In the pandemic, legal representatives have been concerned about going into police custody due to the infection risk. But they’ve either gone in or given advice from home, usually by phone. The Crown Prosecution Service has suggested that criminal cases should be rigorously assessed against the public benefit test to prevent so many cases being charged. Many were expecting a sea-change in the use of custody but, having observed courts recently, I’m not convinced much has changed.
I saw a young man who had been arrested and detained by the police for possession of a small amount of cannabis and several who had been arrested for the sole crime of being in the wrong area – breach of a criminal behaviour order. A lawyer recently wrote on facebook of a young man being arrested and detained for criminal damage – for putting a frozen chicken next to a cooked one. This prompted an argument between the young man and his mother, who called the police. The man was detained for 14 hours, then released on pre charge bail.
Transform Justice has just published a report on the over-use of police custody. We started with an open mind, but were aware that many of those detained post charge were released by the court and wondered why the court and police were making such different decisions. Our research and conversations do suggest that custody is the default option in circumstances where it probably shouldn’t be.
Problems start when a suspect is brought to the custody suite by the arresting officer. The custody officer has to decide whether the suspect should be detained in the cells. The PACE guidance is a little vague but gives lots of discretion to the custody officer to refuse to detain a suspect. But they refuse on less than 1% of occasions. That is so few that researchers have referred to ‘automatic detention’. Most suspects have no idea that they themselves could challenge the decision to detain.
Once someone is detained (usually so the police can investigate), suspects are held in pretty grim conditions. Police cells are clean but bare, often windowless with no clock. Novelist and grandmother, Jane Rogers was held in custody for her part in an Extinction Rebellion protest and described the experience:
‘Why am I really here? For a person who is banged up, freezing cold, with a fluorescent light glaring down on her and a thin blue plastic mat to lie on, this is a difficult question. Why, really? Because I don’t like it. I’m frightened of many things. I’m most frightened of the waves of claustrophobia that I’ve suffered in confined spaces ever since being trapped in a bomb scare on the Central Line, 40 years ago. I know it’s there at the edge of my consciousness, that panic, and I’m rigid with the effort of blocking it. The panic begins as a rushing motion in my peripheral vision and I mustn’t let it in.’
The experience of being in a police cell is stressful for most people – making the most confident person feel vulnerable. Most of a suspects’ time in custody is spent in the cell alone, not in the interview room or with their lawyer. Total time in police custody has increased by four hours in the last ten years. Before being charged or released, people are waiting in custody on average 14 hours – a long time for someone to be in effect imprisoned without being charged with a crime. Some of those charged are detained still further (the police can remand them until their court hearing if they feel they are likely to commit more offences or not turn up to court) and end up spending up to 60 hours in police custody.
Those who’ve been remanded by the police are quite unlikely to be remanded (imprisoned pending trial) by the court even though the criteria used by police and court are almost exactly the same. Even those accused of the most serious – indictable only – offences are more likely to be remanded by police than the court.
One of the reasons why there is so little challenge of the use of police custody is that it is a closed place – like a prison. The only outsiders who get in are suspects, lawyers, appropriate adults, independent custody visitors. All the rest of the staff are employed by the state. They control and have power over the custody suite. Little data is published about what happens in custody. Lawyers try to challenge decisions, but their discussions are not recorded or witnessed by any outsiders. So the odds are stacked against their succeeding in persuading the police to release their client. And after the event incredibly few people ask – was police detention justified? The judge and the lawyer in the court never comment on the legitimacy of police detention. Occasionally someone who can afford the legal fees (there is no legal aid in these cases) sues the police for wrongful imprisonment. These cases are nearly always settled out of court.
It would be good if more of a spotlight shone on the use of police custody but, at the moment, there is no-one who is tasked with doing that job. Criminal lawyers and representatives will (with difficulty) fight for their own client while they are there but have no power to challenge systemic issues. It is not the role of appropriate adults or independent custody visitors to challenge why a suspect has been detained. We are left with the Inspectorates whose focus is not on the rights to liberty of those detained. We need scrutiny of police custody not just by the occasional TV documentary crew but by the public themselves.