Coronavirus: Access to Legal Advice Whilst Under Arrest

Coronavirus: Access to Legal Advice Whilst Under Arrest

Following a fortnight of unprecedented measures, culminating in the royal ascent of the wide-ranging Coronavirus Act 2020, legal representatives, as with most professionals, have been forced to radically change the way that they work to comply with the government’s guidance and now law. As many adapt to new ways of working, including working remotely and through making good use of technology, the business of arrested suspects facing interview continues.

On 18 March 2020, the National Police Chiefs’ Council (NPCC) published ‘Operation Talla – Custody’, its strategic overview and high-level guidance for forces concerning custody functions during the COVID-19 pandemic. The guidance suggests that forces develop local policies to deliver tactical operations, confirming that the provision and use of police custody remains a legitimate and available option as part of the criminal justice process. Notwithstanding this, consideration is to be given to minimising human traffic in the custody environment in order to reduce the risk of COVID-19 transmission.

By way of example, the NPCC guidance, which does not impact on the requirement that arrest and detention be in accordance with the Police and Criminal Evidence Act 1984 (PACE) and its Codes of Practice, suggests the following:

  • During the current COVID-19 pandemic, additional consideration regarding out-of-custody options, such as voluntary attendance, are encouraged. (3.3)
  • Additional consideration should also be given concerning the use of bail as the pandemic is predicted to last for several months. (3.8)
  • Forces should consider including health screening questions concerning COVID-19 as part of their risk assessment processes for detainees. (3.9)
  • Where the presence in custody of a detainee suspected or identified as having contracted COVID-19 is necessary, they should be isolated from others where practicable. (3.10)
  • Subject to appropriate risk assessment, consideration should be given to providing face masks to detainees who are symptomatic or suspected of having contracted COVID-19, particularly when they are required to interact with staff or visitors. (3.15)
  • Where access by external visitors is essential for the effective running of the custody centre, the criminal justice process or the welfare of those in custody, this should be facilitated, but with consideration to minimising the risk of transmission of the virus either into the custody facility or to the visitor themselves. (4.4)
  • Enabling detainees to exercise their right to legal advice is essential. Custody staff should work in conjunction with legal representatives to ensure this process is effectively managed. Consideration should be given to telephone advice in appropriate circumstances. (4.13)


While the NPCC’s guidance suggests several indicators of best practice, it includes limited operational detail, opting to leave individual forces to determine how to achieve the objectives identified. In lieu of more detailed centralised guidance, practitioner groups have welcomed the practical approach proposed by Kent Police, which first asks whether it is necessary to conduct an interview. Provided that the identity of the suspect is known, in cases involving summary only allegations against the state, such as possession of weapons, drugs, public order, shoplifting or criminal damage under £5,000, it will not be deemed necessary to conduct an interview. This will inevitably lead to delays in investigations however it is almost certainly a proportionate response to the risk posed by conducting interviews where they are not absolutely necessary.

Where an interview is required, the approach proposed by Kent Police is to conduct whole or partially ‘virtual’ interviews, utilising video conferencing facilities through custody laptop computers. Parties who are physically present, which in addition to interviewing officers, may include legal representatives, appropriate adults and interpreters, are to be issued with the appropriate Personal Protective Equipment (PPE).


There will inevitably be some tension between the measures suggested and the rights and entitlements of suspects in police custody; for example, ensuring the level and quality of access to legal advice, required under Code C of PACE. There have been reports of legal representatives having to conduct consultations and interviews under caution through the wicket of custody cell doors, in the absence of available PPE or other alternatives. This raises obvious questions in relation to confidentiality and the ability of those in police custody to access legal advice.

The impact of the COVID-19 pandemic has highlighted the gulf between the courts and police stations insofar as they are equipped to adapt their ways of working in response to emergency situations. For years, the limitations of IT infrastructure in courts has been a common talking point however it is positively futuristic compared to the technology found within the country’s custody suites, many of which were struggling with the pressures of 21st Century policing long before the COVID-19 pandemic. Notably, there are unlikely to be calls from legal practitioners to extend temporary measures reducing face-to-face access to clients in custody beyond what is necessary to ensure the health and safety of individuals. The right of an arrested person to legal advice is fundamental to a fair and functioning criminal justice system, and any measure to qualify that right, even if only intended as temporary, should be constantly scrutinised. However, what the current crisis has highlighted is the need for better protocols and facilities to protect the interests of all who have the pleasure of spending time at the police station; whether by choice, or otherwise.

David Hardstaff is an associate solicitor at BCL specialising in criminal and regulatory law. He advises individuals and companies in relation to controlled drug licensing and AML/Proceeds of Crime considerations in the context of the domestic and international cannabis market. He has particular experience in advising and representing individuals accused of sexual offences, drugs offences and offences involving violence. He is an experienced police station representative and advocate and represents clients in a broad range of proceedings at the Magistrates’ Court, Crown Court and Court of Appeal.