Early legal advice: he had it; shouldn’t everyone?

Suppose you have been issued with a Metropolitan Police questionnaire requiring you – under caution –  to account for your presence at particular locations on specified dates. In response, would you (a) deny your attendance (b) answer ‘no comment’ (c) give a transparent account of your presence (d) get lawyered up. The Prime Minister himself, you will be aware, has responded pre-questionnaire by way of more than one of these options but now appears to have, let us be relieved, legal representation – no doubt of a standard befitting his office.

Partygate is an absorbing political drama with all too many of its own twists and turns. However, withIn the somewhat unedifying confines of the current police investigation lie no fewer than three broader lessons for government policy on legal aid. Completion of the  police party questionnaire to any police interview is inherently the same as responding to an interview that occurs in every police station on every day of the week. Factual circumstances, as Mr Johnson’s lawyers will no doubt cogently argue, can often be nuanced. Take the classic – and perhaps analogous – example of the culpability of someone on the edge of a murderous crowd. Is the suspect to be regarded by the criminal justice system as innocent bystander or guilty participant?  The answer will depend, in principle, on their motivation and action but, in a real case, may hang more on the quality of appropriate early legal representation and advice. To operate fairly, the criminal justice system needs lawyers for suspects and defendants at all stages of its process – through the police and prosecution phases to the courts. 

And the three consequent legal aid lessons? First, we need an effective duty solicitor scheme precisely to ensure that all suspects can participate as effectively as the Prime Minister in pre-charge examinations. There is no room for further legal aid cuts here. Second, the notion that advice from a professional lawyer can be replaced by an automated digital chatbot or a helpful website is for the birds. Police interviews are stressful. Suspects can easily unwittingly condemn themselves at the very beginning of a case from which some mellifluous –  and expensive – QC may struggle subsequently to extricate them. Real lawyers don’t only give you information: much more importantly, they give you advice and support.

Third and finally, if we need legal aid lawyers for criminal suspects (and we do), we should pay them a reasonable fee. Legal aid rates have gone through the floor and need a reset. What better starting point for the Lord Chancellor than what has just been shelled out by the Prime Minister? Even the Criminal Bar Association and the Law Society, ever zealous advocates for their members, would probably take a blind gamble on arguing for that. Tell them the figure, they will take it. The fee is likely to be a substantial uplift on the current miserly but market legal aid rate.

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