NAAN is engaged with a range of policy issues affecting children and young people who experience police custody or voluntary interviews.
NAAN is a member of the Alliance for Youth Justice. We work closely with organisations and individuals involved with children's rights and the criminal justice system. These have included: the Children's Commissioner, Child Rights Alliance for England, HMICFRS, Howard League for Penal Reform, Just for Kids Law, Dr Miranda Bevan, Dr Vicky Kemp, Youth Justice Board.
We seek to use our position, including our seat on the Home Office's PACE Strategy Board, to highlight the specific needs of children and young people and to safeguard their interests in policy development.
Powerlessness, indignity, isolation, frustration, confusion, humiliation and fear. These are the feelings children often describe about time spent in police custody, though they may conceal them from police with bravado.
The average human brain takes 25 years to develop. Yet at just ten, a child is criminally responsible and must make key decisions, such as whether or not to have legal advice.
Children in custody are disadvantaged by more than cognitive development. They are much more likely than other children to have poor mental health, a learning disability (up to 32% versus 4%), communication disorder (up to 90% versus 7%), be autistic (15% versus 1%), or have suffered a head injury with loss of consciousness for more than 20 minutes (18% versus 5%). Race, gender, abuse, neglect, trauma, exclusion, and ‘looked after’ status can also compound disadvantage.
Much of this is invisible unless actively looked for. Children detained regularly may be seen to ‘know the ropes’ causing their distress and disadvantage to go unrecognised and unaddressed.
Minimising children’s detention is central to the United Nations Convention on the Rights of the Child, National Police Chiefs Council strategies on custody and children, and College of Policing Authorised Professional Practice. Yet average detention times have risen. Children are sometimes unnecessarily detained in the day and overnight – a risk for them and police. The extent to which police authorisations, reviews of detention and pre and post charge bail decisions are focused on children’s interests is variable. Councils fail in their legal duty to provide accommodation and sometimes police do not request it, or request secure accommodation when the legal threshold is not met (see our dedicated page on transfers to local authority accommodation).
Remote (virtual) legal representation
In response to Covid-19, a joint interim interview protocol was agreed by the CPS, NPCC, Law Society, CLSA, and LCCSA in March 2020. This supported the delivery of remote legal advice and interview support by legal representatives as temporary measure in extremis to cope with an unprecedented public health crisis. Since then NAAN has raised repeated concerns about the negative impact on children in police custody and interviews, resulting in several changes to the protocol over the months. This included a joint report with Transform Justice and Fair Trials International, based on evidence from appropriate adults.
Sadly a decision to require legal representation to be in person in all cases involving children (in version 3 of the protocol) was later reversed, allowing the continued use of representation by video and phone in some circumstances. Despite the relaxation of other Covid-19 regulations, this protocol remains in place. In our view, the arrangements are in breach of the Police and Criminal Evidence Act 1984 Codes of Practice and should end.
While addressing concerns about using custody for children, voluntary interviews bring their own risks. In addition to most AA schemes, most liaison and diversion services (which expertly identify vulnerability in custody) are not configured to serve them. With no independent custody officer, investigating officers are responsible for rigorously applying safeguards against themselves. Children (and parental AAs) may see such interviews as informal chats, not deserving of legal advice. See our dedicated policy page on voluntary interviews.
Resources and culture
There is a significant, perhaps widening, gap between law and practice. Some PACE requirements are seen as impractical. Breaches are commonplace and often considered a minor matter, especially where cases will not go to court.
Resources are critical. Both police and councils are doing difficult jobs in challenging circumstances. However, so is culture. Notwithstanding the police’s rigorous focus on physical safety, and initiatives on modern slavery, trafficking, county lines, and using custody constructively, children are in the first stage of an adversarial justice system. They are in crisis and at risk. They are not ‘safe’.
Much more must be done by all of us: NAAN, government, police, lawyers, councils, providers, and AAs. We must make sure our ‘children first’ laws and policies apply in practice.
Appropriate adults: familial and trained
The Police and Criminal Evidence Act (PACE) requires police to involve AAs when detaining, or voluntarily interviewing, any child or ‘vulnerable person’ (defined in Code C 1.13(d)). Without one, proceeding with many processes would breach PACE, risking an unfair investigation and inadmissible evidence.
AAs safeguard a person’s interests, ensuring fair treatment, effective participation, understanding of rights, and the ability to exercise them. They support, advise and assist; observe and intervene; and assist communication. Importantly, they cannot give legal advice but can make sure a lawyer attends, even if a child has declined legal advice. The AA role covers the entire custody episode and can be complex and challenging.
For example, the age of criminal responsibilty is set at only 10. While children are asked by police whether they want legal advice, they are allowed to waive this right. The take up rate for children is low. This is often due to children not understanding the risks and benefits, making short-term decisions, having misconceptions about lawyers' independence or fees, or a lack of trust. Under PACE Code C 6.5A, appropriate adults have the right to ensure a solicitor attends the police station. While the child cannot be forced to then meet the solicitor, they nearly always do. However, the AA must first be aware of this right, and the value of legal advice.
PACE prioritises parents as AAs (unless involved in the case), and many children will value someone familiar and trusted who understands them. Yet, in emotional circumstances, parents must interpret PACE, understand their role, and challenge police appropriately, while relying on them for information. Well trained AAs (volunteers or paid) have the knowledge and experience to challenge without obstructing an investigation and, in theory, could be subject to inspection or regulation. But they are usually unknown to the child and must be skilled in building rapport. While we've developed resources for familial AAs, including a video, the ideal may be for schemes and parents to work together.
Appropriate adults: funding for 17 year olds
NAAN was proud to work alongside other voluntary sector organisations to ensure 17 year olds were recognised as children in police custody – and secure their right to an appropriate adult. By order of the Home Secretary Theresa May, PACE Code C was amended to this effect in 2013. The status of 17 year olds was improved in legislation with the passing of the Criminal Justice and Courts Act 2015 and is due to be fully rectified by the Policing and Crime Bill.
17 year olds make up a very large proportion of all arrested children. Therefore, this very welcome change resulted in a significant increase in demand on children’s appropriate adult schemes, which are a statutory duty of Youth Offending Teams. Under the new burdens doctrine, the Home Office was expected to fund this increased burden on local authorities. However, no transfer of funds has yet taken place. NAAN repeatedly raised the issue with the Home Office and published a paper estimating the cost to local authorities to be around £1.5 million per year.
Appropriate adults: access to support
The AA safeguard is essential, but too often it is not used effectively. While many children receive rapid, extensive and excellent support, some only get an AA immediately before an interview. They spend hours without support, significantly increasing risks to justice.
PACE requires police to tell the AA and secure their attendance as soon as is practicable, and children have a right to consult privately with their AA at any time. However, research has found police delaying referrals and limiting access to children.
Legislation and standards make it clear council AA provision must be available at any time. Nevertheless, availability is a common frustration. Despite clear national standards, some schemes are still not able to operate 24/7, respond quickly enough, support the entire custody process, or support voluntary interviews. Councils must design and resource AA schemes that enable PACE compliance. There is no inspection or regulatory regime for AA provision and greater accountabilty is required.
- Article: Children and appropriate adults, Learning the Lessons Issue 37 (Young People), Independent Office for Police Conduct.
- Video: Appropriate adults for 17 year old children, Sky News