Informed Consent to Remote Legal Advice


February 26, 2021

  • blogging
  • chief executive
  • children in custody
  • COVID19
  • custody
  • partnership
  • volunteers
  • vulnerability

COVID-19 forced the criminal justice system, like all areas of life, to adapt. Police custody could not stop and so had to find ways to adapt working to reduce risk of transmission and keep staff, detainees and visitors as safe as possible.

Independent custody visitors (ICVs) continued to monitor custody throughout the pandemic, whether through in-person or remote visits. This stance was welcomed by the National Police Chiefs’ Council who recognised that independent oversight was a powerful tool during times of rapid change and stress. ICVs could pick up issues that others may not see. Whilst custody undoubtedly responded safely and impressively to an unprecedented challenge, there were problems.

Police custody is run by police officers and staff but has visitors who are essential for criminal justice processes to progress. Visitors include ICVs, as well as others such as Appropriate Adults and solicitors. In the early days of the pandemic, planning considered how to best manage the number of people in custody. PPE was not readily accessible and, as often small and contained spaces, there was a real worry about how to keep custody safe. In response, the National Police Chiefs’ Council (NPCC), Crown Prosecution Service (CPS) and others agreed a Joint Interim Interview Protocol in early April. This Protocol sought to mitigate public health risks by reducing interviews to those that were necessary and to allow legal advice to be provided remotely by either telephone or video, when informed consent was provided by the detainee (and their Appropriate Adult where relevant).

The Protocol sought to take reasonable measures to keep people safe. However, independent custody visiting schemes raised an early alarm that there were problems with the roll out of the protocol.

In May, we started to hear feedback from schemes who were worried that detainees were not being given a chance to provide informed consent to agree to remote advice from solicitors. Schemes expressed concern that detainees and appropriate adults were being presented with a fait accompli and provided remote legal advice by default. We shared this information with the NPCC, Home Office and other national organisations who have, in turn, conducted work to resolve this problem.

Today, the National Appropriate Adult Network, Transform Justice and Fair Trials have released a significant report further exploring this issue.

Why does this matter?

Everyone has understood the value of face-to-face communication during this pandemic. We have all experienced keeping in touch through video chat or telephone calls whilst we cannot meet in person, and all understand the challenges of communicating this way. Now imagine being in a police interview and having to rely on legal advice through a telephone, from a solicitor you have never met.

Custody is a stressful environment for detainees, one where they are presented with lots of technical details, rights and entitlements that many will never have encountered before. Where a solicitor is physically present in an interview, a detainee can communicate through body language, can check understanding and can ask questions in a way that is considerably more difficult over speakerphone.

This is important – interviews impact decisions made in custody and the outcomes in cases. It matters that detainees have a full opportunity to take part in interviews so that this is taken into account for future decisions and outcomes.

This also matters because it can impact the detainee experience and their ability to engage effectively in the interview. Today’s report outlines detainees feeling let down, forgotten or angry with their solicitor when they do not attend the interviews. The report also notes an incident of a solicitor driving whilst providing legal advice and another having a chat with a family member during an interview. A police interview is an incredibly important part of the custody process, communication matters and legal advice is a fundamental right that we should all expect. If this is not communicated well, the detainee is disadvantaged and there’s a risk that we all lose confidence in the process.

The ‘not remotely fair’ report also points to particular challenges for children and vulnerable adults in these interviews. Children and vulnerable adults have specific protections in custody, recognising that they face particular challenges in understanding and responding to events in custody. NAAN reports on a 12-year-old who was refused in-person advice, despite an Appropriate Adult and police officer raising serious concerns and withholding consent to remote advice. NAAN also highlight survey feedback which suggests some solicitors have refused to attend in person despite a child or vulnerable adult suspected of something as serious as murder or rape. These examples are deeply worrying where even the most serious crimes and most vulnerable detainees face barriers to achieving clear communication with a solicitor.

The Protocol was adopted in the early days of the pandemic, in the context of change and stress. Initially, there was a lack of recording on whether detainees provided informed consent. Although there has been action to improve compliance since the start of the pandemic, we are yet to be assured that the Protocol is being implemented as planned and detainees may still be slipping through the net. Whilst custody has adapted to become more COVID secure, and whilst staff, many ICVs and Appropriate Adults have all attended custody, the Protocol remains in place with solicitors able to provide remote advice without a clear exit strategy or plans to return.

ICVs were early to flag problems with the protocol and concerns for detainees and effective interviews. This report investigates further and underlines the importance of face-to-face communication with solicitors, particularly for the most vulnerable detainees. This is a deeply worrying situation. ICVA will continue to work with national organisations to seek to ensure effective, in person advice for detainees that need and want it.