ACCESS TO SOLICITORS (ARRESTED PERSONS) (Hansard, 20 May 1975)

§ Mr. Bryan Gould (Southampton, Test)

I beg to move, That leave be given to bring in a Bill to provide for arrested persons to have the right of access to a solicitor, subject to certain conditions; and to provide for the enforcement of such a right. Last month a young man named Peter Shilhan was released from gaol after serving 22 months of a four-year prison sentence. He was released because the Court of Appeal decided that he had been wrongly convicted on the basis of a confession extracted from him while he was held in custody and while he was denied access to a solicitor. It can hardly be doubted that if he had been advised by a solicitor he would not have signed a false confession.

This is a disturbing case, but cases like it arise only because arrested persons have no legally enforceable right of access to a solicitor. The apparent right which at present they seemingly enjoy is embodied in the preamble to the Judges' Rules. That provides that every person at any stage of an investigation should be able to communicate and to consult privately with a solicitor. This is so even if he is in custody provided that in such a case no unreasonable delay or hindrance is caused to the processes of investigation or the administration of justice by his so doing.

The Judges' Rules, however, have a curious legal status. They originated in 1906 in a letter from the then Lord Chief Justice to the Chief Constable of Birmingham. They have been developed and revised since then, most recently in 1964, but they continue to lack statutory force.

The only legal consequence of such rules and the only sanction that can be applied is that evidence which is obtained in violation of the rules is not admissible. But the judges themselves have been notoriously reluctant to enforce their own rules in this way and the Law Reports are littered with cases in which evidence obtained in breach of these rules has been admitted and the rules are thereby rendered nugatory. Most hon. Members will have had complaints brought to them by constituents 1219 who say they have not been allowed access to solicitors. The only research on this issue, however, is that conducted in 1972 by Mr. Michael Zander, and he on that occasion interviewed 134 people selected at random who had been convicted of criminal offences. Of the 57 of those people who had asked for access to a solicitor, no fewer than 42–74 per cent.—were refused such access. This is a startlingly high proportion. It cannot be explained away by saying that there must have been undue exaggeration in the case of one or two individuals. Neither can it be explained by saying that all these cases must have fallen within the proviso, because the proviso by definition, must apply only to the exceptional case and not to the normal case.

Therefore, the picture painted by the research is one of, at best, non-co-operation and, at worst, obstruction by the police. If that picture is accurate, it is no use blaming the police, because no one can expect them to abide by guidelines which have no legal force. The police cannot be expected to comply with so-called rules which are not rules and which they see, perhaps rightly from their point of view, as being merely an obstruction of their functions. The solution is not, therefore, to exhort the police to obey non-existent rules, but to give some substance to those rules.

There is a further sense in which the Judges' Rules are ineffective. In yesterday's debate on the renewal of the powers under the Prevention of Terrorism (Temporary Provisions) Act, my right hon. Friend the Home Secretary said that persons detained under the Act would have their right of access to a solicitor guaranteed by the Judges' Rules, but many of the people detained under the Act will never come before the courts and, therefore, in those cases there will be no opportunity for the Judges' Rules to be either applied or enforced.

Confronted with this situation where the Judges' Rules provide an illusion rather than reality about the right of access, we are left, I believe, with two possible courses of action. We can say that the right of access is not important, that it is merely an unnecessary hindrance of the police. I reject that view. The Shilhan case, among others, shows the right to be an important one. But, even 1220 if we were to take that view, surely it would be much more honest to abandon the pretence that the right exists and can be enforced.

The other course of action is to provide more statutory force to the Judges' Rules, and that is precisely what the Bill is designed to do. It provides a statutory right of access to solicitors, subject, of course, to the proviso in those rules, a proviso which I reluctantly accept is necessary. The Bill places on the police the onus of showing when a particular case falls within the proviso. The right of access given by the Bill would be enforced by making inadmissible any evidence obtained in breach of that rule. The confession in the Shilhan case, for example, which in that case was the only evidence on which a conviction could have been obtained, would, by this provision, be excluded.

There might be other cases where a conviction could still be obtained on other evidence even though the evidence in question was held to be inadmissible; that is, evidence obtained in breach of the rules. In order to take account of that situation, the Bill would provide that a person held in custody and denied access to a solicitor in circumstances to which the proviso could not be shown to apply would be deemed to be held unlawfully, and he would, therefore, have a civil remedy in damages against the police for false imprisonment.

The whole question of access to solicitors for people charged with criminal offences has been much helped and advanced by the practice of solicitors in some cities, including my own in Southampton, of providing a duty roster. I believe that the legal profession is to be congratulated on that initiative at any rate.

If it is thought that this modest measure goes too far—and I can see no objection to making illusion into reality as the Bill seeks to do—I believe that there is considerable support for its proposals in the European Court of Human Rights. That court recently decided in a case involving a British prisoner named Golder that the denial of access to a solicitor in the case of a prisoner was the denial of an essential element in a fair trial. The Home Secretary recently undertook to consider revision of the rules in the light of that 1221 decision. The reasoning applied by that court in that case involving a prisoner applies equally, perhaps a fortiori, to the arrested person. Just as the present rules may have to be revised in the light of that decision, so the Judges' Rules must be given substance by a measure such as as my Bill.

In other words, the Bill provides for the citizens of this country what the European Convention on Human Rights establishes as the entitlement of the citizens of all civilised societies, and on that basis I seek the support of the House.