COVID-19 EXPERT LEGAL INSIGHTS

Managing health and risk whilst in police custody - an update

This article was first published by The Law Society Gazette on 24 March 2020

25 March 2020

On 19 March 2020, Crimeline published the National Police Chiefs’ Council’s strategic overview and high-level guidance for forces concerning custody function during the COVID 19 pandemic (Operation Talla).
 

The document is essential reading and should be considered in conjunction with the most relevant provisions of the PACE Codes of Practice.

The NPCC’s recognises the diverse nature of custody estates and notes that Forces should develop local policies.  However, the document should provide the framework to ensure a consistency of standards.   

  • The health and wellbeing of the public and detainees remains the primary consideration for police officers and staff. This should be managed according to legislation and Authorised Professional Practice (APP) (3.5).

Pre-Arrival Considerations

  • The provision and use of police custody remain a legitimate and available option as part of the criminal justice process and keeping people safe including those who have been diagnosed or are suspected of having contracted the virus (2.2).
     
  • There will always be occasions where arrest and detention will be necessary particularly when considering factors such as threat, harm and risk (3.2).
     
  • Notwithstanding the above, consideration should be given to minimising human traffic in the custody environment in order to reduce, as far as possible, the risk of COVID 19 transmission (2.3).
     
  • During the current COVID 19 pandemic, additional consideration regarding out-of-custody options, such as voluntary attendance, are encouraged (3.3).
     
  • This approach particularly applies to those who are diagnosed or suspected of having contracted COVID 19 and where an alternative to detention in custody may reduce unnecessary exposure to the virus (3.4).
     
  • Where possible, if a detainee is identified or suspected of having COVID 19, prior to arrival at custody arresting officers should inform and discuss options with the custody officer (3.7).
     
  • Additional consideration should also be given concerning the use of bail as the pandemic is predicted to last for several months (3.8).
     
  • Forces should consider including health screening questions concerning COVID 19 as part of their risk assessment processes for detainees (3.9).
     
  • Forces are encouraged to implement local screening practices which may include health questions, before visitors are admitted (4.3).
     
  • Where access is essential for the effective running of the custody centre, the criminal justice process or the welfare of those in custody, this should be facilitated, but with consideration to minimising the risk of transmission of the virus either into the custody facility or to the visitor themselves (4.4).
     
  • In addition, those who are suspected of, or identified as having contracted COVID 19 should be excluded wherever possible (4.6).
     
  • Enabling detainees to exercise their right to legal advice is essential. Custody staff should work in conjunction with legal representatives to ensure this process is effectively managed. Consideration should be given to telephone advice in appropriate circumstances (4.13).

Considerations in Custody

  • Where the presence in custody of a detainee suspected or identified as having contracted COVID 19 is necessary, they should be isolated from others where practicable. Any police officers or staff required to interact with such detainees should be provided with the appropriate Personal Protective Equipment (PPE). Proportionate decontamination of areas where the detainee has been present or items/areas they have been in contact with should be implemented (3.10).
     
  • Consideration should be given to informing those who have come into contact with a detainee suspected of having been infected with the virus. This includes staff members, visitors and other detainees. They should be directed towards national advice produced by PHE (3.13).
     
  • Additionally, appropriate hygiene facilities such as hand washing with soap / sanitiser should be made available to all detainees. Their regular use should be encouraged, particularly before and after significant events such as legal visits and interviews (3.14).
     
  • Subject to appropriate risk assessment, consideration should be given to providing face masks to detainees who are symptomatic or suspected of having contracted COVID 19, particularly when they are required to interact with staff or visitors (3.15).
     
  • Appropriate hygiene facilities, such as soap / sanitiser should be made available to all visitors including access to appropriate PPE where applicable (4.7).

The very nature of this pandemic requires a dynamic and adaptable response to ensure the continued running of the criminal justice system. But, those who are attending should not put themselves (or others) at risk and should feel confident in utilising the PACE provisions and the NPCC guidance to ensure that attendances are conducted as safely as is possible. 

This article was first published by The Law Society Gazette on 24 March 2020.

Further information

For further information on the issues raised in this blog post, please contact a member of our criminal litigation team.

 

About the Author

Matthew is a senior associate in the Criminal Litigation department. His experience encompasses cases involving general and white collar crime. Matthew has significant experience of advising clients during interviews under caution both following an arrest and during a voluntary attendance.  Matthew’s experience includes advising high profile individuals and advising in matters which attract significant media interest. His experience enables him to provide his clients with early advice which they can rely upon throughout the life of their case.  His approach to cases means he is able to quickly grasp the details of the prosecution case and to advise accordingly.

 

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