The right to legal advice

Denis Clark continues to discuss the law relating to evidence of confessions and in particular the manner in which section 78 of the Police and Criminal Evidence (PACE) Act may be used to challenge the fairness of a confession.

Significant areas for controversy and an attendant high probability of evidence being excluded stems from the manner in which investigators facilitate the suspect’s right to legal advice and in relation to the accurate recording of interviews.

The starting point for the first category is R v Samuel (1988) where D was interviewed after being improperly denied a solicitor. Section 76 was not pleaded before the Court of Appeal but s78 was, and the court concluded that denial of ‘one of the most important and fundamental rights of a citizen’ — legal advice — could well have an adverse effect on the proceedings.

This conclusion was assisted by the finding that, if the solicitor had been allowed access, he would probably have advised silence. It emphasises that denial of legal advice per se is not enough. It must also be shown that it produced an adverse effect. (For another early case of improper denial of legal advice, see R v Smith, 1987).

The point was made again in R v Alladice (1988), where a solicitor was wrongly denied access (a clear breach of s58 of PACE and Code C); the interview was otherwise conducted properly, and the solicitor would probably have reminded D of his right to silence but D, being used to police interviews, already knew that (indeed he exercised it at times during the interview), therefore the solicitor’s presence would not have made a difference and there was no unfairness to the proceedings. The same situation was seen in R v Dunford (1990), where the improper denial of legal advice was balanced by D’s knowledge of his rights and ability to cope on his own.

Similarly R v Oliphant (1992), where D asked if he could talk to his solicitor, the interviewing officer agreed he could, but D went on to make full and extensive admissions. The trial judge’s ruling that the breach of s58 of PACE and Code C 6.6 was not significant or substantial; the view that the presence of a solicitor would have added nothing to what O knew about his rights, and therefore had no adverse effect on the proceedings, was upheld by the Court of Appeal.

In R v Chahal (1992) D said he did not want a solicitor and later confirmed this. However, unknown to him his family had instructed a solicitor who attended but was told D did not want a solicitor. His appeal against conviction was dismissed. He was a mature businessman who knew what he was about and had suffered no prejudice. This may be compared with R v Franklin (1994), where D initially said he did not want a solicitor. Ten minutes later he asked that his father be informed of his arrest and that he would get a solicitor for him. He was then interviewed twice, having agreed to be interviewed without a solicitor being present, and made admissions. In the meantime D’s father had telephoned the police station but D was not told of this, though it was recorded in the custody record. The father instructed a solicitor who attended at the police station but was told that D would not be informed because he did not want a solicitor (see now Code C 6.15). Two further interviews followed at which D was reminded of his right to legal advice but not told that a solicitor had attended. The trial judge admitted the evidence of all four interviews believing he was bound by R v Chahal. The Court of Appeal disagreed.

There were significant differences between the two cases. In Chahal the solicitor had merely telephoned and C was a mature businessman. In Franklin the solicitor actually attended and D was a young unemployed man who had never been in a police station before. The trial judge had therefore exercised his discretion wrongly, but the case against D was overwhelming and the proviso was applied and the appeal dismissed.

For comments on the importance of legal advice, see also R v Dunn