A report by three major justice bodies published today has raised major concerns about the impact of remote legal assistance on suspects in police custody.
Transform Justice, Fair Trials and the National Appropriate Adult Network have called for an immediate return to in-person advice and assistance for children and vulnerable adults after a survey they carried out late last year ‘shows a disturbing reliance on remote assistance even for those with the greatest need’.
The report, Not remotely fair?, is based on the responses of 315 'appropriate adults' operating across the 43 police force areas.
In 4,700 police station interviews attended by the respondents between 1 September and 17 November, legal assistance during interview was provided remotely to children and vulnerable adults in 51% of cases.
A third of appropriate adults said legal assistance was provided remotely in at least three-quarters of the cases they attended. Half of respondents said remote assistance was used more often than not. One in six respondents said legal assistance was given in person for the cases they attended.
Highlighting geographical variations, appropriate adults in Cambridgeshire estimated that nearly all (92%) of interviews were conducted via audio only, compared to 11% in Norfolk.
Respondents said that when advice was given remotely, suspects were less likely to ask questions when they did not understand what was happening or to stop the interview to ask their solicitor for advice.
One respondent said the solicitor was concerned they could not read the reactions of the suspect and asked the appropriate adult to sit in on the legal consultation. In an audio-only case, a respondent said a detainee with ADHD struggled, terminated the interview and refused a further phone consult.
The report says there were not enough comments on Covid safety protocols to draw robust conclusions ‘but they do indicate that more could be done to update solicitors on the safety measures that are now in place’.
Recommendations include an immediate return to in-person advice and assistance for all suspects as soon as possible, and greater scrutiny by the courts to evidence obtained during an interview where a solicitor was not present in person.
Commenting on the report, the Law Society said it shared the view that face-to-face legal advice and assistance for all suspects at police stations is preferable and an absolute in normal circumstances - but its priority was the safety of members and other police station users.
David Greene, president, said: ‘It must not be forgotten that some solicitors and police station reps have died of Covid. The protocol is explicit that consent to remote advice is required; but it must be remembered that the pandemic means the health and even the lives of not just the lawyers, but also the clients, the appropriate adults and the police officers are at risk.
‘Each police station is different in terms of how possible it is to apply social distancing and other appropriate measures to assure safety; and the people involved will differ in terms of their need to shield and their willingness to take risks.
‘What should happen, and what safely can happen during the pandemic, are not going to be the same. In this extraordinary situation, there will of course be isolated examples of solicitors – and police officers, and appropriate adults – making decisions that could be questioned. But sometimes there is no right answer, only a choice as to which wrong answer is the least wrong.’