By Harriet Stack.
Having a child with special needs brings with it more responsibility as a parent or carer than usual. The prospect of them getting into trouble with the law and being arrested can be too frightening to think about, when the lack of understanding by the police of their condition, their difficulty with communication or even their behaviour when anxiety goes through the roof could make the stuation worse, or at least more difficult to handle. In this article, Harriet Balcombe covers the basics of what happens when a child is arrested. If you have any comments or questions please email us at hello@theautismdirectory.com
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In England and Wales, children can be arrested and held criminally responsible for their actions from the age of 10. This is known as the Age of Criminal Responsibility and is amongst the lowest in Europe. It is very worrying for parents, especially those with no knowledge or experience of the criminal justice system, to find that their child is in police custody, but some of that worry may be alleviated with a little information.
Police powers in this country are covered by the Police and Criminal Evidence Act 1984 (PACE) and the Codes of Practice attached to that Act. These instruments provide for special measures to protect child and vulnerable suspects, but there are no extra measures for children with special needs.
The first thing to bear in mind is that, although we were brought up to think that the police are there to protect us and are on our side, in this situation they are on the other side. It is their job to identify suspects, detain them and investigate any crime. A significant number of detainees, both children and adults, have done nothing wrong. Yet the police are perfectly entitled to arrest and detain them within the dictates of the law. Any lawyer would therefore suggest that a suspect (or parent of a suspect) take independent legal advice rather than accept any advice from a police officer in these circumstances.
The Custody Officer is a police officer, usually a Sergeant, whose responsibility is the wellbeing of the detainees in his or her Custody Suite. He or she must take such steps as are practicable to ascertain the identity of the person responsible for the welfare of a child who has been detained and inform that person. The welfare of any child in custody will be a prime concern for a Custody Officer but it still may take some time for parents to be informed if Custody is busy. If your child has special needs, the time to inform the police about this is on receipt of the initial phone call. The details should be noted on the Custody Record and most Custody Officers have a good understanding of all sorts of vulnerabilities.
Children are detained in Junior Detention Rooms. These rooms are cells in all but name, sometimes a little larger than the adult cells, and usually nearer to the Custody Officer’s desk. This is the safest place for your child, particularly as there are often angry, frightened or drunk adults in the Custody Suite and being locked in the Detention Room will protect them from such people. Children can be detained for up to 24 hours (and more in certain circumstances) but it is unlikely that the detention will be this long unless the allegations are very serious.
Detainees below the age of 17 (as well as vulnerable adults) are entitled to an Appropriate Adult (AA) whose role is to support, advise and assist the young person. A parent will be the first choice for the police when identifying an AA, so that, if they are able to contact a parent by telephone, this person would most often end up acting as AA. If no parent or relative is available, trained AAs (usually very competent and empathic) are available from the local AA Service. Parents can’t act as AAs if they are the complainant or if they are suspected of involvement in the offence.
The police will often ask parents to attend the station as soon as they are contacted. There may then be a long wait at the front desk before they are taken into Custody, however. This is often due to the Custody Suite being populated by the angry, frightened and drunk detainees already mentioned. If you wish to contact the Custody Officer, a phone call to your local constabulary’s non-emergency number, followed by a request to be put through to “Custody at XXX Police Station”, should reach the right number. Actually getting through may be a different matter, however, again usually due to whatever mayhem may be taking place. If you are able to get through, or if you receive further phone calls, a reminder to every person you speak to about the special needs of your child is a good idea.
Once you are taken to see your child, the Custody Officer will explain your child’s rights to both of you together. This is not a good time to enter into any discussion with the police other than the subject of your child’s welfare and special needs. It may be tempting to explain that your child has done nothing wrong or meant to do nothing wrong, but the Custody Officer shouldn’t enter into such discussions and you may unwittingly complicate matters. Such explanations are more safely made after receiving legal advice. Your child’s rights include the right to legal advice and the right to read the Codes of Practice. If you take up the former, you are unlikely to need the latter. Your child will be entitled to advice from either:
- The Duty Solicitor, or
- A solicitor of your choice.
Duty Solicitors are usually the most experienced police station lawyers and work on 24 hour duties. They are completely independent from the police. The only reason to ask for a lawyer of your choice is if you happen to know a firm or a solicitor specialising in criminal law. As the law currently stands, you will not need to pay for legal advice from either of these.
Parents sometimes worry that waiting for a solicitor will delay matters further, and these worries can occasionally be encouraged by the police. Such concerns are unfounded; it is accepted good practice for solicitors to attend within 45 minutes of being called to the station, and investigating officers will try to organise the timing so that they, themselves, are not delayed any longer than necessary while waiting to interview your child.
Once a solicitor has been contacted they will usually telephone to speak to the client. If you are available, you should be able to speak to them too, and advise them of your child’s special needs. Most criminal solicitors are used to working with vulnerable people. The solicitor will only be asked to attend once the police are ready to interview your child. This can take some hours; for example, officers may be taking statements or otherwise gathering evidence. During this time you may be allowed to sit in the Detention Room with your child, at the discretion of the Custody Officer.
When the solicitor arrives, they will first speak with the investigating officer and Custody Sergeant to obtain information about the allegations against your child. They will then meet you and your child and may ask to speak with your child alone initially. This is an important safeguard as they are acting for your child, not you, and need to be sure that your child would like you present during consultation.
Whether you are present at the consultation or not, this is what takes place: the solicitor will tell your child what the allegations against them are, and the evidence that the police have found. They will then ask your child what happened (called “taking instructions”) and finally give advice about the legal position and the best way of handling the impending interview. If you are present your role is an important but often difficult one; you may be able to help a great deal with communication between the solicitor and your child, and your explanations of your child’s special needs will be valuable, but the instructions need to come from your child, not you.
Most solicitors will make a point of preparing a child for interview by explaining in detail what will happen and even running through some example questions. They will want to make sure your child understands the Caution (“You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in Court. Anything you do say may be given in evidence”) and the offence they are accused of committing. They will advise whether, in their opinion, your child should answer questions in interview or not. If you, personally, don’t understand any of this, or if you think your child doesn’t understand, you should tell the lawyer.
Both you and the lawyer will accompany your child in interview. This is a fairly formal affair, recorded on tape and commencing with introductions and an explanation of everyone’s roles. You can’t answer questions for your child but you can help with communication and intervene if you think your child is distressed or being treated unfairly. It is important that you do point out if you think the police misunderstand what your child is saying or if it is ambiguous.
After the interview you and your child should have an opportunity to speak with the solicitor privately and this is a good time to ask what might happen next. There may be a wait while the police consider this or they may already know what they want to do.
There are a number of possible outcomes. The police might take no further action, in which case nothing more happens. They may want to bail your child to return to the station at a later date; this is usually so that they can carry out further investigations or liaise with prosecutors. Or, if your child hasn’t been in any trouble before, they may offer a “diversion” in the shape of a Reprimand or Final Warning (to be replaced by Youth Cautions when the Legal Aid, Sentencing and Punishment of Offenders Bill is enacted). If this offer is made, it is a good idea to discuss the ramifications with the lawyer. Finally, if the offence is serious, your child may be charged. Don’t panic! You will probably want to have a longer discussion with the lawyer in this case.
Whatever the outcome, at this point you will be relieved because your child will be released and you will go home. It may all have taken much longer than you hoped, and no doubt will be a horrendously stressful experience which you will not want to repeat, but if you have remained calm and your child has received legal advice, you should have ensured that your child’s rights are observed and that the conclusion of the matter is the best it can be in the circumstances.
Resources: The Children’s Legal Centre produce a useful booklet entitled “At the Police Station: Children and young people’s rights”. Available from clc@essex.ac.uk
Article written for The Autism Directory by Harriet Stack; a solicitor who has five years’ experience advising suspects in police stations and has conducted academic research into the legal position of child suspects.
Any comments? Please forward to hello@theautismdirectory.com
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