ANNEX B: RIGHTS OF SUSPECTS - LEGAL ADVICE (Part 1, Chapter 4, Sections 23-24 and Chapter 5, Sections 35-36)
66. The policy objective is to set out clearly in legislation when a person's right of access to a solicitor arises, how this is communicated to the person and the circumstances in which this right can be waived.
67. In relation to provisions on a suspect's right to legal advice, discussions with stakeholders were particularly useful in informing the development of policy from Lord Carloway's recommendations. This included considering the needs of how the most vulnerable suspects can access legal advice and additional support services. Access to legal advice for child suspect and vulnerable suspects is explored at paragraphs 89 to 98 and 99 to 107, respectively.
68. The Scottish Government issued an informal discussion paper on a draft non‑statutory Letter of Rights to key stakeholders in January 2013. Twenty-one responses to the discussion paper were received from a range of organisations and individuals, including speech and language therapists, advocacy groups run for and by people with learning difficulties, legal professionals and criminal justice partners.
69. Research on access to legal advice in police stations in England has provided some insight into trends in the uptake of legal advice and the factors affecting a suspect's decision whether or not to exercise his/her right to legal advice. In her article 'The Right to Legal Advice in the Police Station: Past, Present and Future', Layla Skinns combines historical research with her recent study to demonstrate an increase in the numbers of suspects requesting legal advice at the police station. In 1978, 11% of all suspects requested advice, of which 64% of requests were met. In 1988, these figures were 25% and 75% respectively, and in 2007, 60% and 80%.
70. Whilst Skinns found that sex and age were not significantly related to whether suspects requested legal advice or whether that request was met, she did find a link with ethnicity. She observed that black suspects were significantly less likely than white suspects to have their request for legal advice met - though cautions that this may have been mediated by the difference in the alleged offences committed by white and non-white suspects.
71. From her research, Skinns concluded that:
"...access to legal advice is affected by a number of factors connected to suspects (including ethnicity, haste, offence seriousness, self-defined guilt/innocence, prior experience of custody and of legal advisers); the police (including ploys and informal conversations); and legal advisers (including their availability, experience and competence)."
72. It should be noted that this study was carried out into police detentions in England and, therefore, is not directly comparable to Scotland, given the difference in the law and procedure for arrest, detention and access to legal advice. There are also differences in systems for funding legal assistance and in the delivery of legal advice (whereas only a qualified solicitor can provide advice in Scotland, in certain circumstances in England, a paralegal can provide advice), amongst other divergences. The research is still helpful, however, in identifying factors that may affect a suspect's decision as to whether to request legal advice.
73. Special consideration must be given to the effect of learning disabilities and difficulties on a person's ability to communicate effectively, particularly in the stressful environment of a police station, and to understand his/her rights, including the right to legal advice.
74. In 2012, ARC Scotland published a report, 'Supporting Offenders with Learning Disabilities in Scotland', based on feedback from professionals. One of the emerging themes was the lack of accurate data on the number of offenders with learning disabilities in Scotland. The ARC Scotland report suggests that a conservative estimate is approximately 1,000 prisoners with a learning disability or borderline learning disability in Scotland.
75. The Scottish Government guide 'People with Learning Disabilities and the Criminal Justice System' advises that:
"People with a learning disability may have difficulties speaking, understanding and expressing themselves. They may have problems remembering things or concentrating. They may have difficulties with social interactions."
76. In relation to people on the autism spectrum, the National Autistic Society advises that a lack of understanding of autism can lead to certain behaviour being misconstrued as offending behaviour. An individual with autism may experience difficulties in communication and social interaction, which can prove especially problematic in the interview setting. For example, he/she may avoid eye contact, make a literal interpretation of figurative or metaphorical speech (e.g. the phrase "has the cat got your tongue" may be alarming to a person with autism), come across as argumentative or, alternatively, be over-compliant, answering in the affirmative to things that are not true. Such behaviours could be construed negatively by the police or a judge/jury.
77. Responses to the informal discussion paper on a Letter of Rights reiterated the necessity to take into consideration the additional support needs of individuals with learning disabilities, including those on the autism spectrum. In terms of written communication, a preference for a combination of plain English and pictures/symbols was among the suggestions for making the letter accessible to all. It was also suggested that different versions could be produced for specific groups: for example, a version aimed at children and young people, or an audio version, DVD or British Sign Language version for those with sensory impairments.
78. A further barrier to a suspect understanding his/her rights, including the right to legal advice, is where the suspect does not speak English, either as a first language or at all. Directive 2010/64/EU of the European Parliament sets out the requirement to provide translation and interpretation in criminal proceedings.
79. The EQIA found that care must be taken in the delivery of the policy to ensure the rights of the most vulnerable suspects are promoted through the provision of additional support measures, which will help to ensure these individuals have an equal right to a fair trial as non-vulnerable suspects. The service provided by Appropriate Adults has been recognised as a valuable resource in ensuring vulnerable suspects are able to participate effectively at the police station, further details of which are provided in the Vulnerable Persons section, from paragraph 99 to 107.
80. The EQIA findings informed the development of provisions for the delivery of legal advice in the police station. The provisions are designed to allow flexibility as to the most appropriate means of communication, to allow for the means to be tailored to the needs of the individual. Whilst a telephone consultation may be appropriate for some individuals and in some circumstances, it is acknowledged that it may not be suitable for all.
A Letter of Rights has been introduced on a non-statutory basis, and is available in a wide range of languages as well as a large print version. The Scottish Government is now considering the next steps that should be undertaken, firstly, to identify further versions of the letter required to ensure everyone held in police custody has appropriate access to this important information and, secondly, to draft accessible versions of the letter for the groups identified. Where the person in police custody cannot read, arrangements have been put in place for the person to have the Letter of Rights read to them.
81. The Scottish Government intend to take forward this project with the relevant specialists and third sector organisations, and involve representatives of the user groups, to draft and introduce an accessible version(s) of the letter.