CRIMINAL LAW SOLICITORS' ASSOCIATION

Attending Police Stations & Magistrates’ Courts - 27 March 2020

We understand our members remain concerned for their safety at police stations and courts. We have proposed a joint protocol with the LCCSA 

A message from the CLSA & LCCSA

We understand that as the threat from the COVID-19 pandemic worsens with each day, government is forced to adapt and change guidance at speed. We further recognise that the criminal justice system must continue to operate to protect the public and we wish to play our role in this.

You, our members, have a duty to protect yourselves, your staff, clients and families. Your duty extends to avoiding infecting the most vulnerable and to help slow the demand on the NHS.

Measures can swiftly be adopted at magistrates’ courts and police stations to ensure that we can continue to play our role remotely. Sadly, it seems to us, these measures will not be taken until those who control the police station and court environments are forced to make changes. Carrying on with business as usual is not safe or sustainable.

Many firms in London have already ceased to provide advice and assistance face to face. This is not a decision taken lightly. All of us understand that in ordinary circumstances face to face contact when communicating with and representing our clients is crucial. However, as we face a unique and unprecedented public health risk, inevitably to protect all involved in the Criminal Justice System as well as the wider general public, face to face contact must regrettably be suspended.

We ask our members who have yet to take a decision to urgently review your policies. Solicitors will not be permitted to use video-link or telephone facilities if the police believe they can go back to the DSCC panel and find another solicitor who will attend in person. We know that defence solicitors are not a priority and this is why individual firms must consider a proactive approach to risk management.

If your firm adopts a policy of no face-to-face services at police stations or courts, we advise you notify your contract manager to inform them that it is your view that the current pandemic satisfies Clause 30.6 of the Standard Crime Contract 2017, which states as follows:

If you or we are prevented from complying with this Contract

30.6 Neither of the parties to this Contract is responsible to the other for any delay in

performance, or for any non-performance, of its obligations and duties under this

Contract due to any cause beyond its reasonable control. Causes beyond

reasonable control are confined to:

(a) severe physical damage caused by storm, fire or flood; and

(b) criminal acts; and

(c) epidemic,

except any fire, flood or criminal act caused or committed by any member of the

affected party’s personnel. For the avoidance of doubt, nothing in this Clause shall

relieve you from implementing and complying with the Business Continuity Plan.

Police Station Attendance:

We welcome and endorse the policy today adopted by Kent Police as a sensible and practical approach to be taken at this time. We urge the Metropolitan Police and other Police areas to adopt this policy:

The policy asks first whether it is necessary to hold an interview.

It sets out circumstances where an interview is not required.

This can be summarised as where there is sufficient evidence to prove the identity of the suspect and the case against them, and the matter is a summary only one, or a simple offence against the state, e.g. possession of weapons, drugs, public order, or drink or drug drive or shoplifting of any value or criminal damage under £5,000.

Where an interview is required (i.e. the above does not apply) then the pre interview briefing and client consultation should be conducted by telephone or video using the VC or consultation room.

It will then be necessary to consider what form of interview is required:

1. Completely virtual where all parties dial into a Custody laptop. The OiC in the interview room recording the interview, the suspect in the VC room and the lawyer dialling in; or

2. A partial virtual interview with the OiC and suspect in the interview room and the legal representative from a laptop; or

3. All parties required to still be physically present due to the severity of the situation [which should only be in the most exceptional of circumstances].

Where all people are present, the OiC, AA, interpreter and legal representative are to be issued with the appropriate PPE, which means the same PPE for all.

Where the above policy is not followed, it will be necessary for firms and individuals to undertake their own risk assessments in accordance with current Health and Safety law.

Presently, there is very limited available PPE and little clarity as to what constitutes appropriate PPE. Such PPE as is immediately available should in any event in our view be prioritised for NHS frontline staff.

If video attendance is not possible and you have deemed it unsafe to attend in person, we suggest:

• When obtaining Information from the custody record over the telephone, ensure staff consider what additional questions they should ask knowing that they will not be attending in person.

• Request Pre-interview disclosure by email and/or over the phone with the OIC.

• Request the police provide a confidential phone line for holding all consultations.

• Participating in interviews via telephone by the Oic putting your call on loudspeaker.

In the event none of the above is possible, and a decision is made not to act, it is advisable to make clear contemporaneous notes of your reasoning and to notify your contract manager accordingly.

Magistrates’ Courts Attendance:

We are aware of the ongoing efforts within HMCTS to make reasonable adjustments to minimise the need for attendances in person at Court. We welcome the approach which is already being adopted in the Crown Courts.

We are working with the Courts to encourage all efforts are made over the coming weeks for video-conferencing to become the default position for the majority of Court attendances.

Where attendance in person at Court is required, it will be necessary for firms and individuals to undertake their own risk assessments in accordance with current Health and Safety law.

When a decision to attend Court in person has been made, we suggest working with the Courts to:

• Ensure that only those conference rooms with glass petitions are used for consultations, or that glass docks within the Court rooms are utilised.

• Encourage video-link rooms to be used by those detained under escort. (This should be achievable given that there will now be fewer defendants overall in custody).

• Encourage that where Government WIFI reaches into the cells area, video-conferencing or a telephone line should be supplied by the gaolers from the cells.

In the event that none of the above is possible, and a decision is made not to attend Court, it is advisable to make clear contemporaneous notes of your reasoning, notify the Court and notify your contract manager accordingly.

Drawing on our collective experience across the profession, we believe that it is possible to use video-conferencing such as Skype for business, Zoom and others to attend both the police station and Courts in all but a few exceptional cases, as long as you are working from a place with sufficient privacy and a stable internet connection.

It is hoped this document assists and encourages a consistent approach to Police Station and Court attendances and minimises the risks for all parties whilst still fulfilling our role in keeping the Criminal Justice system moving.

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