What circumstances can a suspect be interviewed when legal representation has been withheld?
A detained person has the right to legal advice. The OIC may delay the request of legal advice in particular circumstances, but the OIC must be granted permission by the Custody Officer in order to exercise this. However, if the Custody Officer decided to declines the request from the OIC, to continue an interview without a solicitor, he may do so under circumstances. There are consequences in the outcome of the investigation if the rights for free legal advice is not dealt with properly. Legislation, the Codes of Practice, and relevant case law sets out guidance and the law to the right to legal advice, and when the right to legal advice can be delayed.
Section 58(1) of the Police and Criminal Evidence Act 1984 states that 'a person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time.’
Code C 3.1(a)(i) of the Police and Criminal Evidence Act 1984 Codes of Practice sets out a list of rights, which the Custody Officer must tell the detained person. That Code states;
when a person is brought to a police station under arrest or arrested at the station having gone there voluntarily, the custody officer must make sure the person is told clearly about:
their right to consult privately with a solicitor and that free independent legal advice is available.
Code C 6.1 of the Police and Criminal Evidence Act 1984 Codes of Practice sets out the right to legal advice. It states all detainees must be informed that they may at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone, and that free independent legal advice is available.
If a suspect wishes to access legal advice during an interview, the interview must stop instantly.[1] However, the right to access legal advice may be delayed, and the interview process may continue.[2] Section 58(8) of the Police and Criminal Evidence Act 1984 authorises the Officer to do so, only on the grounds set by that section. Section 58(8) of the Police and Criminal Evidence Act 1984 states;
(8) An officer may only authorise delay where he has reasonable grounds for believing that the exercise of the right at the time when the person detained desires to exercise it—
(a) will lead to interference with or harm to evidence connected with an indictable offence or interference with or physical injury to other persons; or
(b) will lead to the alerting of other persons suspected of having committed such an offence but not yet arrested for it; or
(c) will hinder the recovery of any property obtained as a result of such an offence.
Section 58(8A) of the Police and Criminal Evidence Act 1984 may authorise the Officer to delay where he has reasonable grounds for believing that—
(a) the person detained for the indictable offence has benefited from his criminal conduct, and
(b) the recovery of the value of the property constituting the benefit will be hindered by the exercise of the right
It could be argued that the suspect may of benefited from his criminal conduct, as a robbery involves a theft,[3] if he did in fact steal. If this was to be true, then the OIC may have had reasonable grounds to delay the solicitor.
The delay of the right to access legal advice may only be exercised if the detention was for an indictable offence, and the suspect hasn’t already been charged with that offence.[4] Section 58(6) of the Police and Criminal Evidence Act 1984 states that delay in compliance with a request is only permitted -
(a) in the case of a person who is in police detention for an indictable offence; and
(b) if an officer of at least the rank of superintendent authorises it.
It will be assumed that the Custody Officer from the current hypothetical is a rank of superintendent.
If the suspect has already been charged for an indictable offence, and the OIC wishes to interview the suspect, then the suspect has every right to consult a solicitor no matter what the circumstances.[6] In R v Samuel,[7] where the appellant was arrested for armed robbery, the appellant was refused a solicitor under section 58 of the Police and Criminal Evidence Act 1984. After admitting to an offence of burglary during the interviews, the appellant was charged with that offence. The appellant then had a further interview and was still refused a solicitor. The appellant then admitted to the robbery offence. The appellant appealed on the basis that the refusal of access to a solicitor was wrong. It was held in that case, by Judge Hodgson, allowing the appeal, that (1) the police could not refuse access after charge, as here when he was initially charged with the burglaries, and (2) the superintendent had to show that his fears under the section were justified in respect of the particular solicitor concerned.
Although an OIC may have a reason from the circumstances mentioned above to delay a solicitor, is it set on the reasonable grounds of the custody officer for believing them circumstances. If a Custody Officer has any reasonable grounds from the circumstances above, he can accept the request from the OIC to proceed with the interview without a solicitor.
References
[1] Police and Criminal Evidence Act 1984 Codes of Practice, Code C 6.6
[2] Police and Criminal Evidence Act 1984 Codes of Practice, Code C 6.6 (b) (i)
[3] Theft Act 1968, s8(1)
[4] Police and Criminal Evidence Act 1984 Codes of Practice, Annex B (1)
[5] 'Robbery' (The Crown Prosecution Service 2012) <http://www.cps.gov.uk/legal/s_to_u/sentencing_manual/robbery/> accessed 25/04/2015
[6] R v Samuel [1988] 1 QB 615
[7] [1988] 1 QB 615
