Recently we’ve had a bout of whinging on Twittergram about our advice to not use the Duty Solicitor at the police station. Since this has included such august bodies as the Law Society and generated a fair amount of debate here’s some detail and background on why this has been the policy of all protest support groups going back to the Trafalgar Square Defence Campaign (TSDC) of 1990.
BUT. If you’re busy here’s the simple version. Use one of the specialist, experienced protest solicitors recommended by Netpol on their website or bustcard rather than take a “lucky dip” of who happens to be on the duty solicitor rota for the cop shop that night.
Who are Duty Solicitors?
Everyone is entitled to free legal advice after being arrested. Lacking a proper public defender system in England and Wales, it is provided by most Criminal Defence firms providing solicitors for a rota to cover all police stations. As our detractors gleefully point out, that includes the firms we recommend. They have then cried foul that we’re saying duty solicitors are not independent or stooges of the police. Well some are pretty dodgy but the key point is that it’s a lottery. You wouldn’t buy a used car from someone you don’t know with no recommendation so why would you risk your liberty? By the way, a good accredited police station representative can be a damn sight better than a jaded qualified solicitor.
Why Protest Law is different
The Legal Defence & Monitoring Group used to boast that “we support everyone, even if they are innocent”. The fact is, of course, that people arrested on protests are innocent in the real meaning of the word. Those who have actually “done something” are those who’ve had the courage to stand up to the police and fascist violence. This is a very different situation from the majority of arrestees where having a lawyer familiar and pals with the cops can get their “banged to rights” client a lesser charge or knocked off as TIC’s. This is the bread and butter of duty solicitors work and for most, it is their default position driven by the unfortunate fact that they are paid per client, not by the amount of work they do. All this applies to court duty solicitors as well, to which a similar scheme applies.
Lawyers are bound to act in the best interests of their clients. But they often interpret this in the very short term such as getting quickly released from the police station or avoiding a lengthy court process. We see it somewhat differently. Imagine yourself sitting in the old age protestor home. Are you really going to be thinking “thank atheism I took that caution back in twenty-one”?
The critics try to point that a blanket “No Comment” can lead to…Adverse Inference. Since 1994 the fact that you don’t answer questions in an interview can in certain circumstances be put to a jury at trial. In our considerable experience, this is not a problem if you did so on your solicitor’s advice and then give evidence on your own behalf in court. In our view, jurors are less likely to be biased against you now with the careful directions of a judge than under the previous “pay no attention to it” position as exemplified in this case from the 1970’s.
You cannot be convicted on adverse inference alone and the occasions where putting forward a defence in advance is advantageous are far outweighed by the times people say something daft. Of course, our advice has always been more nuanced than just “No Comment”. This is from a DSEI bustcard in 2003:
“If you are familiar with sections 34 through 38 of the criminal justice and public order act 1994 and the five preconditions Lord Bingham set out for drawing an adverse inference then you may consider giving a comment interview. Otherwise shut your big gob before you put your fat foot in it.”
One of the core reasons we advise you not to take it duty solicitor is you want a lawyer won’t ruin your defence by advising you to comment at interview. But another might be that taking one of the recommended solicitors with protest experience might help avoid some of the horror stories that we have heard over the years. To pick one of the most recent examples: in the aftermath of one of the Bristol KTB demos, a duty solicitor told their client to give the police the PIN for her phone. Alternatively, look at what happened after the August 2011 riots. The courts worked through the night, and defence solicitors with them(!), to get thousands of people fast-tracked to jail on guilty pleas.
Now, of course, all this is a lot of sour grapes from lawyers we’re not recommending and from the Law Society, which is essentially a medieval guild to protect the profession’s interest, but it brings up the important point that protest support is about using the legal system, not endorsing it.
We do not aim at having a “school league table” of lawyers. The Netpol accreditation is very much a guarantee of “how bad they are not”. It’s there so you can have a lawyer you can rely on to get you through the traumatic period after arrest without compromising your defence by saying stuff of which you don’t comprehend the legal implications or practical consequences.
Like Kurt Hammerstein-Equard, we know there are clever lawyers and less clever ones while some briefs are virtuous and some wicked. The evil & smart work in the City making a fortune, the nice but dim do conveyancing and will writing, while the nasty but naughty work for the CPS and unfortunately, too often, in criminal defence. This leaves a small group who are clever but kind and stand up for peoples’ rights; these are the ones we can recommend.