The new Netflix drama Adolescence has propelled many themes to the forefront of our national conversations in the last week. With the corrosive effect of social media on our children being the most important, it is hardly surprising that the realism of the portrayal of the criminal justice system in the series has been somewhat overlooked.
I wonder if Sir Keir Starmer spotted some of the deficiencies of the drama on that front when he was watching with his teenage children?
For remarkable and compelling as Adolescence is, it was not quite as flawless as the reviews suggest when it comes to the portrayal of a criminal defence lawyer.
Without doubt 13-year-old Jamie Miller’s character, who is accused of murdering a schoolgirl, accurately conveys the rollercoaster of emotions I watch many of my clients experience from arrest to prosecution.
His initial arrest at home in his bed with armed police having broken down the front door of his family home showed a questionable level of police aggression but, it was not beyond the realms of accuracy and it is TV afterall.
During the journey to the police station DI Bascombe tells Jamie that he should ask for a solicitor, because 'asking for a solicitor won’t make you look guilty or effect your case' – my hopes for the defence solicitor portrayal are buoyed.
Until, Mr Barlow the solicitor, appears on our screen.
Amongst the numerous reasons as to why Jamie should have sacked his brief are;
Confidentiality
Mr Barlow fails to check he has Jamie’s permission to speak to his parents, let alone divulge the allegation. A solicitor’s duty of confidentiality would be owed to client, Jamie, regardless of his age.
Legal advice
The police ask for Jamie’s passcode to his phone. Mr Barlow’s advice 'you don’t need to give them that' is technically right, on the basis that the police have not obtained a RIPA Notice, contrary to section 49 of the Regulation of Investigatory Powers Act 2000 (RIPA). However, if a RIPA notice had been obtained, Mr Barlow would have just advised Jamie to commit a criminal offence, contrary to section 53 of RIPA. Even without a RIPA Notice, Jamie should still have been advised on the adverse inference which can be drawn from his failure to provide the PIN to the police.
Intimate samples
Jamie has a fear of needles but the police want to take a blood sample. When Jamie tries to refuse, Mr Barlow fails to advise Jamie that a blood sample is an intimate sample, which means he doesn’t have to comply if he doesn’t want to, as per section 62 of the Police and Criminal Evidence Act 1984.
The consultation
This is the point where I began shouting at my TV. Mr Barlow tells Jamie, 'I’m not here to ask whether you did it or didn’t do it'.
Mr Barlow needs a copy of Defending suspects at the police station, by Ed Cape, Matthew Hardcastle and Sandra Paul. The authors of this bible describe the key objectives for a criminal defence lawyer. How does Mr Barlow fare?
1. Secure information – fail.
First step, ask your client for their instructions before providing them with advice. There are other ways to navigate a lack of disclosure in murder investigations.
2. Advise in private – fail.
Jamie’s dad is not protected by legal privilege. He should not have been present during the legal consultation.
3. Advise on matters during the period of detention – fail.
Jamie received no advice on the interview process, or his rights in interview or custody more generally.
4. Safeguard the client’s rights – fail.
At no point did Mr Barlow challenge the necessity for Jamie’s arrest, detention in a dry cell or strip search.
The most offensive piece of advice was for Jamie to give a 'mixed comment interview'. There are no circumstances where this would be appropriate advice. If a client picks and choses which questions to answer, it simply highlights to the court and police any difficulties in the defence case.
I would have advised Jamie to answer no comment, unless he had an alibi or a clear defence available to him, predominantly because the police had not disclosed anything at that stage. I would then have made representations on tape that Jamie had not been able to benefit from effective legal advice due to the lack of police disclosure, mitigating any adverse inferences being drawn at a later stage.
My outrage increased when Jamie, a 13-year-old child, was asked 'can you decipher what to answer' and Eddie was told he could 'speak up' whenever he chose to. Eddie would have been thrown out of the interview if he had followed this advice, and why was Mr Barlow not recording any notes?
It is frustrating that the crucial role a defence solicitor plays in a police station is once again misrepresented so heavily, especially when some 23.4 million viewers tuned in to watch this new series within its first four days of release. Perhaps Netflix didn’t consider it important to get to grips with the minutiae in this respect; the success of their drama clearly doesn’t depend on it. But sadly, bumbling Mr Barlow isn’t helpful to the public’s understanding of our professional role and its importance in protecting them when needed.
Rebecca Smart is a criminal defence lawyer at Kingley Napley LLP
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