Safeguarding Your Rights: Legal Representation at the Police Station

Right to Legal Representation at the Police Station

‘You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence.’

When starting an interview at the police station, the police read through the above caution with you. This caution explains the impact that the police interview can have on the outcome of your case. As well as reading the caution, the police must also inform you at the beginning of the interview that you have the right to free and independent legal advice. By having legal representation at the police station, a solicitor or accredited representative will provide you with advice regarding the interview process and how best to deal with it.  This may involve answering questions or it may involve maintaining your right to silence.

This right to free and legal independent legal advice is covered under section 58(1) of the Police and Criminal Evidence Act (PACE 1984) and entitles an individual, unless a delay is authorised, to consult a legal representative privately at any time. Under this right, access to legal advice must be permitted as soon as is practicable after the request and in any case must be permitted within 36 hours of the relevant time.

As well as at the beginning of interview, you must be told of this right both after any initial arrest and before being questioned by the police. Even if you decline legal representation at the outset, you have the right to change your mind at any time before, during or after being questioned by the police under caution, as it is an ongoing right. You do not have to have been arrested to be entitled to this representation. Even if you have attended the police station for interview on a voluntary basis, you are still entitled to legal representation if the police are questioning you under caution.

Free and Independent

The legal representation obtained at the police station is free and independent. This means that the advice will not cost you anything when using the duty solicitor at the police station. Duty solicitors are available 24 hours a day and you can ask the police to use a duty solicitor or you may opt to instruct a specific legal representative or law firm.  “Independent” means that the legal representative is not connected with the police in any way.

Representation can be over the phone in some situations, or the solicitor will attend in person. Once you have requested legal representation at the police station, the police cannot question you until that representation has arrived (save for in a few very exceptional circumstances).

What is the Role of the Legal Representative at the Police Station?

Under PACE, the solicitor’s role in the police station is to ‘protect and advance the legal rights of their client’. To do this, the solicitor will aim to investigate the prosecution case, obtain information to assist in the conduct of the defence and to advise the client on how to answer questions in interview – or not to answer questions, as the case may be.

The solicitor can also help to explain procedures, make representations against charging decisions, seek to secure bail and / or make representations against potential bail conditions.

Exceptions to this Right

Although this is a right under PACE, there are some exceptions where it may not be possible for legal advice to be sought or for the access to legal representation to be delayed. This may arise in the following scenarios:

• A person arrested under the terrorism provisions is entitled to consult a solicitor, however it may not be possible for this consultation to happen in private;
• A suspect’s right to obtain advice does not entitle an individual to delay procedures under the Road Traffic Act 1988 which regulates the provision of specimens, unless the advice is immediately available (this generally applies to alcohol breath tests);
• In some serious indictable offences, a superintendent may delay access for up to 36 hours if contact with legal representation is likely to interfere with evidence, lead to injury, alert others, hinder the recovery of property or other benefit that may be subject to confiscation. To delay this, the superintendent must actually believe, on reasonable grounds, that the risk ‘will very probably happen’ and this belief must be that a specific solicitor will, inadvertently or otherwise, pass on a message from the detained person or in some other way which will lead to any of the specified risks coming about. This exception is very rarely utilized, for obvious reasons.

‘No Comment’ While You Wait

In situations where access is delayed or denied to legal representation, the option to exercise your right to silence remains available to you, until a legal adviser is present in person or on the phone, and you may inform the police that you are taking this course of action. Unlike most circumstances, when a ‘no comment’ interview is given, no adverse inference can be drawn from silence if access to legal representation has been delayed. This means that if you decide to rely on a defence in court, the fact that you did not mention this at the first opportunity cannot undermine the credibility of this defence, due to the fact that you did not have legal advice at the time of questioning.

By giving a ‘no comment’ interview while awaiting legal representation, you avoid potentially helping to aid or build the prosecution case or giving a confused interview in circumstances where you might be stressed and unsure about the procedure. It also ensures you avoid answering questions without full knowledge of the allegations against you.

Significant Statements

A significant statement is a statement which appears capable of being used in evidence against the suspect that is relevant to the alleged offence. Any significant statements made will be put at the beginning of a police interview, after the caution.  The officer will ask whether the detained person accepts making the statement and they may go on to ask about the meaning of the statement.

If arrested, you should be careful about making any significant statements because, like answers in a police interview, these can be used as evidence and may help to build or strengthen the prosecution case against you, or undermine a future defence.  Again, the right to silence is available and this is generally a sensible option before legal representation is available.

What to Do if You’re Arrested

Obtaining legal representation at the police station may be crucial in determining the outcome of your case. What happens at the police station can impact any line of defence in court and it may influence whether the case gets that far. Knowing whether or not to answer questions at the police station or to exercise your right to silence by making ‘no comment’ is vital for ensuring the correct outcome you for.

At Old Bailey Solicitors we have a number of highly skilled solicitors and police station representatives available 24/7. If you are arrested, you are welcome to ask for legal advice from Old Bailey Solicitors at the police station. Alternatively, if you have been invited to attend the police station for interview on a voluntary basis, you may wish to contact Old Bailey Solicitors in advance on 0207 8464 999 or at [email protected] to ensure you have the best possible representation at the police station and thereafter.