What was it about?
This was a Home Office consultation on proposed revisions to PACE codes C (detention) and E (audio recording of suspect interviews).
The proposals were in response to coronavirus. During the peak of the pandemic, legal representative were very concerned about the serious risk to health of attending police custody. The CPS, NPCC and Law Society agreed a joint interim interview protocol whereby interviews would be allowed to take place without legal representatives coming to the police station. Instead, lawyers have been providing legal representation during interviews by 'live link' (e.g. Skype) or 'audio link' (i.e. telephone), including for children and vulnerable adults.
NAAN secured changes to the intial joint interim interview protocol so that version 2 included the need for police to secure the consent of appropriate adults before remote legal advice was used. The arrangements did not apply to appropriate adults, who continued to attend the police station or voluntary interview throughout.
The proposed changes to Code C and E would mean that remote legal representation in interviews would be formalised in PACE, including for children and mentally vulnerable adults, albeit with safeguards including:
- A requirement for police to undertake an assessment of a person's suitability for remote legal advice
- A requirement for consent from the suspect, appropriate adult (if required) and parent (in the case of children)
- The provisons would initially last for 12 months.
Consultation webpage (Gov.uk) - Closed 3rd July 2020.
What was NAAN's response?
NAAN's full response is available to download here. For a summary of NAAN's concerns and proposals, see below.
What were NAAN's concerns?
While NAAN recognised the serious health risks posed by coronavirus, especially in custody where social distancing is not always possible, there were a number of concerns:
- The strategic focus should be on doing whatever is necessary to ensure police custody is safe for all. Failure to meet health and safety responsibilities to officers, lawyers and appropriate adults does not justify measures which disadvantage suspects by modifying their right to legal advice.
- The use of remote legal advice for children and vulnerable adults presents a risk to the integrity of the justice system
- Amending the PACE Codes will normalise remote legal advice, thereby increasing the risk that measures are adopted in the long term
- While the amendments are intended to support the continued use of the joint interview protocol, they can be used in isolation from the wider context of that protocol
- Under the joint interview protocol the safeguards (i.e. consent) are not being fully implemented and appear to have become a default route
- Police are not trained to deliver assessments of suitability for interviews involving remote legal advice
- People who have an untrained familial appropriate adult are likely to be at increased risk due to the reliance on AAs to ensure police conduct effective assessments of suitability for remote legal advice and to withhold consent appropriately
- Even for trained appropriate adults from organised schemes, this places significant extra responsibilities on their shoulders - and there is still no statutory provision of AAs for vulnerable adults
- While professionals increasingly report being content with the operation of arrangements, there is no mechanism for evaluating how clients/suspects are impacted or feel about it
- The 12-month fixed period for operation of the temporary arrangements does not reflect the dynamic nature of the risk If revisions will be made without Parliamentary approval, the need for regular review is even greater.
What were NAAN's proposals?
NAAN's main proposals focused on excluding children and vulnerable adults from remote arrangements, due to the risks to justice.
- Shift the strategic focus from modifying suspect rights to doing whatever is necessary to achieve safe custody suites for all (e.g. by introducing checks/accountability, assigning/adapting additional rooms)
- Consider the availability of evidence concerning the potential impact on children and vulnerable adults
- Exclude any suspect for whom an AA is required from the provisions allowing remote legal advice during interview
- Amend Code C to explicitly state that children and vulnerable adults have a right to free legal advice in person
- Publish an amended joint interview protocol reflecting the above.
However, recognising that this outcome was far from certain given the level of support the protocol has from influential institutions, NAAN also provided proposals to mitigate the negative impact as much as possible for children and vulnerable adults. This included:
- Only allowing the use of remote legal advice in interviews with children and vulnerable persons in extremis, within tightly prescribed circumstances, where social distancing is not possible and appropriate PPE is unavailable, and only where video is available
- Excluding children and adults from audio-only (telephone) legal representation in interviews
- Strengthening the assessment of suitability process
- Strengthening the consent safeguards by changing the information to be given to suspects, emphasising their rights rather than efficient process; ensuring that both suspects and AAs are fully informed; making it explicit that consent can be withdrawn by either at any time; ensuring the question of remote legal advice is dealt with at the earliest possible stage by all parties; and clarifying the suspect’s options if their lawyer will not attend
- Explicitly maintaining the link with the wider requirements of a (revised) protocol
- Defining a clear level of risk that triggers/removes the availability of these temporary, emergency arrangements; explicitly linking the operation of the temporary arrangements to the context from which its purpose derives (e.g. legal pandemic status, health data) rather than a blanket 12 months
- Including a formal review mechanism, with a period no shorter than 2 months between reviews, which includes relevant external stakeholders, including a role for the PACE Strategy Board to which NHS/PHE representatives should be invited.