NAAN knows that having high quality legal representation is absolutely critical to ensuring a fair process and effective participation. Here are some of the policy issues relating to legal advice with which NAAN has engaged:
In late 2013, NAAN became aware that AA schemes were facing difficulties in relation to solicitors being called out by appropriate adults. Specifically, the Legal Aid Agency (LAA) stated that, where an AA calls out a solicitor, if the client ultimately refuses to take any legal advice, the solicitor would not be paid.
NAAN felt strongly that this undermined a fundamental and critical power of AAs, limiting their ability to protect vulnerable adults and children. If solicitors are unsure as to whether they will get paid, they will not want to respond to AA call outs.
Having raised the issue with the LAA and the Home Office, we were advised to contact the Ministry of Justice, who by coincidence were finalising the new solicitor’s contracts for 2015 onwards.
NAAN engaged with the Law Society (Criminal Law Committee), providing them with a briefing (2014) supported by detailed annexes, as well as meeting them in person. The Law Society was extremely concerned and supportive, and agreed to include our briefings within their own submissions.
As a result, the following positive outcomes have been acheived.
The LAA has confirmed that whenever a solicitor responds to a call from the Duty Solicitor Call Centre (DSCC) the fixed fee is payable. This includes when an AA makes the request but advice is not taken up.
Quoting the Criminal Bills Assessment Manual paragraph 5.11.8, the LAA told the Law Society,
“The LAA accepts that, in some circumstances, the solicitor will attend the Police Station in good faith having been contacted by the DSCC. Where a solicitor responds to a call from the DSCC but, for circumstances out of the solicitor‘s control, no attendance takes place, a fixed fee is still claimable. A note should be kept on the file detailing the particular circumstances”.
In addition, in relation to ‘own client’ contract work, appropriate adults have, for the first time, been included explicitly in the 2015 Own Client Crime Contract Specification(paragraphs 4.26(c), 8.10(b) and 8.20(b)) as being able to instruct a solicitor on behalf of a child (including 17 year olds) or ‘protected party’ (someone who lacks capacity to conduct proceedings in accordance with the Mental Capacity Act 2005).
In response to Covid-19, a joint interim protocol on interviews was agreed by the CPS, NPCC, Law Society, CLSA, and LCCSA in March 2020. This advocates the delivery of remote legal advice and interview support by legal representatives as temporary measure in extremis to cope with an unprecedented public health crisis.
The joint protocol did not mention children, vulnerable adults or AAs. Therefore it did not take account of the special circumstances of these individuals, negative impacts on fairness and appropriate safeguards.
In June, the Home Office launched an expedited public consultation on amending the PACE Codes to allow remote legal representation for a period of one year.
In March 2020, NAAN raised with signatories to the joint protocol, that it did not mention children, vulnerable adults or AAs.
In July 2020, NAAN submitted a detailed submission to the Home Office raising concerns about the potential impact of remote legal advice on suspects for whom an AA is required under PACE. NAAN has continued to make strong representations in policy discussions with the Home Office and partners following the consultation.
NAAN's intervention on the interview protocol resulted in a revised version, to which NAAN contributed. This includes safeguards for children and adult vulnerable suspects, such as the requirement for police to secure the consent of the person's appropriate adult before remote legal representation in interview may take place.