Arrested children may be given legal advice automatically

Lammy: Call to experiment with advising on rights

The government is considering whether children in police stations should have to opt out of receiving legal advice, rather than opt in as now, it has emerged.

But it still appears resistant to the idea of giving defendants a choice of duty solicitor.

The Ministry of Justice (MoJ) has published an update on the actions taken in response to the 2017 review of the treatment of black, Asian and minority ethnic (BAME) people in the criminal justice system, which it commissioned from Labour MP David Lammy, who was recently appointed as shadow Lord Chancellor.

One of the problems he found was that children and young people did not always utilise their right to legal advice – whilst police inform children of their entitlement to free legal advice, children do not always understand what this means, the solicitor’s role or how this could benefit them.

The update said the MoJ and Legal Aid Agency (LAA) were working closely to ensure that young people engage with legal advice in the police station.

“This includes exploring the potential for children to opt out of, rather than into, receiving legal advice.” This is against the backdrop of the MoJ’s wider review of legal aid, which is looking at how the fees paid to solicitors in the police station can be reformed to provide legal advice for children.

In his wide-ranging report, Mr Lammy highlighted a lack of trust by BAME defendants in their solicitors, which contributed to a situation where black and Asian men were more than one and a half times more likely to enter a not guilty plea, and risk higher sentences as a result.

He called on the Home Office, the MoJ and LAA to work with the Law Society and Bar Council to experiment with different approaches to explaining legal rights and options to defendants, including possibly giving people a choice between different duty solicitors, and earlier access to advice from barristers.

The government has previously expressed reservations about giving a choice of duty solicitors and the update – as with the last one in 2018 – makes no mention of the possibility.

It said: “Work to date has centred on the principle of experimenting with different approaches to explaining legal rights and options. LAA and MoJ legal aid policy officials have been working with the MoJ youth justice policy team, on its research into the experience of BAME individuals in police custody and what obstacles may be preventing them from trusting the criminal justice system.

“That work has focused on the experience of youths, but the MoJ will explore the extent to which learning from this disproportionality work can be applied to BAME adults as well as youths.”

Alongside this, the LAA supported Nottingham University in developing a website launched last year to provide information on rights and entitlements, particularly to young people, on attending the police station for a voluntary interview.

The university’s Dr Vicky Kemp is also developing an app to be used in voluntary interviews. This will prompt police officers on the Police and Criminal Evidence Act 1984 and inform suspects of their legal rights.

“Dr Kemp is testing and developing the app with a police force. Whilst the app will be used for all suspects, information will be incorporated in a ‘child-friendly’ way, informed by interviews with 95 children and young people,” the MoJ said.

Mr Lammy recommended the creation of a system of online feedback on how judges conduct cases to support their professional development.

While the MoJ has rejected this, it said the judiciary was continuing “to work to further extend use of appraisals”, including observations of how judges hear cases.

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