UK: New PACE Codes of Practice and duty solicitor arrangements
01 May 1991
A new set of Codes of Practice issued under the Police and Criminal Evidence Act 1984 came into effect on 1 April 1991. This represents the first major revision of the PACE Codes since the Act was first brought into operation in 1986. The main impetus for the revision came from research, conducted on behalf of the Lord Chancellor's Department, which showed serious defects in the working of the PACE provisions on suspects' right of access to legal advice (1). In particular, it was shown that in two fifths of cases observed by researchers the police used one or more ploys to prevent or discourage suspects from obtaining legal advice. Partly as a result, the proportion of suspects requesting and receiving legal advice while in police custody has remained at around the 20% level it reached immediately after the implementation of PACE.
This research also showed serious inadequacies in the response of solicitors to requests for legal advice from those held in police custody. It was shown, for example, that solicitors relied heavily on giving telephone advice and failed frequently to attend the police station, even where the suspect was due to be interrogated by the police. Also, a large proportion of police station attendances were carried out by legal executives and clerks rather than qualified solicitors. These criticisms have now also led to a major review of the 24-hour duty solicitor scheme, under which legal advice is intended to be made readily available to all persons held in police custody. New Duty Solicitor Arrangements, issued under the Legal Aid Act 1989, also came into force on 1 April to coincide with the new PACE Codes of Practice.
The revised Codes have, in fact, gone through three drafts. The first was subject to very wide consultation and received critical comment from various legal and civil liberties bodies. The second constituted the version originally laid before Parliament on 9 July 1990, but this was subsequently withdrawn. The third draft was finally laid before Parliament on 8 November and received approval in December. Between the second and third drafts, the Codes were subject to further but more restricted consultation, primarily with the police, and it is questionable whether the Home Office, in failing to submit the further changes proposed to all those originally consulted, complied fully with the requirements of PACE.
The main changes are in Code C, dealing with detention, treatment and questioning of suspects, and especially in the provisions relating to access to legal advice. As before, the police may delay access to legal advice if certain conditions apply, although evidence shows that formal delays of access are imposed infrequently. Suspects on terrorist offences, and now those arrested in connection with drug trafficking, are subject to special restrictions on access to legal advice.
All suspects must now be informed, both orally and in writing, when first detained, not only of their right to legal advice but also that it is available free of charge. Suspects must also be told that the right is a continuing one throughout their period in detention. This latter involves a change in wording, in that suspects were previously told that they need not exercise their right to legal advice immediately but could do so later, and research indicated that this led many of them to delay requests and to fail to ask for a solicitor when subsequently being interrogated. The police are also now required for the first time to remind suspects at various intervals, including at the start or resumption of any interviews, of their right to legal advice,
and to act immediately on any requests for solicitors. However one last minute change to the Codes is that those undergoing intimate searches will not required to be reminded of their right to legal advice beforehand.
Another late change concerns the circumstances in which interrogations can proceed in the absence of legal advice. Under earlie