Vulnerability in Police Custody

Police decision-making and the appropriate adult safeguard

Roxanna Dehaghani

• Publisher: Routledge
• Year: 2019
• ISBN:
  9781351602600
• Edition: 1
• Topic: Derecho
• Subtopic: Teoría y práctica del derecho

This book provides a nuanced and timely contribution to the question of vulnerability in police custody. It addresses the implementation of the appropriate adult safeguard in respect of adult suspects and explores police decision-making in this context. Drawing on empirical research carried out in England, the work takes a socio-legal approach to examine how and why police custody officers implement or not the appropriate adult safeguard. The book's core arguments are addressed within three parts. Part I examines how vulnerability is constructed philosophically and practically, firstly within the broader literature, thereafter at common law and in statute, and finally by police custody officers. Part 2 discusses how vulnerability is identified and how decisions are made in response to vulnerability. Part 3 critically assesses the theoretical understandings of police decision-making and criminal justice. Here it is argued that current theories on police decision-making hold explanatory power yet have significant shortcomings in relation to vulnerability and the appropriate adult safeguard. The book thus presents new theoretical insights and, on the basis of these insights, asserts that the current regime of regulation must be reconsidered, while police compliance may only be ensured if vulnerability is radically reconceptualised.

1 The (vulnerable) suspect in the criminal process

Introduction

When in custody or under criminal investigation, those suspected of committing a criminal offence may feel defenceless, isolated, and apprehensive. The English and Welsh criminal justice system is recognised as being, as with most Anglo-American or common law jurisdictions, adversarial.¹ Within this system, the police are tasked with detecting and investigating crime, and apprehending perpetrators. As part of this process, the police are permitted to detain a suspected perpetrator in police custody for the purposes of questioning and evidence-gathering. Police custody is a pivotal point within the criminal process: it is the gateway to the criminal justice process (Skinns 2011; Her Majesty’s Inspectorate of Constabulary (HMIC) 2015). It is also where the case may be discontinued or pursued, where the individual is isolated from family and friends, where the police have utmost control over the individual, and where the ‘power of the state [is] most evident’ (McConville and Hodgson 1993: 5).

Of course, not every suspect who is questioned is officially detained; there are those who will undergo interview whilst attending ‘voluntarily’. Those attending the police station ‘voluntarily’ do so in order to ‘help the police with their inquiries’ and are entitled to leave, unless placed under arrest. However, because refusal can result in arrest (Police and Criminal Evidence Act (PACE) 1984 s 29), ‘voluntary attendance’ is recognised as being far from truly voluntary (see Kendall 2018: 9). Little is known about these voluntary attenders: they are not detainees in the true sense but they may nevertheless be vulnerable, particularly because little is known about their treatment. And although the same safeguards apply to the voluntary interview as they do to the ‘detained interview’ (see Code C para 3.21),² it may be even more difficult to ensure compliance with legal regulations and safeguards in a voluntary interview. This is because the process is not overseen or recorded by the custody officer who will provide the individual with his or her rights and ensure, at least to some extent, that the individual is safeguarded (although see later).

This book is concerned with those who have been detained for the purposes of police investigation. More specifically, it examines how and why the appropriate adult safeguard is (or is not) implemented for adult suspects. This book will connect the practical with the more abstract, addressing what vulnerability means and who could be considered vulnerable. It will also examine the factors affecting the implementation of the appropriate adult safeguard, and the influences on custody officer decision-making. It is contended that conceptually and pragmatically, all suspects could and should be considered vulnerable. The unequal power-play existing between the State and the individual renders the suspect vulnerable. The criminal justice process operates to perpetrate an inequality of arms at all stages. Due process is silenced or, even more worryingly perhaps, serves to meet crime control ends (see Packer 1968; McBarnet 1981). Even something considered fundamental to the protection of the individual and of the process, such as the appropriate adult safeguard, can be very easily side-stepped within the process as it currently operates. This is, at least in part, because the police are both combatants and protectors of their opponents. Yet, it is also because the various strands of the State seek to condone police behaviour within a criminal justice process that disadvantages many, if not most, defendants (see Dehaghani and Newman in progress; Newman 2013; Owusu-Bempah 2017; Quirk 2017).

Research rationale

This research stemmed from a broader interest in miscarriages of justice and, more specifically, with what could ‘go wrong’ during the early stages of an investigation. Through a thorough review of the literature, it was clear that there was still much to be said regarding the implementation of the appropriate adult safeguard, particularly from a socio-legal perspective. Of notable mention is the absence of in-depth observation in many of the previous studies, the lack of attention paid to how vulnerability is defined, and the dearth of analysis in relation to policing and criminal justice theory as applied to police decision-making in reference to the appropriate adult safeguard. In order to fully unpack why the appropriate adult safeguard was often left unimplemented, it was imperative that the social world of the custody officer be observed in-depth. A number of studies were also significantly outdated and a large number were conducted before the ushering-in of the (now disbanded) ‘Safer Detention’ guidance (ACPO 2012) and (in its place) the College of Policing (2018a) Authorised Professional Practice on Detention and Custody (hereafter APP: Detention and Custody). There have also been regular revisions to the Codes of Practice (although as Skinns (2011: 7) notes, they have never been ‘substantially overhauled’). External factors have historically had an impact on the police custody environment such as the decarceration movement³ that led to, as Bean and Nemitz have noted (1995: 7), changes between 1986 (when PACE was introduced) and 1995 (when their research was conducted):

In the intervening years, a number of changes have taken place which indirectly affect the workings of the Appropriate Adult Scheme not least being the alleged decarceration movement whereby large numbers of psychiatric patients have been discharged from traditional mental hospitals into the community. One obvious outcome of this decarceration is for an increasing number of mentally disordered persons to be prosecuted. Another is that the police have become important agents in the promotion of mental health care.

This study recognised how the socio-political environment has changed since many of these studies were conducted, particularly developments such as austerity and neo-liberalism (the latter of which has ‘left an indelible mark on the police custody process’ (Skinns 2011: 14)). Neo-liberalism has resulted in new public management (and along with it, efficiency), civilianisation, and privatisation, ‘workforce modernisation’ of defence lawyering, and the increased involvement of a number of different practitioners (multi-professionalism) (ibid.: 13–16. See also Ellison and Brogden 2010). Public finance initiatives have led to a much-improved custody environment, particularly with the construction of new, purpose-built facilities (Skinns et al. 2017: 359).

Custody is an interesting environment to study, in part because it is relatively under-researched, and in part because alongside many changes, there have been numerous continuities. As Skinns, Wooff and Sprawson note, these continuities exist because of:

the unchanging nature of the police role in society including the enduring necessity of discretion and the permissiveness of the law, as well as the enduring features of police occupational cultures, and the unchanging monopoly that the police have over the legitimate use of force.

(ibid., references omitted)

There was a question therefore as to how far the implementation of the appropriate adult safeguard had changed since the earlier studies were conducted (although there was a recognition that it would be difficult to properly compare and contrast).

This book draws upon a mixture of doctrinal, socio-legal, empirical and theoretical analyses to provide answers to why the appropriate adult safeguard is often left unimplemented. The qualitative data, collected through semi-structured interviews and non-participant observation⁴ conducted at two custody suites in England (see Chapter 3), offers an explanation of how custody officers viewed their navigation of the appropriate adult safeguard and how I believed it to be navigated by custody officers. It could be considered an ethnography; a ‘curious blending of techniques’ (Denzin 2009: 185 as cited by Newman 2013: 21). Observation across a three-month period at each site provided familiarity with the custody suite and staff, and allowed the custody staff to become familiar with me. A total of 31 custody officers were observed, 20 from Waterside (Site 1) and 11 from Mapletown (Site 2). Of these 31, 23 were interviewed: 15 from Waterside and 8 from Mapletown.⁵ I spent from early November 2014 to late January 2015 at Waterside and from early April to mid-late June 2015 at Mapletown. The sample size allowed me to reach saturation point (Charmaz 2006). Interviews were conducted towards the end of this period and lasted an average of 41 minutes (at Waterside) and 43 (at Mapletown). At interview, I was careful to provide participants with the opportunity to ascribe their meaning to the research (Burns 2000: 424–5) and therefore attempted to ask questions in an open conversational manner, using the interview schedule as a reminder or guide rather than a plan (Braun and Clarke 2013: 94). The structure of the schedule commenced with less demanding questions about the role of custody officer. This was followed by questions regarding risk⁶ (included because of the significance of risk discourse in policing (Ericson and Haggerty 1998) and conceptual congruence with vulnerability (see Brown 2015)). Thereafter the schedule moved onto the more demanding topics of vulnerability and the appropriate adult safeguard. The structure allowed custody officers to ease into the interview.

Unsurprisingly, there were differences between what was stated at interview and what was overheard during observation. For example, CO21-M was discussing mental health with some detention officers and when I added that it is estimated that one in four people have mental health problems at any given time, he quipped ‘everyone has mental health problems these days’, chortling as he claimed that ‘women are the cause of all mental health problems’. At interview, however, CO21-M took a much more sensitive approach to the issue of mental health. This phenomenon, known as ‘audience segregation’ (Goffman 1956; 1969), suggests that there are different selves portrayed to different people at different times. Instances such as this reinforce the importance of conducting observation in addition to interviews. Moreover, the rapport built during observation undoubtedly contributed to the ease at which custody officers offered candid responses at interview; very few gave what seemed like ‘text-book’ or ‘professional’ answers.

Constructing grounded theory

The research methodology is positioned somewhere between positivism – which ‘seeks to apply the natural science model… to investigations of social phenomena and explanations of the social world’ (Denscombe 2002: 14) and considers there to be an objective reality that is out there to be discovered (ibid.: 15) – and interpretivism (or constructionism) – which focuses on the socially constructed nature of knowledge and argues that it is impossible to gain an objective knowledge of the social world (ibid.: 18–20). It has also been informed by the symbolic interactionist perspective. This perspective views reality not as ‘out there’ ready to be discovered but developed through interaction with others (Blumer 1969). It also recognises that human beings react to and interpret their social world and derive meaning from their interactions and surroundings through an interpretative process (ibid.). And, it accepts that meaning is therefore a social product created through how things are defined in interaction between people (ibid.: 5). A combination of interviews and observations permit the production of a richer and fuller description of the social world under investigation.⁷

The data were collected employing a constructivist grounded theory approach (Charmaz 2006);⁸ an approach that provides the researcher with ‘flexible analytical guidelines that enable [them] to focus their data collection and to build middle-range theories’ (Charmaz 2011: 360) and thus allows for reflexivity and flexibility. The approach does not demand objectivity and indeed focuses instead on meaning, understanding and interpretation (Gibson and Hartman 2013: 84). Charmaz’ approach bridges the gap between Glaser’s methodological strategies and Strauss’ symbolic interactionist perspective (Charmaz 2011. See Glaser and Strauss 2009; Strauss and Corbin’s 2008). Charmaz’ approach also ‘views knowledge as located in time, space and situation and takes into account the researcher’s construction of emergent concepts’ (Charmaz 2011: 365), and is thus positioned between positivism and post-positivism. Rather than theory or data being ‘discovered’, constructivist grounded theory sees data as being co-constructed by the researcher and the researched. Because of the researcher’s role in construction, her perspectives, values and beliefs are of importance (see Chapter 3). The researcher must therefore recognise these perspectives, values and beliefs, whilst also recognising the validity of her participant’s interpretations. The process of grounded theory involves nine stages, dictating, inter alia, data collection, interpretation and writing. The grounded theorist is required to adopt an iterative approach to simultaneous data collection and analysis, analyse action and process rather than theme and structure, constantly compare, and draw on data to develop new conceptual categories. She must also systematically analyse data so as to develop inductive categories, construct theory rather than simply describe or apply current theories, employ theoretical sampling, search for variation (such as negative cases), and pursue the development of theory (Charmaz 2011: 364 citing Charmaz 2010).⁹

Structure of the book and key themes

This book examines, in detail, the implementation of the appropriate adult safeguard, analysing what impacts upon its implementation and explaining the custody officer approach through the application of existing theories and through the development of new theoretical insights. The core themes rest upon how vulnerability is defined, how it is identified, what factors influence the implementation of the appropriate adult safeguard, and how we may understand police decision-making in this context. Before exploring the core themes and theoretical insights, I examine, in the chapter that follows (Chapter 2), police powers and procedures, focusing predominantly on PACE. I thereafter place the appropriate adult safeguard in its historic and broader contemporary context. Leading on from this, in Chapter 3 I explore the context the specifics of the research site, how access was obtained and retained, and the ethical dilemmas I faced during the ethnography. I also provide a critical reflection on my positionality within the field. This chapter provides the reader with the frame through which I have produced, or reproduced, the qualitative data. Chapter 4 then provides the theoretical lens through which vulnerability can be understood and seeks to map the key contours of this often ill-defined concept through the use of a diverse literature. This chapter also examines the contributions made by the field of psychology and law to renderings of vulnerability as contained in Code C, focusing particularly on the work of Gisli Gudjonsson. This material is then further built upon in the following two chapters, which provide doctr...