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1 Introduction
1.1 Who should read this practice note?
Criminal defence solicitors representing clients who are deaf and using British Sign Language during investigative interview conducted by the police.
1.2 What is the issue?
The Police and Criminal Evidence Act 1984 (PACE) requires that police interviews with suspects are subject to audio recording. You should ensure that police interviews with clients who require a British Sign Language interpreter are video recorded.
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1.3 Professional conduct
The following sections of the SRA Code are relevant to this issue:
Principle 4 - you must act in the best interests of each client.
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1.4 Status
Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.
For queries or comments on this practice note contact the Law Society's Practice Advice Service.
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1.5 Terminology
Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.
Should
- Outside of a regulatory context, good practice for most situations in the Law Society's view.
- In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).
These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.
May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.
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2 Keeping an accurate record of the interview
If you are representing a person who requires a British Sign Language interpreter at a police interview you should insist that the interviewing police officer arranges that both the suspect and the interpreter are video-recorded.
This will ensure that an accurate record of the interview is created and retained should disputes arise in the future as to what was said.
If your client requires the assistance of a sign language interpreter, the use of audio recording equipment will not provide a record of the signed conversation taking place between the interpreter and the suspect, and will not provide a safeguard if a dispute arises.
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2.1 Ensuring the police video record the interview
PACE Code F on the Visual Recording with Sound of Interviews with Suspects states that a video recorded interview 'might be appropriate with, or in the presence of, a deaf or deaf/blind or speech impaired person who used sign language to communicate' (paragraph F:3.1 (d)). You should bring this to the attention of the police and insist that a video recording is made.
2.2 Resolving disputes
If there is a subsequent dispute about what the suspect was asked via the interpreter's interpretation of the question asked by the police officer, or about how the suspect's answers were interpreted, you should use the visual record of the conversation to help resolve the dispute.
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3 More information
3.1 Legal and other requirements
The Police and Evidence Act 1984
3.2 Further products and support
3.2.1 Law Society practice note
Use of interpreters in criminal cases - October 2011
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Practice Advice Service
The Law Society provides support to solicitors on a wide range of areas of legal practice. The service is staffed by solicitors and can be contacted 0870 606 2522 from 09:00 to 17:00 on weekdays.
3.2.2 Other
The Solicitors Regulation Authority's Professional Ethics Helpline for advice on conduct issues.
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3.3 Acknowledgements
Law Society is grateful to Ian Kelcey, chair of the Criminal Law Committee, for assistance in drafting this practice note.
3.4 Amendment
This practice note has been amended to refer to sections of the SRA Code.
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