Vulnerable suspects accused of the most serious crimes including murder and rape are being denied face-to-face legal advice when being interviewed in the police station, according to new research published today. Since March last year, duty solicitors have been able to advise clients remotely via video link as a response to concerns raised by lawyers over the risk of COVID-19 at police stations but only if a detained person consents and the case is not serious.

The study by Transform Justice, the National Appropriate Adult Network and Fair Trials found that some solicitors are not only refusing to come down to a police station but they are also refusing to drop the cases and allow a suspect to find a lawyer who is prepared to attend. The three groups are calling for an end to remote legal assistance in police custody. 

• You can read the report Not remotely fair? Access to a lawyer in the police station during the Covid-19 pandemic (here).
• Foreword written by Justice Gap editor. 

As a result of the pandemic, a protocol was signed between lawyers, the police and CPS in March 2020 allowing for police station legal advice to be done remotely – reflecting concerns of lawyers that police stations were not Covid secure. The research draws on interviews with 315 appropriate adults (AAs) operating in all 43 police forces attending 4,700 police interviews between September 1 and November 17 2020.

Under what’s known as the PACE (Police and Criminal Evidence Act 1984) regime, suspects in the police station are entitled to free legal representation from a lawyer on legal aid – children and vulnerable suspects are also entitled to an AA for support. This regime was introduced as a result of miscarriages of justice such as the Birmingham Six and the Guildford Four. 

More than half of 315 AAs who responded to the survey felt that that remote advice had ‘a negative impact’ on the ability of suspects to participate effectively in the process.

Jago Russell, chief exec of Fair Trials, pointed out that miscarriages of justice had been caused by ‘the failure to protect suspects in the police station which is why people have the right to in person legal advice free of charge’. ‘We need lawyers back in police stations as soon as possible to ensure that this important right is protected,’ he said. 

‘Those detained in police custody have been imprisoned by the state.  It is a deeply stressful experience which renders all detainees vulnerable. We need to ensure that all detainees, especially children and vulnerable adults, are able to access legal representation and to have fair treatment in custody. Our survey suggests that suspects are sometimes being short-changed.
Penelope Gibbs, director of Transform Justice

This protocol had a massive impact on the police station duty schemes across the country. Almost nine out of 10 interviews were conducted remotely in Surrey; more than seven out of 10 in Avon & Somerset – nt everywhere changed and so only three out of 10 interviews in Suffolk were remote.

There are multiple reports of suspects not being informed of their rights to legal advice, and not being asked for consent for it to be delivered remotely. Where they are asked, there was (predictable) confusion on the part of suspects in a highly stressful situation.

AAs attest to lawyers being more ‘passive’ when advising remotely and often completely disengaged from the process – for example, eating during an interview, talking to their gardener, playing Candy Crush on their mobile phones or else driving their car trying to find an internet cafe.

Katie Kempen, chief executive of the Independent Custody Visiting Association, said that the new study highlighted ‘deeply worrying practices’ leaving vulnerable detainees without in-person legal advice. She continued: ’In a society that values fairness and the rule of law, this situation cannot continue. To protect access to justice, solicitors should return to providing in-person advice safely in COVID secure custody suites.’

‘At no point during the interview did the solicitor engage in any form of communication, or seem to be paying attention to the interview,’ the AA noted in the last case. They paraphrased the words of the distressed detainee who felt like ‘their life does not matter – even their solicitor doesn’t care about representing them. There is no point in living. No one cares’.

Chris Bath, CEO of the National Appropriate Adult Network, said that the Covid-19 protocol was ‘well-intentioned – but in practice has not delivered a fair process for children or for people with a learning disability, speech and language need, autism, mental illness or brain injury’. ‘Children and vulnerable adults make up only 9% and 5% of arrests respectively,’ Bath said. ‘Given this new evidence, it is not logical or proportionate to ignore the existing rules that their legal advice should always be in person. Miscarriages of justice and failed prosecutions serve neither suspect nor victim.’

One alarming theme is in police station reps refusing to attend in person in the most serious cases (including murder and rape cases) but also unreasonably refusing to drop such cases. In one case of attempted murder, the detained person had never been arrested before and was identified as having learning disabilities and described as ‘delusional, suffering from stress, OCD and anxiety’.

‘On a number of occasions the [suspect] and myself have requested for the solicitor to attend…each time this has been refused,’ another AA said. ‘On approximately nine occasions the interviews have needed to be stopped because the [suspect] was angry at the solicitor and felt they should be there.’

One AA noted that children and vulnerable people ‘think that they don’t matter and have said, they’ll [solicitors] be horrible to me if I make them come to the station’. They continued: ‘They are using “you’ll be there longer if you want me there”. To someone vulnerable this is frightening and makes them feel that they are not wanted.’

AAs spoke of lawyers being ‘incentivised’ to work remotely, taking on multiple cases. Defence firms regard duty solicitor work as a loss leader – the average fee is about £150 for what could be four to five hours work at a station. If a case goes to trial, then firms make their money. Over the years many firms have contracted the work out to ‘police station reps’ – not legally qualified but accredited and frequently retired police officers – raising concerns about the quality and robustness of advice.