Guidance adopted by the police, the CPS, and lawyers on police interviews during COVID-19 has been found to undermine fair trial rights. A legal opinion by Joel Bennathan QC and Peta-Louise Bagott from Doughty Street Chambers suggests that lawyers and police acted unlawfully, by effectively changing the law on accessing lawyers in police custody as they had no power to do so.
The Police and Criminal Evidence Act (PACE) was created in the wake of the 1981 Brixton riots to balance the rights of the individual against powers of the police and contains crucial protections to ensure that anyone who is arrested in England and Wales has access to a lawyer.
During the pandemic, the Joint Interim Interview Protocol (JIIP) was issued to support the delivery of remote legal assistance in police interviews. However, the opinion found that this protocol, agreed by lawyers and police, did not have a legal basis to amend provisions for access to a lawyer in PACE.
The opinion states, Although the [JIIP] signatories assert that remote interviews are within the spirit of recent amendments and the Coronavirus Act 2020, this does not provide a legal basis for the guidance to amend the Codes. The Interview Protocol was not subject to any of the scrutiny required by s.66 PACE 1984, nor was the legislative process followed to amend the text of the Codes. The signatories purport to exercise a power that they simply do not have.
A report by Fair Trials, Transform Justice, and the National Appropriate Adults Network exposed that children and vulnerable adults in police custody received inadequate and ineffective legal assistance because of the restriction of access to in-person legal assistance. In particular:
- the police did not always seek the consent of vulnerable suspects and appropriate adults to conduct interviews remotely, in clear violation of the JIIP;
- some solicitors refused to attend police interviews in person, even where a child or mentally vulnerable client was suspected of the most serious offences, such as rape or murder; and
- appropriate adults perceived legal representation as less effective when provided remotely and reported that suspects’ ability to communicate and participate effectively were undermined.
From May 17, when the JIIP was updated, lawyers in England and Wales were expected to return to give in person advice to children and vulnerable adults at police stations. However, many lawyers are continuing to attend police interviews remotely.
The charities have now written to JIIP signatories to reiterate the severe human rights impact of JIIP, and to warn that they have been acting unlawfully by changing laws without proper legal authority. They argue that JIIP has outlived its purpose, given the easing of most COVID-19 restrictions, and lawyers need to be back in police stations as soon as possible.
