Home Office consultation on revisions to PACE Codes C and E – Law Society response

The proposals

The Home Office is consulting on changes to certain existing provisions of Codes C and E for the duration of the coronavirus (COVID-19) outbreak.

The proposals support the continued operation of the interview protocol between the National Police Chiefs Council, Crown Prosecution Service, Law Society, the Criminal Law Solicitors’ Association and the London Criminal Courts Solicitors’ Association.

The overall purpose is to limit the number of cases that have to be abandoned because solicitors are unable to attend in person during the pandemic.

The changes apply when suspects who have not been arrested are interviewed, as well as to detained suspects.

Changes to Code C

The temporary changes to Code C modify the existing provisions which allow a suspect to have their solicitor present during their interview.

They specifically allow for legal advice during interview to be provided by a live link or a telephone conference link. For the latter, the interview must be visually recorded.

These modifications are subject to a number of safeguards which take account of the circumstances of the suspect, nature and circumstances of the offence and the investigation and the impact on the suspect.

They include requirements that:

• the custody officer for a detained suspect, or interviewer for a suspect who has not been arrested, in consultation with the appropriate adult (if applicable), is satisfied that using a live link or telephone conference link would not adversely affect or otherwise undermine or limit the suspect’s ability to communicate confidently and effectively with the solicitor for the purpose of the interview and must so inform the suspect, appropriate adult and solicitor
• the suspect, solicitor and (if applicable) appropriate adult consent to the live link or telephone conference link being used

Changes to Code E

The temporary changes to Code E modify the existing provisions by introducing additional requirements for the interviewer when the solicitor uses a live link or telephone conference link to advise the suspect during the interview.

These relate to confirmation that consent to the link being used has been given and to visual recording and remote monitoring of an interview when a telephone conference link is used and to matters to be recorded in the interview record.

Our view

We support the proposals.

The changes will allow for the continued provision of legal advice to suspects in custody (or who are interviewed by the police in a non-custodial setting) during the pandemic in a safe way by using technology where:

• it's appropriate to do so, and
• where the suspect and appropriate adult, if any, consent

What this means for solicitors

Criminal defence solicitors will continue to be able to provide legal advice to those suspected of committing criminal offences in a safe way.

Next steps

The consultation closed on 3 July 2020.

The Home Office will consider the responses and set out its final proposals in due course.

Read the consultation on the GOV.UK website