Contents
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.
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1.2 What is the issue?
The Office of Criminal Justice Reform intends to conduct a widespread pilot of the virtual first hearing system, 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.
This practice note outlines what you should consider before advising a defendant to consent to proceed in this way.
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1.3 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
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1.4 Legal and other requirements
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1.5 Status of this advice
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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1.6 Terminology in this practice note
Must - a specific requirement in the Solicitor's Code of Conduct or legislation. You must comply, unless there specific are exemptions or defences provided for in the code of conduct or relevant legislation.
Should - good practice for most situations in the Law Society's view. If you do not follow this, you must be able to justify to oversight bodies why this is appropriate, either for your practice, 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 practice, client or retainer. You must be able to justify why this was an appropriate option to oversight bodies.
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1.7 More information
1.7.1 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 on 0870 606 2522 from 09.00 to 17.00 on weekdays.
1.7.2 Acknowledgements
The Law Society is grateful to Ian Kelcey, Chair of its Criminal Law Committee, for drafting this practice note.
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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 and court staff will be at the court in the usual way, with the prosecutor and defence solicitor either at the police station, or the court. If the solicitor is at the court the defendant may need to provide instructions to their solicitor by phone or video link.
In order for a court to proceed by way of a virtual first hearing, the defendant must consent to appear in this way rather than in person. You must consider their circumstances and your ability to properly advise them before advising them to consent to a virtual hearing.
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3 Your duty to the client
Consider your duties to the client when considering advising them to use the virtual court system.
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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
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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 you should be very cautious about advising them to consent to proceed by way of a virtual first hearing. We understand the virtual first hearing scheme will not be available in youth cases.
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.
It is extremely unlikely that you should advise the client to consent by virtual court hearing if they require an interpreter.
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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:
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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.
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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3.5 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.
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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.
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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.
4.1 Defendant suitability criteria
The Defendant Suitability Criteria issued by the Office for Criminal Justice Reform (OCJR) states that it would be unsuitable to proceed with a case by way of a virtual court hearing if the Custody Sergeant considers that the defendant is likely to become violent during the hearing. The Custody Sergeant is responsible for conducting a risk assessment to determine the likelihood of violent behaviour prior to any hearing. You may wish to raise any particular concerns with the Custody Sergeant.
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4.2 Liability
The OCJR has told the Law Society that neither Her Majesty's Court Service, nor the police forces involved, are prepared to accept liability if you or a member of your staff get injured by a defendant in a virtual court hearing.
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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.
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