Police Investigations in a pandemic

By Monica Stevenson
9 October 2020

The criminal justice system was showing signs of trouble before the arrival of the coronavirus. The pandemic has served however to throw up additional challenges for an already flagging system.

Since March, public and private bodies alike have been compelled to substitute long-standing practices with temporary, emergency measures. Police forces are no exception and have the additional task of enforcing government guidance and new offences under the Coronavirus Act 2020.

A major part of police work is of course the conduct of criminal investigations. It is worth considering the ways in which police investigations have, and will continue to be, affected by Covid-19. Issues relating to cases currently under investigation may not surface fully until trials starting as far off as 2022.

Criminal Investigations

The fairness, quality and professionalism of investigations are central to the right to a fair trial. Flawed investigations risk presenting juries with a misleading evidential picture, which, at the worst, could result in a miscarriage of justice.

Guidance issued by the Association of Chief Police Officers (ACPO) states that criminal investigations should be conducted with “integrity, common sense and sound judgement”. Further, the Criminal Procedure and Investigations Act 1996 mandates that investigators should: “…pursue all reasonable lines of inquiry, whether these point towards or away from the guilt of a suspect”.

If the overarching approach to investigations is clear, less straightforward perhaps is the application of such principles to individual cases. What qualifies as a “reasonable” line of enquiry may vary, depending on the facts of the case and the issues. A recent Court of Appeal decision - R v E [2018] EWCA 2426 - provides guidance for when police should inspect the mobile devices of complainants whilst also making it clear that the seizure of such phones is not necessary in every case.

Investigations & Covid-19

At the time of writing, restrictions arising from COVID-19 are impacting on police investigations in some of the following ways:

Delays in the conduct of police interviews.
Difficulties and/or delays in suspects and defendants being able to communicate with their legal teams.
Difficulties and/or delays in obtaining evidence - including but not limited to seizure of CCTV from commercial premises during lockdown.
Delays speaking to witnesses and taking statements.

Monica Stevenson

Monica Stevenson is a criminal barrister with experience defending in a wide range of first instance and appellate cases. She is ranked in the Legal 500 and previously lectured in public international law.

Legal 500

“Great at trial, particularly during cross-examination”

“She has a fine legal brain. First-class advocate and excellent attention to detail with case preparation. Very personable with clients. A pleasure to work with.”

Covid-19 Protocols

To manage the problems arising from Covid-19, the Crown Prosecution Service and courts have issued some protocols and guidance for investigators and lawyers.

One protocol of relevance to police investigations is the “Best Practice Guidance - Statements Obtained over the Telephone” which sets out the procedure for witness statements taken over the phone - a method which is set to increase for obvious reasons.

Earlier this year, the CPS introduced an “Interim Charging Protocol” which sets out how charging should be managed by police and prosecutors in the Covid climate. The guidance calls for “…careful consideration of what new offences are fed into the system and how those offences are progressed”. It also applies to the continuance of ongoing cases.

The safe conduct of police interviews was a thorny issue during lockdown, with defence legal representatives concerned about the approach adopted at different police stations. Following cross-agency discussions, a police interview protocol was produced which assists investigators and prosecutors in deciding whether suspects should be interviewed as part of a police investigation during the pandemic. The guidance is to be reviewed regularly and is limited to use during the current crisis.

Separate from the above, section 24 of the Coronavirus Act 2020 permits extensions of the time period for which DNA and fingerprints may now be retained.

Conclusion

History shows that criminal investigations can suffer any number of shortcomings - poor record-keeping, different forms of bias, improper handling of exhibits, failure to obtain relevant evidence - to name but a few.

Government plans to introduce 20,000 police officers by 2021 have the potential to impact the quality of investigations by introducing a high volume of inexperienced officers over a short time. The ACPO manual on “Core Investigative Doctrine” notes that “…an investigator’s ability to make decisions may be limited by the extent of their experience and the degree to which they are able to adapt it to any given situation”. As with most jobs, the judgement and decision-making demanded of investigators is learned and honed with experience and time.

It was Albert Einstein who once said that “condemnation without investigation is the height of ignorance”. Cases in their infancy now could end with trials that turn the adversarial spotlight on investigative choices made against the backdrop of a pandemic. Whilst juries will rightly sympathise with the pressures of policing at this time, the pandemic should not provide blanket immunity for poor quality or unfair investigations.

Free and independent legal advice

You will never be penalised for asking for legal advice. It is your legal right and it is free of charge.

Remember: the law is complex and it never hurts to get expert advice, even if you are sure you have done nothing wrong.

Ask for Michael Herford and he, or one of his specialist team will provide you with a Legal LifeLine when you need it most.