The inadequacy of much advice given to suspects was highlighted when Stephen Miller, one of the Cardiff Three, had his conviction quashed on appeal. In his appeal judgment, the Lord Chief Justice criticised the defence solicitor for not intervening to halt the questioning.
Although in that case the adviser was a qualified solicitor, it is the use of untrained clerks for police station work that has attracted the strongest criticism. Currently, this area of work is almost completely unregulated.
From October next year, however, the Legal Aid Board will pay firms for advice given at police stations only if their advisers are formally accredited or seeking accreditation.
A wealth of evidence exists for such a move. In his research for the Royal Commission, Professor John Baldwin, director of the Institute of Judicial Administration at the University of Birmingham, analysed 600 police interviews. In 66.5 per cent, the advisers said nothing at all.
Lack of knowledge and training is confirmed in more recent research for the commission, when researchers sat in as observers on police interviews. Professor Mike McConville, director of the Legal Research Institute at the University of Warwick, reports: 'In several instances, when inexperienced clerks floundered, they sought advice from our researchers.'
Police station advice remains relatively poorly paid (attracting around the same legal aid rate as routine case preparation - pounds 43.50 per hour) and thought to be of low status. Professor McConville describes it as being perceived as 'not deserving of a solicitor's talents'.
Dr Eric Shepherd, a forensic psychologist with Investigative Science Associates, says the whole emphasis of the criminal defence procedure needs to be shifted away from the court and on to the police station.
'For a long time it has not been acknowledged that the advice given at the police station is absolutely crucial as the first stage in the defence process for the client. The profession has not really grasped that it's not about advocacy in the court - by then, much of the damage has been done.'
Dr Shepherd acted as an adviser to the defence in the Miller appeal and has helped train police officers in 'ethical interviewing' skills for some 12 years. He is working with the Law Society on developing a training and testing programme for unqualified clerks, to enable firms to meet the Legal Aid Board's criteria. The key to good police station advice lies in basic assertion skills, rather than intimate knowledge of the Police and Criminal Evidence Act (Pace) codes, he feels.
'The adviser has to start from a very strong moral base, which he then builds on in terms of understanding the law,' he says. Legal knowledge on its own is not enough: all it means is that clerks are 'well-informed but passive observers' of events.
The programme aims to give a clear grounding in 'basic human rights', which will enable clerks to challenge inappropriate behaviour by the police and negotiate more effectively, Dr Shepherd says.
The training will also seek to ensure that clerks understand that their loyalties must lie entirely with the client. Conflict of loyalties or over-identification with the police may be a particular problem when the clerk himself is an ex-police officer - in Professor McConville's research, 47 per cent of firms used former officers as clerks.
Jonathan Bennett, a criminal practitioner with Graysons in Sheffield and a member of the working group set up by the Law Society to develop the tests, says firms' reliance on retired police officers is dangerous.
He adds that blurred loyalties can be a problem for even an experienced solicitor. 'Sometimes it can be hard to be sympathetic if a suspect is in for a particularly unpleasant offence and the evidence seems very strong.'
The Law Society's training will hope to emulate as far as possible a real interview by using a series of 'critical incidents'. Clerks will hear tape recordings of authentic Pace interviews - like the Miller recording - and asked how they would have dealt with the situation.
Dr Shepherd says there is no shortage of material. 'The Miller case is by no means the worst I have heard,' he says. 'It is an indictment of the existing system that we don't have to look very hard to find examples. My loft is full of them.'
The training programme is being piloted in five areas round the country next week. If it is successful, by October the Law Society hopes to produce a training kit for firms to use themselves. The first formal tests are expected to be held next April.
Chris Studdert, a criminal lawyer at Dundons in south London, believes that most practitioners will welcome the move towards higher standards, although there may still be resistance in some cases. 'Some solicitors will say it is taking away their time- honoured right to send the tea lady,' he says.
Jonathan Bennett adds, however, that it is not just hostility that police station advisers have to counter. 'Very often you know the police better than you do your client,' he says. 'They say to you, 'Hi Jonathan, everything all right?' In an interview situation you've got to make sure they're not too friendly with you, and ask them to call you Mr Bennett, which can be difficult.'
As one practitioner told Professor McConville's researchers: 'Everyone wants to be liked - even defence solicitors.'
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