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Police detention. Time for a rethink?

07 Aug 2020

This is a guest blog from Derek Flint, retired police officer and former police custody lead for the Isle of Man.

Police custody suites are a regular haunt as a police officer, whatever rank you hold. As a PC, you will be in and out with detainees. Sergeants are more likely to be posted there in one of the most demanding jobs of the service – custody sergeant. Inspectors will be in at least daily, performing reviews and, above those ranks, custody suite responsibilities still abound. We are never far away from its gravitational pull!

I performed all these roles during my service, but had the added privilege of leading the transformation of custodial practices on the Isle of Man between 2012 and 2015. I developed a deep passion for the job, finally gaining a full understanding of the importance of getting it right, each and every time a new detainee came through the airlock doors. Without exception, whether violent or passive, intoxicated or sober, lucid or mentally ill, these people, by the very fact they had arrived at that threshold, were amongst the most vulnerable in our society. The responsibility of caring for them is truly overwhelming, and it led me to consider whether the officers and staff that worked alongside me were actually best placed to carry that burden.

Modern custody training, under the guidelines of Authorised Professional Practice and the National Custody Officers Learning Programme, is thorough and far reaching. It has evolved from a time where deaths in police custody were far too frequent, and the subsequent inquiries and inquests rarely made easy reading. Custody suites, as they have grown in size and scope, are staffed by good people, including health care professionals. Things have come a long way. But have they gone far enough?

Let’s first of all consider the purpose of police custody. The first hurdle is the arrest “necessity test” (PACE Code G, 2.9); do we really need to deprive this person of their liberty in order to pursue the ends of justice?

Policing the streets is a monumental, unrelenting task. Every minute of every day, officers are putting themselves in harm’s way, so we don’t have to. Their readiness to do violence on our behalf is why we can sleep peaceably in our beds. And even when not fighting with those minded to do harm to others, the exposure to everyone’s “worst day” has a compounding and deleterious effect. I know this first hand, as it was a major factor in developing depression towards the end of my service. Does the option for arrest, the subsequent 30 to 40 minute drive to some dispersed custody suite, the long wait to book in and then deal with a detainee, actually offer an oasis of respite from the painful field? Police officers aren’t daft; I’d wager that in 90 percent of cases, it would be relatively easy to craft an argument of necessity to bring someone into custody and give yourself a breather from the relentless pressure outside.

The point at which the initial interaction has been made with the individual is the one where the metaphorical blue touch paper of “police contact” has been lit. If some proximate harm should befall that individual and they die, the scope and scale of that liaison will be pored over in considerable detail. If there’s any inkling of something not being quite right, surely better to err on the side of caution and get them down to the custody suite, where the skipper can make the judgement call?

The law as it stands provides police officers with a veritable smorgasbord of options with what do with someone at the point of contact where an offence has been committed. The first point we might consider is more supervisory oversight of that decision process. Is the right place to be justifying “necessity” in front of the skipper after that 40 minute van ride and half an hour hanging round the yard waiting for your place in the queue? Whether it’s a call to a desk officer, or the patrol skipper, that endorsement of the necessity – and perhaps even the authorising of detention – could be done remotely. Whilst there will always be clearly obvious needs for arrest, such as violence leading to a clear and present need to protect others, that second set of eyes may well provide a reconsideration, and the application of a disposal that negates the need for incarceration.

For those where detention is necessary, are police sergeants and custody detention officers the right people to take it forward from that point? Let’s consider the grounds for authorising detention; to secure evidence – which is simply keeping them away from anything they might interfere with, or to take a variety of samples, or to obtain evidence by questioning. If that is actually all the cops really need to do during the detention, why are they actually involved with the rest? Are they truly best placed to do the “other stuff”, which I would argue is, at its core, about keeping people alive!

And this is where the model could really change practice. On arrival at custody, the whole process could be geared solely and simply towards safer detention and care. Let’s not put on any rose-coloured spectacles at this point; detainees can be nasty, violent and extremely devious and dangerous individuals. On the flipside, there will be those entering police detention who are the most vulnerable of people who really are close to the edge of the risk envelope, whose continued vulnerability may lead to an untimely and premature death without support to challenge and address their behaviour.

So, on arrival at custody – or whatever we might choose to call it in the future – the programme of support and intervention can begin in earnest. The risk assessment, already thorough and far reaching, can take on a new depth, and the new, embedded multi-skilled custody team can begin not only the short term job of getting the detainee fit for interview, but start to look at the long term vulnerabilities that exist in their lives. Close links with community leaders, diversion schemes, housing, mental health and social care are just a few of the key partners that can be engaged to make a difference. The primary focus is on care, not crime.

But have we forgotten about the fact we’ve locked this individual up because we suspect they’ve done something? Clearly that isn’t going to go away. For this necessary purpose, the police “apply” for access to the custody manager, perhaps to take samples, or to interview. After each interaction, the detainee is returned to the care structure. Once those processes are completed, and evidence has been secured or obtained by questioning, police need to decide what to do next. Whether leaving with or without charge, with or without conditions, or whether they are being refused bail, the process should become a safety-focussed, multi-dimensional and multi-agency decision. That isn’t a million miles away from what happens at the moment of course, but the fact that it isn’t primarily just a police signature would make a real difference. Each agency involved would be properly signing up to the part they are going to play in the ongoing safety of the detainee, and the people they may come into contact with from that point onwards.

The professionals that would staff these new units would be absolute specialists, trained in control and restraint, medical care and mental health. We dispose with the post of custody sergeant completely, releasing their numbers back to the streets. Detention reviews also take on a new independence with unit managers regularly and persistently considering the continued need for detention, hearing the representations from both the police and the detainee’s legal counsel. It offers the possibility for shortening the detention clock, and building a new equality of arms in a process which is currently exclusively managed by the investigating body.

Removal of the police from this function places a new focus on the priority of detention being care, rather than justice. This actually improves the chances of the latter being achieved, with an independent function making the call on fitness for interview or processing. And with the provision of custody no longer being in the control of the police, it removes another potential flashpoint for the likelihood of complaint, or in the worst of cases, a death after police contact.

Without a doubt, formation of a new function such as this would cost money. But in a country where human rights are important, should that be an issue? It may be that the police cannot be completely removed from the final model, being required perhaps for escorts to hospital, for example. This is only the beginning of a discussion as to whether our systems can be better at present, and another step above the largely excellent provision currently provided. If they can be, it is a conversation we need to have with ourselves.