The Justice for All debates are right to concentrate on criminal justice and bring much-needed insights to a wide audience.

In this blog we highlight a crucial but under-appreciated part of our justice system: criminal defence solicitors. For the last 40 years they have been on duty, 24/7, 365 days of the year, protecting the rights of those in police custody, levelling the playing field for the suspect vis-à-vis the police, and ensuring the integrity of criminal investigations. But duty solicitors are dying out – only a small minority are under 45 – so the government needs to provide sustainable support to ensure this vital role does not disappear.

Solicitors’ role in police stations was created by the Police and Criminal Evidence Act 1984 (known as PACE). This Act did more than almost any other criminal legislation of the last 40 years to enable access to justice, ensure the police adhere to the rule of law and uphold citizen’s rights. Before PACE it was rare for a solicitor to be present at police interviews, resulting in notorious miscarriages of justice such as the Guildford 4 and the Birmingham 6 in 1974.[1]

PACE is, essentially, directions to police on how to exercise their powers of stop and search, arrest, detention, investigation, identification, and interviewing of detainees. At the heart of PACE is the suspect’s right to legal advice when arrested and held in custody. Section 58(1) provides, in simple language, that ‘a person arrested and held in custody in a police station or other premises shall be entitled, if he so requests, to consult a solicitor privately at any time’.

Central to making this right practical and effective is the role of defence solicitors. They will be with their recently arrested client at the very outset of a criminal case at the police station. Uniquely among criminal law professionals, they will remain involved throughout the whole criminal justice process, from the initial police investigatory stage, through the magistrates’ court hearing/s, to the Crown court and the appeal courts if necessary, and, if their client is imprisoned, potentially at Parole Board hearings to secure their ultimate release.

Academic Ed Cape and practitioner Matthew Hardcastle explained how PACE affected policy investigations in a recent article celebrating its 40th anniversary:

“It is difficult now, particularly for those whose professional lives started after PACE came into force, to fully appreciate its reach, significance and impact. Prior to PACE, the fiction that the purpose of arrest was primarily as a mechanism for bringing a suspect before a court meant that, for decades after this was no longer true, the investigative process was inadequately regulated… “Verballing”, by which police officers imputed often manufactured or exaggerated statements to suspects, was difficult to challenge, and routinely accepted as evidence by judges and magistrates.” (CLR No. 12, Dec 2024, 827-830).

The Law Society, together with the practitioners on our criminal law committee, aim to improve the conditions in which solicitors represent members of the public in the stressful, unfamiliar and potentially oppressive environment of police custody suites.

We are in regular dialogue with the Home Office and the National Police Chiefs Council (NPCC) to influence and improve police/solicitor interactions and practice on the ground. We developed a memorandum of understanding (MoU) with the NPCC to ensure police stations are safe environments for solicitors to work in.  In 2019, as Covid-19 spread and lockdowns came into in force, we worked with the NPCC to develop a protocol to permit the use of remote police station advice. This was not ideal, given the importance of solicitors’ presence, but it enabled the continuity of legal advice during that unprecedented health emergency.

A more prosaic MoU concerns the right of solicitors to retain their mobile phones and laptops while in the secure environment of police stations.

Of course, significant challenges remain. The design of modern custody suites and their levels of security means solicitors are physically excluded from booking-in areas and unable to freely communicate with the custody sergeant or with investigators, post-interview. This reduces solicitors’ ability to influence key police decisions, for example on the appropriate charges, an out-of-court disposal or bail.

The greatest challenge to the provision of police station advice is inadequate legal aid funding. This causes extreme difficulty for firms in recruiting and retaining qualified duty solicitors, or young solicitors who they can train into the role.

Police station attendances are paid by a ‘fixed fee’, which is the same regardless of how long the solicitor spends at the police station. Unlike other professionals – for example plumbers or electricians – the firm is paid the same fee for a one-hour attendance as for an attendance that takes six hours or more. The only way to ‘escape’ the fixed fee is to undertake over 11 hours work, which is quite rare.

Up until December 2024 there had been almost no increase in the police station fixed fee for over 20 years, and as a result the numbers of duty solicitors have steadily dwindled. Between 2017 and 2024 duty solicitor numbers fell by over 1,300 or one-quarter. Criminal solicitors are also an ageing cohort, with only 20% under 45 and over 40% over 55.

The independent review of criminal legal aid (CLAIR) undertaken by (the then) Sir Christopher Bellamy[2] in 2021-2022 recommended an increase of 15% across all criminal legal aid work, as the bare minimum needed just to get the system back on its feet. The recent increase of £92m – while welcome – doesn’t even amount to Sir Bellamy’s15% in real terms, and has done little to improve the situation, coming as it does after many years of crisis and underfunding in the defence sector.

The MoJ allocated some of this increase to harmonise the police station fixed fees, which hitherto have all been different, but this will not solve the recruitment crisis in criminal legal aid as it takes no account of the complexity of each case nor the time of day or night the attendance occurs.

The Law Society has argued strongly for a more nuanced approach to the police station fee. We have urged the MoJ to introduce enhanced fees for attendances at night and weekends, and to take into account the complexity of the case, in order to ensure that the most experienced solicitors attend the police station in the more difficult or complex cases. Most criminal legal aid firms are operating on extremely low margins and cannot afford to pay an enhanced fee when they are only receiving the same fixed fee as if the attendance was during the day.

A solution that we have suggested is a fixed enhanced fee for indictable only cases – those that are highly likely to be heard in the Crown Court if they are pursued beyond the police station. This would be relatively simple to administer and would encourage firms to send higher grade fee earners to undertake these cases. The MoJ has however not chosen to adopt this proposal.

Unless the government wants a return to the bad old days of pre-PACE miscarriages of justice, they must ensure that the vital public service provided by solicitors can continue. This means committing enough resources to enable law firms to recruit and retain new duty solicitors and to properly reward those who attend police stations at all hours of the day and night.

Brett Dixon
Vice President of The Law Society

[1] THE GUILDFORD FOUR AND OTHER MISCARRIAGES OF JUSTICE | The Lawyers & Jurists

[2] Independent Review of Criminal Legal Aid – GOV.UK