Today marks thirty years since I started work at Edward Fail, Bradshaw & Waterson Solicitors as a trainee solicitor. My training principal was John Lafferty, who ran the firm for many years before becoming a Crown Court Judge at...
Young people require careful and considered representation at the police station and PACE Codes provide them specific protection whilst in police custody and being questioned by the police. COVID-19 has highlighted the particular need to support young people during the investigation process, and exposed gaps in the system that need urgent intervention.
The English and Welsh Legal System has the joint youngest age at which a child can be prosecuted in Europe along with Switzerland and Northern Ireland at 10 years old (Scotland’s age of criminal responsibility is 8 although a child cannot be prosecuted unless they are 12). The vast majority of other countries are between 14-16 years old.
In terms of education and development, this means young people in year five of primary school can be interviewed under caution by the police for involvement in criminal offences.
Section 42 of the Criminal Justice and Courts Act 2015 stipulates for any reference to ‘juvenile’ within the PACE Codes of Practice apply for all young people aged under 18.
Police interviews take place via one of two mechanisms, an arrest and interview (the most common) or voluntary attendance (known formally as a ‘Caution + 3’).
Irrelevant of age, Custody Sergeants have overall responsibility for the care and well-being of all detained people at the police station. Custody Sergeants have a duty to review the necessity of detention.
The police are required to immediately inform the young person’s parent, guardian or carer that they have been arrested, where they are detained and why they have been arrested (Code C 3.13). Children are not allowed to be held ‘incommunicado’.
Young people should not be held in a standard adult cell and should be held in a detention room. Young people cannot be placed in a cell with another person detained by the police, and where detention is unavoidable, alternatives to a cell should be considered (Code C 8.8). It should be noted on the custody record the decision to detain a young person in a cell, and should be the final option once all others have been explored.
Where a Custody Sergeant decides the continued detention of a young person is necessary, where appropriate, the legal representative should consider asking the PACE Inspector to review the ongoing detention of the young person. If a young person has been charged with an offence, and bail has been refused they should not be held at a police station and should be placed in local authority accommodation (Section 38(6) Police and Criminal Evidence Act 1984).
Young people are required to be supported by an appropriate adult, this can be a parent, guardian or carer; a social worker; or a professional appropriate adult - ordinarily from The Appropriate Adult Service ‘TAAS’ or other recognised group (Code C 1.7 (a)). The role of an appropriate adult is to safeguard the rights, entitlements and welfare of young people.
Appropriate adults are required to take an active role, and not remain passive. This includes:
- Support, advise and assist them when, in accordance with this Code or any other Code of Practice, they are given or asked to provide information or participate in any procedure;
- Observe whether the police are acting properly and fairly to respect their rights and entitlements, and inform an officer of the rank of inspector or above if they consider that they are not;
- Assist them to communicate with the police whilst respecting their right to say nothing unless they want to as set out in the terms of the caution;
- Help them to understand their rights and ensure that those rights are protected and respected
(Code C 1.7A)
Where possible, young people should be interviewed by means of voluntary attendance. This means that an interview takes place at an agreed time by the police, young person and their legal representative. It ensures that there is minimal delay and that the young person never has to go in a cell as they are not subject to detention. Further, young people do not have to wait in the police station for a decision to be made once the interview is concluded.
A voluntary attendance can also ensure that the young person does not lose any education by missing school/college, and can be organised at the weekend/evening to ensure as little disruption as possible to the life of the young person.
Disclosure is commonly emailed in advance, although there is no duty/legal right for this to happen, to ensure that the time at the police station is kept to a minimum and that the interview is productive.
It is important to keep thorough notes of the interview and attendance. This is to ensure that poor practice is recorded, but also as it is common for interview transcripts to not be prepared in advance of first appearances and is an important tool for case preparation.
A chronic underfunding in the justice system has led to substantial delays, and poor infrastructure. This often means a detention room, or local authority care is not available for young people. Representations should be made for creative solutions, such as bailing a young person to return at a later date for the interview to take place rather than being detained overnight to be interviewed in the morning.
Re-offending rates for people with a youth criminal record is particularly high, and it is important that where possible other alternatives to formal criminalisation are considered, including triage and out of court disposals. It is important to ensure that the guidance from the ACPO Youth Gravity Matrix are strictly adhered to.
It is important for young people to seek legal advice early, rather than on the day of the interview. This allows for a young person’s particular vulnerabilities to be taken into account, such as if English is a second language or they have Social, Emotional or Mental Health needs (SEMH). It may be that the young person lacks mental capacity, or that they are the victim of trafficking, and these issues often need to be considered well in advance of the police station as it may be inappropriate for the police to subject the young person to a formal interview procedure.
Whilst a parent, guardian or carer may act as an appropriate adult, it is important for a neutral party to also act in the best interests of the young person. It is often thought that having a legal representative present amounts to a display of guilt, or will delay the procedure. This is not the case and a common misconception that is advantageous to the police and to the detriment of the young person. For example: - despite the police often asking for a passcode to an electronic device in interview, you are not under a duty to provide a passcode, unless you receive a formal notice pursuant to s. 49 of RIPA 2000. This is not something a parent, guardian or carer may readily be aware of. Young people may often struggle to be open with their parent, guardian or carer in a high pressure environment which may be severely detrimental to the young person and push them into the formal justice system when the allegation may have been otherwise concluded at the police station.
It is vital that young people take advantage of their right to free and independent legal advice when detained, or when they become aware they will be interviewed in the future. This is to ensure that they are appropriately advised, have an experienced person to consider the conduct of the police at the police station, and that they achieve the best outcome possible.
For further advice, please get in touch by calling 020 7790 4032 (for out of hours, please call 07841 454 170) or by emailing firstname.lastname@example.org
Liam Lane is a Paralegal at Edward Fail, Bradshaw & Waterson