case outcome.

In seeking to address some of the problems raised, I am working with a police force in developing an app for the police to use in voluntary interviews. It will provide guidance to officers on how to conduct such an interview, and provide information on suspects’ legal rights. This will link across to my website, ‘Know my Rights’ (knowmyrights.org.uk), which has been set up to inform the public about the legal rights of suspects. It is the only website that provides information on this important topic at the same time as providing access to a lawyer. This is facilitated via a search of the police station duty solicitor rota, with suspects being able to select a publicly funded lawyer in their local area.[3] The search facility is not ideal as it is not user-friendly and instead it would be helpful if there was a telephone number allocated for the public to call when contacting the DSCC to obtain details of the solicitor on duty in their area. The number could then be displayed prominently on the front page of the Know my Rights website, providing suspects with easier access to a lawyer. A request has been made to the Ministry of Justice and the LAA for this step to be taken but telephone number has been allocated. 

3. What the challenges are for legal aid over the next decade, what reforms are needed and what can be learnt from elsewhere

With austerity leading to cuts in public funding and with Covid-19, the criminal justice system is in a state of crisis. It is evident that technology will lead to a transformation of the criminal justice system, a process that has been accelerated by the pandemic. In looking at the future of criminal legal aid, it would be helpful to review the role of defence lawyers within the pre-charge criminal process. At present, PACE Code C (Notes for Guidance 6D) states that ‘The solicitor’s only role in the police station is to protect and advance the legal rights of their clients’. This is an inefficient approach as it does not give lawyers a full-blooded adversarial role, which is instead reserved for the trial process. If lawyers were required, and funded to provide such a role in the police station, this could help to enhance legal safeguards and provide efficiencies and cost-savings more widely within the criminal justice system. This could be achieved if the role of lawyers is to include reviewing the evidence and to make representations to the police/CPS as to case outcomes, including charging decisions. By identifying and removing early on weak and ill-considered cases, for example, this would reduce the number of cases proceeding unnecessarily to court. Also, by ensuring that the evidence supports the type of offence charged, this will help to increase the number of early guilty pleas and reduce the number of trials, or at least the number of issues to be addressed at trial.[4]

A review of the literature would help to identify how criminal legal aid is being managed in other jurisdictions. Having recently undertaken a study of ‘effective police station legal advice’ in five jurisdictions (Belgium, England and Wales, Ireland, Northern Ireland and Scotland), there are some interesting developments taking place in improving access to legal advice, particularly following implementation of the EU Directive on the right of access to a lawyer. There are also different youth justice models operating in different countries and a review of such practices could help to inform change.

It is also important that a review of criminal legal aid adopts a rights-based approach, ensuring that the rule of law is upheld when dealing with people who should be at the heart of the criminal justice system – both as suspects and defendants. To this end, it is crucial that their experiences in the criminal process are heard and that their voices help to inform legal aid reforms. When placing ‘users’ at the centre of my research, this has led to the development of digital resources to try and enhance legal safeguards by informing suspects of their legal rights and to test for understanding of those rights, particularly when considering waiving legal advice. It is also possible through a tablet, used to host the app, to routinely capture people’s experience in the criminal justice system. To this end, we are developing interactive videos that can be used to ask questions about specific issues and, more generally, we could use audio and/or video to provide a platform for people to confidentially report their experiences in the criminal justice system.

With Covid-19 there is much needed progress in this field but our efforts are delayed by funder’s hesitancy to support software development, owing to concerns about private organisations developing marketable products with charitable funds. Such hesitancy and delay has shown to be problematic now that Covid-19 has impacted on old and outdated forms of working. It is important that reforms based on technology, both in police stations and in court, take into account not only the needs of suspects and defendants but also the crucial role that defence lawyers have to play in ensuring access to justice and upholding the rule of law. 

 

12 October 2020

 

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[1] See V. Kemp (2018) Digital legal rights for suspects: users' perspectives and PACE safeguards and two Criminal Law Review articles (2020): ‘Digital Legal Rights: Exploring Detainees’ Understanding of the Right to a Lawyer and Potential Barriers to Accessing Legal Advice’ and ‘Authorising and Reviewing Detention: PACE Safeguards in a Digital Age. Findings are also reported arising out of recent Freedom of Information (FOI) requests submitted to police forces in England and Wales.

[2] Delays are longer in some custody suites with an average duration of detention in the two custody suites studied reaching almost 18 hours.

[3] Without providing information to the public on how to access free legal advice when attending voluntary interviews, there have been cases where some firms are charging for providing this advice.

[4] See V Kemp (2018) Effective Police Station Legal Advice in England and Wales (2018, 34).