Quality of legal advice for suspects “faltering under lockdown”

Police stations: Hard to give advice

The quality of legal help for suspects in police custody has “suffered significantly” due to Covid-19 amid concerns over confidentiality and restrictions on lawyers talking to clients, a new report has found.

International criminal justice watchdog Fair Trials said its findings “paint a deeply worrying picture of the criminal justice system in England & Wales under lockdown” and that human rights violations could be the result.

In trying to keep the justice system functioning during the pandemic, it said, “the rights of defendants have, in practice, been largely overlooked, and it is questionable whether initiatives to safeguard suspects’ and defendants’ rights and their safety have worked effectively so far”.

In Justice under lockdown, Fair Trials surveyed a range of people on “the frontline” of the criminal justice system, although a majority of the 89 responses came from defence lawyers.

Some 71% of respondents, and over 80% of defence lawyers, said Covid-19 had a ‘significant’ or ‘moderate’ negative impact on suspects’ ability to access prompt in-person legal assistance, with 59% saying the same about access to legal assistance during police interviews.

Lawyers said having to give advice remotely was “a poor substitute” for being there. “It was challenging to build trust and rapport with their clients without meeting them in person, and that generally, it was more difficult to provide advice to and take instructions from their clients.

“It was also pointed out by some respondents that they were able to spend less time speaking to their clients because they could not see them in person.

“Concerns were also raised that remote legal assistance had a particularly negative impact for vulnerable suspects, who require support for their welfare and effective participation during criminal proceedings.”

Some lawyers also questioned the extent to which confidentiality was being respected during lockdown, as it was harder to ascertain whether conversations were being overheard.

“One respondent complained that, on at least two occasions, police officers had tried to facilitate telephone consultations in an open custody suite.

Fair Trials found no consistent approach amongst the police to ensure legal and other forms of assistance during police interviews.

“This has, on occasions, resulted in police interviews taking place in the absence of a lawyer or other essential sources of support, or suspects being detained unnecessarily.”

Where advice was provided remotely, there was evidence that videoconferencing equipment failures meant that defence representation attendance by telephone was becoming the default.

“Several lawyers were also concerned that despite the insufficient measures in place to prevent the spread of Covid-19 in police stations, they were still being expected, or even pressurised to turn up to attend interviews in person.”

Fair Trials said that, although some solicitors and barristers believed that the increased use virtual hearings was a positive development, particularly for efficiency reasons, the survey results showed that the majority have “significant concerns about their impact on defendants’ rights”.

It continued: “We are concerned that the government could promote remote hearings as a way to address the backlog of criminal cases built up during the lockdown (and over the years prior to the pandemic) without adequately addressing these concerns.”

Survey responses clearly showed that client-lawyer communications have been badly affected before, during, and after court hearings.

This was in part down to the technology, but “some courts are not appropriately set up to facilitate effective, confidential conversations between defendants and their lawyers”.

The survey found courtrooms having to be vacated so that lawyers could speak to their clients in private, but when they were, “minimal time was allowed for those conversations”.

It added: “We were also concerned to learn that in some cases, judges were explicitly preventing post-hearing client-lawyer consultations from taking place via video-link or telephone, leaving defendants in custody stranded, with severely restricted access to legal advice.”

Fair Trials said: “It is clear that many of the challenges identified in this survey are not confined to the several months in which the lockdown has been in place.

“So long as Covid-19 continues to be a generalised risk to the public, precautions (such as social distancing and the use of PPE) will need to be taken at courts and police stations for the foreseeable future, continuing to create obstacles for the exercise of defence rights.

“Already, we are beginning to see that COVID-19 is creating a long-term legacy of delays and backlogs to the criminal justice system, which in the absence urgent action from the government to enhance capacity, could create extraordinary challenges and serious human rights violations.”

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