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 Office of Criminal Justice Reform is conducting a widespread pilot of the virtual first hearing system in London and Kent , 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.
Top of page
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, amongst 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 consider making representations to the court that it should not proceed in this way, and instead adjourn the hearing to enable your client to attend court in person.
Top of page
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.
Top of page
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).
Top of page
3.3 The client in the police station
Clients held in custody can often be in a vulnerable state in what may be the unfamiliar and frightening surroundings of a police station. It is your duty to help and represent their best interests at this stage.
You must:
- ensure that the police are conducting the investigation fairly and lawfully
- assess the extent and nature of the evidence against the client
- advise on whether the client should co-operate with the investigation, or exercise their right to silence.
You may also need to confirm your instructions in writing or agree a certain course of action in writing, particularly when you are advising in relation to plea or explaining issues relating to a bail application.
You must carefully consider whether this can properly be done by telephone or video link, or whether circumstances require you to attend in person at the police station.
You should only provide advice to your client in custody when confidentiality can be assured. In most cases, you should provide only very basic advice via the telephone, for example:
- the estimated time of your arrival;
- reminding the client of their right to silence.
You should not take instructions or provide advice in the presence of an appropriate adult, because the duty of confidentiality and legal professional privilege does not attach to the appropriate adult.
You should also exercise caution when using an interpreter provided by the police service.
Further information:
Top of page
3.4 The client once charged
Once the client has been charged, 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
- apply to the court for bail if necessary
- advise the client in relation to their plea to the charge.
Again, you must carefully consider whether this can properly be done by telephone or video link, or whether circumstances require you to attend in person at the police station.
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.
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.
Top of page
3.5 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.
Top of page
3.6 Pre-charge advice by telephone for minor matters
Some pre-charge publicly-funded advice may only be accessed by telephone through the Defence Solicitor Call Centre (DSCC) and CDS Direct. If the client has received such advice before your involvement in the case you should conduct an interview with your client in person to ensure that they have not given up any rights following the CDS Direct telephone advice.
For further information about the scope of telephone-only advice, see the Legal Services Commission's General Criminal Contract.
Top of page
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.
Top of page
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.
Top of page
4.2 Liability
The Office for Criminal Justice Reform (?OCJR') has told the Law Society that neither Her Majesty's Court 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 OCJR 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.
Top of page
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 034/200 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 or Anselm Benedict, policy assistant on 0207 242 1222.
Top of page
5. More information
5.1 Professional conduct
The following sections of the Solicitors' Code of Conduct 2007 are relevant to this issue:
- Rule 1.04- you must act in the best interests of your client
- Rule 4.01- you must keep the affairs of your client confidential
Top of page
5.2 Legal and other requirements
Top of page
5.3 Products and services
5.3.1 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.
www.lawsociety.org.uk/advice/practice-advice-service
5.3.2 Law Society publications
Top of page
5. 4 Status of this practice note
Practice Notes are issued by the Law Society as a professional body for the 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, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. Solicitors are not required to follow them.
They do not constitute legal advice and, 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. www.lawsociety.org.uk/practiceadvice.
Top of page
5.5 Terminology in this practice note
Must - a specific requirement in the Solicitors' Code of Conduct or legislation. You must comply, unless there are specific exemptions or defences provided for in the code of conduct or relevant legislation.
Should - good practice for most situations. If you deviate from this, you must be able to justify why this is appropriate, either for your firm, or in the particular retainer.
May - a non-exhaustive list of options for meeting your obligations. Which option you choose is determined by the risk profile of the individual firm, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.
Top of page
5.6 Acknowledgements
The Law Society is grateful to Ian Kelcey, Chair of its Criminal Law Committee, for drafting this practice note.
Top of page