Justice is a universally desired quality, and people who are detained in police custody have the same right to justice as anyone else, however much they are demonised or simply ignored by most people.
The police, however, have all the power in custody, and that power affects the behaviour of everyone else involved, even when it does not turn into the neglect and abuse of detainees.
Mobile phone video recording of police misconduct has given much more impact to the resistance to police power, and is being channelled into campaigns for justice, most significantly Black Lives Matter. Strident calls to ‘defund’ or abolish the police followed in the wake of the police killing of George Floyd in Minneapolis on 25 May 2020. Campaigns focusing on the institutional racism of the police also resonate in England and Wales.
Black men are 19 times more likely to be stopped than the general population. And there are up to about 23 deaths in police custody every year in England and Wales, of whom about four are BAME (Black, Asian and Minority Ethnic Heritage) victims, some 20 per cent of deaths as against 16 per cent of the population.
There should, of course, be no deaths in custody; any death, from any ethnicity, is one too many. Furthermore, on average, one person a week commits suicide after being detained in police custody. There is little public or media concern about these deaths. By way of comparison, the suicide of just one person after appearing on the daytime television Jeremy Kyle Show generated far, far more publicity, and caused the programme to be taken off air. But those who do show concern, like Black Lives Matter campaigners, have called for the defunding and abolition of the police, and they see anything less than that being mere piecemeal tweaks.
Reform of police custody, however, would be transformative without having to go to such lengths.
My interest in these matters arose from in-depth research into the Independent Custody Visiting Scheme, a statutory scheme which facilitates unannounced visits by members of the public to police stations to check on the welfare of detainees in police custody. I spent a great deal of time observing the work of custody blocks, which led me to the view that custody is used much too widely and unnecessarily. Both custody itself and custody visiting need radical reform, in two ways.
First, reform of custody would see the number of detainees substantially reduced. The use of custody should be restricted to circumstances where safety is at risk: custody should not be used, as it sometimes is, to pressurise detainees into making confessions. The second reform would be to the Independent Custody Visiting Scheme. Custody visiting is supposed to be a regulator of police conduct in custody, and a deterrent to police misconduct which could lead to the death of detainees. The authorities have always kept the scheme as far away as possible from fulfilling these purposes. My research showed that the Independent Custody Visiting Scheme is neither independent nor effective, and that it makes virtually no impact on police behaviour or on the incidence of deaths in custody. Another positively damaging effect of the visiting scheme is that its very existence obscures the need for more effective regulation of police custody. The police can point to the work of the ‘independent’ scheme, as some officers did in my hearing, and argue that there is no need for more regulation of custody, and that there cannot be problems with custody because, if there were problems, they would be uncovered by the custody visitors. My research reveals the reality of the weakness of the scheme and demolishes the argument put forward by the police. If politicians, journalists and other opinion formers were to become aware of this weakness, the arguments against greater regulation of the police would fail.
The reforms to custody visiting which I propose are radical and would ensure that the scheme did fulfil these purposes. And they would also go a long way beyond piecemeal tweaks. The visiting scheme would be run by an independent agency. The ethos of that new agency would be to safeguard the welfare of detainees, and to provide effective regulation of the police in custody blocks. Visitors would have to be trained by professional experts in the criminal justice system. The basic principle of unannounced visiting would be preserved and made to work properly, to deter police misconduct which might lead to the death of detainees. Visitors would be encouraged to challenge the police. They would work with defence solicitors to safeguard the welfare of detainees and in pursuing complaints against the police. They would have strong statutory powers to ensure their regulation work was effective, which would ensure immediate admission to every part of the custody facilities and full publicity for their findings. These reforms would go much further than piecemeal tweaks and would be transformative of the way society handles crime.
The scope of the work carried out by custody visitors would be extended to cover all aspects of custody. This would provide valuable insights and contribute to open, democratic discussions about custody. These discussions should cover the widest possible range of policy issues, including the frequency, the conditions and the purpose for which custody is used. My observation of custody leads me to argue for its use to be substantially reduced, and to prevent the police from detaining people when there is no safety issue and when detainees are being pressurised to make confessions. Reducing the number of detainees in custody should also reduce the number of deaths in custody. Custody policy should be publicly debated. Similarly, the public needs to know about the Independent Custody Visiting Scheme. But, as hardly anyone has heard of custody visiting, the essential political step would be to make its nature and inadequacies known. When people know the facts, they would see the need to apply the reforms, which would apply proper regulation of police conduct in custody and could save the lives of some of the detainees.
John Kendall previously worked as a commercial solicitor. In retirement John worked as a custody visitor, and found it profoundly unsatisfactory. He undertook a self-funded research project and obtained access to the visitors, custody blocks, the police, and detainees. He was awarded a PhD for this research by the University of Birmingham, and this book is the result of that research.
Regulating Police Detention by John Kendall is available here for £29.99 on the Bristol University Press website.
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