Police Custody Legal Advice: Why Suspects Still Say No

Police custody in England and Wales already contains a strong legal safeguard: a detainee can obtain free, independent legal advice, and police must not dissuade them from doing so. The weaker point is what happens when the answer is “no”.

Under PACE Code C, detainees must be told that they may consult and communicate privately with a solicitor and that free independent legal advice is available. Paragraph 6.4 says an officer should not do or say anything with the intention of dissuading someone from obtaining advice.

The Code also anticipates that people will decline. Where a detainee refuses an in-person consultation, custody staff should point out that the right includes telephone advice. If the person continues to waive the right, the officer should ask why and record any reason, without pressing once it is clear the detainee does not want advice. For juveniles and vulnerable detainees, the appropriate adult has an additional role and may ask for a solicitor where that would be in the person’s best interests, although an adamant detainee cannot simply be forced to see one under Code C.

The legal framework is therefore not the problem. The policy question is whether a force can tell the difference between a person who understood the safeguard and chose not to use it and a person who declined because they misunderstood what accepting it meant.

A right is strongest when the person making the decision understands what accepting and declining it actually changes.

The official wording already corrects a common misconception

The Home Office’s Notice of Rights and Entitlements tells detainees plainly that asking for a solicitor does not make it look as though they have done anything wrong. It also says legal advice is free and that a detainee who initially declines can change their mind later.

That wording is useful because it identifies the misconception the system is trying to prevent. A person who thinks “I am innocent, therefore I do not need a solicitor” is making a different decision from someone who understands the evidential purpose of interview, knows advice is free and still prefers to proceed without it.

The distinction matters for procedural fairness. The police interview is an evidential process. A solicitor can explain the allegation, the caution, disclosure, the consequences of answering or not answering and the options available to the detainee. Legal advice is not an admission of guilt and it is not reserved for experienced offenders. Whether detainees can follow the caution’s wording at all is its own problem — Do You Understand? looks at what comprehension research says about the words we read out.

Compliance should not become a tick-box exercise

A custody record can show that the right was offered. That does not automatically show how well it was understood.

The right response is not to assume every person who declines is vulnerable or mistaken. Adults retain agency, and Code C allows them to refuse. The stronger operational response is to make the quality of the offer auditable.

Custody leaders should know whether officers consistently explain that advice can be provided by telephone, whether detainees are told they may change their mind, whether reasons for declining are recorded in the circumstances required by the Code, and whether local scripts accidentally imply that accepting advice necessarily means a long delay.

Variation is also useful evidence. If one suite records markedly more waivers than another, or if waiver patterns differ substantially by age, vulnerability or time of day, that should prompt examination rather than an assumption that the populations are simply different. The explanation may be legitimate. The point is to know.

What can change without changing the law

Several improvements sit comfortably inside the existing framework.

Forces can rewrite local custody prompts in plain English around the actual questions detainees appear to face: advice is free; asking for it does not imply guilt; it may be available by telephone; and the person can change their mind later. They can train custody staff to present those facts neutrally rather than sell or discourage the option. They can audit the recording of waiver reasons and compare legal-advice uptake between suites.

A short comprehension check may also be useful: “Tell me what you understand your options to be if you want legal advice.” That is an operational recommendation, not a requirement presently imposed by PACE.

A mandatory solicitor consultation before any waiver is a different proposition. It would move beyond improving communication into restricting the ability to decline without first engaging with a lawyer. That may be a defensible reform, particularly for some vulnerable groups, but it would require a clear legal and policy basis rather than being smuggled into local practice as though Code C already requires it.

The test for custody leaders

The useful performance question is not simply “what proportion asked for a solicitor?” A very high or very low rate can have several explanations.

The better questions are whether detainees received the right information, whether legal advice was secured without avoidable delay when requested, whether vulnerable people received the additional safeguards in Code C, and whether any local variation can be explained.

PACE created a right to free legal advice because police detention is a moment when the balance of knowledge and power is unusually unequal. The right should remain a genuine choice for those legally entitled to make it. The force’s responsibility is to make sure the choice is informed, neutral and properly recorded rather than merely offered.

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Sources and further reading

• Police and Criminal Evidence Act 1984, section 58.
• Home Office — PACE Code C 2023, especially section 6.
• Home Office — Notice of Rights and Entitlements.
• Layla Skinns, ‘Let’s Get it Over With’: Early Findings on the Factors Affecting Detainees’ Access to Custodial Legal Advice, Policing: A Journal of Policy and Practice 3(2), 2009.
• Vicky Kemp, research on police-station legal advice and electronic custody records, University of Nottingham Criminal Justice Research Centre.