Not remotely fair? was launched on 26th February 2021. A new report from Transform Justice, National Appropriate Adult Network and Fair Trials International, it explores the impact of the emergency response to Covid-19 on people interviewed in police custody, and in particular on children and vulnerable adults.
Click the image to download the full report, including an executive summary.
NAAN, Fair Trials, Transform Justice: Joint press release
Law Society Gazette: Justice campaigners worried about 'disturbing reliance' on remote assistance
Policing Insight (paywall): COVID-19 has led to radical changes in the CJS – but have some measures compromised justice?
Comment and responses
Chief executive of the National Appropriate Adult Network, Chris Bath
“The Covid-19 response to police interviews was well-intentioned but in practice has not delivered a fair process for children or for people with a learning disability, speech and language need, autism, mental illness or brain injury. While those in police custody have benefited from the continued in-person support of appropriate adults throughout the
pandemic, this is no substitute for the invaluable physical presence of a lawyer. Children and vulnerable adults make up only 9% and 5% of arrests respectively. Given this new evidence, it is not logical or proportionate to ignore the existing rules that their legal advice should always be in person. Miscarriages of justice and failed prosecutions serve neither suspect nor victim”
Director of Transform Justice, Penelope Gibbs
“Those detained in police custody have been imprisoned by the state. It is a deeply stressful experience which renders all detainees vulnerable. We need to ensure that all detainees, especially children and vulnerable adults, are able to access legal representation and to have fair treatment in custody. Our survey suggests that suspects are sometimes being shortchanged due to Covid safety measures. But justice should not and does not need to be
Chief executive of Fair Trials, Jago Russell
"The implications of the pandemic on our over-stretched and ill-resourced criminal justice system will reverberate for years to come. One question the courts are going to have to grapple with is whether they can rely on incriminating statements that were given in police interviews over the past year where solicitors gave advice over the phone or by video call. In the past, miscarriages of justice have been caused by the failure to protect suspects in the police station which is why people have the right to in person legal advice free of charge. We need lawyers back in police stations as soon as possible to ensure that this important right is protected."
Deputy chief constable Nev Kemp, the National Police Chiefs’ Council lead for custody
"The pandemic meant forces had had to adapt and balance keeping everyone entering custody safe while ensuring they still played their role in the criminal justice process. Whilst we recognise that there may be some reluctance by legal representatives to return to custody centres routinely, they are entitled to the same level of protection and PPE as custody staff and this will be provided if required free of charge.”
Police and crime commissioner Martyn Underhill, APCC deputy lead for mental health and custody
“Unfortunately, adherence to the JIIP has varied and today's assessment is consistent with reports made by Independent Custody Visitors (ICVs) to PCCs and ICVA, describing how detainees had not been given a chance to provide informed consent to agree to remote legal advice. ICVs also expressed concern that detainees and appropriate adults were often presented with a situation whereby remote legal advice became the default. As a result of ICV reports and today's findings, I understand the NPCC and other signatories to the JIIP have developed new guidance that clearly sets out the correct process to obtain detainee consent. In addition, the NPCC has called for children and vulnerable adults to be removed from the Protocol meaning they will always receive legal advice in person. I support this approach and continue to urge ICVs to monitor this situation and report concerns to PCCs. As we move forward, I will work alongside the NPCC to oversee the effective implementation of the new guidance and eventual phase out of the JIIP.”
Katie Kempen, chief executive, Independent Custody Visiting Association
"This report further outlines these deeply worrying practices, which leave vulnerable detainees without in-person legal advice, including those suspected of serious offences. In a society that values fairness and the rule of law, this situation cannot continue. To protect access to justice, solicitors should return to providing in-person advice safely in COVID secure custody suites.”
Read more reaction from ICVA on their blog: Informed consent
The report led to discussions between the signatories to the Joint Interim Interview Protocol that supported remote legal representation. The report's authors also wrote to Minsters, and held several meetings with some of the key decision makers and Government officials.
The signatories agreed to end the use of remote legal representation in cases involving children and vulnerable adults.
On 17th May 2021, in line with Stage 3 of the Government's roadmap out of lockdown, a revised version of the protocol was published. This explicitly removed all people for whom an appropriate adult is required.
This means children and vulnerable adults will only receive legal representation in interviews from a lawyer attending in person.
The protocol still applies to all other people. NAAN remains concerned that many vulnerable people will still be affected due to the low rate of identification of vulnerable people, as highlighted in our There to Help research series.