This protocol is intended to assist investigators and prosecutors in deciding whether suspects should be interviewed as part of a police investigation during the Covid-19 pandemic. The points most relevant to those representing children are as follows:
- The Criminal Procedure and Investigations Act 1996 provides that investigators must pursue all reasonable lines of enquiry, including those which point towards and away from the suspect. In most cases ‘reasonable lines of enquiry’ will require an interview.
- 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.
- 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 (virtual interviews) and Annex B (statement under caution) should be considered.
- 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.
The Covid-19 CPS and the police interim charging protocol sets out how cases should be managed 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 ARREST REQUIRED (Level C )The assessment of the need for an immediate interview must have regard to this three tier categorisation.
For Level C cases in which suitable arrangements for an interview cannot be made immediately then suspects should be bailed or released under investigation to allow for 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.
- For Level A and B cases the police will decide whether an interview is necessary and if so whether it will be conducted virtually, partially virtually or in person.
- In certain circumstances the opportunity to make a written statement under caution will be considered.
- Interviews will not be required when there is credible and reliable evidence to prove the identity of the suspect; and there is credible and reliable evidence covering each point to prove for the offence and negating any defence that can reasonably be anticipated and the offence is:
- – Summary only; or
- – A simple offence against the state (possessing weapons/drugs, public order); or
- – Drink or drug driving; or
- – Shoplifting (regardless of value)
- – Criminal damage under £5000
Whether the interview is required will be a decision for the custody officer.
It is disappointing that the protocol does not make particular reference to children. Given that custody for children should always be a measure of last resort, it follows that they should only be detained in the most exceptional circumstances during the coronavirus crisis. Keeping children in police custody during the pandemic will be frightening and traumatic. It is a genuine threat to their physical and mental health and will often be an un-necessary and disproportionate risk. Children are vulnerable by virtue of their age and most children in the criminal justice system have additional vulnerabilities. Their ability to understand and effectively participate in a virtual interview is likely to be limited and therefore the threshold for detaining them in these circumstances should be exceptionally high.