Police Custody

Governance, Legitimacy and Reform in the Criminal Justice Process

Layla Skinns

• Publisher: Willan
• Year: 2012
• eBook ISBN: 9781136681172
• Edition: 1
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

Police custody acts as an important gateway to the criminal justice process. Much is at stake here for both staff and suspects as what happens in police custody can have important consequences further down the line. This book offers a timely contribution to research on police custody, which has been largely neglected for the last decade, and it is the first to examine the growing role given to civilians employed by the police or by private security companies within police custody areas.

The book draws on a mixed-method study of two custody areas, one publicly-run, and the other largely privately-run. This empirical analysis explores anew suspects' experiences of police custody from arrest to charge, including their access to due process rights such as phone calls, legal advice and detention reviews, as well as shedding light on the hitherto unexplored working relationships between the police, civilian police staff (public and private), legal advisers, doctors, appropriate adults and drug workers.

These findings on the police custody process are used to examine pertinent socio-legal and theoretical matters connected to due process, the role of the police in policing, as well as procedural justice and legitimacy.

The book integrates issues which are topical and of utmost empirical, theoretical and political significance, meaning that it is likely to have a broad appeal to students, academics, practitioners and policy-makers with an interest in the criminal justice process, policing and the sociology of law.

Chapter 1

Introduction

To put it simply, this book is about police custody in England and Wales, focusing on processes and practices that occur once a suspect arrives at the police station until when they leave. Drawing on existing and current research, the aim of the book is to describe and critically assess the custody process from the perspectives of suspects and police, but also from the perspectives of the other practitioners who work there, in particular non-warranted civilians known as police staff, ¹ legal advisors, doctors, appropriate adults and drug workers. A further aim of the book is to begin to theorize the custody process. To do this, I have situated the book within theories about procedural justice and police legitimacy, and governance. These theories are mainly explored in Chapter 2. The purpose of the present chapter, however, is to outline current policy and practice in police custody areas in England and Wales.

Police custody is an important but neglected area of scholarly research. With the exceptions of Newburn and Hayman (2002), Phillips and Brown (1998) and Choongh (1997), there have been few studies of the police custody process over the last decade, which contrasts with the flurry of research that emerged in the period immediately after the introduction of the Police and Criminal Evidence Act 1984 (PACE), an important piece of legislation which aimed to regulate police custody more closely as well as other police practices. And yet, police custody is also an important topic because there is a great deal at stake for staff and suspects in this gateway to the criminal justice process. Police custody can deeply affect suspects, particularly the vulnerable, whether that is to have the effect of frightening or angering them or worse still contributing to them admitting to something that they did not do or pushing them into self-harming behaviour. The police can also behave in ways that can fundamentally shape these experiences of police custody, as can aspects of the wider custody environment, such as the cleanliness and warmth of the cells or the availability of a shower before court. Changes to the ways that the police custody process works mean that it is no longer just the police who influence the experiences of suspects; now, so too can non-warranted police staff, along with legal advisors, medical staff, drug workers, appropriate adults and others.

In this chapter, I clarify the parameters of the police custody process. First, I critically assess the purposes of the police custody process. Second, I describe suspects’ rights and entitlements under PACE and the key practitioners in police custody areas, while situating this description within a discussion of the history of PACE. Third, I provide a brief history of research on police custody, exploring how the present book diverges from it. Fourth, I examine some of the key features of the wider socio-political context and how they have impacted on police custody. Finally, I provide a brief outline of my analytical framework and the content of the book.

Police custody and its purposes

Police custody functions as a gateway to the criminal justice process. It is the place where suspects are taken on arrest and while the police or those working for the Crown Prosecution Service (CPS), based in the police station, reach a decision about whether to:

• charge the suspect with an offence;

• caution the suspect, which requires that he/she admits to the offence and, among other things, that the offence be minor and that the suspect has a short, if not non-existent, criminal record (Sanders and Young, 2006: 351);²

• give the suspect police bail either after they are charged or while a decision is reached about whether to charge them.³ The latter is known as ‘bail to return’ and if the suspect fails to arrive for an agreed appointment, then a warrant can be issued for their arrest;

• take no further action, which may be necessary because there is insufficient evidence to charge the suspect;

• release the suspect without charge, which is different to no further action in that the suspect is wholly exonerated as it is decided that they are no longer even suspected of committing an offence.

Police custody is the first stop after arrest and the last stop before court. For this reason, it is a central part of the criminal justice process, particularly, as decisions made at this early stage can be reinforced by decisions later in the process; for example, those who do not receive police bail are unlikely to receive bail at court (Sanders and Young, 2006: 176), and so the momentum of the criminal justice process begins in police custody areas. However, as Choongh (1997: 40–1) notes, for a minority of suspects police custody is an undesirable end-point rather than the entrance to the criminal justice process; in these cases, police custody alone is used to pursue police objectives to maintain authority, deference and subordination, as well as exercise summary punishment and social control over those who come into regular contact with the police.

In theory, police custody contributes mainly to the role of the police in investigating and reducing crime. The investigatory function is of particular importance to the police custody process; after all, most suspected offences can lead to arrest and detention to ‘allow for the prompt and effective investigation of the (suspected offence)’ (Serious Organised Crime and Police Act 2005, s. 110). To this end, suspects in police custody can be interviewed and biometric data, such as fingerprints, photographs, results from drug tests and DNA, can also be collected from them. This also means that arrest (and detention) are the start not the end-point of the police investigation (Gearty, 2007: 102).

The collection of DNA has been a particularly controversial part of police investigations. Section 82 of the Criminal Justice and Police Act 2001 allows DNA and fingerprints to be taken from those arrested for, charged with, or informed that they are to be reported for a recordable offence and detained in a police station, ⁴ regardless of whether they are later released without charge or whether they are acquitted. Since the implementation of the Act, these data have been retained on the National DNA database and can be kept there for 100 years. The National database is used to cross-match suspects to verify their identity or to see if they are wanted for any outstanding matters. On 4 December 2008, the European Court of Human Rights (ECtHR) ruled that keeping the DNA of the innocent constitutes an infringement of their right to respect for private and family life, under the Human Rights Convention (Guardian, 2008).⁵ In spite of this ruling, the Home Office has remained reluctant to remove the DNA of the innocent from the database, reasoning that it was too much of an administrative burden and that removal would undermine the possibilities of identifying future offenders through the database. More recently still, on 11 November 2009, the government announced plans to remove the DNA only of those arrested but not charged or convicted after six years and this was legislated for in the Crime and Security Act 2010, which received Royal Assent in April 2010.

The evidence collected and collated by officers while a suspect is in police custody is central to decisions about any charge and ultimately whether the suspect is convicted and punished. As the public debate about the retention of DNA demonstrates, there are concerns that police custody is largely used to build a case for the prosecution, albeit within the confines of due process controls such as PACE. As such, the police custody process can be seen as a prosecutorial ‘sausage factory’ churning out suspects once a case has been built against them by the police and charges have been laid by the CPS. The prosecutorial and routinized nature of the custody process and those working within it is also apparent in other ways, such as in relation to the authorization of detention. In theory, the sergeant booking in a suspect must decide, based on the information presented to them by the arresting officer, whether detention at the police station is necessary. In practice, the custody officers rarely reverse the decision of the arresting officer. For example, Phillips and Brown (1998: 49) found that there was only one case (out of 4,246) where a custody officer did not authorize a suspect’s detention. Similarly, McConville et al. (1991: 45) found that for the majority of suspects, their detention was authorized without scrutiny. Therefore the purpose of the police custody process for the police, at least, is not just to investigate an offence, but to build as a strong a case as possible against the suspect.

In practice, police custody has other purposes too. Police custody areas are places where coercive policing is employed from time to time; when a suspect does not agree or consent to being policed, they may be coerced either through the threat of or use of force. Famously, Bittner (1970) argued that, within the context of the quest for peace in modern nation-states, the police alone have the monopoly over the use of unrestricted coercive force, if it is justified by the circumstances. He says ‘[a] society committed to the achievement of peace by pacific means has created an institution [the police] with the monopoly to employ non-negotiably coercive force in situations where its use is unavoidably necessary’ (1970: 122).

In fact, it is the unrestricted nature of the legitimate use of force by the police which makes this competence unique and separates them from other kinds of organizations designated with the use of force in specified circumstances, such as prison officers or the military. Consequently, the forms of coercion employed by the police in police custody areas are varied; they range from physical forms of restraint such as the use of handcuffs, pepper spray or physically carrying suspects to their cells if they refuse to go of their own accord, to restraining them while they are strip-searched if they refuse to consent to a search. However, coercion is no longer the preserve of the police alone, at least within the police custody process in England and Wales. Workforce modernization, which I describe in more detail later in this chapter, has meant that civilians employed either by the police or by private security companies (known as police staff) are involved in the use of coercion along with fulfilling other roles in the police custody process.

However, coercion may not have to involve force. The ‘Tough Choices’ initiative introduced in 2006 under the umbrella of the Drug Intervention Programme (DIP) and as a result of the Drugs Act 2005 is used to encourage those suspected of ‘trigger’ offences to receive help with their drug problem, but under conditions which are arguably coercive. Trigger offences are mainly acquisitive crimes, such as shoplifting and burglary, which are believed to be drug-related.⁶ If someone is arrested for such an offence within an intensive DIP area – that is, an area with large numbers of problematic drug users – they have to take a drug test on arrest, which looks for evidence of cocaine and opiates in the saliva. If a suspect declines to take the drug test, they have committed an offence, which carries a maximum tariff of up to three months in custody and a fine of £2,500. The police are responsible for administering this test and it is one of the few parts of the police custody process for which there is a performance target, which is known as Cozart.⁷ Drug-testing on arrest suggests that the police have developed new coercive roles which may not have been fully anticipated by Bittner (1970).

A combination of factors including the discretionary and invisible nature of police power in police custody areas, a rank-and-file occupational culture (which expresses suspiciousness towards and solidarity against, for example, ‘police property’ (Reiner, 2010: 123–4)) and the possibility of coercion suggest that police custody may also be used to punish or retaliate against recalcitrant or uncooperative suspects or to teach them about the parameters of their relationship with the police. For example, Choongh (1997: 100) argues that police custody has been used as a form of social discipline. This meant that suspects who were locked into a regular relationship with the police and/or were non-compliant found that their length of detention was affected by whether or not the police wished to condition them into accepting their authority or to put pressure on them to confess, albeit in accordance with the rules.

These ‘other’ purposes of police custody can have lethal consequences as illustrated by the case of Christopher Alder. He died face-down on the floor of a Hull Police station in the early hours of 1 April 1998 after his uncharacteristically aggressive behaviour was blamed on his ‘bad attitude’ rather than the head injury incurred during an incident which had racist overtones (IPCC, 2006). Mr Alder had been involved in a fight outside a nightclub, which resulted in him being knocked unconscious for 11 minutes. He was taken to hospital, and was eventually arrested there after he became seen as being too aggressive to have been treated by staff. He was arrested for a breach of the peace at the hospital and taken to the police custody area, being dragged out of the back of a police van with his trousers around his ankles and doubly incontinent. In the custody area, the officers focused on ‘processing’ him. They claimed they believed him to be faking illness, even though there was no evidence of this. His last minutes of life were captured on CCTV. The most likely cause of death is believed by medical experts to have been asphyxiation due to the position he was left in.⁸

Thus far, I have pointed to the purposes of the police custody process for the police in terms of investigation and crime reduction, as well in terms of coercion, social discipline and the building of a case for the prosecution. However, it is important to acknowledge that police custody also has a purpose for suspects (e.g. to establish their innocence or enable a swift release), as well as for the other practitioners that work in police custody areas who are likely to have a variety of sometimes overlapping organizational objectives. These are discussed in Chapters 3 and 7. Moreover, police custody is underpinned by legislation used to regulate the police practices therein, which is largely through PACE.

Suspects’ PACE rights and entitlements

Broadly speaking, suspects have ongoing rights and entitlements, which they can use at any time. These include:

• access to free and independent legal advice, as soon as is practicable;

• the right to notify someone of their arrest, such as a friend or family member, as soon as is practicable;

• the right to consult the PACE Codes of Practice, which is a lengthy, legalistic and somewhat difficult to read book detailing rights and entitlements available to suspects. Code C is of greatest relevance to non-terrorist suspects;

• a qualified right to silence, meaning that negative inferences can be drawn from their silence, that is, if they fail to mention something in an interview that they later rely on at court;

• access to a doctor, if a suspect is feeling unwell;

• access to an appropriate adult, if a suspect is a juvenile or mentally ill or intellectually impaired.⁹

Since the introduction of PACE, these rights and entitlements in police custody areas are predominantly provided by a combination of:

• police, including police constables, sergeants and inspectors;

• non-warranted civilians who are known as police staff and are employed directly by the police (and henceforth referred to as public police staff) or by private security companies (henceforth referred to as private police staff);

• legal advisors who are solicitors, accredited trainee solicitors or accredited legal representatives. Of the solicitors, aside from working for a law firm, some also register to be duty solicitors, who are on-call around the clock to respond to requests for publicly funded legal advice;

• appropriate adults who support vulnerable suspects, that is juveniles and adults who are mentally ill or intellectually impaired. Appropriate adults include parents, legal guardians, volunteers and social workers;

• doctors, who are known as forensic medical examiners, and also sometimes nurses;

• drug workers whose role grew out of the arrest referral initiatives of the 1980s in which drugs workers identified problematic drug users in police custody and referred them to local drug services. This role, however, was formalized by the Drug Intervention Programme in 2002 which introduced drug workers into all police custody areas;

• interpreters;

• independent custody visitors – formerly known as lay visitors – who were put on a statutory footing by the Police Reform Act 2002. They have to be allowed access to monitor police custody facilities, suspects and their records, even if their visit is unannounced.

To a lesser extent, the Crown Prosecu...

Table of contents

• Cover
• Halftitle
• Title
• Copyright
• Dedication
• Contents
• List of figures and tables
• List of abbreviations
• Acknowledgements
• Foreword
• 1. Introduction
• 2. Governance and legitimacy in multi-professional police custody areas
• 3. Cops, docs, ‘DPs’ and others: Staff and suspects in the custody process
• 4. ‘Down the block’: The custody environment for staff and suspects
• 5. Access to rights and entitlements at the police station
• 6. Plural policing and the police custody process
• 7. Multi-professionalism and the police custody process
• 8. Governance and legitimacy revisited
• 9. The future of police custody
• Appendix: The research base
• References
• Index