New Protocol Agreed for Custody Cases
After tireless work from Practitioners and Agencies involved in dealing with those in custody at Police Stations a new National Protocol has been achieved which offers protection to those in custody and importantly to everyone who has to deal with them .
It demonstrates that participants on all sides can come together . It also represents further evidence of how the Law Society works had in hand with Practitioner groups CSLA and the LCCSA to deliver the right outcomes .
Now we need to test that this Protocol is fully adopted and works . These are truly challenging times
PROTOCOL - Please Donwload the PDF for Full Annexes
PROTOCOL - coronavirus-interview-protocol-april-2020
Interview Protocol between National Police Chiefs’ Council, Crown Prosecution Service, The Law Society, Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association
Purpose of guidance
1.This guidance is intended to assist investigators and prosecutors in deciding whethersuspects should be interviewed as part of a police investigation during the Covid-19 pandemic. This guidance will be reviewed monthly as from 1 April 2020 and is intended for use only during the period of the Covid-19 crisis.
2.The Covid-19 outbreak presents an unprecedented challenge for the Criminal JusticeSystem in England and Wales.
3.The spread of Covid-19 and its effect on the numbers of police officers, prosecutorsand defence solicitors available for work will require careful consideration of whatnew offences are brought into the system and how those offences are investigatedby the police and progressed through the CJS.
Police interviews; a reasonable line of enquiry
4.The Criminal Procedure and Investigations Act 1996 provides that investigators mustpursue all reasonable lines of enquiry, including those which point towards and awayfrom the suspect. In most cases “reasonable lines of enquiry” will require aninterview.
5.An interview is generally a reasonable line of enquiry because without it:
•The suspect does not have a proper opportunity to provide a full account;
•Common defences including self-defence and reasonable excuse are notaddressed;
•A guilty plea may be anticipated wrongly and anticipating plea generally is moredifficult;
•The opportunity to draw an adverse inference from silence is lost;
•Without admissions in interview, points to prove have to be addressed throughother evidence increasing the burden on investigators;
•The opportunity to address potential defences by further investigation, and toinvestigate reasonable lines of enquiry which point away from the suspect, arelost.
However, it is recognised that for public health reasons interviews may need to be postponed or even dispensed with. If there is a genuine and pressing need for an interview with all parties present it must be carried out in accordance with government advice on precautionary behaviour, including social distancing.
Police interviews with suspects during the Covid-19 crisis
6.Government guidance on social-distancing will affect police interviews with suspects;whether in custody or elsewhere. Interviews with suspects may involve the presenceof non-police staff including solicitors, legal representatives, appropriate adults and
interpreters. If the attendance of an appropriate adult is required then that will need to be taken in to account when an interview is being considered; in the circumstances created by the Covid-19 crisis it may not be possible to conduct an interview with a suspect and an appropriate adult, and the alternatives set out in Annex A and Annex B should be considered.
7.It is acknowledged that the Covid-19 crisis involves the application of PACE Code C in circumstances which are unlikely to have previously been anticipated. The signatories to this protocol accept that the practices and procedures contained here amount to a reasonable interpretation of the law to enable the rights and interests of detained persons to be protected during the unprecedented circumstances of the Covid-19 crisis.
8.The police will have their own guidance about the steps they take to ensure the health and safety of officers, and the suspects and witnesses they deal with. The police have a duty to ensure that all reasonably practicable steps are taken to protect visitors to the custody suite, including legal representatives, from infection with Covid-19. This includes issuing Personal Protection Equipment (PPE) where appropriate, and instructions for its use, even where the detainee is not symptomatic.
9.Legal advice for suspects should take place whenever possible over the telephone (for legal advice) and by video link for interviews with suspects. This may depend on the police facilities and devices available. Any existing facilities for links used for interpreters or for remote interviewing by police officers should be considered for use by police officers and defence representatives.
10.When it is not possible to arrange a suspect interview as above then the issues below should be considered. When a suspect cannot be interviewed consideration should also be given to the use of the steps set out in Annex B for a written statement under caution from a suspect in response to a list of questions provided by the interviewing officer.
11.In police premises that are equipped with secure interview rooms with screens that allow for social distancing; those rooms should be utilised for consultations and interviews (using either fixed or portable recording devices approved for interviews).
Interim CPS charging protocol - Covid-19 crisis response (Annex C)
12.The CPS and the police have already published an interim charging protocol as partof the Covid-19 response. The interim protocol sets out how cases should bemanaged by identifying three categories of cases:
•IMMEDIATE - CUSTODY AND ALL COVID-19 RELATED CASES (Level A)
•HIGH PRIORITY CASES – NON-CUSTODY BAIL CASES (Level B)
•OTHER CASES – RELEASED UNDER INVESTIGATION OR NO ARRESTREQUIRED (Level C )
The assessment of the need for an immediate interview must have regard to this three tier categorisation.
Interviews and Level C cases under the CPS interim charging protocol
13.For Level C cases in which suitable arrangements for an interview cannot be madeimmediately then suspects should be bailed or released under investigation to allowfor an interview at a later date unless:
•cases are simple and the other evidence is overwhelming; and
•there is insufficient time for an interview within the six month statutory time limit.
Interviews and Level A and B cases under the CPS interim charging protocol
14.Level A and B cases - the process set out in the flow chart at Annex A is to beused to identify the cases in which an interview should take place and how thatshould take place. The options are set out as follows in order of preference:
1.Completely virtual interview – all parties dial in to a Custody Laptop with OIC ininterview room recording and suspect in VC room.
2.Partial virtual interview – OIC and Interviewee in interview room, Legal Repappears via a video link.
3.All parties physically required due to the serious nature of the case – all persons will be issued with the appropriate PPE and given instructions on how touse this.
4.Save for the circumstances set out at the top of Annex A, a charge withoutinterview should only be considered in exceptional circumstances when the optionsabove are unavailable. Before this takes place consideration should also be given tothe use of the steps set out in Annex B for a written statement under caution from asuspect in response to a list of questions provided by the interviewing officer.
Greg McGillCrown Prosecution Service
DCC Nev Kemp National Police Chiefs’ Council
Ian Kelcey and Richard Atkinson
The Law Society
Criminal Law Solicitors’ Association
London Criminal Courts Solicitors’ Association