At the time of this article, according to officials, the criminal justice system continues to operate ‘as normal’. Whilst it is to be expected that non-essential trials will likely be delayed, certain components of the justice system cannot simply be deferred - crime happens no less in times of pandemic. Police custody is one such area where the wheels will need to continue to turn regardless of COVID-19.
The 1984 Police and Criminal Evidence Act (PACE) and related Codes of Practice were not designed with a pandemic in mind, but they do contain general provisions to ensure the health and safety of those in police custody.
For legal defence practitioners attending police custody suites to advise those detained, it seems timely to revisit the main provisions within PACE that are relevant to our current concerns and until a better solution presents itself.
The key considerations are:
- On arrival, the custody officer shall determine whether the detainee is, or might be, in need of medical treatment or attention (Code C, 3.5(c)).
- When the needs mentioned above are being determined, the custody officer is responsible for initiating an assessment to consider whether the detainee is likely to present specific risks to custody staff, any individual who may have contact with detainee (e.g. legal advisers, medical staff) or themselves (Code C, 3.6).
- The content of any risk assessment and any analysis of the level of risk relating to the person’s detention is not required to be shown or provided to the detainee or any person acting on behalf of the detainee. But information should not be withheld from any person acting on the detainee’s behalf, for example, an appropriate adult, solicitor or interpreter, if to do so might put that person at risk (Code C, 3.8A).
- The custody officer is responsible for implementing the response to any specific risk assessment, e.g. calling an appropriate healthcare professional; or reducing the risk to those who come into contact with the detainee (Code C, 3.9).
- As soon as practicable after arrival at the police station, each detainee must be given an opportunity to speak in private with a member of the custody staff who if they wish may be of the same sex as the detainee (see paragraph 1.13(c)), about any matter concerning the detainee’s personal needs relating to their health, hygiene and welfare that might affect or concern them whilst in custody. If the detainee wishes to take this opportunity, the necessary arrangements shall be made as soon as practicable (Code C, 9.3A).
- If it appears to the custody officer, or they are told, that a person brought to a station under arrest may be suffering from an infectious disease or condition, the custody officer must take reasonable steps to safeguard the health of the detainee and others at the station. In deciding what action to take, advice must be sought from an appropriate healthcare professional. See Note 9E. The custody officer has discretion to isolate the person and their property until clinical directions have been obtained (Code C, 9.7).
- The rights, entitlements and safeguards that apply to the conduct and recording of interviews with suspects are not diminished simply because the interview is arranged on a voluntary basis (Code C, 3.21(b)).
- Home office guidance for their criminal and financial investigation teams sets out that prior to a suspect being dealt with by a voluntary interview, officers dealing must complete the Initial section of the Voluntary Attender initial risk assessment form, in the presence of the interviewee. The initial questions asked of the suspect [include]: do you have any known physical or mental health issues? If the answer is yes… guidance must be sought from a supervisor [of a rank equivalent to an Inspector] before proceeding with the interview (Home Office, Interviewing Suspects (Version 7.0 (10 February 2020))).
- Code C Note for Guidance 3E makes direct reference to the Home Office Circular 34/2007 (safety of solicitors and probationary representatives at police stations); the Circular sets out:
- The police should ensure so far as reasonably practicable:
- The health and safety of those employed in custody suites;
- That the operation of the custody suite does not expose non-employees, such as detainees, solicitors, appropriate adults and others who may be present, to risk; and
- Should carry out an assessment of the risks to employees and others who come into the custody suite.
- Should provide solicitors with any relevant information that could usefully inform the solicitors’ own risk assessments.
- The solicitor firm has a duty to assess the risks to their staff associated with working in custody suites.
- An individual solicitor:
- Has a duty to review their own safety before each consultation with a detainee.
- Should seek relevant information from police in order to assess the risks to their own safety before any consultations with suspects.
- Should not expose themselves to unnecessary risk simply for the sake of expediency.
- Should co-operate with police to ensure that their actions do not compromise the overall safety of those in the custody suite.
- Should explain how any risk assessments they have carried out might affect their client suspect.
Solicitors are placed in an invidious professional position as the guidance indicates that a solicitor who has information that indicates the detainee may be a risk, or acquires such information during the course of a consultation and that information can be disclosed, should disclose it at the earliest opportunity and not wait to be asked. It is recognised that there will be situations in which the solicitor considers that a level of risk exists but that the legal relationship with the detainee does not allow details of that information to be disclosed to police. This should not prevent the solicitor from indicating that a risk may exist and informing the police of the general nature of that risk without disclosing specific information. A solicitor should always inform the police if there are particular concerns which may require alternative or specific arrangements for the custody and care of the detainee.
Solicitors and representatives are used to making do and carrying on in the best interests of their client. But, these are unprecedented times and solicitors must endeavour to discharge their professional responsibilities in an environment which is safe for all.
Matthew Hardcastle, senior associate in the criminal litigation team at Kingsley Napley LLP and co-author of Defending Suspects at Police Stations (8th edition) and Advising a Suspect
*The Law Society is keeping the coronavirus situation under review and monitoring the advice it receives from the Foreign & Commonwealth Office and Public Health England.
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