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To blindly go? Learning (or not) from pandemic policing

Fionnuala Ratcliffe
20 Apr 2021

How did policing adapt during the pandemic? And now lockdown is lifting, which changes should we keep and which should we lose? Two new reports from the body responsible for inspecting police forces (HMICFRS) attempt to address these questions, with mixed success.

One welcome contribution is the reports’ attempts to rein in excitement about the digital justice changes brought in during the pandemic to reduce the movement of people and the amount of in-person contact through courts. Virtual courts, where detainees have their first hearing from the police station, were viewed by the inspectorate as particularly unsustainable and in need of a rethink, although mainly due to the financial burden placed on police forces. Given the government is hell bent on pressing ahead with digital court reform come what may, it’s refreshing to hear a public body remind everyone that “Longterm, we don’t know how remote and virtual working will have affected outcomes such as reoffending, or what the effect will have been on the system of justice experienced by perpetrators and victims”. What we do know so far about the effect of virtual justice on outcomes is mostly negative.

The shift to the remote provision – by video or audio – of legal advice for suspects who are being interviewed in police custody also had its moment in the spotlight. We (along with Fair Trials and the National Appropriate Adult Network) have conducted our own research on this issue. We found that remote assistance was having a negative impact on children and vulnerable adults detained in custody and that safeguards around its use were not working. For example, some suspects found it difficult to understand what was happening and didn’t fully understand the legal advice they’d been given, and in some instances legal advice was given remotely even for serious charges against children.

Since our research only covered children and vulnerable adults (a small proportion of custody detentions), we awaited HMICFRS’ assessment of remote legal assistance with bated breath. But an almost complete lack of recording of its use by police forces means we’re still not much the wiser:

  • forces don’t know how many suspects received legal advice remotely during the peak of the pandemic because the information isn’t noted on custody records. Asked to guess, some police forces thought that legal advice was provided remotely in over half of cases, other forces estimated over 75% was provided remotely.
  • forces did not record how, when or if suspects were asked to consent to their legal advice being provided remotely or in person. The suspect’s response was not recorded either.
  • there was no evidence that custody officers were considering whether or not a suspect would be negatively impacted by legal advice being provided remotely, when deciding whether remote advice was appropriate. Custody officers instead felt this decision was in the solicitor’s hands.
  • the impact of remote legal advice was also not considered during the regular detention reviews, leading the inspectorate to conclude that “this makes it difficult for the police to show that the decisions made were in the best interests of detainees.”

The problem with this lack of recording, as the report hints and as is happening with video courts in the government’s new crime bill, is that emergency legislation can turn permanent. For remote legal advice, if we don’t record when it happens, we have no chance of understanding its impacts on suspects, outcomes and the wider justice system through research down the line.

HMICFRS seeks to remedy the lack of data by recommending that forces start recording information about how consent is sought immediately, and that they also record how many suspects receive legal advice virtually or in person. We’d go further by saying forces should also record when consent is refused, and what happens next.

The inspectorate also calls to put the brakes on moves to normalise emergency measures: “We were impressed that so much valuable innovation was achieved in such extraordinary circumstances. However, there is a need for proper evaluation of what was done before it becomes ordinary practice.”

In the meantime, we’ve heard enough about the negative consequences of remote legal advice to advocate for a return to in-person legal advice for children and vulnerable adults immediately, and for all suspects as soon as possible.