1 Introduction
1.1 Who should read this practice note?
Criminal solicitors taking instructions and advising at police stations and at Magistrates' Courts where the virtual first hearing system is in use.
1.2 What is the issue?
The Ministry of Justice have set up a number of pilots of the virtual first hearing system including as part of the flexible court initiative regional virtual courts, whereby the conduct of the first Magistrates' Court hearing will take place with the defendant appearing in court by a video link from the police station.
From 14 December 2009, the previous requirement that a defendant must consent to participate in a live link hearing, contained in sub-section 57C (7) of the Crime and Disorder Act 1998, was removed by the Coroners and Justice Act 2009. Accordingly, it is no longer a requirement that the defendant consent to appear in court by way of the video link from the police station.
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1.3 Professional conduct
The following sections of the SRA Code are relevant to this issue:
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1.4 Status of this practice note
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.
SRA Code - SRA Code of Conduct 2011
2007 Code - Solicitors Code of Conduct 2007
OFR - Outcomes-focused regulation
SRA - Solicitors Regulation Authority
outcome - outcome
IB -indicative behaviour
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2 What is a virtual first hearing?
In a virtual first hearing the defendant appears in the Magistrates' court by a video link from the police station. The magistrates or District Judge, court staff and prosecutor will be at the court in the usual way, with the defence solicitor either at the police station, or at the court. If the solicitor is at the court the defendant may need to provide instructions to their solicitor by phone or video link.
Virtual first hearings may take place in respect of any offence. The initial decision to proceed in this way will be made by the custody sergeant at the police station after the defendant has been charged. The custody sergeant must apply a set of Suitability Criteria, taking into account:
- any vulnerability of the defendant
- multiple defendants, and
- the risk that the defendant may become violent in the course of a virtual court hearing, among other matters.
See Defendant Suitability Criteria (PDF 108kb).
You should consider making representations to the custody sergeant regarding his or her decision as to whether a virtual court is suitable in the circumstances of that client's first hearing.
The decision to proceed by way of a live link is one for the court. Section 57C (6)(A) of the Crime and Disorder Act 2006 states that 'a live link direction under this section may not be given unless the court is satisfied that it is not contrary to the interests of justice to give the direction'. Therefore, if your client does not agree with the custody sergeant's decision, you should make representations to the court that it does not proceed in this way, and is instead adjourned to enable your client to attend court in person.
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3 Your duty to the client
Consider your duties to the client when you are advising them about the virtual court first hearing.
3.1 Assessing the client's fitness
You have a duty to ascertain that your client is fit to take part in proceedings. You must assess whether they:
- are under the influence of drugs or alcohol, or suffering the effects of withdrawal
- have cognitive, mental or physical health issues that may affect their rights while in police detention
- have been subject to inappropriate police pressure
- have the necessary communication skills and abilities.
You must take into account that your ability to properly assess your client's mental state, or their level of understanding of the court process and the consequences of any decisions made, may be impaired if you are unable to take instructions from them in person.
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3.2 Clients who require an appropriate adult or interpreter
If an appropriate adult is, or has been, present because of a client's mental health or learning disability, paragraph (iv) of the Suitability Criteria will apply:
'The defendant has been identified as vulnerable and requiring an appropriate adult. Defendants identified as vulnerable and requiring an appropriate adult should be considered unsuitable for Virtual Courts if they have not received face-to-face legal advice. Where such a defendant has received face-to-face legal advice, they should only be considered suitable if their legal representative is in agreement'.
The Suitability Criteria also states that if the defendant requires an interpreter but none are available to attend in sufficient time to enable the virtual court hearing to take place, the case would be unsuitable for a virtual court hearing (paragraph (b)). You should exercise great caution in representing a person with an interpreter via video court hearings.
The virtual first hearing pilot scheme is not available in cases involving defendants under the age of 18 years (paragraph (i) of the Suitability Criteria).
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3.3 The client appearing before the virtual court
As with any client appearing before the court for the first time you have a duty to ensure that they understand the case against them, and their options regarding any plea.
You must:
- gather information about the case from the prosecution and from other witnesses and supporters who may be in a position to assist in advancing a bail application on behalf of the defendant
- apply to the court for bail if necessary
- advise the client in relation to their plea to the charge.
You must carefully consider whether this can properly be done by you attending the police station or whether circumstances require you to attend in person at the court hearing the case. Before you take instructions from your client over the video link you must ensure that your consultation cannot be overheard by police officers, or their staff, who may be present outside the video link room in which your client is situated.
In considering whether to attend the police station or the court hearing the case you should carefully consider whether the most effective representation can be given over the video link or whether your client's case would be best served by you appearing before the tribunal hearing the case.
If the client decides to plead guilty, you must also:
- explain the likely sentence
- gather information to use in submissions to the court in mitigation of sentence.
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3.4 Advice on plea or surrender of rights
You should not give any advice that relates to the client's plea to the charge or results in the surrender of any of their rights, unless you are sure that the suspect can freely and confidentially acknowledge the advice given, and if necessary confirm any instruction or agreement to a course of action in writing.
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4 Safety issues
A virtual court hearing room in the police station has no secure dock, and you are expected to sit alongside the defendant to communicate with the court, with a Detention Officer present in the room. This raises concerns about your safety due to your immediate physical proximity to defendants who may become violent as a result of an adverse court decision.
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4.1 Defendant suitability criteria
The Custody Sergeant is responsible for conducting a risk assessment to determine the likelihood of violent behaviour prior to any hearing.
Paragraph (ix) of the Suitability Criteria states:
'As a result of the ongoing risk assessment by the custody officer, conducted in accordance with the Home Office circular 034/2007 (with the right for the defence solicitor to make representations as appropriate, which must be recorded on the custody record), the custody sergeant considers that there is a substantial risk of the defendant becoming violent before, during or after the Virtual Court hearing, and considers that this makes them unsuitable for the Virtual Court.'
You should raise any particular concerns with the Custody Sergeant.
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4.2 Liability
The Ministry of Justice has told the Law Society that neither Her Majesty's Court and Tribunal Service, nor the police forces involved, are able to give a blanket undertaking to accept liability or pay compensation if you or a member of your staff get injured by a defendant in a virtual court hearing. However, the Ministry accepts that liability for injuries may be established in individual cases and compensation will be paid if it is proven that police officers or staff have:
- acted negligently
- breached a duty of care owed to a solicitor under statute or common law.
This would need to be established on a case by case basis in the same way as other claims involving injury on police or court premises.
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4.3 Health and safety issues to consider
If you deploy members of your staff to attend police station virtual court hearings you should consider your duties to your staff under health and safety law. You may wish to check with your health and safety insurer as to whether it will indemnify you for any injury caused to your staff in a virtual court.
Following discussions with the Health and Safety Executive ('HSE'), the HSE is content that, provided the details of the guidance in Home Office Circular 034/2007 and the model layout set out in the Home Office Police Buildings Design Guide are followed, then the case-by-case assessment of each situation will provide reasonably practicable control of the risk of violence to you and your staff.
If you or your staff are aware of specific examples of the guidance in Home Office Circular 034/2007 not being followed (in a virtual court context or otherwise), you should contact the following:
- the custody manager at the relevant police station
- the Law Society by contacting Janet Arkinstall, policy adviser, Criminal Law on 0207 242 1222.
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5. More information
5.1 Legal and other requirements
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5.2 Products and services
5.2.1 Practice advice
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 on 0870 606 2522 from 09:00 to 17:00 on weekdays.
Visit the Practice Advice Service webpage.
5.2.2 Other
Solicitors Regulation Authority's Professional Ethics Helpline.
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5.3 Acknowledgements
The Law Society is grateful to Ian Kelcey, the former chair of its Criminal Law Committee, for drafting this practice note.
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5.4 Amendments
This practice note has been amended to refer to sections of the SRA Code.
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