Is detaining someone in police custody worth it? The police in England and Wales detained approximately 800,000 people in police custody in 2019. It’s seen as a somewhat necessary evil; an unpleasant experience for the person detained, but needed to allow the police to gather reliable evidence (including via interview) and progress a case swiftly.
But a new research article from Miranda Bevan on the experiences of children and young people in custody asks whether detention in custody is doing lots of harm and little good.
The primary purpose of police custody is the production of reliable evidence. Miranda Bevan found that this objective was being severely undermined by the fact children have such a terrible experience when they are in there. The stress and ‘pain’ of custody for children meant their main priority was to end the experience as quickly as possible. The results are a disaster for fair trial rights: to avoid delaying release further, children were waiving legal advice or were reluctant to say when they didn’t understand what was happening at interview. Some children chose to be silent throughout their interview in order to get out quicker.
This means the child may be interviewed by officers without a lawyer present, when they are tired, stressed, and so desperate to be released that they’re willing to say whatever will end the process soonest. Evidence obtained under these circumstances can hardly be called reliable.
The research also surfaces some troubling wider implications of custody use on children’s perceptions of the legitimacy of the police.
Some police see police custody as helping set kids on the straight and narrow – that a night in a police cell can be the short, sharp shock needed to stop offending behaviour. But Miranda Bevan found no evidence to support the idea that an unpleasant experience in custody might ‘set them on the right path’; quite the contrary. The overwhelming reaction of children to detention was one of resentment towards the police. Children described being treated ‘like an animal’ or ‘as if you’re not a real human’. As one young person said: “by putting you in a room, making you sit by yourself, it’s not going to make you accept, reflect on the thing you’ve done. It’s going to make you think like, ‘You lot treat me like shit. I might as well do worse things in there’”. This bitterness was amplified if the child went on to be released by the court, as usually happens (approximately 4 out of 5 children detained post-charge by the police go on to be released by the court).
More worrying still was that several teenagers said that, as a result of their custody experiences, they wouldn’t trust the police or go to them for help in future: “it’s the sort of thing where if I needed them I wouldn’t even bother… I just wouldn’t wanna call ‘em, just because I don’t think they’re that nice people. Since I was in there for so long and they were useless when I was in there, I just don’t really think they’re that trustworthy.”
So not only does police custody yield questionable evidence, but it is also damaging police legitimacy in the eyes of children and young people. Improvements could be made to custody legislation and policy to improve the experience of detention, so children (and adults) aren’t quite so inclined to sabotage their future prospects in order to get out of there. But Miranda Bevan argues that there will always be a huge power imbalance in custody, with competing interests, and this is unlikely to change. The answer is to use police custody less.
HMICFRS, who conduct inspections of police custody suites, are consulting on a new set of expectations for police custody. These new expectations are an opportunity to reinforce the importance of only detaining where necessary. For example, by applying closer scrutiny to the appropriateness of the decisions to detain and keep detained. They could also compare use of alternatives to custody, such as voluntary attendance, across forces to encourage ways of gathering evidence that don’t require detention.
We also advocate for greater use of out of court disposals as an alternative to custody and charge. Out of court disposals bring trust issues of their own; they all require some acceptance of responsibility, and there is evidence that this is a barrier for racially minoritised communities who are mistrustful of the police and justice system in general. A new report suggests ways that OOCD policies could be changed to remove some key barriers to use.
Evidence is stacking up that police custody can do more harm than good, particularly for children. A fair and effective criminal justice system would use police custody less.