The Joint Interim Interview Protocol (JIIP) between the Police, CPS and lawyers remains in place but is the next phase in an aspiration to withdraw the protocol. The overarching message of the latest version of the protocol is that the expectation is one of a return to ‘business as usual’.
Details
Version 3 of the JIIP protocol [link to previous update] removed the application of the protocol to where the suspects was under 18 or a vulnerable adult as defined in PACE Code C Paragraph 1.12(d) and 1.4.
Version 4 now sets out the expectation that suspect interviews will take place in person where police meet the expectations set out in the protocol which are:
- Continued enhanced cleaning and infection control measures are in place in the custody suite
- Police have considered whether an interview is required now
- Police have considered whether a statement under caution is appropriate
- Everyone working in the custody environment will be expected to follow the national PPE guidance
The exceptions to providing legal advice in person are now limited to the following circumstances:
- The detainee is confirmed or suspected to be Covid positive
- The detainee exercises the right to speak to a named solicitor or the duty solicitor (who cannot make arrangements for an alternative representative to attend) and that person is Covid positive or isolating in line with government advice. The informed consent of the detainee is required to accept the advice of a solicitor by remote means
- Some other exceptional reason applies, where in consultation with all parties it is the Custody Officer’s belief that it would not be practical, possible or desirable for attendance in person by a legal advisor.
Commentary
The withdrawal of the JIIP in the relevant stages in line with the easing of coronavirus restrictions was to be expected. The protocols as set out above demonstrate that a return to ‘business as usual’ is the desired outcome. Many will view this as a missed opportunity to consider the improvements that can be made by taking the positives from the use of technology and adopting them more widely in a more flexible set of circumstances.
The use of remote procedures to facilitate legal advice before and during a suspect interview will not be appropriate or desirable in all cases, but there are a great deal of cases in which it will benefit all parties to have the detainee’s requested adviser attend remotely, particularly where the detainee gives his or her informed consent to do so. We have seen over the past 18 months that this is not practically difficult to facilitate and can afford the opportunity for an interview to happen more quickly and without incurring the cost of travel. There are also particular advantages for some vulnerable groups, including children and young people who may have a strong preference for a named legal advisor. It may, on balance, be preferable for a child or young person to receive advice from their chosen representative remotely, rather than from a new adviser in person. Cases such as those involving child criminal exploitation through the use of ‘county lines’ are one such example of where a young person may benefit from remote advice from a preferred representative, particularly if they are arrested some distance from their home address.
It may be that the withdrawal of the protocol is just that, and it is not the place to set out proposed amendments to the Codes of Practice. However, in the law, as in many other areas of policy, we should be learning lessons from the adaptations that were made during the pandemic rather than simply striving for a return to the status quo.
Written by
Vivien Cochrane, Partner, Shearman Bowen