New PACE Codes of Practice and duty solicitor arrangements
01 January 1991
New PACE Codes of Practice and duty solicitor arrangements
artdoc June=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subsequently withdrawn.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.
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