Meanderings - The Police Station Duty Solicitor Scheme its conception and birth!

Even if they are not criminal practitioners my readers will have heard of the Police Station Duty Solicitor Scheme (the D.S.S), the purpose of which is to give persons arrested and in custody access to legal advice at the time of interrogation. However, while widely known, few will be familiar with the circumstances of its “birth”. Although, not the midwife, I was around when, mewling and pukeing it entered upon the world. For me, the circumstances ended an era of professional innocence.

Before the D S S entered my life as a criminal lawyer I had naively believed that developments in legal procedures, especially those connected with the liberty of the subject resulted from long consultation within the Law Commission or careful informed debate among the lawmakers in Parliament. I learned, through the D S S that, on the contrary, most such developments are conceived in short term political expediency and from birth are infected with a virus called “the law of unintended consequences”. Although the provision of free legal advice in the police station might seem a magnanimous gesture by Government, it was conceived entirely by political expediency.

Notice of the birth of the D S S can be found in Section 59 of the now infamous Police and Criminal Evidence Act (P..A.C.E) 1984. It followed a long period of gestation. P.A.C.E was introduced by the Conservative Government initially as a Bill in 1982 to make sweeping changes to police procedures in the light of a number of high profile miscarriages of justice and racial tension arising from stop and search. However, as is not unusual with Bills before Parliament, the Government tried to use the generally reformative proposals in the Bill as an opportunity to introduce provisions having a contrary intention – in particular, on this occasion to significantly extend the period of time that an arrested person might be detained without charge, but under interrogation. A motive behind this was to enable IRA suspects to be subject to the extended detention (this being at the height of “The Troubles”), but, presumably, to avoid criticism that these suspects were being “singled out”, it was made of general application ( i.e. to all arrested persons). This “device” did not escape the notice of the formidable shadow Home Secretary, Gerald Kaufmann and Gerry Bermingham M.P. for St Helens (a name which will bring back memories, for good or ill among older readers), and equally formidable retired Law Lords in the Upper House. As a result the Home Secretary, Leon Brittan, came under heavy fire for what was seen as a retrograde and unnecessarily oppressive provision .

Skilfully backed into a corner by the opposition, on the second reading of the Bill on November 7th 1983 Leon Brittan announced that the Government would amend the Bill to provide that a scheme would be introduced for those in custody, after arrest but before charge, to have free, publicly funded legal advice from either a solicitor of their own choice, or an independent local solicitor called from a rota, i.e a duty solicitor scheme. The responsibility for organising the national D.S.S was, unsurprisingly, passed by the Government to the Law Society which was told that the Scheme should be up and running by January 1st 1986 when P.A.C.E came into effect.

However, for “the usual reasons” all did not proceed well. In the Parliamentary debate in November 1983, Brittan had said “The Government recognise that strengthening a suspects rights in this way will place an extra demand on resources. We have made provision for this……we are putting our money where our mouth is”. However this grandiose gesture fell well short of the funding a workable scheme. The “money” of which Brittan spoke (and to which the Treasury had, no doubt reluctantly agreed) was £3 million. It soon became apparent that this figure was manifestly inadequate and the inauguration of the Scheme stalled. The Law Society made it clear that, within that budget, it would be impossible to find a sufficient number of solicitors to man a Scheme throughout England and Wales. It was not until the autumn of 1985 that the Lord Chancellor was able to announce that the “money in the mouth” would be £20 million,that being the minimum the Law Society felt necessary for a viable nationwide Scheme.

That delay meant that the L.S had approximately 3 months to get a Scheme upand –running, and was when I first became involved locally. The years of wrangling over the budget for the national scheme showed that those within the Home Office and L.C.D responsible for “devising” the Scheme had almost no understanding of its practicalities “on the ground”. It also turned out that they had no concept of geography outside the M25.

Because I had been involved in some Legal Aid Committees, I was asked to join “likeminded” colleagues on the quickly formed East Midlands Regional Duty Solicitor Committee to establish and, for a time, manage D.S.S. in Derbyshire, Leicestershire, Nottinghamshire and Lincolnshire. Organising schemes throughout the first three counties was trouble free and we were “good to Go” by the end of 1985. The problem was Lincolnshire. We had contacted all the firms in that county and had been told that all the police stations in the county had been covered by the scheme. We told “the powers that be” in London. They came back to say that, from the list of police stations which we had sent only 60% of the county’s police station were covered, We contacted the Lincolnshire solicitors who assured us that all police stations were covered. Again, London said that they were not. Eventually we asked London for a list of the stations not covered. They sent us a list of the police houses in the Lincolnshire Fens and Wolds which it turned out were, statutorily, “police stations” although almost all had not detained anyone for decades. We accordingly asked the Lincolnshire solicitors to “divi” these up between them, which was duly done quickly and therefore honour satisfied until…… London asked why the solicitors on the Skegness scheme could not also cover Spalding, to minimize the expense. We pointed out, through gritted teeth, that they were over 50 miles apart.

It took about 3 years for the next example of the absence of London’s understanding of the practicality of the scheme “on the ground” to come out. The scheme provided for standby payments (if I recall £50 or£60 per 24 hours) for solicitors on the rota to be “on call” for each police station. At an audit of the Derbyshire schemes carried out in about 1990 it was found that the costs to the scheme of the detention of each “prisoner” at Matlock and Ashbourne police stations was approx. £3500. Some “rationalising mergers” of schemes immediately took place!!

John Calladine

I. Stephanie Boyce

Solicitors’ regulator takes first steps to running its own indemnity scheme to protect consumers

The Solicitors Regulation Authority (SRA) has today taken the first steps towards the establishment of a scheme that should secure long-term consumer protection under their direct management, with the launch of a consultation on the future of the Solicitors Indemnity Fund (SIF) and post six year run-off cover (PSYROC).

Law Society of England and Wales president I. Stephanie Boyce said: “We will thoroughly examine the new proposals, but I can say now we are positive about the way in which the SRA’s position on PSYROC has evolved, and glad they now agree it is necessary to protect the long-term interests of consumers.

“In terms of how the scheme will work, the SRA will take over the existing SIF, rather than establishing a brand new scheme.

“The SRA’s proposed scheme makes provision for the recovery of claims costs from solicitors to the level of the excess in the preceding professional indemnity insurance policy.

“While the same provision is also made under the current SIF rules and does not represent a significant change, the scope for PSYROC recoveries is often very limited and can only be exercised where it is likely to succeed and it is fair in all the circumstances of the claim that the solicitor should pay the excess.

“In practice we would expect this approach also to be applied by the SRA.

“We are pleased the new SRA indemnity scheme mirrors the indemnity cover provided by SIF and that the arrangement is intended to provide protection on terms equivalent to the indemnity insurance provided under the SRA’s minimum terms and conditions. “We will need to review the new analysis that accompanies the consultation, but we note the SRA is confident they will be able to deliver the same protections as SIF, at a lower cost.

“Bringing the fund in-house will also allow them to monitor claims data, which could enable them to better identify and regulate long-term risks, to the benefit of solicitors and consumers alike.

“We also note it is not anticipated the profession would have to pay a contribution levy to the fund at this time.

“We are optimistic that by continuing to work cooperatively with the SRA we will achieve a positive outcome that will protect both consumers and our members.

“We value the opportunity to assist the regulator in establishing a new arrangement to secure the future of this vital protection on a sustainable basis.”

Legal profession looks to action, not words as it celebrates Black History Month

The theme for Black History Month is ‘Time for Change: Action Not Words’, which will encourage people to improve the future by taking real, lasting action to make the world a better place for Black people.

Law Society of England and Wales president I. Stephanie Boyce said: “This year’s Black History Month is especially personal to me, as it will be my last as president of the Law Society.

“Black people often experience racism and discrimination. Then they are expected to fix it. This must change.”

The Law Society is taking action for its own members by speaking to Black solicitors about their experiences of working in the profession.

In 2020, we published our Race for Inclusion report, which shed new light on this issue and indicated how we can build a more inclusive profession.*

I. Stephanie Boyce added: “Our research discovered the challenges and obstacles Black, Asian and minority ethnic solicitors face due to their ethnicity.

“Adverse discrimination was reported by 13% of Black, Asian and minority ethnic solicitors and 16% reported bullying.

“A third of Black African and Caribbean solicitors say they have experienced some form of discrimination or bullying in the workplace – the highest figure reported by any ethnic group.

“A lack of progression in larger firms was also an issue. 34% of partners in single partner firms are from Black, Asian and minority ethnic backgrounds.

“As part of our report, we recommended that firms have open, honest conversations about race and what needs to change in their organisation, implement blind and contextualised recruitment, set targets for senior leaders, and instil a datadriven approach to diversity and inclusion.”

In the two years since we undertook this research, there have been positive signs of improvement.

Our annual statistics report 2021 found that representation of Black, Asian and minority ethnic solicitors continued to grow, reaching 18% and Black, Asian and minority ethnic solicitors working in private practice increasing by 6%.**

I. Stephanie Boyce added: “However, more work needs to be done in increasing representation of those from Black, Asian and minority ethnic, and low socio-economic backgrounds. Only 1% of solicitors working in the City are Black.

“To help firms develop and deliver a strategic approach to D&I, the Law Society recently launched our diversity and inclusion framework.

“Our D&I framework helps workplaces drive change by supplying a proactive three-step action plan that will help our members develop and deliver a strategy that creates lasting change.

“Improving diversity and inclusion in the legal profession has always been one of my primary ambitions as president.

“I hope the work I have done during my time as president has gone some way to improving how the profession recruits and retains its talent. Personal characteristics or an individual’s socioeconomic background should not determine how far people can go.

“I very much look forward to celebrating Black History Month with my colleagues in the profession.”