National Police Chiefs’ Council – 15 January 2016
I’m delighted to have been invited by the National Police Chiefs’ Council to give the keynote presentation at this important conference for a number of reasons:
I want to take this opportunity then to celebrate the undoubted improvements of recent years in this area and lend my thanks to all the work that you have put into ensuring that we are moving in the right direction. Inevitably, perhaps, I’ll also flag up some issues which I think there are continuing concerns and where further progress might be made.
And finally, I’d like to introduce a project that we are planning to start in the new financial year – which I think will be of interest to at least some of you. I recognise the range of increasing and sometimes competing demands upon you. I agree with Olivia Pinkney’s remarks in the forward to your strategy where she says that it is a complex area – but that the rewards of getting it right are significant, since if we do get the policing of children right now, the less likely that those children when they become adults will have need of police services. Effective policing of children is if you like a form of crime prevention that can – in the longer run – free up resources to deal with what may be more intractable problems.
As some of you will know, the Children’s Commissioner is a statutory function with a remit for promoting and safeguarding the rights of children in England. In carrying out that function I am required to have particular regard to children living away from home and other children who I consider to be vulnerable of having their rights infringed. The first category encompasses children under arrest and held in police detention – and I have a right of access to custody suites if children are being detained there to assure myself of how they are treated. In my view however, it isn’t just those in police custody who are potentially vulnerable. The sorts of children who are most likely to come into contact with the police, on the streets and elsewhere, are marked by their socio-economic backgrounds and previous experiences as some of the most disadvantaged in our society. This understanding should inform how we approach the policing of children from a rights based perspective. There are a number of principles here that I think relevant to policing – although sometimes we may need to be reminded that that is the case:
Considering these principles from the current perspective, there is clear evidence that how children experience police contact can have a significant impact on their future development. Where they consider their treatment to unjustified or unfair, they are more likely to develop a negative attitude towards the police and sometimes other forms of authority which has a range of potentially negative longer term implications. Children’s experience of the police is thus a rights based issue It is the police who act as the gateway to the justice system – you have considerable discretion as to how to deal with incidents that come to your attention – although the extent of that discretion may be restricted or enhanced at different times according to the flavour of current policy.
We also know that early criminalisation of children is counterproductive: all other things being equal it increases the likelihood that the child will get in trouble again, thereby increasing victimisation. It has a longer term adverse impact on their future life chances and wellbeing. In this sense, adopting a children’s rights focus is consistent with the evidence of what the evidence tells us about involvement in the justice system. It should be minimised wherever possible.
In this context, the most obvious success of recent years has been in terms of the dramatic reductions in the number of children subject to arrest. The role of Children’s Commissioner was created by the Children Act 2004. In that year, 332,800 children were arrested for a notifiable offence. Moreover, that figure increased over the next four years – peaking at 273,269 in 2008/9. But things have changed dramatically in the interim period. By 2013/14, the figure had fallen to 112,709 – a reduction of 60%. An extraordinary achievement in just a few years – that has seen almost 2/3s fewer children spending time in a police custody suite. Some of that shift may be due to a fall in youth offending – after all we have pretty good evidence from the Crime Survey for England and Wales that crime is falling across the board.
But I think that it’s pretty clear that the main factor at work here is a change in police practice – reflecting in turn a quite different attitude as the appropriate response to children when the commit relatively minor offences and a much greater use of alternative forms of disposal that do not constitute a criminal record. That change in attitude is quite explicit in the National Strategy for the Policing of Children & Young People to which I’ve already referred whose key principles embody a progressive approach in this regard that was much less in evidence in 2004. The strategy’s endorsement of keeping children out of the criminal justice system wherever possible clearly aligns with what the figures tell us was already in happening in practice. As so often this is a case of policy catching up with developments on the ground. But it is no less important for that: it gives legitimacy and will hopefully promote further reductions in child arrests (an issue I’ll come back to).
Before moving on, let’s quickly recall how progress in this area is reflected in other parts of the youth justice system. The number of children convicted in courts for indictable offences fell by 57% between 2008 and 2014 and over the same period and the number of children declined over the same period by about 2/3s. These figures bear a remarkable similarity to the reduction in arrests. While there are obviously other agencies involved and different factors at play, I think that the police can legitimately claim at least some of the credit for what happens further down the line.
The Strategy is not just welcome because of its focus on avoiding criminalisation however – which is after all a negative ambition. It also commits the police to some more a positive vision of policing of children, mandating that in all encounters with the police they should be treated as children first and that their welfare and wellbeing should be a priority in accordance with the UNCRC. It proposes that each interaction should be regarded as ‘an intervention and an opportunity’ to enhance the relationships between the children and the police. And it highlights the importance of listening to children and respecting their opinions – a prerequisite of course of developing a positive relationship. This represents a clear response to the APPGC’s finding that many children lack trust in the police and that encounters between the two groups were often characterised by poor communication and a lack of mutual respect. I welcome it wholeheartedly and for reasons I outlined earlier I think it is totally consistent with a rights based approach. However, putting it into practice will not be easy. Again I will say a few words about my thoughts on that in a short while.
One final celebratory remark. The Strategy – I’m pleased to say – doesn’t contain the word ‘juvenile’ once: it is very much focused on children and young people who on occasion come into contact with the police rather than defining them in terms of that contact. That wouldn’t have been the norm when the Children’s Commissioner’s post was created in 2004. In this context, I think that it is important too to note that ‘juvenile’ no longer has a legitimate legal connotation. It was often used to refer to children below the age of 17 years – since the latter were not entitled to an appropriate adult when in police custody and were not to be transferred to local authority accommodation where refused bail after charge. Thankfully both of those anomalies have now been eradicated following legal challenges to the Home Office. From the perspective of someone whose role is to focus on a rights based approach, it is significant the Court based its decision on the fact that denying the same rights to 17 year olds as other children constituted a breach of the HRA and the United Nations Convention on the Rights of the Child.
You may have picked up that I’m hugely encouraged by this progress – but there are of course areas where further progress might be made – many of which you will no doubt be aware of. I should acknowledge that most of these issues are not simply matters for the police – who are in important respects dependent on input of other partner agencies.
The marked fall in arrests notwithstanding, I believe that many children are still criminalised unnecessarily. Almost half of arrests do not result in conviction or a formal pre-court disposal, suggesting perhaps that large numbers of children continue to be arrested where there is insufficient evidence to proceed or alternatively that the offence was not serious enough to warrant a formal sanction. There is ongoing concern that children in care are over-represented in the youth justice system. And despite an increased focus on the issue – including the current inquiry, of which we are part, Chaired by Lord Laming on the connections between care and crime – that over-representation has actually increased. Children in care are now almost six times as likely to receive a formal youth justice disposal as their non-care peers. They have not in other words benefited to the same extent as other children from the fall in arrests and court throughput. Quite rightly the NPCC recognises the criminalisation of children in care as a priority issue.
One of the reasons for this disparity, appears to be that those living in children’s homes are at particular risk of police intervention for behaviour which in a family home would be dealt with privately. According to the APPGC, last year, the 47 children’s homes in one police force area generated 3,500 calls to the police. I’m aware that, in many areas, police services have worked with local authorities to develop protocols to address this problem but I think that we need a national protocol, endorsed by the Home Office as a matter of urgency.
There is also a problem with existing Home Office counting rules which require that every reported criminal incident has an outcome, thereby limiting the extent to which the police are able to exercise discretion to deal informally with low level offending by children. This clearly has an impact on behaviour in children’s homes – but it also poses a more general challenge if we want to drive down levels of arrest much further. So it seems that the APPG’s proposal of a new outcome that would allow police to record referrals to other agencies for support or intervention without the need for criminalising the child has considerable merit. One of the particular challenges is the emergence of new forms of illegal behaviour that may be more prevalent among young people. Cyber bullying, sexting, peer on peer abuse, for instance, are all relatively recent concerns that have a potential to lead to increased criminalisation if we treat them simply as a problem of policing. There is an urgent need for the development of multi-agency strategies to address such forms of behaviour outside of the criminal justice arena where possible.
The aspiration of improving relationships between the police and children is fundamental as an end in its own right and in order to reduce the likelihood that children will become involved in the justice system. I understand that the vision in the strategy is a relatively new one and that it is work in progress. But our work with children confirms that there continues to be high levels of mistrust – which are often higher among those who have been the subjects of policing. I believe that a radically different approach may be needed if we are to effect the sea change that the vision requires. Professionals within most other parts of the youth justice system are specialists who focus on working with children. This represents an acknowledgement of the fact that:
The police already have some child specialists, such as those who are seconded to youth offending teams or work in Safer Schools partnerships. Some forces have taken the idea of specialism further, establishing youth officer posts whose role is to establish links with children’s homes, schools, youth clubs and other forms of youth provision. Specialist officers are also deployed in some areas to multi-agency decision-making panels that consider the appropriate outcomes for all cases involving children. I think there is a strong case for such initiatives to be mainstreamed, so that all investigations where there is a child victim or suspect, all interviews with children and all decisions as to outcome – other than informal responses on the street- are undertaken by officers who have specialist training and an interest in working with young people.
But it is the treatment of children in police custody that causes the greatest concerns – in large part because they are in an environment that is designed for adult offenders and is accordingly inappropriate for children; a place where the best adjusted child is likely to feel isolated, scared and intimidated. But children in police custody often do not fall into the category of ‘best adjusted’. Since the police often become a stop gap for other services, those children are detained are particularly vulnerable with high levels of mental ill health. The Thematic Inspection of Vulnerable people in police custody found that ‘police officers are trying to respond to children and those suffering from mental health crises in an environment and with policing tools, skills and knowledge that are wholly unsuited to the task’. The adult orientation of custody provision, combined with a lack of specialism, means that in many cases children are not regarded as automatically vulnerable because of their childhood status. The Inspection team found little evidence the children were prioritised for booking in or other forms of processing, it was rare them to be accommodated in interview rooms rather than cells, as required by guidance. There were few facilities specifically for children – such as age appropriate materials.
In the longer run, I think that we need specialist custody facilities for children separate from adults and staff by specialist custody officers. But things need to change too in the shorter term. A priority from my perspective is to ensure that children who are in police detention are released as soon as possible and spend no longer in the police station than absolutely necessary. I think it is clear that some children remain in custody for longer than they need to or should, but the reasons for delay are not always clear, in part because of a lack of reliable data and I think this is an area where we urgently need to understand the nature of the problem better. I suspect that there are many contributory factors – but I’ve only time to mention two.
First, I mentioned earlier the welcome extension to 17 year olds of the requirement that children who are refused bail after charge are transferred to local authority accommodation other than in exceptional circumstances. In fact, prior to the extension, the provisions were frequently not complied with for younger children. A recent analysis carried out by the Home Office suggests that at least 4,800 children below were detained overnight in police custody between October 2014 and March 2015. Most of those children should not have spent the night in the cell. Given that transfer is now also required for 17 year olds, the scale of the problem is now certainly larger than it was. This is of course an issue where the police are dependent on partners – because unless accommodation is forthcoming from the local authority, transfer is not possible. But something is clearly not working. As many of you will know, the Home Office and the Department for Education are working on a Concordat designed to ensure that police forces and local authorities across England comply with their statutory responsibilities. This is welcome – but it is rather concerning that it takes ministerial intervention to achieve that end.
Second is the provision of appropriate adults. Again I mentioned as one of the areas of progress the extension of the entitlement to 17 year olds. But I was struck by a particular finding in the Thematic Inspection of Vulnerable people in police detention – that children were waiting on average 5.5 hours for an appropriate adult to arrive. We currently know little about why such delay occurs but it seems likely that it might contribute to children staying in detention longer than they might otherwise, which is ironic given the purpose of the requirement to have an appropriate adult. It also raises questions about what arrangements are in place for ensuring the child’s welfare during that lengthy period. We want to understand more about that process – and in the new financial year, we will be initiating a project looking at appropriate adult provision, how it is provided, how well it functions and the extent to which current arrangements facilitate earlier release of children or contribute to them spending more time in police custody.
The project will involve a data collection exercise and in depth field work in a number of areas. We are hoping in those areas, you will work with us to help us understand what could be improved so that we can make recommendations to help you to reduce the amount of time children spend in your custody suites. I am a great believer in agency and these issues provide the challenges for all of us going forward. Let’s put a spotlight on these issues, raise the debate, share good practice and give every child the chance they need to change the odds. We must work together to intervene early, help children to recover and further the life chances of children – especially the most vulnerable.