Safety should be the priority as COVID cases rise

The safety and availability of criminal defence solicitors is being put at risk after calls to revert to remote police station advice were rejected by the police despite the rapid spread of the Omicron variant, the Law Society has warned.

A police station protocol was introduced in April 2020 in response to the COVID-19 pandemic, allowing for remote legal advice to be provided to suspects with their consent.

The protocol, and any amendments to it, require a consensus of the relevant stakeholders.

From 17 May 2021, the protocol no longer applied in cases involving suspects who are children or vulnerable adults requiring an appropriate adult, then from 4 October 2021, a new version of the protocol saw a return to in-person attendance except for in limited circumstances.

Given the spread of the new COVID variant, the Law Society of England and Wales and other signatories to the protocol this week sought to revert to the 17 May version, but the request was denied.

“We strongly disagree with the police decision to oppose a reversion to remote provision of legal advice at the police station,” said Law Society president I. Stephanie Boyce.

“It is crucial to balance the essential right to have one’s solicitors present in custody with the need to maintain safety for all. We have always made it clear that in-person advice is preferable, but the pendulum has once again swung given the rapid spread of the new COVID variant.

“Safety of our members and all others involved in the process must be prioritised. Firms will face a workforce crisis and the criminal justice system will be hit by further delays if solicitors are off sick or self-isolating because of continued attendance at the police station.

“There are exceptions under the existing protocol that our members can use, and we urge them to do so where appropriate. These include where the suspect is, or is believed to be, COVID-19 positive, or where the suspect’s named solicitor is self-isolating, and where there are health and safety concerns in relation to the police custody suite.

“We would remind solicitors of exemption three, which provides for remote advice to be given where, in consultation with all relevant parties, it is the belief of the custody officer that due to exceptional reasons it would not be practical, possible, or desirable for an in-person attendance by the legal advisor in that individual case to safely take place.

“We also remind members that they have health and safety obligations to their staff.*

“If they are asked to attend the police station but do not have any staff who are willing and able to attend, they should refuse to accept the case and hand it back to the duty solicitor call centre.”

Notes to editors

Read more details on the protocol

*Employers have a broad duty of care to those they employ.

This duty can include obligations to take practical measures to support the physical and mental health and wellbeing of workers. It is widely accepted that one of the highest-risk locations for spreading COVID-19 is enclosed spaces where multiple people interact.

An employers' duty at common law is to take reasonable steps to ensure the safety of their workers.

Many jobs contain risks but those risks should be managed in the best way possible.

Sections 44 (S.44) and 100 (S.100) of the Employment Rights Act 1996 protect employees from detriments (e.g. loss of pay) or dismissal if they leave or refuse to attend a workplace for health and safety reasons.

A workplace is anywhere the employee has to go to conduct work. This includes places that are not under the control of the employer.

Read our guidance on best practice for member safety

About the Law Society

The Law Society is the independent professional body that works globally to support and represent solicitors, promoting the highest professional standards, the public interest and the rule of law.

Press office contact: Nick Mayo | 020 8049 4100

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