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Children held unlawfully in police cells – an institutional and systematic problem

A recent report relating to inspections of police custody has found that too many children who were charged and refused bail remained in custody overnight.

Some of these children were kept in cells over the weekend, when they should have been moved to alternative accommodation provided through the local authority. I regularly represent young people who have been arrested at the police station and these findings come as no surprise.

Often custody officers will refuse to move young people, including those charged with lesser offences, to local authority accommodation as required by law. This means that young people are being kept in a cell unlawfully for long periods of time, causing harm to them as individuals and to their trust and respect for authority and the police.

Children and the law on custody

However the law is clear. Once a juvenile (a child or young person who is aged 17 or under) is charged with an offence, like adults, there is a resumption that they should be bailed (released from custody to attend court at a later date).

Where a custody officer refuses bail for a young person, section 38(6) of the Police and Criminal Evidence Act 1984 clearly sets out that they must be transferred to local authority accommodation until they are brought to court unless

(a) It is impracticable for him to do so; or
(b) Where the juvenile is at least 12 years old, no secure accommodation is available and keeping him in non-secure local authority accommodation would not be adequate to protect the public from serious harm from him.

Impracticable includes extreme weather, or exceptional circumstances rendering movement of the child impossible. It does not mean “difficult” or “inconvenient” and does not include lack of accommodation or staff (Home Office Circular 78/1992).

Protecting the public from serious harm means protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.

These are both extremely high thresholds that must be met in order to lawfully detain a juvenile in custody post-charge.

Section 21 of the Children Act 1989 requires every local authority accept the request for nonsecure accommodation from the police.

Additionally, Article 3 of United Nations Convention on the Rights of the Child 1989 (UNCRC) provides that the best interests of the child shall be a primary consideration in all actions concerning children.

It is difficult to see how the police are complying with this duty when young people are being detained in police cells in breach of the relevant legislation.

Despite this, the inspection found that in the year preceding 31 May 2017, 5,658 children were brought into custody and about 40% were detained overnight. Custody record analysis showed that children spent an average of 14 hours and six minutes in custody with just under half held overnight.

These statistics are wholly unacceptable and demonstrates that this is an institutional, systemic problem and not a case of isolated slip-ups or incidents of human error.

Sadly, this is not the first time the police have been criticised following inspections in relation to this exact issue. Her Majesty’s Inspectorate of the Constabulary report (The welfare of vulnerable people in custody, March 2015); the All Party Parliamentary Group for Children report (“It’s all about trust”: Building good relationships between children and the police, October 2014); the joint inspectorates report (Who’s Looking Out for the Children, December 2011) and the Howard League for Penal Reform’s report (The overnight detention of children in police cells, 2011) all found the police routinely ignored the law regarding detention of children and young persons in police stations.

Dealing with vulnerable people

Often young people who have been arrested and charged with offences are very vulnerable. Academic research suggests that children and young people coming into police custody are likely to have learning, speech, mental health, substance misuse and other health difficulties. The trauma and lasting impact of enduring extended periods of time in a police cell cannot be underestimated.

The Metropolitan Police and other forces around England have recently signed a Concordat, committing to adopt a list of principles and practices which include releasing children on bail wherever possible and when denied bail, transferring children whenever practicable. This is potentially promising, but given these principles have already been the law for almost 20 years and are routinely breached, a concordat may turn out to be toothless.

The report also found that there was not enough focus or opportunities to divert young people away from the criminal justice system. Although some schemes have been implemented across certain police forces, such as triage (where the young person meets with the youth offending service to support them away from re-offending but does not receive a criminal record), or community resolutions, these are not generally available for young people charged with more serious crimes involving weapons or violence.

Gaining a criminal conviction and re-offending

Once young people receive a criminal conviction it can be very difficult, practically and psychologically, to be successfully rehabilitated due to employment opportunities being narrowed and all the other consequences that arise out of the stigma associated with a criminal record. Unsurprisingly re-offending rates once a young person receives a conviction are high.

The findings of this report make the “deferred prosecution model” proposed in the Lammy Review this year all the more pertinent and necessary. This alternative to prosecution would see young people participating in restorative justice schemes and those who successfully complete this would not face criminal proceedings. Pilot schemes have shown an increase in victim satisfaction and a reduction in re-offending.

It is clear that under our current system, when a child is arrested and taken into police custody, there is often injustice in the way that they are treated or processed. The law as it stands is adequate to protect young people from spending the night in custody post-charge unless absolutely necessary, but the law is ignored. In this age of mass incarceration, maybe we should be turning our efforts towards preventing children entering the criminal justice system altogether. Where viable alternatives have been presented there really is no excuse not to.