Traditionally, criminal investigation, prosecution and trial have been organised and conducted on the basis that the relevant participants are in each other’s physical presence. Increasingly, however, some procedures are being conducted through the medium of a live audio-visual link or a telephone link, usually in the interests of prosecutorial and/or economic convenience. Even interviews with suspects in police custody have not been immune to these developments. So, for example, a police officer can participate in an interview or take decisions on a suspect’s detention through such a link, rather than being physically present in the interview room or station concerned.
The risks presented by the spread of COVID-19 have provided the occasion to take these developments on to a wholly new level in England and Wales, with significant implications for the position of the suspect being interviewed. This entails the option for a solicitor to ‘accompany’ a suspect in an interview through a live or telephone link, rather than being physically present at the interview. Arrangements for that were put in place in April through a Protocol agreed by the National Police Chiefs Council, Crown Prosecution Service, Law Society, Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association.
The Protocol made several changes to PACE Code C (Detention, treatment and questioning of persons by police officers) and Code E (Audio recording of interviews with suspects). It seems that these were adopted on the questionable basis that they were covered by Coronavirus Act 2020 provisions pertaining to criminal procedure, law and evidence. On Friday 12 June, the Home Office moved to regularise the situation by opening an urgent public consultation on amendments to Codes C and E which would largely give effect to the terms of the Protocol. The consultation closes on Friday 3 July. While there can be no doubt that practical measures need to be taken to limit the spread of the virus in police interviews, there must be a concern that the proposed amendments may also be aimed at weakening important safeguards for suspects.
Police interviews of suspects in a police station is a staple in the criminal investigation of most arrestable offences. In England and Wales, they are normally conducted in a small interview room in accordance with the terms of the Police and Criminal Evidence Act 1984 (PACE) and the associated Codes. The suspect has, among other things, a fundamental right of access to legal advice while detained in the station, and a right to have his or her solicitor present during an interview. It follows that one or more police officers, the suspect and the suspect’s solicitor (among others) could be present in a small interview room for several hours while the suspect is questioned about his or her alleged involvement in a criminal offence.
Clearly, this situation entails an unacceptable risk of transmission of the virus. Eliminating that risk by dropping police interviews would have a major debilitating effect on the investigation and prosecution of serious crimes. Managing the risk will require a combination of: a more judicious selection of cases in which an interview is strictly necessary, the use of personal protection equipment by all parties physically present at interviews that do go ahead; and modifications to the PACE requirements for interviews. The proposed amendments focus on the last of these by adding an Annex AA to Code C and an Annex A to Code E.
The amendments apply where a suspect in police custody requests the presence of a solicitor when he or she is being interviewed. They also apply where a suspect (not under arrest) wishes to have a solicitor present during a voluntary interview. In each of these situations, it is envisaged that the solicitor’s ‘presence’ can be satisfied through a live audio-visual link or a telephone conference link to the interview. Additional provisions apply with respect to the interview of a juvenile or a “vulnerable” suspect, but they are not dealt with in this note.
The ‘virtual presence’ facility will be available where certain conditions are met. Superficially, they appear to give a veto to the suspect, but closer analysis conveys a sense that it is really the police and, to some extent, the solicitor that are in the driving seat.
The police custody officer (or the interviewing officer in the case of a voluntary interview) must be satisfied that using the link would not adversely affect, or otherwise undermine or limit, the suspect’s ability to communicate confidently and effectively with the solicitor for the purpose of the interview. The solicitor must also be satisfied that it will enable him or her to communicate effectively with the suspect for the purpose of interview. There is no requirement for the suspect to be similarly satisfied. The capacity of the link to serve his or her communication needs is exclusively a matter for the police and the solicitor, both of whom may be considered to have an interest (albeit different interests) in finding that it does.
Live or telephone link
From the suspect’s perspective, a live link is likely to be more beneficial than a telephone link. Apart from the fact that it offers a more complete communication experience, it provides an opportunity for external observation of the suspect’s physical and mental condition. That is one of the important protections offered by the right to have a solicitor present during the interview. A telephone presence is a poor substitute. That is implicitly acknowledged in the proposed amendments by the requirement to record visually (in accordance with Code F) an interview in which the telephone link is used. Even that concession may prove ephemeral.
The visual recording requirement will not apply where an officer of inspector rank or above confirms that the necessary recording equipment in working order is not available at the time of the interview, and that he or she considers that the interview should not be delayed until such time as the equipment is available. Once again, it is the police who are in control of the application of important criminal justice protections for the suspect in their custody. Experience has shown that they do not always exercise such options to protect the interests of the suspect over their own.
Protections for the suspect
There are some potentially important protections for the suspect. Critically, the ‘virtual’ presence of a solicitor through a live or telephone link can only be used where both the solicitor and the suspect give their consent. Moreover, the custody officer (or the interviewer, as the case may be) must explain, and if practicable, demonstrate the operation of the live or telephone link to them. They can make representations that it should not be used. Where it is used, they may make representations that its operation should cease, and that the physical presence of solicitor should be arranged.
Superficially, these appear to be vital protections for the suspect. He or she can veto resort to the live or telephone links, with the likely result that the solicitor will have to be physically present or the interview cancelled. A suspect versed in the practice and procedure of police custody and interview may well have the experience and presence of mind to take full advantage of that option. The same might apply to suspects from privileged or ‘white-collar’ backgrounds who rely regularly on their solicitors to deal with their personal or business affairs. In practice, however, the protection could prove illusory in many cases.
Most suspects are likely to be less well equipped to deal with the interview environment because of fear, lack of experience, mental health issues, substance addiction, withdrawal symptoms, language difficulties, pressing childcare or family dependant responsibilities, and so on. They will be in a weak position to withstand the subtle (and not so subtle) pressures that may be applied by the police (and possibly the solicitor) to consent to use of the live or telephone link. Indeed, even an otherwise strong suspect could find it difficult to withstand such pressures while isolated and vulnerable in the police station.
There is also a real issue over whose interests are being protected by introduction of the link facility. Officially it is presented as an exercise in protecting the solicitor from the risk of exposure to the virus. There is reason to believe, however, that it is intended to benefit the police by undermining the value for the suspect of having a solicitor physically present during an interview.
The wording of the proposed amendments envisages the suspect and/or solicitor making representations that the facility should not be used, or that it should cease being used. If their consent for its use was intended to operate as an important substantive safeguard for the suspect, the wording around the representations would be different. As it is, the wording seems to envisage the police (rather than the solicitor) applying pressure for resort to the link facility. The solicitor and the suspect are placed in the position of having to persuade the police that it should not be used. This raises a serious question over how much autonomy they actually have in consenting to use of the link. At the very least, under the proposed formulation, it is easy to see the police raising and dealing with the issue in a manner that applies heavy pressure on the suspect and solicitor to consent.
Conditioning the suspect
Another subtle device that can steer the vulnerable suspect away from withholding consent concerns the associated amendment of the Notice of Rights and Entitlements that must be given to detained suspects. This will be amended to qualify the right to have a solicitor physically present during interview to include the possibility of a virtual presence through a live or telephone link. The suggested wording of the qualification presents use of the link in neutral terms that do not expressly alert the suspect to the fact that it is a significant departure from standard practice and that he or she can veto it if he or she would prefer to have a solicitor physically present. It is easy to envisage this conditioning a vulnerable and anxious suspect into going along with the link facility without question when it is raised by the police.
Further amendments are designed to ensure that a formal record is kept confirming compliance with the procedural requirements where a live or telephone link with the solicitor is used. They stipulate that if the interview is conducted and recorded in writing in accordance with Code C, the interviewer is required to confirm that consent to use the link has been given. He or she must also record that an interview in which the solicitor uses a telephone link, where applicable, is not to be visually recorded. In either event, the confirmation must be included in the interview record.
Moreover, at the commencement of an interview in which the solicitor uses a live or telephone link, the interviewer must confirm that the necessary consent to use the link has been given. In the case of a telephone link, he or she must also confirm, where applicable, that the interview is not to be visually recorded. Also, if a telephone link is used and equipment for remote monitoring is installed, he or she must state whether the light that illuminates automatically with remote monitoring is illuminated. The confirmations and statement (where applicable) must be included in the interview record. These measures seem aimed at producing a neat record of compliance to withstand any subsequent challenge.
There can be no doubt that the risk of transmission of COVID-19 has implications for the conduct of police interviews with criminal suspects. It seems entirely reasonable that measures should be taken to protect against that risk while, at the same time, retaining the capacity to conduct interviews in those cases where interviews are a necessary and proportionate method of advancing a criminal investigation. There is a wide range of pragmatic and creative options that could be considered to that end. Care should be taken to avoid changes that directly or indirectly tilt the balance in the criminal process further in favour of the police to the prejudice of the suspect.
There are reasons to fear that the proposed amendments will impact adversely and unnecessarily on the suspect, even if that is not the intention. The police are given too much scope to influence or secure the removal of the physical presence of the solicitor from the interview room. While it may appear that the suspect (and the solicitor) have a veto, the logistics are carefully calibrated to enable the police steer the outcome in the direction they desire.
It is also a concern that steps are being taken to regularise these measures by amendments to the Codes at a time when the virus threat is supposed to have diminished sufficiently to allow the re-opening of other sectors of society. The fact that they are given a 12 month time limit (excessive in itself) does not inspire confidence that they will be temporary. Experience with the use of extreme measures introduced as a temporary device to deal with a specified threat in other areas is that they have a tendency to become normalised over time. Given the underlying drift towards ‘virtual’ criminal process in the interests of prosecutorial expediency and economy, it would hardly be too cynical to suspect that these changes will become permanent if adopted now.