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False imprisonment: do we over-use police custody?

Penelope Gibbs
13 Dec 2022

A couple of weeks ago I made my way to Catford, South London, to mark the 50th anniversary of the Confait case. This was a landmark legal case which paved the way to better rights for suspects in police custody. It started with a tragic murder. In April 1972 a trans woman, Maxwell Confait (known as Michelle), was found dead in a flat in Catford. The police arrested three boys – two children aged fourteen and fifteen and an eighteen year old with severe learning difficulties. The suspects had no lawyer and no adult to ensure their legal rights were respected. All were convicted on the basis of their “confessions” – extracted via a police custody interview. These wrongful convictions were one of the drivers to the Police and Criminal Evidence Act 1984 which guides police in arresting and detaining suspects.

Janet Daby MP marked the Confait case anniversary with an event in Catford Town Hall and is advocating for more scrutiny of use of police custody for children. It is as well not to be complacent – to ask not just whether people’s rights are being upheld while in custody, but also whether police are detaining the right people.

recent report from the Independent Advisory Panel on Deaths in Police Custody highlights the tragic consequences for some individuals. In 2021/22 11 people died in or immediately following police custody, but 56 people also took their own lives after they were released from custody. The majority of these had mental health or addiction issues.

The detention of vulnerable people in police custody, whether children or adults, will always present challenges. A busy custody officer is tasked with spotting mental ill health or neurodivergence in every deeply stressed suspect. It’s a difficult call. Custody officers are supposed to refer all who appear vulnerable to liaison and diversion or health services for further assessment and to get an appropriate adult to provide support. But analysis by the National Appropriate Adult Network indicates that many vulnerable adults were not assessed as such. 6% of adults in custody get an appropriate adult but NICE estimates 40% have a mental health condition.

Even if a suspect is assessed as mentally ill, most are still imprisoned in police custody for many hours. Severely mentally ill suspects can and should be transferred from police custody into the NHS. This system has improved. Fewer extremely mental ill people are detained in police custody, and they are transferred more quickly into hospital, but the threshold for Section 136 – hospital transfer – is very high. So most people who are arrested by the police and are mentally ill and/or neuro-divergent stay in police cells.  A small number take their own life as a result of the experience, many more self-harm, and even more are traumatised.

The Independent Advisory Panel makes a series of recommendations to prevent future deaths. One of these is the completion of a risk assessment of all detainees before they leave custody. I can understand the thought process, but am not convinced resources are available to do this nor that this is the right route. If vulnerable people are being released from custody, why were they were detained in the first place? Police have an alternative to the policy custody interview – the voluntary interview. Most suspects given the choice between being imprisoned in custody or making an appointment to be interviewed in police offices, will choose the latter. There is little data on voluntary interviews, but I doubt they are nearly as traumatising as being detained and interviewed in police custody.

The most effective way of preventing deaths in or after police custody would be to limit its use, particularly for vulnerable people and children. In the most recent year more than 546,170 people were detained in police custody (some forces have not submitted data), of which 35% were accused of the least serious type of crime (non-notifiable offences such as not having the right train ticket or using a mobile phone while driving). 6631 children were detained in police custody, 19% for the least serious type of crime.

We can never eliminate the risk of someone harming themselves. But we could prevent another miscarriage of justice or another suicide as a result of police custody much more easily if fewer adults and children were detained. If existing resources were devoted to fewer detainees, staff/suspect staff ratios and the facilities could be improved. Sometimes less is more.

NB The highly rated Transform Justice podcast discussed children in police custody in this episode. There are 12 podcast episodes – all discussion of current justice issues.