Background
Temporary measures are required in the way that police station legal advice is delivered in the middle of a global pandemic. With the virus spreading easily between people, and the number of people dying from the Covid-19 increasing significantly, it is essential defence lawyers are able to challenge the necessity of an interview, query health and safety protocols, and adapt to virtual workarounds to enable legal advice to be provided remotely.
Within the secure site of police custody, the Police and Criminal Evidence Act 1984 (which regulates police powers relating to the detention and questioning of suspects), requires the police to make key decisions. With Coronavirus, some custody sergeants are insisting that lawyers provide face-to-face legal advice, despite the obvious danger to all those involved in police interviews. While emergency measures are required when dealing with a pandemic, the rule of law must be upheld, which requires suspects in police interviews being able to access legal advice, albeit remotely.
On 16 March 2020, the Prime Minister announced that people should stay at home to help stop the virus from spreading. However, there are custody sergeants who are still requiring lawyers to attend at the station to see their clients in person. Lawyers have turned to Twitter to share their experiences and frustrations at these unnecessary requirements – such as the necessity to interview summary offences where there is sufficient evidence to charge. As such, it is helpful to explore issues relating to the protection of lawyers, the police station duty solicitor scheme, and making representations to the police.
Protecting lawyers
There have been numerous tweets where lawyers complained that they were expected to provide face-to-face advice, without personal protective equipment, even the basics of a facemask, gloves or, as this lawyer tweeted, “No hand gel, no wipes, nothing” (23.3.20). Concerns were also raised over the small rooms that lawyers were expected to provide advice and to be present during the police interview, including when dealing with minor matters. As this lawyer put it, “Police asking us to go into police station to sit in a small interview room with 4 people all so they can interview on a shoplift!”. She continues asking, “Why is no proportionality being applied, how is the risk in this pandemic justified?” (25.3.20).
Lawyers are being asked to put their lives at risk at a time when the number of people dying from Coronavirus is increasing significantly on a weekly basis. At the end of the week on 17 March 2020, for example, 159 people had died from Coronavirus, rising to 547 the next week, and 1,385 died during the week ending 31 March 2020. Despite the increase in fatalities, some custody sergeants are still requiring lawyers to attend clients in person. To put an end to such practices, at least in his firm, Greg Powell tweeted on 22 March 2020, “To protect our clients and staff we are withdrawing all face-to-face contact. We will not be attending police stations … NOR will we ask any agent or Counsel to”.
Police station duty solicitor scheme
In addition to ‘own’ client work, lawyers take it in turns on a rota to provide legal advice to suspects who do not have their own lawyer, under the 24-hour duty solicitor scheme. It is for lawyers to decide what and how legal advice is provided, although some custody sergeants insist that duty solicitors provided face-to-face advice. If this is refused, duty cases can be referred back to the ‘defence solicitor call centre’ (DSCC), for the case to be re-allocated to the next firm on the duty rota. This was the situation for one lawyer when, at 3.17am on 30 March 2020, she tweeted, “DSCC just called me with a back-up case at a London police station. Told the last 2 firms refused as police insisting solicitor attends in person. [This law firm] has regrettably refused the case. It is not safe at this time to attend in person”. The next day, after a lawyer refused to provide face-to-face advice, he tweeted, “Custody Sgt then rings me and tells me I am breaching PACE by refusing to attend. I quote all the guidelines that I am currently following and explain that they are in breach of PACE for refusing the telephone advice call. Apparently all other firms are attending, it is only us” (31.3.20).
Defence representations to the police
PACE provides an important role for lawyers as a ‘check and balance’ on police powers, however within the environment of police custody, the police are the dominant decision-makers. This means that lawyers are in a weak position when making representations, inclusive of a world-wide pandemic. In one case, for example, a lawyer described dealing with a 14-year-old boy, arrested for possession of a class A drug. His representations concerned the necessity of detaining the young suspect, health and safety issues, and that legal advice should be provided remotely.[i] Despite having made these representations to a custody sergeant, an inspector and chief inspector, which had been ignored, his client was interviewed without legal advice while the lawyer was waiting to make representations to a superintendent (26.3.20). In a similar vein, another lawyer commented on the negative response that she received when tweeting, “Duty Inspector refuses to record my representations regarding Coronavirus, stating that “He’s had enough of defence solicitors using Coronavirus as a means of complaint”. This has to stop” (28.3.20).
National Protocol
The CPS have issued national guidance for the police and Crown prosecutors when making charging and other prosecution decisions to ensure that the decisions are fair and consistent and fully comply with PACE. With Coronavirus, and the police insisting on interviews being conducted when it is unsafe to do so, the National Police Chiefs Council (NPCC), CPS, Law Society, London Criminal Court Practitioners’ Association and the Criminal Legal Solicitors’ Association published a joint National Protocol for police interviews on 2 April 2020. The protocol requires, in the vast majority of cases, that if a police interview is required, it should be conducted remotely.[ii] While the national protocol is an important step forward, with 43 autonomous police forces in England and Wales, it is disappointing that this has not been endorsed centrally.
Following publication of the national protocol, it seems many front line police officers are simply not aware that this exists. During the weekend of 4/5 April 2020, for example, one lawyer tweets, “We are covering a North London station is morning. Custody staff have no interest in the protocol”. In another area this lawyer comments, “Poor colleague stressed out after fighting overnight for remote attendance. Ended up refusing the interview with careful statement”. Recognising the need for urgency, a third lawyer tweeted, “Dealt with 6 in custody last night and into the early hours. Police officers at the front line unaware of the protocol. Helpful Inspector conveyed it to all Custody Sgts. Reality is protocol is generally not being followed”. Such problems persist, with a law firm tweeting on 8 April 2020 that, “Our solicitors are arguing with the police on a daily basis” that they should not be required sit in on police interviews. With the dangers keyworkers face in the middle of a pandemic, it is a matter of urgency that the national protocol is disseminated to all police officers and lawyers involved in police interviews.
Despite the best efforts of the NPCC and the defence practitioner groups leading to good practice, this is not the case in all areas. On 13 April 2020 a lawyer tweeted, “Many officers in [my area] either claiming not to be aware of the protocol or treating it as an inconvenience” and, in another area, a lawyer reports that the police have not conducted a police interview remotely. Without following the protocol, on 13 April, the inevitable happened with a lawyer reported to be “in hospital having contracted Covid19 at a police station on 6 April.” He reports having had “clients coughing in your face with no mask, no gloves and worst, not even putting their hands by their mouth”. The duty solicitor scheme is reported to still be a problem with a lawyer tweeting on 13 April 2020, “If we return a case when police refuse to observe it the [protocol] DSCC simply ring round till they find someone willing to risk their health”.
Looking to the future, it is evident that changes required under Covid-19 will have accelerated the speed of change, by increasing opportunities for lawyers to provide legal advice remotely – although recognising the need for lawyers to be present in police interviews, when it is safe to do so. The emergency measures have also highlighted the need for improvements to the digital infrastructure required to support remote working practices. Through such improvements, this will help to improve access to legal advice for suspects, and increase opportunities for lawyers to make representations to the police.[iii]
With a modernisation agenda taking place in the courts, and with a Royal Commission into criminal justice having been announced, it is important for policy makers to take into account how advances in technology can be used to involve defence lawyers proactively early on in cases.
The Home Office and the Ministry of Justice should both urgently endorse the national protocol to help keep safe all those involved in the interviewing of suspects.
Endnotes
[i] With thanks to Stephen Davies, a defence lawyer in London, who spoke to me about his experiences of providing police station legal advice in the middle of Covid-19.
[ii] The protocol also stipulates that in summary cases, where there is the evidence, the suspect should be charged without an interview. There is also the option for a written statement to be provided under caution in response to a list of questions provided by the interviewing officer. In addition, if possible, the police are required to delay the interview.
[iii] See V. Kemp (2020) ‘Digital legal rights: Exploring detainees’ understanding of the right to have a lawyer and potential barriers to accessing legal advice’, Criminal Law Review, 129-147.