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March 26, 2020

Reducing detention in police custody – time for radical solutions

Transform Justice has been working for the last year on the over-use of police custody for adults. The subject was not on the government, or the police’s policy agenda, but we felt that reform was needed. Analysis showed that remand by the police increased chances of remand in prison. And despite police detention depriving someone of their liberty, sometimes for a day or more, we felt it was subject to surprisingly little scrutiny.

Campaigners for the reduction in use of police custody for children have made great strides, highlighting the need to reduce the number of children arrested, detained and remanded by the police. Pressure has been put on local authorities to comply with their legal liabilities in accommodating children remanded by the police. But no-one has been talking about custody for adults in the same terms.

The coronavirus pandemic means that this backburner issue – who is detained in police custody and why – has suddenly come to the fore. No legal representative wants to go into a custody suite at the moment (though many are). Nor do volunteer appropriate adults, or probably many police and police staff. Twitter is alive with complaints about the lack of protective gear for those in police custody and about cleaning deficiencies.

The obvious immediate solution is to arrest and detain for only the most serious crimes. Thus reducing the numbers in custody and facilitating social distancing. It would also be good to get the gear and the deep cleaning, but those are probably not currently in the gift of custody sergeants.

I’ve heard mixed reports as to how forces have adapted. In some areas, numbers detained in custody pre and post charge are apparently much lower than normal. In others, only c 10% down. A lawyer tweeted this week that she had been asked to attend the interview of someone who had shoplifted. This is a bit surprising. Apparently crime is down and, anyway, many crimes can be dealt with by an out of court disposal meted out “on the street”, or suspects can be asked to visit custody at a later date for a voluntary interview. @Crimegirl has suggested dispensing with police station interviews at the moment and charging without interview where necessary. Radical times call for radical solutions, but there is no sign that her idea has been taken up yet…

Our research on police custody suggests there’s potential to reduce its use in three main ways

  • Detaining fewer people pre-charge
  • Reducing the number of hours those detained pre-charge are in custody
  • Reducing the numbers remanded by the police post charge.

The process starts with arrest. Those arrested are normally brought into the custody suite to be detained so that the suspect can be interviewed. This is also an opportunity to search the suspect’s mobile phone, take fingerprints, check their record and, possibly, search their home. If the suspect wants legal advice, the lawyer/legal representative usually arrives at the custody suite a little before the police are ready to interview – in time for a short consultation with their client. All under 18 year olds and vulnerable adults should also have an appropriate adult at interview – either a family member or someone assigned by the local appropriate adult service.

Can these processes be carried out without detaining the suspect in custody? The police already have powers to seize a person’s phone and search their house without detaining them. The custody sergeant is empowered to reject a request to detain, since the criteria for arrest and detention are different. But they don’t often do so. Our research suggests they refuse less than 1% of requests. I’m sure most requests are valid, but the low numbers refused suggest that, when things are busy, approval may become little more than a tick box exercise.

And could processes in custody be speeded up in this time of crisis? We’ve been told that delays are caused by changes in police shifts and in lawyers arriving. I’m not sure how to resolve the shift issue, but all legal representatives think communications could be improved and more accurate predictions made of when officers will be ready to interview.

Other suggestions, which could be implemented in this time of crisis, are

  1. Avoid detaining for summary offences unless there appears to be real threat of re-victimisation, for instance in domestic abuse cases. (30% of police remands are for summary offences).
  2. Communicate to frontline police officers and custody sergeants what alternatives to arrest and detention are available and encourage officers to use them where possible
  3. Don’t arrest for failure to appear in court (not turning up) unless it was for a serious offence.
  4. If at all possible, bail/RUI rather than remanding in police custody pending a court appearance. Already police remand a bigger percentage of defendants than courts. So it makes sense to try to align the decision-making a little more closely.
  5. Help appropriate adults to get to the custody suite (provide a taxi?) and keep them in custody for as short a time as possible.
  6. Still encourage as many suspects as possible to access legal advice and, if no legal representative is (understandably) free to come to the custody suite, facilitate the suspect getting legal advice on the phone.

I hope these suggestions are taken as intended – to help all who work in police custody and all suspects to keep as safe as possible, through reducing demand on custody.

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