Entitlement to free legal advice at a formal interview

[dmncf]

I was reading this thread in which the OP has received a letter from a TOC inviting them to a voluntary interview:

Prosecuted with no evidence or details?

Recently I received an email from Northern Rail suggesting i have suspicious ticket purchasing history. I always buy tickets and notably never travel via northern. They did not specify any particular event and want to interview me? I am very confused in regard to this situation and would...

www.railforums.co.uk

The letter from the TOC states that "The interview would be under the Police and Criminal Evidence Act 1984" and "this interview must be done in a formal setting following legislation which would allow the content to be admissable as evidence at Court", but then states "You are entitled to seek legal advice at your own cost".

My understanding was that the Police and Criminal Evidence Act 1984 requires the Police to inform suspects that they are entitled to free and independent legal advice at any kind of interview, even when being interviewed on the street (and if the suspect requests legal advice, this can be via phone or by rearranging the interview for a later date at a police station).

Why do even the most formal interviews with TOCs not have the same entitlement to free and independent legal advice, even though these interviews are apparently under the Police and Criminal Evidence Act 1984 and could result in prosecutions for criminal offences?

 

[AlterEgo]

I was reading this thread in which the OP has received a letter from a TOC inviting them to a voluntary interview:

Prosecuted with no evidence or details?

Recently I received an email from Northern Rail suggesting i have suspicious ticket purchasing history. I always buy tickets and notably never travel via northern. They did not specify any particular event and want to interview me? I am very confused in regard to this situation and would...

www.railforums.co.uk

The letter from the TOC states that "The interview would be under the Police and Criminal Evidence Act 1984" and "this interview must be done in a formal setting following legislation which would allow the content to be admissable as evidence at Court", but then states "You are entitled to seek legal advice at your own cost".

My understanding was that the Police and Criminal Evidence Act 1984 requires the Police to inform suspects that they are entitled to free and independent legal advice at any kind of interview, even when being interviewed on the street (and if the suspect requests legal advice, this can be via phone or by rearranging the interview for a later date at a police station).

Why do even the most formal interviews with TOCs not have the same entitlement to free and independent legal advice, even though these interviews are apparently under the Police and Criminal Evidence Act 1984 and could result in prosecutions for criminal offences?

That's a question for your MP. But all of those PACE interviews conducted by TOCs are voluntary and the person is not under arrest or in custody.

You misread PACE and perhaps have been watching too many American police procedural shows! In England and Wales there is no entitlement to free legal advice or to be directly advised it is available unless and until you are arrested and brought into custody. It is not correct that the police must arrange for a solicitor to accompany you at the side of the street, nor is it a requirement of the caution read out to a suspect in a public place that it mention free legal advice either.

 

[Randomer]

You misread PACE and perhaps have been watching too many American police procedural shows! In England and Wales there is no entitlement to free legal advice or to be directly advised it is available unless and until you are arrested and brought into custody. It is not correct that the police must arrange for a solicitor to accompany you at the side of the street, nor is it a requirement of the caution read out to a suspect in a public place that it mention free legal advice either.

Sorry but I don't think this is true post 2018. I thought the changes to Police and Criminal Evidence Act Code C in 2018 (specifically PACE Code C 3.21A) brought about the requirement to offer independent legal advice before the commencement of any voluntary interview?

If the body concerned has a statutory power of arrest then they must offer that advice free. If not, like a TOC or its agent, then the advice will not be free (Note 3J in PACE Code C.) So if the police undertake a voluntary interview then they must offer free legal advice no matter the location (subject to some other PACE exceptions.) The police talking to someone in the street isn't normally a voluntary interview but some cases of people being talked to in other locations have been found to be a breach of Code C depending on the circumstances.

I do wonder if anyone has ever challenged a TOC over this by indicating that an interview under PACE regarding the Regulation of the Railways Act is enough to hold statutory power of arrest. It doesn't have to have been used, just exist.

Outside my area of experience so anyone with more expertise please feel free to advise.

Why do even the most formal interviews with TOCs not have the same entitlement to free and independent legal advice, even though these interviews are apparently under the Police and Criminal Evidence Act 1984 and could result in prosecutions for criminal offences?

Returning to the OPs question; because for various reasons the government didn't feel the need to do so when the changes to PACE were made back in 2018. I honestly think it might be one of the changes following the review of private prosecutions that is certain to be an outcome of the Post Office Horizon enquiry, if it allows private prosecutions at all going forwards.

 

[tspaul26]

Sorry but I don't think this is true post 2018. I thought the changes to Police and Criminal Evidence Act Code C in 2018 (specifically PACE Code C 3.21A) brought about the requirement to offer independent legal advice before the commencement of any voluntary interview?

Correct

If the body concerned has a statutory power of arrest then they must offer that advice free. If not, like a TOC or its agent, then the advice will not be free (Note 3J in PACE Code C.)

Correct

So if the police undertake a voluntary interview then they must offer free legal advice no matter the location (subject to some other PACE exceptions.)

Correct, although in practice if legal advice was requested we would probably re-arrange for a later date and do it in the police station.

The police talking to someone in the street isn't normally a voluntary interview but some cases of people being talked to in other locations have been found to be a breach of Code C depending on the circumstances.

Correct, although as soon as we begin to suspect involvement in an offence or suspected offence then we have to caution and then the potential need to state the various rights and entitlements comes into play.

I do wonder if anyone has ever challenged a TOC over this by indicating that an interview under PACE regarding the Regulation of the Railways Act is enough to hold statutory power of arrest. It doesn't have to have been used, just exist.

Outside my area of experience so anyone with more expertise please feel free to advise.

Section 5(2) is a power of detention, not arrest.

 

[Jan Mayen]

Forgive my ignorance, but what is the difference between detention and arrest?

 

[tspaul26]

Forgive my ignorance, but what is the difference between detention and arrest?

Depends on the specific powers involved which carry different legal requirements and restrictions, but in general terms detention is of shorter duration, is less invasive and is for the purposes of facilitating specific actions e.g. initial investigation or search or preventing a suspect from making off until he can be identified.

 

[tiptoptaff]

Apologies if it's off topic, but a question to @tspaul26 - is the entitlement to free legal advice still only connected to when "your liberty is at stake"? ie Why you get it under arrest in a police station or on trial in the Crown, but not entitled to it in the Mags? (due to Mags only being able to impose relatively short sentences for relatively minor offences?)

 

[tspaul26]

Apologies if it's off topic, but a question to @tspaul26 - is the entitlement to free legal advice still only connected to when "your liberty is at stake"? ie Why you get it under arrest in a police station or on trial in the Crown, but not entitled to it in the Mags? (due to Mags only being able to impose relatively short sentences for relatively minor offences?)

I’m afraid that I don’t really understand the premise of this question: there is no entitlement to free legal advice in the Crown Court, but there can be in the Magistrates Court at first appearance for an imprisonable offence.

 

[tiptoptaff]

I’m afraid that I don’t really understand the premise of this question: there is no entitlement to free legal advice in the Crown Court, but there can be in the Magistrates Court at first appearance for an imprisonable offence.

On trial in the Crown is one of the few times you indeed still entitled to free legal representation

 

[tspaul26]

On trial in the Crown is one of the few times you indeed still entitled to free legal representation

With respect, you are incorrect: there is no entitlement to free legal representation in Crown Court trials.

Legal aid may be available in some cases, but it is not an absolute entitlement e.g. it is means tested.