How Covid reshaped suspects’ rights in police custody

“Are you a drug dealer, Rebecca?” the CID officer asked for the third time. I’d already answered the question twice, but the duty solicitor – who was present in the police custody room via the loudspeaker of a cheap-looking mobile phone – once again didn’t intervene.

I called his name and he remained silent. Gradually, I realised the phone had cut out, and he hadn’t heard a word that had been said. The Devon and Cornwall Police officer sighed and paused the interview, trying to adjust the volume on the device before reconnecting the call.

It was February 2021, and I had been arrested on suspicion of class A drug supply. Like many defendants interviewed during lockdown, I was alone – in a locked, windowless space – being questioned by the two men who had forced me to the ground and arrested me earlier that day.

Almost all suspects received in-person legal representation during pre-lockdown police interviews. But as social distancing is often impossible in cramped police custody rooms, Covid has triggered a huge rise in virtual defence services. Legal assistance was provided remotely in well over half of UK police interviews carried out with vulnerable suspects between 1 September and 17 November 2020, a recent report showed.

In-person legal advice and support during an initial police interview – funded by the government’s Legal Aid Agency – has always played a crucial role in the legal process. Solicitors and police station reps are responsible for ensuring fair questioning and protecting a suspect’s rights, from the right to disclosure of evidence and the right to silence. 

Effective legal assistance can stop inappropriate cases being pursued and enable better charging decisions, all of which make the process more efficient. In recognition of this, it’s the only point in the system where free advice is available to everyone.

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Technically, suspects should only be provided with remote legal advice if they’ve provided informed consent, the Crown Prosecution Service notes. Despite this, experts express ongoing concerns that police are failing to ask detainees for their permission.

This lack of physical access to a lawyer comes with significant practical implications, including severe communication difficulties, exacerbated by the fact that many police custody rooms are set amid thick, concrete walls, and thus lack strong WiFi or mobile phone signals.

Stephen Davies, a criminal defence solicitor who works for Tuckers Solicitors in London, said: “Remote interviews have savaged rapport between suspect and lawyer. From a lawyer’s perspective, it’s more difficult to maintain rapport after the interview, as the legal professional becomes a mere name and face on a screen. Similarly, for those who have never been arrested before, the lack of a physical lawyer means the process is all the more daunting.”

Stephen-Davies-–-Tuckers-Solicitor

Many workers within the criminal justice system have questioned whether the absence of in-person advice will lead to an increase in convictions. Davies explained: “No matter what the allegation is, many suspects require a reminder as to the advice. Some suspects are advised to provide ‘no comment’, but often they mistakenly answer a question in the heat of the moment. Remote interviews make it more difficult to remind suspects of this advice, particularly if there is a connection issue. The prospect of suspects self-incriminating is arguably far greater without a lawyer physically present.”

For me, the lack of in-person defence support meant the duty solicitor played almost no active role in my interview. He was also unable to see, and thus advise, on the evidence I was presented with. And this included 20 kilos of powder – alleged to be class A drugs – that were later confirmed to be protein powder. It was a strange experience, and I often wonder if it would’ve been resolved more quickly if a solicitor was physically present.

I felt oppressed and taken advantage ofChristopher John

Christopher John from Surrey was interviewed on suspicion of malicious communication in November 2020 and later released without charge. He said: “I was never asked if I consented to remote representation. The police attempted to force me to comply, but given that I’m a retired officer myself – after a head injury – I know how the system should work and called their bluff.”

Christopher-John-scaled-1

Christopher explained that the police tried to prevent his solicitor from attending in-person by claiming they needed to minimise the number of people present, due to Covid regulations. But, reluctant to attend an interview without a legal professional physically in the room, Christopher told the police they’d have to arrest him – and they eventually allowed his solicitor entry.

Suspects with mental illness, brain injuries and learning disabilities are entitled to an appropriate adult to support them during a police interview. This helps ensure they are treated fairly and with respect for their rights. It can also help them participate more fully in this stressful situation.

As a defendant with long-term PTSD from a head injury, Christopher said: “They blocked my request for an appropriate adult, but my retired detective friend turned up anyway and they had to allow him to attend. I felt oppressed and taken advantage of, as there was a clear agenda to try and force me to talk about – or admit to – an offence I did not and could not have committed.”

“Despite the initial unwillingness to allow an appropriate adult to support me, the police officer continually made references to my mental health – and whether it had led me to commit the offence in question – throughout the interview,” he noted.

Since his interview, Chris has lodged a complaint with the Independent Office for Police Conduct. The Surrey Police Professional Standards Department are also investigating, though this has been delayed ostensibly due to Covid.

I didn’t know what was real or fake. I can’t remember much of the interviewAnonymous

A representative from Surrey Police told the Big Issue: “Informed consent to remote interviews should be recorded on the custody record. It is the right of a suspect to have their legal advisor physically present where requested, and the police would need to facilitate this. This may involve requesting face masks being worn by all persons present, unless medical exemptions apply, and where social distancing of two meters cannot be maintained.”

This unwillingness to provide physical adaptations for people with mental health conditions isn’t exclusive to Surrey. Many police custody suites are now relying on in-cell telephone assessments to gauge a suspect’s fitness for interview, instead of using a face-to-face assessment incorporating visual cues, such as body language.

I spoke to a man – in his thirties – from Manchester, who was arrested and interviewed last summer, before being charged with conspiracy to import class A and B drugs from the Netherlands to the UK. Despite informing the police custody sergeant he had multiple personality disorder, he was not provided with a responsible adult or in-person legal support.

He said: “I’d just driven 18 hours home from Monte Carlo, but the police refused to delay the interview so I could sleep or rest. It was awful – I felt really disconnected from what was going on around me, and didn’t know what was real or fake. I can’t remember much of the interview either.”

“They blamed Covid for the solicitor not being present. Apparently, none of them wanted to risk catching the virus. And I’d never heard of an appropriate adult until my legal team mentioned it a few weeks later. It would’ve helped massively to have someone to bring my focus back to reality.”

Greater Manchester Police said that they were unable to respond to a request for comment, as the individual in question is still the subject of an ongoing investigation.

The move towards remote support has been especially tough on people with disabilities, including those with hearing problems. Martin*, aged 52, from Leicester, was convicted of two counts of domestic violence at Leicester Magistrates Court in May 2021. This case marked the first time he’d been interviewed on suspicion of a crime, so he had no idea what to expect at the police station.

Martin explained: “I went into the interview room in a complete daze. My legal representative was there via Zoom, but the call kept disconnecting. I’m hard of hearing and rely on lip reading to understand the finer aspects of any conversation. This combination of factors made the conversation so challenging that my solicitor suggested I may be better off making a prepared statement.”

“Sadly, I was convicted yesterday. And one of the things used to convict me was my failure to answer the questions put by the police and the prepared statement – the court said it believed that this indicated guilt. I feel my outcome could’ve been different, if I’d been able to access proper face-to-face representation,” he said.

Leicestershire Police said: “We work to support the full needs of anyone who is part of a police investigation to ensure fairness and accuracy throughout the course of the investigation and to ensure the full facts have been established before any prosecution is made.”

Worryingly, this temporary response to a global pandemic has become normalised, which means virtual advocacy looks set to continue even though infection rates have fallen. As a trainee detective constable from Cornwall told me: “The provision of remote support has been a resounding success. We want to keep running interviews this way, as it’s far quicker and cheaper.”

Criminal defence solicitor Davies believes a more cautious approach to the adoption of virtual representation is needed, and said: “The pandemic exposed the chronic underfunding of the criminal justice system. Whilst remote interviews became the new norm, it’s plausible to conceive that injustice and unfairness occurred during lockdown – these cases, if they exist, will take time to come before the courts, whereby the issues can be properly analysed.”

“Moving forward, criminal law and procedure must adopt a universal approach to interviews under caution, and we certainly shouldn’t enable remote interviews to become the status quo. Any long term change must be subject to rigorous debate based on research, data, and expert input.”

Many notorious miscarriages of justice, such as the Guildford Four and Birmingham Six, occurred when suspects were denied access to criminal defence solicitors or forced to rely on ineffectual ones who sat passively by. Given the huge physical and mental costs of any criminal conviction, this underlines the importance of fully analysing the potential implications of remote representation before making such a significant change to the main gateway to the criminal justice system.