Advising clients at the police station - Right to legal advi...

Learning Outcomes

This article explains detainees’ right to legal advice at the police station under s 58 PACE 1984 and Code C, including:

• The scope, timing and “at any time” nature of the right to consult a solicitor privately, and how this operates in practice in custody.
• The steps the custody officer must take on arrival and before interview, including informing the suspect of the right, contacting the DSCC, and accurately recording decisions and attempts to obtain advice in the custody record.
• How face‑to‑face and telephone advice are arranged, the role of Criminal Defence Direct, and when it is proper for police to proceed with telephone advice instead of attendance.
• The exceptionally narrow grounds on which access may be delayed, who can authorise delay, the 36‑hour longstop, and how Annex B to Code C guides that decision.
• The interaction between access to legal advice, the standard and modified cautions, “significant statements or silences”, and the circumstances in which adverse inferences under s 34 CJPOA 1994 are restricted.
• The practical and evidential consequences of breach, including potential exclusion of interview evidence under ss 76 and 78 PACE and arguments based on Article 6 ECHR fairness.
• Additional protections for juveniles and vulnerable suspects, the role of the appropriate adult alongside the solicitor, and how these safeguards affect the timing and conduct of police interviews.

SQE1 Syllabus

For SQE1, you are required to understand the detainee's right to legal advice at the police station under s 58 PACE 1984 and Code C, with a focus on the following syllabus points:

• The statutory right to legal advice under s 58 PACE 1984, including the “at any time” nature of the right and privacy requirements.
• The procedures for informing detainees of their rights under PACE Code C, including para 6.1, 6.4 and 6.6, and recording obligations in the custody record.
• The role of the Defence Solicitor Call Centre (DSCC) and provision of telephone advice via Criminal Defence Direct.
• The very limited grounds for delaying access (s 58(6)–(8) PACE) and the maximum delay of 36 hours, including rank authorisation and recording requirements.
• The interaction with interview procedures: the caution, “significant statements or silences”, and when interviews may proceed before legal advice.
• The consequences of breach, including exclusion under ss 76 and 78 PACE, and limits on adverse inferences under s 34 Criminal Justice and Public Order Act 1994 (CJPOA 1994).
• Special arrangements for juveniles and vulnerable suspects, and the role of the appropriate adult under Code C.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Under PACE 1984, s 58, a person arrested and held in custody is entitled to consult a solicitor:
   1. Only if they can afford to pay for it.
   2. Privately, at any time upon request.
   3. Only after the initial police interview.
   4. Only if suspected of an indictable offence.
2. Who can authorise a delay in allowing a detained suspect access to legal advice?
   1. The Custody Officer
   2. Any police officer involved in the investigation
   3. An officer of at least Inspector rank
   4. An officer of at least Superintendent rank
3. What is the maximum period for which a suspect's access to legal advice can be lawfully delayed under PACE 1984?
   1. 12 hours from arrival at the police station
   2. 24 hours from the time of arrest
   3. 36 hours from the relevant time
   4. 48 hours from the relevant time

Introduction

Access to prompt, free and independent legal advice is a central safeguard of the PACE framework. It protects the fairness of the process, the reliability of evidence and the suspect’s rights. For practical purposes, it is also an anchor for interview strategy: interviews should not proceed where legal advice has been requested, save for narrow exceptions. Understanding what the custody officer must do, the solicitor’s role, and the rare circumstances in which access may be delayed is core knowledge for advising at the police station.

The Right to Legal Advice: Statutory Basis

The core right is set out in s 58 PACE.

Key Term: Right to Legal Advice
The entitlement, under s 58 PACE 1984, for a person arrested and held in custody at a police station or other premises to consult a solicitor privately at any time upon request.

Key points:

• The right applies “at any time” while in custody. The suspect can insist on telephone advice or an in‑person consultation; both must be private.
• The advice is free, funded under the legal aid Police Station Advice and Assistance Scheme. The DSCC is the gateway for publicly funded advice, whether duty solicitor attendance or telephone advice.
• The right must be explained to the suspect promptly on arrival and before interview, and it may be exercised more than once. The custody record should note the suspect’s decision, the steps taken to obtain advice, and any consultations.

Key Term: PACE Code C
A Code of Practice issued under PACE 1984 detailing rules for the detention, treatment, and questioning of persons by police officers, including procedures for accessing legal advice.

Code C imposes positive obligations to support s 58:

• Para 6.1: tell the detainee that they may at any time consult a solicitor privately, in person, in writing or by telephone, and that free independent advice is available.
• Para 6.4: no officer may do or say anything intended to dissuade a suspect from obtaining legal advice. Officers must also not imply that detention will be quicker if the suspect declines legal advice.
• Para 6.15: if a solicitor appointed to act has arrived at the station, the detainee must be told and asked whether they wish to see the solicitor, even if they previously declined advice.

Key Term: Defence Solicitor Call Centre (DSCC)
The central body contacted by the police when a detainee requests publicly funded legal advice. The DSCC arranges for advice, either by telephone (Criminal Defence Direct) or by allocating a solicitor (duty or own choice) to attend the police station.

Where the suspect wants publicly funded advice, the police must contact the DSCC, even if the suspect names their own solicitor. If the suspect chooses their own solicitor, they may speak to them by phone at their own expense, but publicly funded phone advice is available through Criminal Defence Direct when appropriate.

PACE Code C: Procedural Requirements

Informing and recording

On arrival and before interview, the custody officer must inform the detainee of their right to free and independent legal advice, to consult the Codes of Practice, and to have someone informed of their arrest. These rights, any requests and outcomes must be entered in the custody record. The custody record should also show the timing of requests, efforts to contact a solicitor, and any attendance.

Interview and waiting for legal advice

• If the suspect requests legal advice, the interview should not start until the suspect has received it, save for limited exceptions in Code C, para 6.6 (see below).
• At the start of any interview, the suspect must be cautioned (Code C, para 10.2). If legal advice has been properly delayed or waiting would cause unreasonable delay to a serious investigation (see below), the modified caution is used to avoid adverse inference risk.

Key Term: Caution
The standard police caution is: “You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence.” Where legal advice has been delayed lawfully or waiting would cause unreasonable delay per Code C, a shorter caution is used: “You do not have to say anything, but anything you do say may be given in evidence.”

• “Significant statements or silences” made before interview must be put to the suspect at the start of the interview, and the suspect asked to confirm, deny, or add anything.

Key Term: Significant statement or silence
A statement capable of being used in evidence against the suspect (e.g., an admission), or a failure or refusal to answer a question under caution that might permit adverse inferences, made before the interview.

Solicitor attendance and conduct

The solicitor’s role is to protect and advance the client’s legal rights. They may intervene to seek clarification, challenge improper questions, advise their client not to answer, or request a break for further advice. If a supervising officer (superintendent or above) considers the solicitor is impeding questioning by misconduct, they may require the solicitor to leave; the suspect must then be offered the opportunity to consult another solicitor before continuing.

Special protection for juveniles and vulnerable suspects

Juveniles (under 18) and vulnerable persons must have an appropriate adult involved for key procedures, including interviews.

Key Term: Appropriate Adult
An individual who safeguards the rights and welfare of juveniles or vulnerable persons during police procedures. This may be a parent, guardian, social worker, or other responsible adult independent of the police. The suspect’s solicitor is not the appropriate adult.

The appropriate adult should help the suspect understand their rights, ensure fair treatment, and assist communication. Private consultation with the solicitor should take place without the appropriate adult present to preserve legal privilege; the appropriate adult then attends the interview.

Delaying Access to Legal Advice

While fundamental, access to legal advice can be delayed only in tightly defined circumstances.

Grounds for Delay

Under s 58(6)–(8) PACE, access can be delayed only if:

• The suspect is detained for an indictable offence; and
• An officer of at least Superintendent rank authorises the delay; and
• The officer has reasonable grounds to believe that exercising the right to legal advice at that time will lead to one or more specified consequences.

Key Term: Delay (of legal advice)
The temporary postponement of a detainee’s access to a solicitor, permitted only under strict conditions defined in s 58 PACE 1984 and Annex B of Code C.

The specified consequences are:

• Interference with or harm to evidence connected with an indictable offence.
• Interference with or physical injury to other persons.
• Alerting other suspects not yet arrested for an indictable offence.
• Hindering the recovery of property obtained as a result of an indictable offence.

Key points to note:

• The belief must be that the consequence will very probably occur if advice is given at that time, not that it might. R v Samuel emphasised that authorisations should be rare and tied to particular risks (including, in practice, to a particular legal adviser if relevant).
• Delay is tied to indictable offences only. For summary-only offences, delay under s 58 is not available.

Authorisation and Duration

Authorisation must be given by a Superintendent or above, orally then confirmed in writing as soon as practicable, with reasons recorded in the custody record. The suspect must be informed of the decision and the reasons.

• Delay must last no longer than strictly necessary, and in any event not beyond 36 hours from the relevant time (usually the suspect’s arrival at the designated police station). Once grounds cease to apply, access must be provided without further delay.
• Annex B to Code C provides guidance on assessing, justifying, and recording a delay decision.

Key Term: Relevant Time
The starting point for detention and related time limits under PACE, usually the time of arrival at the first designated police station after arrest. The 36‑hour maximum for delaying access to legal advice runs from the relevant time.

Interviews before legal advice

If access has been lawfully delayed or the solicitor will not arrive within a reasonable time and waiting would cause unreasonable delay to the investigation (Code C, para 6.6), the interview may proceed. In such cases:

• The shorter caution is used at the start of the interview, reflecting that adverse inferences should not be drawn from silence in interview when legal advice was unavailable or not reasonably accessible.
• If the suspect has changed their mind and no longer wishes to wait for advice, an Inspector must speak to the suspect, consider expected arrival times, record reasons, and obtain a signed confirmation in the custody record that the suspect wishes to proceed without seeing a solicitor. The Inspector must authorise in writing that it is proper to proceed.

Worked Example 1.1

Anjali is arrested on suspicion of conspiracy to supply Class A drugs, an indictable offence. The police believe she is part of a larger network and that if she contacts her solicitor immediately, the solicitor might inadvertently (or deliberately) alert other members of the network who are currently under surveillance and about to be arrested. Superintendent Sharma considers delaying Anjali's access to legal advice.

Is Superintendent Sharma likely to be able to lawfully authorise a delay?

Answer:
Yes, potentially. The offence (conspiracy to supply Class A drugs) is indictable. If Superintendent Sharma has reasonable grounds to believe that Anjali consulting her solicitor at this specific time will lead to other suspects being alerted before they can be arrested, then a delay could be authorised under s 58(8)(b) PACE 1984. The authorisation must be properly recorded, the suspect informed, and the delay cannot exceed 36 hours from Anjali's arrival at the station (‘relevant time’). The delay must end as soon as the risk no longer applies.

Worked‍ Example 1.2​

Yusuf requests legal advice. The DSCC allocates a duty solicitor, who attends the station. The custody officer refuses access on the basis that interviews will be quicker without legal advice and Yusuf will be released sooner.

Answer:
This is unlawful. Code C para 6.4 prohibits officers from dissuading suspects from obtaining legal advice, including implying interview or detention will be shorter if advice is declined. Yusuf must be given access to legal advice “as soon as practicable”, and interviews should not start until he has received advice unless a lawful exception applies. Any confession obtained after improperly refusing access risks exclusion under ss 76 or 78 PACE.

Worked Example‍ 1.3

Mina is 16. She asks for legal advice and is due to be interviewed about a burglary. Her mother is out of the country, and the custody officer arranges a social worker as her appropriate adult. The station has contacted the DSCC, but the duty solicitor is delayed en route. The officer proposes to interview Mina immediately without waiting for either the solicitor or appropriate adult.

Answer:
This would breach Code C. A juvenile must not be interviewed in the absence of an appropriate adult, and the suspect has requested legal advice. The interview should not commence until Mina has had private consultation with her solicitor and the appropriate adult is present, unless a narrow exception under Code C para 6.6 applies (for example, where waiting would cause unreasonable delay to avert specified serious risks). Even then, for juveniles the safeguards are strictly applied.

Worked‍ Example 1.1

Leo initially declines legal advice. When the interview starts, he changes his mind and asks for a solicitor. The officer wants to continue the interview without interruption.

Answer:
The interview must be paused. Code C para 6.6 requires that if a suspect changes their mind and requests legal advice, interviews should stop to enable advice, subject only to narrow exceptions. If the officer believes waiting would cause unreasonable delay to avert specific risks (e.g., interference with evidence of a serious offence), an Inspector must follow the procedural safeguards: ascertain the solicitor’s anticipated arrival, record the suspect’s reason if they later opt to proceed without advice, and authorise in writing. Otherwise, the interview should not proceed until advice is received.

Worked Example‍ 1.1

Olivia requests legal advice and asks specifically for her own solicitor. The DSCC is contacted, but her chosen solicitor cannot be reached promptly. Olivia is offered free telephone advice through Criminal Defence Direct but insists she wants in‑person advice from her solicitor. The duty officer proposes proceeding with a telephone call instead.

Answer:
The suspect may receive publicly funded telephone advice via Criminal Defence Direct, and the DSCC must still be engaged. If Olivia insists on her own solicitor attending, the police should make reasonable efforts to contact and arrange attendance. Telephone advice may be appropriate as an interim measure, but interviews should not proceed until Olivia has received legal advice unless a lawful exception applies under Code C para 6.6. Any decision should be recorded in the custody record.

Practical Considerations and Consequences

• Private consultation: The suspect’s consultation with their solicitor must be private. Officers should provide facilities for confidential discussion and avoid presence in sight or hearing during advice.
• Telephone vs attendance: DSCC may determine that telephone advice is suitable. Where the suspect requests attendance and it is reasonably practicable, interviews should not proceed until attendance has taken place.
• Change of mind: If the suspect withdraws a request for legal advice, Code C para 6.6 sets out safeguards: Inspector involvement, recording reasons, checking arrival times, and a written confirmation from the suspect. The suspect can change their mind again, and interviews must pause to allow advice unless a lawful exception applies.
• Caution and adverse inferences: Where legal advice was unavailable due to lawful delay or unreasonable waiting, the shorter caution should be given, and adverse inferences from silence will not normally be drawn (CJPOA 1994, s 34(2A)). Where advice has been improperly denied, adverse inferences should not be drawn, and interview evidence may be excluded.
• Recording and custody record: Good practice is to record all requests for advice, contacts with the DSCC, timing of calls/attendance, reasons for any delay, and any modified caution used. Failures in recording or procedural compliance may call fairness into question and lead to exclusion under s 78 PACE.
• Solicitor’s role in interview: The solicitor may intervene to protect the client’s rights. If removal is ordered because of alleged misconduct, the suspect must be offered another solicitor and time for consultation before continuing.
• Article 6 ECHR and fairness: Early access to legal advice is one factor in assessing the fairness of proceedings. Improper denial or delay may breach Article 6 and strengthen applications to exclude evidence obtained thereafter.

Exam Warning

A denial or delay of legal advice under s 58 PACE 1984 is a very serious step. The grounds are specific to indictable offences and require authorisation by a Superintendent. The belief must be that consulting the solicitor will very probably lead to one of the specified consequences; a general fear that a solicitor may advise silence is not enough. Adverse inferences from silence under s 34 CJPOA 1994 cannot normally be drawn if the suspect was denied legal advice (s 34(2A)), and evidence obtained following a breach may be excluded under s 76 (confessions) or s 78 (unfairness) PACE 1984.

Revision Tip

Consolidate the differences between s 58 (legal advice) and s 56 (right to have someone informed of arrest):

• s 58: delay only for indictable offences, Superintendent authorisation, maximum 36 hours, belief consequences will very probably occur if advice given.
• s 56: delay only for indictable offences, Inspector authorisation, maximum 36 hours, similar listed consequences for notifying a named person.

Knowing who can authorise what, and the maximum delay, is a common point of confusion.

Key Point Checklist

This article has covered the following key knowledge points:

• Detainees have a fundamental right to free, independent, and private legal advice under s 58 PACE 1984, exercisable “at any time”.
• Police must inform suspects of this right promptly upon arrival and before interview, and must not dissuade them from exercising it (Code C, para 6.1 and 6.4).
• The Defence Solicitor Call Centre (DSCC) facilitates access to publicly funded advice, including telephone advice via Criminal Defence Direct.
• Significant statements or silences must be addressed at the start of interview; the caution must be given, and the shorter caution used where advice was lawfully unavailable or waiting would cause unreasonable delay.
• Access to legal advice can only be delayed for indictable offences, requires Superintendent authorisation, and must be based on reasonable grounds that specified consequences will very probably occur (s 58(8), Annex B).
• The maximum delay permitted is 36 hours from the relevant time, and interviews should not proceed until advice is received unless a lawful exception applies.
• Juveniles and vulnerable suspects require an appropriate adult; private consultation with the solicitor must be enabled, and interviews should not proceed without these safeguards.
• Breaches of the right to legal advice can lead to exclusion of evidence under ss 76 and 78 PACE, and adverse inferences under s 34 CJPOA 1994 will normally be unavailable.

Key Terms and Concepts

• Right to Legal Advice
• PACE Code C
• Defence Solicitor Call Centre (DSCC)
• Delay (of legal advice)
• Relevant Time
• Caution
• Significant statement or silence
• Appropriate Adult