This is the second in a series of posts looking at the Carloway review consultation document. It has been out for some time and the deadline for responses is fast approaching should you wish to submit a formal response to the consultation. I have not answered the questions in the order they appear in the consultation, but rather in the order that I chose. The text below are my thoughts based on my knowledge of the current position, jurisprudence from the European Court of Human Rights and also what I have read on the systems in other jurisdictions.
What types of advice are sufficient?
It is important that a suspect, who has chosen to seek advice from a solicitor prior to being interviewed by the police, or indeed at any stage of their detention, is able to do so freely. It is important, as with the law generally, that such consultations are privileged. Therefore, if telephone advice is to continue to be permitted then there should be private facilities for this to take place and should not be able to be overheard, or indeed listened into, by the police.
In the case of consultations that take place by telephone it may be that the suspect has access to a telephone where no facility exists to dial outside of the police station and that the telephone call has to be transferred from one telephone to another. This should be done in a secure manner to preserve the privileged nature of client-solicitor communications.
Face-to-face consultations in police stations should be what are encouraged and ensuring a duty solicitor scheme that is sufficiently staffed to meet the demand placed upon it will be essential. The Scottish Government and SLAB should continue to look at how this might work and ensure that they seek assistance from the Law Society of Scotland to ensure that a system is created that works and which solicitors will be willing to be involved with. It might be guaranteeing payment for all attendances at police stations is what is necessary; this would of course place an additional burden upon the Legal Aid budget at a time of significant austerity.
In cases where only the High Court of Justiciary has jurisdiction over the offence then telephone advice is not sufficient and a solicitor must attend the police station.
In what circumstances, if any, should a suspect be entitled to a solicitor of choice?
In the first instance the suspect should always be permitted to name a solicitor they wish contacted and a reasonable attempt should be made to contact that solicitor. Where the interests of justice dictate that contacting the named solicitor is not an option then no reasonable attempt need be made. A decision not to contact a named solicitor on such grounds should be at the discretion of a Constable of the rank of Inspector or above. The suspect should be notified of such a decision and offered the options of naming another solicitor, having a duty solicitor contacted instead or waiving their right to legal assistance.
If the solicitor named is contacted but cannot attend or cannot be contacted after a reasonable attempt to contact has been made the suspect should be notified and offered the options of suggesting another solicitor, having a duty solicitor contacted instead or waiving their right to legal assistance.
What obligations, if any, should there be on the police in relation to the disclosure of information prior to questioning?
The Police should be required to disclose to the solicitor, as a minimum, the following:
- Date and time of arrest/detention
- What alleged offence(s) the suspect has been detained/arrested in relation to
- The location of detention
They should also be required to disclose any other information that is reasonably requested by the solicitor and would not jeopardise any ongoing investigation. The decision to release any further information should be at the discretion of the investigating officer.
The Carloway Review consultation document can be read here [pdf] and the deadline for responses is Friday 3 June 2011.