Position statement and rationale

1. Purpose

2. Background

   The response to Covid-19

   Legal aid and police station advice and assistance

3. The legal status of the JIIP and remote legal advice

4. Legal representation for children and vulnerable adults

   In law

   Under the JIIP

   With confirmed or suspected Covid-19

5. Role of the appropriate adult

6. Health and safety

7. NAAN’s interpretation and guidance

   Our understanding of the law

    Where JIIP v3 is being followed

    Where JIIP v3 is not being followed

    Where a child or vulnerable adult is confirmed or suspected to have Covid-19

8. References


1. Purpose

  1. This statement explains NAAN’s rationale for its guidance for appropriate adults in relation to legal advice for children and vulnerable people in the context of Covid-19, following the publication of JIIP v3.

2. Background

The response to Covid-19

  1. In March 2020, Covid-19 created unprecedented circumstances in police custody. Law firms were concerned about the health risks to their staff and about the financial risks to their businesses. The prospect of mass non-attendance at police stations meant police and prosecutors faced being unable to conduct interviews with suspects – something they consider to be an investigatory tool of critical importance.
  2. The Joint Interim Interview Protocol (JIIP) was agreed in March 2020 by the National Police Chiefs Council (NPCC), Crown Prosecution Service (CPS), Law Society (LS), the Criminal Law Solicitors’ Association (CLSA) and the London Criminal Courts Solicitors’ Association (LCCSA). These bodies remain the only signatories. No government department (e.g. Home Office, Ministry of Justice) is a signatory to the JIIP. Amended versions of the JIIP were published in April 2020 (version 2) and May 2021 (version 3).
  3. The JIIP describes itself as “guidance to assist investigators and prosecutors in deciding whether suspects should be interviewed as part of a police investigation during the Covid-19 pandemic”. In line with separate CPS guidance on charging during the pandemic, the JIIP provides a framework to reduce the number of interviews to the greatest reasonable extent. Notably, although national volumes briefly dropped significantly at the start of the pandemic, policing appears to have quickly returned to ‘business as usual’ levels.
  4. However, the JIIP also had a wider effect. It introduced the concept of virtual legal representation for people who are being interviewed in relation to an alleged offence. It encouraged defence solicitors and legal representatives to appear in interviews by video wherever possible (e.g. Zoom) or audio only (e.g. telephone) link rather than attending the police station.
  5. Organised appropriate adult (AA) schemes provide AAs where family and friends are not available or willing to support a child or mentally vulnerable adult. Many AAs are local community volunteers. Appropriate adults (parental or organised) were not party to the original development of the JIIP and are not signed or been invited to sign it. AA schemes have continued to attend police custody throughout the Covid-19 pandemic.

Legal aid and police station advice and assistance

  1. The Legal Aid Agency’s (LAA) Standard Crime Contract 2017 states that, ““Police Station Advice and Assistance” means Advice and Assistance given either by Police Station attendance or by Police Station Telephone Advice under section 13 of the Act”[1].
  2. Police station attendance attracts a fixed fee which varies geographically from £126.58 in Blackpool to £274.66 in Heathrow, with an average value of £165.15 (at June 2021). The Standard Crime Contract states that the fee covers “all work done on the Matter relating to Police Station attendance, including time spent advising the Client, travelling to and from the Police Station and waiting in relation to initial and subsequent visits to the Police Station. It also includes all letters and telephone calls and other work done outside the Police Station”. It is contractually defined as being claimable for matters “where at least one Police Station attendance has been given”. Higher fees are claimable in ‘exceptional’ cases, where profit costs, travel and waiting are more than three times the value of the police station fixed fee (if calculated using set hourly rates).
  3. In contrast, the telephone advice fee, is a much lower rate of £28.70 in London or £27.60 elsewhere (at June 2021). The Standard Crime Contract defines it as “the fee payable for all telephone calls for a Matter advising the Client in custody for which the Matter does not also include attendance at the Police Station.”
  4. The Law Society has repeatedly indicated its concern over the level of remuneration for criminal legal aid work, stating that, “Not only has there been no cost of living increase in criminal legal aid rates since the 1990s, but there was an 8.75% cut to fees in 2014”.[i] While it has not been possible to confirm this objectively, law firms have stated that police station advice and assistance is a ‘loss leader’, leaving them dependent on Crown Court trials to recoup losses and achieve profitability.
  5. The LAA did not seek to alter its Standard Crime Contract with law firms during the Covid pandemic. Instead, it indicated that it would use its discretion to disapply normal contractual expectations, in line with the JIIP for as long as it was in operation. Specifically, the LAA allowed law firms who provided remote advice and assistance to claim the significantly higher police station attendance fee, rather than the telephone advice fee, despite not actually attending the police station. Thus, in this context, the use of remote had a significantly positive effect on the profitability and financial sustainability of law firms.
  6. In April-June 2020, at the start of the Covid pandemic, criminal law firms’ Crown Court income from legal aid fell by 41% on the previous year. In response, law firms put many of their staff on furlough on the basis that there was insufficient work available. In contrast, the workload of legal aid police station advice reduced by only 8% in this Q1 period.[ii] Although these data are not yet available for the following 12 months, data on Duty Solicitor Call Volumes indicate that workload had returned to normal levels by June 2020. With many staff being supported by furlough, the relatively high levels of demand and profitability of remotely delivered police station advice (paid at the attendance rate) has presented an attractive proposition to law firms concerned about the financial sustainability of their businesses. As com put it, “the protocol is a life line to self isolating reps who were facing financial ruin”.

3. The legal status of the JIIP and remote legal advice

  1. Signatories have communicated clearly that the JIIP is not a legal document. It does not replace or supersede The Police and Criminal Evidence Act 1984 or its statutory Codes of Practice, or any other legislation or statutory code. The JIIP refers to itself as “guidance”.
  2. The JIIP (version 2 and 3) states that, “The signatories to this Protocol accept that remote interviews by video and audio link are not within the current letter of the Code of Practice…”.
  3. The use of remote legal representation relies on the JIIP signatories’ view that “remote interviews by video and audio link… are within the spirit of recent amendments to criminal procedure, law and evidence in the Coronavirus Act 2020”. As they accept, this is simply a view on the spirit of the law – yet to be tested in the courts.
  4. In recent years, the PACE Act and its Codes of Practice have been amended to support the use of ‘live link’ for tightly defined purposes related to interviews and some other custody procedures. This includes where:
    1. a police officer attends remotely because the person is detained by another force
    2. interpretation is required (due to certain languages being hard to source locally)
    3. where a detention is being reviewed or extended.

These amendments to PACE Codes have been subject to policy development, stakeholder engagement and (under PACE 1984 s.67) consultation, and parliamentary approval. No such process has taken place in relation to live link for the purpose of legal advice. The PACE Act and Codes have continued to be the relevant legal framework.

  1. However, the right to assistance and representation by a lawyer at the investigatory stage is a fundamental right under Article 6 of the European Convention on Human Rights, reinforced through and case law[iii] and domestic statute[iv]. In a briefing to legal professionals, website com, stated one problem with the JIIP was “Human Rights (ECHR) - It is quite tricky to give advice over a video link. It is hard to properly represent a client in interview without actually being there and damn near impossible by phone. Were an officer to make threatening gestures to a client off camera it would go unchallenged. A detainee would be well within their rights to refuse interview on the grounds he had not had access to legal advice in person. The ECHR position is well tested by the courts. Remote attendance is not sufficient in law as it could breach article 6 right to legal assistance. A defendant can sue the individual purporting to represent him”. The same article raised a number of other concerns, including security/confidentiality and ethics, stating that “Representation at the police station is a vital part of our criminal justice system. Ethically the client must always come first. Yet we are giving wider society precedence over legal rights”.
  2. The Home Office considered seeking a temporary amendment to PACE Code C to support the JIIP. However, following consideration, stakeholder engagement and a three-week public consultation (which was, in effect, a consultation on the JIIP as much as the Code), the Home Office decided not to amend PACE Code C, citing “significant issues”.
  3. The existence of JIIP is dependent on the agreement of all signatory parties. The NPCC has indicated that it believes that custody is now safe, and it would like to rescind the JIIP as soon as is possible. However, the legal profession indicated that it remains concerned about the health and financial impacts of a return to normal.

4. Legal representation for children and vulnerable adults

In law

  1. In relation to all suspects, PACE Code C:
    1. provides that a person may nominate a solicitor known to them, select a solicitor from a list, or use the duty solicitor scheme[v].
    2. provides that a person may at any time consult and communicate privately with a solicitor, whether in person, in writing or by telephone.[vi]
    3. provides that if a solicitor arrives at the station to see a particular person, that person must, unless Annex B applies, be so informed whether or not they are being interviewed and asked if they would like to see the solicitor. This applies even if the detainee has declined legal advice or, having requested it, subsequently agreed to be interviewed without receiving advice.
    4. provides that in certain specific and limited circumstances, the police can interview someone, who has requested legal advice but not yet received it, including where:
      • In relation to a person detained in connection with an indictable offences, there are reasonable grounds to believe that a delay would cause specified issues affecting justice, or the recovery of the proceeds of crime. [vii]
      • There are reasonable grounds to believe that a delay would cause specified issues affecting justice, or unreasonably delay the investigation (restriction on drawing adverse inferences from silence applies, requires authority from superintendent rank or above, there should be discussion with the legal advisor and an indication of how long police can wait before the solicitor’s arrival so there is an opportunity to make arrangements for someone else to provide legal advice)[viii]
      • a person’s preferred solicitor declines to attend and the person does not want a duty solicitor (no restriction on drawing adverse inferences from silence, requires authority from inspector rank or above)[ix]
      • a person changes their mind about wanting legal advice or about wanting a solicitor present at the interview and states that they no longer wish to speak to a solicitor (no restriction on drawing adverse inferences from silence; extensive safeguards apply including but not limited to: authority from inspector rank or above; if the solicitor arrives at the station before the interview is completed, the detainee will be so informed without delay and a break taken)[x].

Notably, these provisions allow the interview without a legal advisor, not with a legal advisor providing representation via video or audio link.  

  1. In relation to children and vulnerable people PACE Code C:
    1. notes that the Equality Act, in particular the public sector quality duty under s.149, applies to the application of the powers and procedures in the Code, which “must be used fairly, responsibly, with respect for the people to whom they apply and without unlawful discrimination” and that it is, “unlawful for police officers to discriminate against…any person on the grounds of the ‘protected characteristics’ of age [or] disability”.
    2. recognises that children and vulnerable persons “may, without knowing or wishing to do so, be particularly prone in certain circumstances to providing information that may be unreliable, misleading or self incriminating. Special care should always be taken when questioning such a person”.[xii]
    3. defines ‘vulnerable’ in terms of difficulties with the content, implications and significance of communication and the exercise of their rights[xiii]. The existence of the ‘vulnerable’ category is directly connected to ensuring that evidence obtained, in particular from interview, is reliable and therefore admissible in court.
    4. recognises that these elevated risks mean that children and vulnerable adults need to have in-person legal advice even where it is not offered to other suspects. Paragraph 6B, “explains the arrangements which enable detainees to obtain legal advice”. It explains that in certain circumstances, “Free legal advice will be limited to telephone advice provided by CDS Direct… unless one or more exceptions apply, in which case the DSCC should arrange for advice to be given by a solicitor at the police station, for example: the detainee needs an appropriate adult.”

Under the JIIP

  1. From version 1 (March 2020) the JIIP:
    1. included a provision that solicitors / legal representatives would attend some interviews “due to the serious nature of the case”
    2. included a provision that written statements under caution, developed with the benefit of legal advice, could be used in place of interviews
    3. did not include any provisions relating to children or vulnerable persons.
  2. Following representations by NAAN and others, JIIP version 2 (April 2020) included provisions intended as safeguards for these groups including:
    1. A requirement on police to assess a child or vulnerable person’s suitability for remote legal representation
    2. A requirement on police to secure the consent of both the child/vulnerable person and their appropriate adult before proceeding with remote legal representation. 
  1. Version 2 of the JIIP was active for around a year. However, the Not remotely fair? report, evidenced systemic issues with the JIIP and its implementation, with serious consequences for the integrity of the justice system, including failures by both police and solicitors and legal representatives to abide by the terms of the JIIP. This included:
    1. failure to minimise detentions
    2. failure to assess the suitability of individuals for remotely legal advice
    3. failure to fully inform suspects and appropriate adults
    4. failure to obtain informed consent from children and vulnerable adults
    5. failure to obtain informed consent from appropriate adults
    6. failure to conduct interviews with a legal advisor in attendance at the station when required by the JIIP
    7. wide variations between force areas in the percentage of interviews with children and vulnerable adults using in-person, video link and audio link legal representation
    8. placing of significant pressure on appropriate adults to consent to remote for the convenience of others, including where they and the suspect became victims of circumstance
    9. concerns about legal advisors having a conflict of interest with vulnerable clients, combined with a power imbalance
    10. suggestions that suspects may have been encouraged to accept remote advice
    11. children and vulnerable adults not understanding legal advice provided to them
    12. children and vulnerable adults not wishing to take up their right to free legal advice if lawyers were not interested in attending to support them.
  2. The signatories later published JIIP version 3 (May 2021). Additions included:
    1. “This Protocol does not apply to suspects who are children (under 18) or adults who are vulnerable”
    2. “The protocol remains in place for adult detainees and no longer applies to suspects who are either a child or young person (under 18), or adults who are vulnerable (using the vulnerable person definition in PACE Code C Paragraph 1.13(d) &1.4)”.
    3. “Therefore we take the view that they [interviews with a remote lawyer] are a fair, reasonable and proportionate option to be made available to an adult suspect with no vulnerabilities who has the benefit of legal advice and who having been fully informed and advised and consents to a remote interview.” (emphasis added).
  3. A letter from NPCC lead for custody ACC Nev Kemp to Chief Constables accompanied version 3 of the JIIP. The letter updated them on “our plans to start a phased withdrawal from the JIIP”. It stated that. “The first phase of withdrawal, aligned to step three of the government’s roadmap means that, the protocol will no longer apply to children and young persons (persons under 18), nor any vulnerable adult (as defined in PACE Code C paragraphs 1.13(d) and 1.4.). For these groups of vulnerable detainees, legal advice will return to pre-pandemic provision. In these cases detainees requesting legal advice will see a legal advisor in person for interview and will not have the option of remote advice as afforded under the protocol”.
  4. JIIP v3 was also accompanied by a flowchart which stated in red, “The protocol and this guidance applies to detainees who are 18 and over and not a Vulnerable Adult.”

With confirmed or suspected Covid-19

  1. On 7th June, the NPCC write to all Heads of Custody and Chief Officers regarding JIIP v3. It stated:
    1. “The main change to the protocol, was that the provision to allow remote legal advice was no longer available for detainees who are children, or adults who are vulnerable”.
    2. “When considering the method of legal advice used, we must act with fairness to the detainee while also maintaining safety. Therefore, the signatories to the protocol have agreed that in cases where a detainee is confirmed as Covid positive, or is strongly believed to be Covid positive (for example, they display Covid symptoms but cannot be tested or refused to be tested) then the use of remote legal advice remains available for these detainees under JIIP version 3”.
  2. The NPCC confirmed to NAAN that in their view:
    1. The letter follows a meeting of the signatories and thus reflects a new agreement between them, intended to be effective immediately.
    2. This is intended to apply to “all detainees including children and vulnerable adults”.
    3. However, there is no intention to amend the JIIP.
    4. This is intended to apply to a tiny number of detainees being “those in custody on suspicion of a serious offence and an interview is required”. It is very rare to have a confirmed Covid detainee; lateral flow tests are not in use and a PCR tests take more than 24 hours to complete.
    5. Current PPE guidance requires police to treat all suspects as having Covid-19. Current PPE is adequate for all. ‘Strongly believed’ is seen by police as a high bar and is unlikely to be met by (for example) having a cough alone.
    6. If the child or vulnerable adult does not consent, the legal advisor should attend.
    7. The appropriate adult is a “key party to this discussion” and “if there are concerns then the AA will raise these and effectively ‘not consent’” but since there is no intention to amend the JIIP or return to version 3, there is “no explicit request to gain and secure the AA consent”. Any decision would be discussed by all relevant parties (detainee, legal rep, AA) and agreed by the custody officer about how to proceed.
    8. This does not apply to other communicable diseases – only Covid-19.
  3. In asserting that there are circumstances in which remote legal advice should be available for use with children and vulnerable adults, the letter therefore conflicts with JIIP v3 which states that it is not an option. 

5. Role of the appropriate adult

  1. The role of the appropriate adult in relation to a child or vulnerable adult is defined thus:
  2. The Crime and Disorder Act 1998 s.38 provides that it is the statutory duty of each local authority to secure the provision of appropriate adults “to safeguard the interests of children and young persons detained or questioned by police officers”.
  3. PACE Code C 1.7A states that, “The role of the appropriate adult is to safeguard the rights, entitlements and welfare of juveniles and vulnerable persons…to whom the provisions of this and any other Code of Practice apply. For this reason, the appropriate adult is expected, amongst other things, to:
    • support, advise and assist them when, in accordance with this Code or any other Code of Practice, they are given or asked to provide information or participate in any procedure;
    • observe whether the police are acting properly and fairly to respect their rights and entitlements, and inform an officer of the rank of inspector or above if they consider that they are not;
    • assist them to communicate with the police whilst respecting their right to say nothing unless they want to as set out in the terms of the caution
    • help them to understand their rights and ensure that those rights are protected and respected.”
  4. Appropriate adults have specific role in ensuring the Article 6 right to access legal assistance, given the specific risks that children and vulnerable adults often waive this right without a full understanding of its significance and implications:
    1. PACE Code C 6.5A states that “…the appropriate adult has the right to ask for a solicitor to attend if this would be in the best interests of the person and must be so informed. In this case, action to secure the provision of advice if so requested by the appropriate adult shall be taken without delay in the same way as when requested by the person”.
    2. PACE Code C 3.19 states that: “If the detainee, or appropriate adult on the detainee’s behalf, asks for a solicitor to be called to give legal advice, the provisions of section 6 apply”.
    3. PACE Code C Annex G 4 states that, “If the appropriate adult, having been informed of the right to legal advice, considers legal advice should be taken, the provisions of section 6 apply as if the vulnerable person had requested access to legal advice”. 

6. Health and safety

  1. The Health and Safety at Work etc. Act 1974 sets out a range of duties, including[xiv]:
    1. It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees (e.g. organisations providing legal advisors or AAs) (s.2)
    2. It shall be the duty of each person who has, to any extent, control of premises … to take such measures as it is reasonable for a person in his position to take to ensure, so far as is reasonably practicable, that the premises… is or are safe and without risks to health (e.g. police forces) (s.4)
    3. shall be the duty of every employee while at work—to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and as regards any duty or requirement imposed on his employer…to co-operate with him… (e.g. police, legal advisors and AAs) (s.7).
  2. The NPCC published extensive national COVID-19 PPE Operational Guidance. This has been amended throughout the Covid-19 pandemic and is currently at version 10. It states that in developing the guidance, “A specialist PPE guidance review group comprising of Public Health England (PHE), Health and Safety Executive (HSE), Defence Science Technology Laboratory (DSTL), Staff Associations, Police Health & Safety Advisors and senior Police leads is involved at every stage”. It also states that it “takes into account the most recent SAGE review of the National infection Prevention Control (IPC) plan, in light of the new more transmissible variants that are now present in our communities”. On this basis, AA schemes have operated according to expectations set by this guidance.
  3. The PPE guidance contains a section dedicated to operating within custody. In turn, this contains sub-sections for ‘custody staff’ and ‘visitors to custody and detainees (appropriate adults and legal representatives)’. The PPE guidance:
  4. Advises police staff that “Everyone you have contact with should be treated as though they are COVID positive”.
  5. States that, “for all duties undertaken in non-staff areas, including biometrics, searching etc” staff should wear an IIR mask, nitrile gloves, goggles and an apron. Custody staff are advised to “Ensure cells are cleaned between use and ask interviewing officers to clean down desks, chairs and contact points they use”.
  6. Includes a section on suspect interviews. It states, “Ensure your interview is socially distanced or other control measures are in place, such as protective screens. Due to the nature of custody interview rooms wear an IIR Fluid Repellent Surgical mask and Nitrile gloves. Note some PPE may hinder communication, however you need to remain safe. You should consider the need for apron and goggles. Require the interviewee to cover their face (where possible) with a IIR mask.”
  7. States that, “Those visiting custody need to cover their mouth and nose [and] should be offered an IIR Fluid Repellent Surgical mask”. They should consider wearing nitrile gloves, apron and googles. “Visitors and detainees should be encouraged to frequently wash their hands with soap and water, or use an alcohol based hand sanitiser” and “must be reminded of the need for social distancing, and encouraged to obey the 2m rule [although] some detainees may need to be kept under close escort which may mean this is not possible. Ensure you are wearing the correct PPE”.

7. NAAN’s interpretation and guidance

Our understanding of the law

  1. On the basis that the signatories have made clear that the JIIP is not a legal document, it is logical that, to the extent that it conflicts with the PACE Act, Codes or other relevant legislation and case law, the JIIP should be disregarded. In JIIP v3, the signatories have, in any case, explicitly excluded children and vulnerable adults. They also state that, “The signatories to this Protocol accept that remote interviews by video and audio link are not within the current letter of the Code of Practice…”. On that basis, our guidance to appropriate adults must be based upon our understanding of the law.
  2. Our best interpretation is that:
    1. When supporting a person known or strongly believed to have Covid-19, by complying with the NPCC COVID-19 PPE Operational Guidance is complied with, police forces, AA schemes, and AAs are ensuring, so far as is reasonably practicable, the health, safety and welfare of the AA, the police, the person being supported, and any other visitor to custody.
    2. It is the legal responsibility of the appropriate adult to safeguard the rights, entitlements, welfare (and at least in the case of children the ‘interests’) of a child or vulnerable adult. This includes taking an active role to ensure they are treated properly and fairly, and that their rights and entitlements are protected and respected.
    3. Whether cases proceed to court or are dealt with via an out of court disposal, the appropriate adult’s role is to provide assurance that fair trial rights have been respected at the investigatory stage, processes have been carried out as set out by Parliament in PACE, and evidence has been gained in a manner likely to render it reliable and admissible to courts.
    4. There is no duty on appropriate adults to balance the interests of a child or vulnerable adults with the health or financial interests of legal advisors, nor the health interests of the general public. Doing so could be a failure to discharge their duty to that person.
    5. There is no specific provision in law for remote legal advice in PACE, unlike other uses of ‘live link’.
    6. There is a high level of risk that remote legal advice contravenes the law, in particular the Article 6 right to legal assistance, and in relation to children and vulnerable adults the Equality Act 2010.
    7. To “attend” the police station (or voluntary interview) means to be present physically - not to appear on a screen or to be available by telephone. This appears obvious both in statutory (Code C 6.5A, 6B) and contractual terms (Standard Criminal Contract). There may be debates to come and Parliament may in future legislate on the issue of remote legal advice. However, the meaning of “attend” is currently clear in terms of its operational application.
    8. Where a child or vulnerable person has indicated they do not want legal advice, it would be lawful for an appropriate adult, acting in the child or vulnerable person’s best interests under PACE Code C 6.5A, to nominate one or more specific providers of criminal legal assistance on the basis that they are willing to attend in person to advise a child or vulnerable adult, whereas other firms are not (see para 31(c) above). In normal times we would advise caution in relation to general use of this power by organised AA schemes, due to the risk of the perception or inappropriate commercial relationships between AAs and law firms. However, this guidance does not undermine what the Codes say. Many AAs are parent or family members, and they may well have a preferred solicitor – perhaps one known to have specialist skills in relation to children or a particular condition. This would always be an appropriate use of 6.5A in our view. In terms of contractual law, we do not believe that this is contrary to any of the terms in the Standard Criminal Contract. In operational terms, this would be treated as be a request for an ‘own solicitor’.
    9. It would be lawful for a child or vulnerable person to be provided with a list of local providers of criminal legal assistance, as described in PACE Code C 6.6(c). Particularly in an area where one or more duty firms have a current policy of non-attendance at the police station, this could be a list of firms who have indicated that they are willing to attend for children and vulnerable people.
    10. A child or vulnerable person is entitled to switch from a duty solicitor who is not willing to attend to another firm which is willing to attend. An appropriate adult could assist a child or vulnerable adult in requesting this change, based on their duty to provide assistance under PACE Code C 1.7A. Any attempt to prevent such as change, such as by the operation of the DSCC, could be presented for a judicial review.

Where JIIP v3 is being followed 

  1. Following the publication of JIIP v3, the vast majority of police and law firms appear to be complying with the need for legal advisors to attend the police station for interviews of children and vulnerable adults. The removal of remote legal advice for children and vulnerable adults has solved the challenges associated with:
    1. police officers having to assess the suitability of individuals for remote advice without appropriate training or tools
    2. legal advisors having to deal with conflict of interest with clients
    3. appropriate adults having to decide whether or not to consent to remote advice.
  2. To the extent that the JIIP v3 is applied in practice, the expectations on appropriate adults are now extremely clear. Their role is as normal. They should continue to attend the police station when requested, with the shortest possible delay[xv] and provide support throughout all procedures to enable compliance with PACE, in line with the National Standards.

 

Where JIIP v3 is not being followed 

  1. As the JIIP v3 as published does not conflict with our understanding of suspect’s rights in relation to legal advice and representation, appropriate adults should support the signatories in ensuring that it is applied operationally.
  2. If police propose remote legal advice is used in an interview, appropriate adults should draw their attention to the JIIP v3, the associated letter and flowchart, and ensure that a request is made to the DSCC for a legal advisor to attend in person as early as possible in the detention.
  3. If the first legal advisor declines to attend the police station, and instead offers remote representation, the police are required to request an alternative legal advisor via the DSCC, repeating this until a legal advisor is found that is willing to attend the police station. The appropriate adult should ensure these requirements of JIIP v3 are followed.
  4. If no duty solicitor can be found that is willing to attend the police station, the appropriate adult should ensure that the person is provided with a list of local legal advisors who have indicated that they are willing to attend for a child or vulnerable adult. This list can be compiled at the time by the appropriate adult or in advance by their scheme. If the person declines legal advice, the appropriate adult act on their responsibility under Code C 6.5A and request legal advice from a firm on the list.
  5. In the unlikely event that no lawyers in a particular area are willing to attend the police station for a child or vulnerable adult, the appropriate adult should not attend an interview with a remote legal representative.
  6. For the vast majority of cases, the police have a range of options that are PACE compliant, including release under investigation, bail and charging without an interview.
  7. Written statements under caution increased in use due to their inclusion in the JIIP. However, they are also explicitly included in PACE Code C so remain an option even though children and vulnerable people are excluded from JIIP v3. A child or vulnerable person must not be asked to provide or sign a written statement under caution in the absence of the appropriate adult (PACE Code C 11.15).
  8. In the most serious cases, where police do not feel that any of these approaches are possible, PACE Code C 6.6. provides a limited option for urgent interviews without a legal advisor present where this is necessary in the interests of justice. If this paragraph applies in the circumstances and its safeguards are followed, appropriate adults should attend the interview.
  9. It may seem counterintuitive to an appropriate adult to attend an interview with no legal advisor but to refuse to attend where a legal advisor assists remotely. It is likely that the argument will be put to the appropriate adult that something is better than nothing, and that it is in the interests of the suspect. However, the latter is not compliant with PACE where the former is compliant with PACE and is tightly defined with a range of safeguards. The former leaves the appropriate adult liable to accusations that they failed to safeguard rights, where the latter does not. If the interview is urgent, PACE Code C 11.18 enables police to conduct an interview of a child or vulnerable person without the appropriate adult being present in specified and limited circumstances.
  10. The appropriate adult should remain alert to the risk that a child or vulnerable person could have a ‘change of mind’ regarding legal advice due to pressure from other parties or simply being a victim of circumstance. It is hard to imagine a scenario in which such a change of mind occurs in these circumstances without the person being a victim of circumstance. This can occur where the person decides not to have a legal advisor present in interview because none wishes to attend, or it has taken a very long period of time to find one that is willing to attend. This is a highly risky situation for a child or vulnerable adult as, subject to Code C 6.6.(d) being followed, there is no restriction on adverse inferences from silence. The best solution is to avoid this situation arising by arriving at the police station as soon as possible – giving time for any legal advice issues to be tackled early. If it does arise, it is not clear to what extent the appropriate adults right to request legal advice (Code C 6.5A) is applicable here, particularly if it has already been used. However, AAs should seek a private consultation with the child or vulnerable adult to discuss their decision and ensure they consider the long-term risks and significance of their decision. The appropriate adult should ensure that the safeguards in 6.6(d) are followed and that the officer considering the authorisation is fully informed of any concerns that the change of mind was the result of pressure from individuals or circumstance. If the interview proceeds despite the AA’s concerns, they should ensure their concerns are recorded on the custody record and interview recording. Alternatively, if they feel that the interview is not proceeding in compliance with the PACE Codes, they can use their inherent right to refuse to attend the interview.
  11. The appropriate adult should ensure that they are not coerced into attending an interview with a remote lawyer on the basis that the person has been detained for an extended period. While the appropriate adult must safeguard a person’s welfare, this is in addition to and not balanced against their rights. In some circumstances appropriate adults must take steps to protect rights which do not make them popular with the person they are supporting – if only in the short term. If a person’s welfare is seriously at risk due to the length of detention, an assessment of their fitness for detention is the appropriate route.
  12. The appropriate adult should ensure that they are not coerced into attending an interview with a remote lawyer on the basis that the PACE clock is running out. Custody time limits and the expediency of the investigation are a matter for the police alone. The law defines custody limits and there are measures police can take to extend limits if appropriate. It may be obvious to an appropriate adult that delay is not within the control of police (e.g. multiple lawyers have refused to attend the police station despite police requesting advice as soon as was practicable on detention). However, it is not within the appropriate adult role to enable investigators to carry out interviews that are not compliant with PACE. It is within the appropriate adult’s role to make representations to ensure that a person is not detained for longer than necessary.
  13. Appropriate adults should report any breaches or attempted breaches to their scheme leader. Appropriate adult scheme leaders should report such information to NAAN. NAAN will raise reports regarding police non-compliance with the NPCC. NAAN will raise reports of lawyers’ non-compliance with the Law Society (limited to where lawyers refuse to hand back a case for which they will not attend) and the Legal Aid Agency, who have indicated that they will raise the matter with local law firms. 

Where a child or vulnerable adult is confirmed or suspected to have Covid-19

  1. The recent NPCC letter on behalf of the JIIP signatories presents a significant complication for appropriate adults. NAAN was not consulted on the letter and received a copy after it had been sent to police forces. Individual appropriate adults and schemes will be forced to respond to its application by police officers and legal advisors.
  2. In its suggestion that remote legal advice may be used with children and vulnerable adults (where they have, or are strongly believed to have, Covid-19) the letter conflicts with both our understanding of the law and of the JIIP v3.
  3. Furthermore, in placing children and vulnerable adults outside of JIIP v3, but then applying the use of remote legal advice, the signatories place the most vulnerable suspects back at a level of legal risk that they had determined was unacceptably great and this time without a system of safeguards (e.g. assessment of suitability, appropriate adult consent).
  4. It is difficult to see how appropriate adults could support this approach in principle, since they would have to:
  5. Place the letter above both the law and the JIIP v3
  6. Be able to justify how PPE provisions make the interview ‘safe’ for them, the suspect and the police, but not for the legal advisor
  7. Be able to justify how in supporting an interview with remote legal advice, they were acting purely to safeguard the interests, rights, entitlements and welfare of the child or vulnerable person, not balancing these against other factors
  8. Have recorded in the interview and custody records both how such an arrangement fails to safeguard the rights and interests of the child or vulnerable adult and why considering this they have chosen to enable the interview with their presence.
  9. In practice, the NPCC have indicated such a situation should occur extremely rarely. Police should explore all possible options (release with no further action, under investigation or on bail to return; a written statement; or charge without interview). If a person’s welfare is seriously at risk an assessment of their fitness for detention or a transfer to hospital may be appropriate.
  10. If having fully explored all options, police feel it is necessary to undertake an interview, appropriate adults should continue to decline to attend the interview unless a legal advisor attends. The rationale for this is:
  11. It is the legal duty of appropriate adults to safeguard the interests and rights of a child or vulnerable adults
  12. It would be a breach of this duty to seek to balance it with the interests of a law firm or the general public, or the police
  13. Remote legal advice is not consistent with PACE
  14. It is unclear that remote legal advice is consistent with a person’s rights under Article 6 of the European Convention on Human Rights
  15. Remote legal advice for a child or vulnerable adult is not consistent with the Joint Interim Interview Protocol version 3
  16. The NPCC PPE measures require all suspects to be treated as if they have Covid-19. Appropriate adults, legal advisors and police officers have been advised by the NPCC the PPE measures are sufficient to protect them from Covid-19. If this is the case, the legal advisor should attend. However, if it is necessary for the police to provide the special measure of remote in order to protect the health of a legal advisor, then PPE measures are by definition considered insufficient and it is not safe for the appropriate adult to attend.
  17. The resultant situation for the police is not the professional concern of the appropriate adult, any more than it would be of a parental AA. However, for information, if no legal advisor is found to attend and all other options had genuinely been exhausted (including a interview without a solicitor present where allowed under Code C 6.6) the police would likely proceed with an interview with a remote legal advisor either having secured an alternative appropriate adult who was less informed or with no appropriate adult. Both of these options are deeply concerning for the suspect, appropriate adults and police – while not being of their making.
  18. Appropriate adults are of course not controlled by NAAN and can face unforeseen circumstances. When performing their role, they must ultimately act according to their own judgement. An appropriate adult who chooses to attend an interview with remote legal representation is strongly advised to record that the interview is proceeding despite the requirements of PACE Code C, the JIIP, NAAN guidance, and the consequent risks for all involved. In so doing, they should be aware that legal risks may arise for the suspect, because of their decision to enable the interview, that cannot be ameliorated at a later date. 

8. References 

[1] Legal Aid, Sentencing and Punishment of Offenders Act 2012, Section 13 (Advice and assistance for individuals in custody) 

[i] https://www.lawsociety.org.uk/campaigns/consultation-responses/independent-criminal-legal-aid-review-law-society-response

[ii] https://www.gov.uk/government/statistics/legal-aid-statistics-quarterly-april-to-june-2020/legal-aid-statistics-england-and-wales-bulletin-april-to-june-2020

[iii] https://www.echr.coe.int/Documents/FS_Police_arrest_ENG.pdf

[iv] PACE 1984 s.58 (access to legal advice), reflected in Code C s. 6 and the notice of rights and entitlements.

[v] PACE Code C 6.6(c)

[vi] PACE Code C 6.1

[vii] PACE Code C Annex B

[viii] PACE Code C 6.6(b), 6A

[ix] PACE Code C 6.6(c)(iii)

[x] PACE Code C 6.6(d)

[xi] PACE Code C 1.0

[xii] PACE Code C 11C

[xiii] PACE Code C 1.13(d)

[xiv] https://www.legislation.gov.uk/ukpga/1974/37/part/I/crossheading/general-duties

[xv] NAAN National Standards 5.3 (Response times) https://www.appropriateadult.org.uk/national-standards

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