6 Right to legal advice

6.1 Unless Annex B applies, 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 from the duty solicitor. A detained person must be informed of this right on first being detained. Where an appropriate adult is in attendance, they must also be informed of this right. See paragraph 3.1, Note 1I, Notes 6B and 6J

6.2 A poster advertising the right to legal advice must be prominently displayed in the charging area of every police station. See Note 6G.

6.3 No police officer should, at any time, do or say anything with the intention of dissuading any person who is entitled to legal advice in accordance with this Code, from obtaining legal advice. See Note 6ZA.

6.4 The exercise of the right of access to legal advice may be delayed exceptionally only as in Annex B. For any terrorist offender on licence detained under section 43B of TACT, the right of access to legal advice may not be delayed. Whenever legal advice is requested, and unless Annex B applies, the custody officer must act without delay to secure the provision of such advice. If, on being informed or reminded of this right, the detainee declines to speak to a solicitor in person, the officer should point out that the right includes the right to speak with a solicitor on the telephone (see paragraph 5.6). If the detainee continues to waive this right the officer should ask them why and any reasons should be recorded on the custody record or the interview record as appropriate. Reminders of the right to legal advice must be given as in paragraphs 3.5 and 11.3 and paragraph 5 of Annex K of this Code and PACE Code D on the Identification of Persons by Police Officers, paragraphs 3.17(ii) and 6.3. Once it is clear a detainee does not want to speak to a solicitor in person or by telephone they should cease to be asked their reasons. See Note 6J.

6.5 An officer of the rank of superintendent or above may give a direction under TACT Schedule 8 paragraph 9 that a detainee’s right to consult a solicitor (under Schedule 8 paragraph 7) may not be exercised by consulting the solicitor who attends for the purpose of the consultation or who would so attend but for the giving of the direction, but may instead be exercised by consulting a different solicitor of the detained person’s choosing. A direction under this paragraph may be given before or after a detained person’s consultation with a solicitor has started (and if given after it has started the right to further consult that solicitor ceases on the giving of the direction). Such a direction may only be given if the officer has reasonable grounds to believe that if it were not, it may result in any of the consequences set out in TACT Schedule 8 paragraph 8(4) (e.g. interference with or harm to evidence of a serious offence) or that the detained person has benefited from his criminal conduct and that, unless the direction is given, the exercise of the right by the detained person will hinder the recovery of the value of the property constituting the benefit.

6.6 In the case of a person who is a juvenile or is vulnerable, an appropriate adult should consider whether legal advice from a solicitor is required. If such a detained person wants to exercise the right to legal advice, the appropriate action should be taken and should not be delayed until the appropriate adult arrives. If the person indicates that they do not want legal advice, the appropriate adult has the right to ask for a solicitor to attend if this would be in the best interests of the person and must be so informed. In this case, action to secure the provision of advice if so requested by the appropriate adult shall be taken without delay in the same way as when requested by the person. However, the person cannot be forced to see the solicitor if they are adamant that they do not wish to do so.

6.7 A detainee who wants legal advice may not be interviewed or continue to be interviewed (noting that a terrorist offender on licence arrested under section 43B TACT will not have been arrested on suspicion of committing an offence and so will not be interviewed under caution) until they have received such advice unless:

a) Delay in access to legal advice has been authorised, as set out in Annex B, by an officer of superintendent rank or above who has reasonable grounds for believing the exercise of the right to consult a solicitor will have one of the following consequences:

a. interference with or harm to evidence of an indictable offence;

b. interference with or physical injury to any person;

c. the alerting of persons who are suspected of having committed an indictable offence but who have not been arrested for it;

d. the hindering of the recovery of property obtained as a result of an indictable offence;

e. interference with the gathering of information about a person’s involvement in foreign power threat activity;

f. making it more difficult, by the alerting of a person, to prevent foreign power threat activity; or g. making it more difficult, by the alerting of a person, to secure a person’s apprehension, prosecution or conviction in connection with the persons’ involvement in foreign power threat activity; or

g. The detained person has benefited from their criminal conduct (in accordance with Part 2 or 4 of the Proceeds of Crime Act 2002) and the recovery of the value of the property constituting the benefit will be hindered;

or;

b) It is authorised by an officer of superintendent rank or above who has reasonable grounds for believing that delaying the interview to await legal advice will have any of the relevant consequences set out in (a) above.

Note: In these cases the restriction on drawing adverse inferences from silence in Annex C will apply because the detainee is not allowed an opportunity to consult a solicitor.

c) the solicitor the detainee has nominated or selected from a list:

(i) cannot be contacted;

(ii) has previously indicated they do not wish to be contacted; or

(iii) having been contacted, has declined to attend; and

the detainee has been advised of the Duty Solicitor Scheme but has declined to ask for the duty solicitor;

in these circumstances the interview may be started or continued without further delay provided an officer of inspector rank or above has agreed to the interview proceeding.

Note: The restriction on drawing adverse inferences from silence in Annex C will not apply because the detainee is allowed an opportunity to consult the duty solicitor;

d) the detainee changes their mind, about wanting legal advice or (as the case may be) about wanting a solicitor present at the interview, and states that they no longer wish to speak to a solicitor. In these circumstances the interview may be started or continued without delay provided that:

i. an officer of inspector rank or above:

a. speaks to the detainee to enquire about the reasons for their change of mind (see Note 6J), and

b. makes, or directs the making of, reasonable efforts to ascertain the solicitor’s expected time of arrival and to inform the solicitor that the suspect has stated that they wish to change their mind and the reason (if given);

ii) the detainee’s reason for their change of mind (if given) and the outcome of the action in (i) are recorded in the custody record;

iii) the detainee, after being informed of the outcome of the action in (i) above, confirms in writing that they want the interview to proceed without speaking or further speaking to a solicitor or (as the case may be) without a solicitor being present and do not wish to wait for a solicitor by signing an entry to this effect in the custody record;

iv) an officer of inspector rank or above is satisfied that it is proper for the interview to proceed in these circumstances and:

a. gives authority in writing for the interview to proceed and if the authority is not recorded in the custody record, the officer must ensure that the custody record shows the date and time of the authority and where it is recorded; and

b. takes or directs the taking of reasonable steps to inform the solicitor that the authority has been given and the time when the interview is expected to commence and records or causes to be recorded, the outcome of this action in the custody record.

v) When the interview starts and the interviewer reminds the suspect of their right to legal advice (see paragraph 11.3) and the Code of Practice issued under paragraph 3 of Schedule 8 to the Terrorism Act 2000 for the video recording with sound of interviews, the interviewer shall then ensure that the following is recorded in the interview record made in accordance with that Code:

a. confirmation that the detainee has changed their mind about wanting legal advice or (as the case may be) about wanting a solicitor present and the reasons for it if given;

b. the fact that authority for the interview to proceed has been given and, subject to paragraph 2.8, the name of theauthorising officer;

c. that if the solicitor arrives at the station before the interview is completed, the detainee will be so informed without delay and a break will be taken to allow them to speak to the solicitor if they wish, unless paragraph 6.7(a) applies, and

d. that at any time during the interview, the detainee may again ask for legal advice and that if they do, a break will be taken to allow them to speak to the solicitor, unless paragraph 6.7(a), (b), or (c) applies.

Note: In these circumstances the restriction on drawing adverse inferences from silence in Annex C will not apply because the detainee is allowed an opportunity to consult a solicitor if they wish.

6.8 If paragraph 6.7(a) applies, where the reason for authorising the delay ceases to apply, there may be no further delay in permitting the exercise of the right in the absence of a further authorisation unless paragraph 6.7(b), (c) or (d) applies. If paragraph 6.7(b) applies, once sufficient information has been obtained to avert the risk, questioning must cease until the detainee has received legal advice unless paragraph 6.7(a), (b), (c) or (d) applies.

6.9 A detainee who has been permitted to consult a solicitor shall be entitled on request to have the solicitor present when they are interviewed unless one of the exceptions in paragraph 6.7 applies.

6.10 The solicitor may only be required to leave the interview if their conduct is such that the interviewer is unable properly to put questions to the suspect. See Notes 6C and 6D.

6.11 If the interviewer considers a solicitor is acting in such a way, they will stop the interview and consult an officer not below superintendent rank, if one is readily available, and otherwise an officer not below inspector rank not connected with the investigation. After speaking to the solicitor, the officer consulted will decide if the interview should continue in the presence of that solicitor. If they decide it should not, the suspect will be given the opportunity to consult another solicitor before the interview continues and that solicitor given an opportunity to be present at the interview. See Note 6D.

6.12 The removal of a solicitor from an interview is a serious step and, if it occurs, the officer of superintendent rank or above who took the decision will consider if the incident should be reported to the Solicitors Regulatory Authority. If the decision to remove the solicitor has been taken by an officer below superintendent rank, the facts must be reported to an officer of superintendent rank or above, who will similarly consider whether a report to the Solicitors Regulatory Authority would be appropriate. When the solicitor concerned is a duty solicitor, the report should be both to the Solicitors Regulatory Authority and to the Legal Aid Agency.

6.13 ‘Solicitor’ in this Code means:

a solicitor who holds a current practising certificate;

an accredited or probationary representative included on the register of representatives maintained by the Legal Aid Agency.

6.14 An accredited or probationary representative sent to provide advice by, and on behalf of, a solicitor shall be admitted to the police station for this purpose unless an officer of inspector rank or above considers such a visit will hinder the investigation and directs otherwise. Hindering the investigation does not include giving proper legal advice to a detainee as in Note 6C. Once admitted to the police station, paragraphs 6.7 to 6.11 apply.

6.15 In exercising their discretion under paragraph 6.14, the officer should take into account in particular:

whether:

the identity and status of an accredited or probationary representative have been satisfactorily established;

they are of suitable character to provide legal advice,

any other matters in any written letter of authorisation provided by the solicitor on whose behalf the person is attending the police station. See Note 6E.

6.16 If the inspector refuses access to an accredited or probationary representative or a decision is taken that such a person should not be permitted to remain at an interview, the inspector must notify the solicitor on whose behalf the representative was acting and give them an opportunity to make alternative arrangements. The detainee must be informed and the custody record noted.

6.17 If a solicitor arrives at the station to see a particular person, that person must, unless Annex B applies, be so informed whether or not they are being interviewed and asked if they would like to see the solicitor. This applies even if the detainee has declined legal advice or, having requested it, subsequently agreed to be interviewed without receiving advice. The solicitor’s attendance and the detainee’s decision must be noted in the custody record.

6.18 Any request for legal advice and the action taken shall be recorded.

6.19 A record shall be made in the interview record if a detainee asks for legal advice and an interview is begun either in the absence of a solicitor or their representative, or they have been required to leave an interview.

6ZA No police officer or police staff shall indicate to any suspect, except to answer a direct question, that the period for which they are liable to be detained, or the time taken to complete the interview, might be reduced:

if they do not ask for legal advice or do not want a solicitor present when they are interviewed; or

if after asking for legal advice, they change their mind about wanting it or (as the case may be) wanting a solicitor present when they are interviewed and agree to be interviewed without waiting for a solicitor.

6A In considering if paragraph 6.7(b) applies, the officer should, if practicable, ask the solicitor for an estimate of how long it will take to come to the station and relate this to the time detention is permitted, the time of day (i.e. whether the rest period under paragraph 12.2 is imminent) and the requirements of other investigations. If the solicitor is on their way or is to set off immediately, it will not normally be appropriate to begin an interview before they arrive. If it appears necessary to begin an interview before the solicitor’s arrival, they should be given an indication of how long the police would be able to wait so there is an opportunity to make arrangements for someone else to provide legal advice. Nothing within this section is intended to prevent police from ascertaining immediately after the arrest of an individual whether a threat to public safety exists (see paragraph 11.2).

6B A detainee has a right to free legal advice and to be represented by a solicitor. This Note for Guidance explains the arrangements which enable detainees to whom this Code applies to obtain legal advice. An outline of these arrangements is also included in the Notice of Rights and Entitlements given to detainees in accordance with paragraph 3.2.

The detainee can ask for free advice from a solicitor they know or if they do not know a solicitor or the solicitor they know cannot be contacted, from the duty solicitor.

To arrange free legal advice, the police should telephone the Defence Solicitor Call Centre (DSCC). The call centre will contact either the duty solicitor or the solicitor requested by the detainee as appropriate.

When a detainee wants to pay for legal advice themselves:

the DSCC will contact a solicitor of their choice on theirbehalf;

they should be given an opportunity to consult a specific solicitor or another solicitor from that solicitor’s firm. If this solicitor is not available, they may choose up to two alternatives. If these alternatives are not available, the custody officer has discretion to allow further attempts until a solicitor has been contacted and agreed to provide advice;

they are entitled to a private consultation with their chosen solicitor on the telephone or the solicitor may decide to come to the police station;

if their chosen solicitor cannot be contacted, the DSCC may still be called to arrange free legal advice.

Apart from carrying out duties necessary to implement these arrangements, an officer must not advise the suspect about any particular firm of solicitors.

6C The solicitor’s only role in the police station is to protect and advance the legal rights of their client. On occasions this may require the solicitor to give advice which has the effect of the client avoiding giving evidence which strengthens a prosecution case. The solicitor may intervene in order to seek clarification, challenge an improper question to their client or the manner in which it is put, advise their client not to reply to particular questions, or if they wish to give their client further legal advice. Paragraph 6.10 only applies if the solicitor’s approach or conduct prevents or unreasonably obstructs proper questions being put to the suspect or the suspect’s response being recorded. Examples of unacceptable conduct include answering questions on a suspect’s behalf or providing written replies for the suspect to quote.

6D An officer who takes the decision to exclude a solicitor must be in a position to satisfy the court the decision was properly made. In order to do this they may need to witness what is happening.

6E If an officer of at least inspector rank considers a particular solicitor or firm of solicitors is persistently sending probationary representatives who are unsuited to provide legal advice, they should inform an officer of at least superintendent rank, who may wish to take the matter up with the Solicitors Regulatory Authority.

6F Subject to the constraints of Annex B, a solicitor may advise more than one client in an investigation if they wish. Any question of a conflict of interest is for the solicitor under their professional code of conduct. If, however, waiting for a solicitor to give advice to one client may lead to delay to the interview with another, the provisions of paragraph 6.7(b) may apply.

6G In addition to a poster in English, a poster or posters containing translations into Welsh, the main minority ethnic languages and the principal European languages should be displayed wherever they are likely to be helpful and it is practicable to do so.

6H Not used

6I Whenever a detainee exercises their right to legal advice by consulting or communicating with a solicitor, they must be allowed to do so in private. This right to consult or communicate in private is fundamental. If the requirement for privacy is compromised because what is said or written by the detainee or solicitor for the purpose of giving and receiving legal advice is overheard, listened to, or read by others without the informed consent of the detainee, the right will effectively have been denied. When a detainee speaks to a solicitor on the telephone, they should be allowed to do so in private unless this is impractical because of the design and layout of the custody area, or the location of telephones. However, the normal expectation should be that facilities will be available, unless they are being used, at all police stations to enable detainees to speak in private to a solicitor either face to face or over the telephone.

6J A detainee is not obliged to give reasons for declining legal advice and should not be pressed to do so.