Solicitors have been given permission to take mobile phones and laptop computers into police custody areas, under an agreement reached between the Law Society and Association of Chief Police Officers.

New guidance adopted by all forces in England and Wales provides that: ‘Unless there is good reason to prevent a solicitor from retaining their mobile telephone and other electronic communication or recording devices such as laptop computers, the presumption should be to allow the solicitor to retain and use these devices.’

However, a custody officer can determine on a case-by-case basis whether such devices should be surrendered on entering the custody area or before any private consultation with a detainee.

Where the custody officer allows the solicitor to retain any such device, the solicitor must agree not to allow any detainee to have access to it, or to use any device to communicate with anyone on behalf of any detainee.

The guidance was developed because police forces had adopted differing policies on allowing solicitors to retain such items when seeing clients in custody.

Code C of the Police and Criminal Evidence Act 1984 sets out limitations on the right of detainees to communicate with others and for others to communicate with detainees; but makes no mention of the use of laptops and hand-held devices for instant communication and making records by third parties, such as solicitors, when they are in the custody area.

The guidance accepts that such devices are widely used and accepted as an essential aid for solicitors, enabling them to record a client’s instructions and keep in contact with the Defence Solicitor Call Centre or their colleagues.

But it says there have been ‘isolated cases’ where detainees have gained access to communication devices brought in by solicitors.

Section 5 of PACE Code C provides detainees’ right not to be held incommunicado and lays down the rules under which they can communicate and have contact with others, with the permission of the custody officer.

But, as the guidance states, a solicitor has no right or authority to enable or assist a detainee to contact anyone by telephone, email or other electronic format or in writing, without authorisation from the custody officer.

A solicitor who acts in breach of the guidance risks being investigated for attempting to pervert the course of justice.

Chair of the Society’s criminal law committee Richard Atkinson said: ‘The Law Society is aware that, from time to time, the ability of solicitors’ to take mobile phones and laptops into police custody areas has been a cause of difficulty in some police stations, due to police concerns about unauthorised communications by detainees.

‘Hopefully this will reduce confrontations with custody staff and will give support to solicitors wishing to embrace modern technology in their everyday working practices.’

Read the full guidance.