ACCESS TO LEGAL ADVICE (Hansard, 25 October 1984)

Mr. Shaw
I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker
With this it will be convenient to take Lords amendment No. 185.

Mr. Shaw
These amendments excuse the police from having to record a request for legal advice made by a person already at court. Clause 56(2) rightly requires the police to record a request for advice made by a person who has been arrested and is in custody, but it is frankly not sensible to require them to make a record when the person is already at court. Once there, he is in the custody of the court, whether he is in the court room itself or in the cells below. It is thus for the court and its staff to deal with any request for legal advice, and no useful purpose would be served by a police log. Indeed, it might cause the police some administrative difficulty as the person's custody record would have been left behind at the police station. I hope, therefore, that the House will agree that the amendments are sensible and should be accepted.

§ Mr. Alex Carlile
Defendants often assert in court that they asked for a solicitor to be called, but that that was not done. One purpose of the custody record is to ensure that any request by the accused for a solicitor is recorded. The amendments will bring about a hiatus—a period during which it will be provided that no record should or, indeed, can be kept of such a request. One can foresee the police admitting in court that a request for a solicitor was made, but saying that, as it was made at court, no record was kept, while the defendant claims that the request was made before leaving the police station. The Minister laughs, perhaps with some justification, but I assure him that the criminal mind is well capable of spotting such a problem area and the news gets around quickly, especially in the remand centres. I hope that the Government considered that problem before deciding that this was the appropriate course. If not, perhaps they should think again.

§ Mr. Douglas Hogg
Again, I am in some sympathy with the hon. and learned Member for Montgomery (Mr. Carlile). Perhaps my hon. Friend the Minister will clarify the position. If a defendant makes a request to the court for a solicitor, that is almost certainly a matter of public record or at least something that can be established. The worrying point, however, is where the request is made after leaving the court because there is then a matter of controversy. If the request is made before going into the court, the defendant can clearly repeat it to the court, so in that case the difficulties are largely overcome. There is a period between the moment when he ceases to be in the court and the moment when he leaves the court building when there is no record and no means of establishing fact.

§ Mr. Alex Carlile
Does the hon. Gentleman accept that, even at court, a defendant may say in not very distinct tones, "I want to see a brief.," or something of that sort, which is unlikely to be recorded in many magistrates' courts in which he might appear?

§ Mr. Hogg
I am not entirely sure whether I agree with that. If a request is made, albeit in the most informal of 889 language to the court, the probability is that that request will be acted on either at the behest of the court through the duty solicitor scheme or by some other method.
I am more concerned with the situation when the defendant has left the court room and gone down to the cells. He could then make a request and, under the amendment, there would be no record of it. Therefore, there is a period which is not covered either by an existing record or by an application to the court. It would be helpful if my hon. Friend the Minister could amplify that matter.

§ Mr. Nicholas Lyell(Mid-Bedfordshire)
Whether the application has been recorded is not the only question that arises. After all, the purpose of recording whether or when a defendant makes an application for legal advice is to ensure that he or she should get legal advice when it is required. Has the Home Office given its mind to the substance of the problem rather than to the formalities? One of the Bill's difficulties is that it will result in a great deal of paperwork. We are concentrating here on the paperwork side. When a defendant goes to court, it is all very well to say, as my hon. Friend the Minister did, that he is in the custody of the court and therefore it is the court staff who should see that the defendant has access to legal advice, but my experience is that in the courts any prisoner might well be forgiven for not realising whether he is in the custody of the court or of the police. The person whom the prisoner is likely to ask to provide him with legal advice is the police officer.
What is the real justification for that lacuna when one tests it as a matter of practicality? I hope that my hon. Friend the Minister will go into this in some detail. In the course of his period at the Home Office he will no doubt have had to visit a number of courts and probably the passages and spaces between the prison and the court. Perhaps my hon. Friend will tell us whether he has had to visit Strangeways where there is, or used to be, a passage between the prison and the court. If the application is made in the course of passing through that passage, at what point does the matter have to be recorded? I see hon. Members laughing, but it is a serious problem, and I must ask my hon. Friend the Minister to give his views on it.

§ Mr. Ashby
I acknowledge the points made by my hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell). It is an important point despite its amusing aspects. We must realise that the magistrates courts are not courts of record. Although my hon. Friend the Member for Grantham (Mr. Hogg) expects that if such a request were made in court it would be noted somewhere, my experience is that whatever is said in court is noted nowhere and that nobody knows what goes on in court. I have had the experience in a magistrates court of calling two or three people from such courts to say what went on only to be given two or three different versions.
We cannot be satisfied about what goes on in the court. There is a gap. It would be easy for my hon. Friend the Minister to speak to the Attorney-General and consider whether the magistrates' courts could not be asked to make a record of any request made in the court. That would be a small amendment and would present no problem.
The court officials have to give written reasons when applications for bail are refused. The change which I envisage would be only an extension of that duty, and it would be quite within the capabilities of a clerk to the 890 court. This is an important gap and one that should—if I may use a term from the world of advertising—be bridged.

§ Mr. Giles Shaw
We have had an intellectual debate of the highest order on something which the hon. and learned Member for Montgomery (Mr. Carlile) has described as a significant matter of substance, but which has also been aptly described as that woolly animal, the lacuna.
I can offer some advice to my hon. Friends who are concerned. There are clauses in the Bill which provide for the establishment of custody officers. At long last, the situation is much more precise. So long as the prisoner is in the custody of the police, a direct record will be kept of all that is involved in the progress of his case. The purpose of the custody record is to record the person's treatment while he remains within police custody. As I understand it, once he arrives at the court he moves out of the custody of the police and into direct supervision of the court. The hiatus which worried the hon. and learned Member for Montgomery does not exist. The prisoner moves from one direct form of supervision to another.
As my hon. Friend the Member for Leicestershire, North-West (Mr. Ashby) pointed out, the problem is that the court is very lax in the supervision of the details of administration in regard to those within its jurisdiction at any time. That is a matter which I would have to draw to the attention of my noble Friend the Lord Chancellor if the House wished me to pursue it, because it is not a matter which is directly related to the Bill.
My hon. Friend the Member for Grantham (Mr. Hogg) referred to the time when the prisoner moves from the court. Surely the prisoner either leaves the court to go back into police custody—in which case the custody officer resumes his duties—or he goes to prison or, presumably, he is put at liberty.

§ Mr. Hogg
The hiatus arises when the prisoner leaves the court room and, for example, goes downstairs to the cells. He may stay there for a couple of hours. During that time he has not left the court but he has left the court room. That is the hiatus.

§ Mr. Shaw
I am not as proficient in the matter of law as my hon. Friend the Member for Grantham, but I assume that, when he goes downstairs, the prisoner remains within the jurisdiction of the court in so far as the court takes responsibility for all that happens within the building. If that is the case, if the prisoner has made a request to see a solicitor, for instance, the court officers should make a record of the fact.

§ Mr. Alex Carlile
Although when he is in the cells underneath the court room the prisoner is still at a court, he is guarded by the police officers who brought him from the police station and will take him back again. There is no court officer or prison officer there to whom the prisoner could make such a request. He is in police custody, because he has been remanded in police custody from the court room, but he is still at a court. There should be provision for a request to see a solicitor to be recorded if it is made in that situation.

§ Mr. Shaw
I appreciate the hon. and learned Gentleman's clarification. If that is seen to be a serious gap in the provisions about access to lawyers or the maintenance of records, it should be considered and 891 rectified. However, what we are discussing is the role within the Bill of police custody and its relationship to a person who is, for the purposes of a hearing, already transferred to court. The amendments make it clear that, in that case, no useful purpose would be served by the maintenance of a police log. The hon. and learned Member for Montgomery (Mr. Carlile) has said that there is a gap. It requires observation. I note that and perhaps in the meanwhile the House will agree with the Lords in the said amendment.

§ Mr. Lyell
I tried to emphasise that people need legal advice when they get to court. The Bill is designed to protect people when they are kept in custody for a long time but its provisions are irrelevant if a case comes on quickly. In those circumstances, ensuring that people who need legal advice get it is most relevant. There is a gap in the provisions that ensure that people who need legal advice get it and have their requests recorded. My hon. Friend appears not to have dealt with that issue. He says that it will be dealt with by the court. The hon. and learned Member for Montgomery (Mr. Carlile) and my hon. Friend the Member for Grantham (Mr. Hogg) have rightly observed that such a person will be in the custody of the police. I appreciate that it is difficult for my hon. Friend the Minister to amend at this stage but perhaps he could have the matter looked into and comment on it briefly now.

§ Mr. Shaw
I am grateful for my hon. and learned Friend's intervention. The role of the custody officer and the maintenance of a prisoner's contacts and requests should be ordered properly and a log should be kept. I agree that if, on transfer to court, there is a gap in the provision of access or in the recording of requests, the matter is primarily one for the court authority. If it fails to do that, we should have to consider amending the guidance notes that are given to the police, if that would help alleviate the problem. We should examine that after the new provisions have been in practice for some time.

§ Mr. Eldon Griffiths
If there be such a gap—I always defer to the legal experience of my hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell) and the hon. and learned Member for Montgomery (Mr. Carlile)—I do not see why the obligation should be put on the police to fill it while defendants are in the custody of the court. Why cannot the court's officer be obliged to make a log?

§ Mr. Shaw
I think that my hon. Friend is right, in that the prime responsibility is to ensure that the administration of the court is of such a quality that it is able to maintain an accurate record of proceedings. My hon. Friends, most of whom are hon. and learned, are well versed in court procedure and have said that that is far from the case. Apparently courts do not have quite the logical way of going about these things as do the police. Perhaps I might take it as the House's wish that, after experience, if a gap emerges, we might consider amending the code of practice.

§ Mr. Hogg
The House would be much reassured if my hon. Friend were able to say that the anxiety that has been expressed about what happens in cells after the defendant has left the court room will be brought to the attention of my noble Friend the Lord Chancellor as magistrates' 892 courts are in his jurisdiction. It is desirable that there should be some means of recording a request to see a solicitor when it is made in the cells. That is a matter of procedure which has hitherto been overlooked.

§ Mr. Shaw
I agree that this matter should be drawn to the attention of my noble Friend the Lord Chancellor but I cannot think of a better envoy than my hon. Friend the Member for Grantham.

§ Mr. Shaw
I beg to move, That this House doth agree with the Lords in the said amendment.

Mr. Deputy Speaker
With this, we may take amendment No. 191, which involves privilege.

§ Mr. Shaw
The amendments replace the provisions in clause 56 (19) to (22) relating to legal aid with a new clause. Provision is made for solicitors' clerks to act under the scheme and for those at a police station voluntarily to receive the assistance under the scheme. Other minor drafting amendments are also made.
The amendments transfer the provisions of clause 56 (19) to (22) into a new clause and extend their scope. The provisions deal with the making of arrangements—duty solicitors' schemes—to provide advice and assistance at public expense to persons at police stations, so making fully effective the right to legal advice conferred by clause 56(1). The new clause differs from subsections (19) to (22) in some important respects. First, it provides for solicitors' representatives to be permitted to act under the arrangements where necessary. Second, it extends the scope of the free schemes to those who are at police stations voluntarily as well as those who are there under arrest. That is an important new provision which will help to ensure that there is no grey area between liberty and detention and that persons who are at police stations under caution, but not under arrest, are indeed there voluntarily and not under a form of disguised compulsion.

§ Mr. Douglas Hogg
I hope that the House will warmly endorse the amendments. The Bill has been criticised for being too oppressive, but the amendment is a good example of how the Bill has enlarged the rights of people who are in police custody.
I particularly welcome two aspects mentioned by my hon. Friend the Minister of State. First, the amendment enables representatives of solicitors to act under the Legal Aid Act 1982. If advice is always to be available, it is desirable that solicitors' representatives should be permitted to act, because it is not always possible for solicitors to be present. If we are to give full expression to the purpose of legal aid, representatives should be permitted to act.
The even more important advance is that the amendment applies to those who are voluntarily at a police station. It is often said that those who are attending "voluntarily" are under some form of compulsion, but the Government have gone a long way towards ensuring that everyone attending a police station is either under arrest or attending truly voluntarily. In the latter circumstance, legal aid is available and those people can discover their rights. The amendments are a valuable extension to civil rights and the Government deserve our congratulations.

§ Mr. Lyell
I concur with what my hon. Friend the Member for Grantham (Mr. Hogg) said about the substance of the amendments, but the wording leaves much to be desired. New subsection (1A) in amendment No. 191 consists of 97 words and refers to solicitors designated by reference to other types of solicitors.
Will my hon. Friend the Minister clarify something about the types of solicitors referred to? It will be noted that someone may find a solicitor available and then discover that that solicitor is precluded from giving him advice because he is not a solicitor of the type specifically referred to in the new subsection.
The new clause states: A scheme under section 15 of the principal Act which relates to advice and representation at magistrates' courts may provide that arrangements made under it may be so framed as to preclude solicitors from providing such advice and representation if they do not also provide advice and assistance in pursuance of arrangements made by virtue of the scheme under that section which relates to the provision of advice and assistance for persons such as are mentioned in section 29 of the Police and Criminal Evidence Act 1984 and for persons arrested and held in cusiody. It is clear that section 29 refers to people who are arrested other than at police stations. But I hope that my hon. Friend will carefully consider how one is to recognise that the solicitor from whom one wishes to seek advice is or is not one who also provides advice and assistance in pursuance of arrangements made by virtue of the scheme under that section which relates to the provisions of advice and assistance for persons such as are mentioned in section 29". I see my hon. Friend the Member for Teignbridge (Mr. Nicholls) in his place and perhaps he can give my hon. Friend the Minister some guidance if he does not have a note in front of him. But it would seem that there are considerable practical difficulties in placing this restriction. If my hon. Friend the Minister can explain how one identifies whether the solicitor available is entitled to give advice under this rather complex section, I should be grateful if he could then explain what rationale precludes a solicitor who is not prepared to give advice to those not arrested at police stations from giving advice under subsection (1A). Normally, amendments from the other place are very carefully thought out, and I therefore accept that there may be a sound rationale. Indeed, I look in the direction from which it might be forthcoming. However, at present I find it difficult to understand what it is. Perhaps other hon. Members can help. But failing that I should be most grateful if my hon. Friend the Minister could enlighten me before the provision is enacted.

§ Mr. Giles Shaw
The main point at issue is, of course, the range of solicitors from which the prisoner may choose to take legal advice at the point at which he continues in police custody. My hon. and learned Friend the Member for Mid-Bedfordshire (Mr. Lyell) is right to say that that brings into play the question of the legal profession's range of services which are available to the prisoner at any given time. Perhaps I can couch my answer in terms of the 24-hour duty solicitor scheme, as that represents for most people the most effective way of obtaining legal advice that they wish to have, and for which—under clause 56—we are making provision.
Some doubts have been raised about the extent of the Government's commitments to the successful operation of duty solicitor schemes, but the facts simply do not bear that out. The provision contained in clause 58 providing a statutory right to legal advice for those arrested and held in custody, reinforced by the extensions of rights to advice 894 contained in the statutory code of practice, represent an important consolidation of the existing position, and an improvement upon it.
The Government have recognised that there would be considerable difficulty in attempting to make the rights as newly set out in the Bill effective using the existing legal aid provisions, since advice will need to be quickly and simply available throughout the 24 hours of the day. We have therefore attempted to assist the legal profession to meet the new demands on its resources—my hon. and learned Friend was right to say that by virtue of the provision there will be increased demands upon it—by explicitly extending the Law Society's powers to enable it to make specific arrangements for duty solicitor schemes, and giving the committees that will administer them a discretion to link membership with the existing schemes at magistrates' courts to help with manpower.
9.30 pm
Considerable changes have been made in the usual requirements on the financial limits for eligibility and liability to contribute because of the special circumstances in which the advice will be sought. Additional financial provision has already been made in forward estimates towards the likely cost of the schemes. The Government have demonstrated their willingness to respond to helpful criticism by amending the original form of the legislation to enable the schemes to provide fully for those who are not under arrest.
My hon. and learned Friend should be reassured that the changes to the duty schemes and the provisions made with the Law Society's agreement go a long way towards providing the legal support and aid for persons in detention which is the bedrock of this clause.

§ Mr. Lyell
I thank the Minister for that answer, which clarifies the position. Am I right to espy what might be described as beneficent restrictive practice?
I shall not elaborate at too much length, but it seems clear that those solicitors who take the trouble to provide the 24-hour service will have reserved for them the right to give advice which people need during that period and that other solicitors who happen to be around will not be able to benefit. That seems to be the rationale of the scheme——

Mr. Deputy Speaker
Order. We seem to be suffering from a number of long interventions. I remind the House that interventions must be brief and that hon. Members cannot speak twice in these debates.

§ Mr. Lyell
Of course I shall pay great attention to what you say, Mr. Deputy Speaker, and I shall be brief. Is the object to restrict the provision of advice in such cases to those solicitors who provide the 24-hour service?

§ Mr. Shaw
My hon. Friend has gone wide of the mark because what we are discussing in the amendment is the participation in the magistrates courts of the duty solicitors scheme being a condition of the solicitors participation in the police station scheme. The two are interlinked in that way. I hope that that clarifies the matter.