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Written Evidence Submitted by John Kendall Phd, Visiting Scholar, Birmingham Law School (PCO0014)

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Written Evidence Submitted by John Kendall Phd, Visiting Scholar, Birmingham Law School (PCO0014) (PCO0014) Written evidence submitted by John Kendall PhD, visiting scholar, Birmingham Law School (PCO0014) 1. This submission addresses the fifth item in the terms of reference of the Committee’s inquiry into police conduct and complaints, namely whether further reforms are required to secure public confidence in the police conduct and discipline system. I am delighted to have been given this opportunity of bringing my research to the Committee’s notice. 2. Executive summary Police conduct in custody blocks is largely self-regulated: there is little outside scrutiny. Hundreds of thousands of people are processed each year in custody blocks, and some lose their lives there, including a disproportionately high number of BAME detainees. The statutory Independent Custody Visiting Scheme enables members of the public to make visits to police stations to check on the welfare of detainees. The original promoters of the scheme saw its principal purpose as being to deter police conduct which might lead to the abuse or death of detainees. Government policy has kept all references to this out of the scheme. Custody visitors are the only outsiders to make regular visits to detainees in their cells. Custody visiting forms part of the UK’s regulatory obligations under the United Nations treaty for the protection of detainees in custody, but the requirements of the treaty are not met. The power of the police, and official policy, prevent the visitors from making independent and effective scrutiny of what is going on in custody, and from reporting about it to the public. The custody visiting scheme therefore does not safeguard detainees, and it serves only to obscure the need for greater regulation. The custody visiting scheme should be radically reformed, to make it independent and effective. These reforms would contribute to securing public confidence in the police conduct and discipline system. Now is a good time to address this issue, given the greater public concern awakened by the Black Lives Matter movement. Reasons for submitting evidence 3. I previously worked as a commercial solicitor and a mediator. In retirement, I took the opportunity of becoming a custody visitor to develop my interest in police custody. I had no intention at that stage of writing about custody visiting. I joined a local scheme and worked as a visitor for three years. Finding it unsatisfactory, I looked in vain for academic analysis, so I decided to write about it myself. I realised that I would not be able to write a worthwhile book on the subject without academic help. I undertook a research project at the University of Birmingham, centred on a case study, in a different location from the one where I had worked as a visitor. (PCO0014) Funding 4. I have been lucky not to have needed to rely on funding. There is therefore no sponsor of this research; by contrast, most of the (much earlier) reports about custody visiting were funded by the Home Office. My ability to self-fund enables this research to claim its independence, a quality so central to this subject. Apart from wanting to take the opportunity of obtaining the material for a book about what is an otherwise largely unknown subject, my motivation springs from my belief that, despite so little attention being paid to it, custody visiting matters, because what happens in custody matters, and custody visiting is a means for providing outside scrutiny of what happens there. Research methods 5. The work of custody visiting takes place within local schemes. A case study, with the focus on one local visiting scheme operating alongside a major urban police force, was therefore the most realistic way for one researcher to carry out an in-depth study. Interviews with visitors, detainees and police, and observation of the visits, were the methods deployed. It was especially important to have access to detainees and to listen to them, as the visiting scheme is supposed to be for their benefit. Their views about the visiting scheme have never been heard before; and, as it turned out, detainees had important evidence to give. This could not have been achieved by an internet- based survey. I contend that the findings of the case study can be applied widely to visiting schemes in other parts of the country. All local schemes are subject to the same statutory systems for visiting and custody, and behind those common formal structures lies the unchanging, fundamental power imbalance between the police and the visitors. Moreover, this was not only a localised case-study: the history and politics of the national scheme, as designed and maintained by the Home Office, were also thoroughly investigated. Publication of the research 6. Material from my PhD thesis on the Independent Custody Visiting Scheme has been published in my book Regulating Police Detention: Voices from behind closed doors, Policy Press 2018. A digital copy of the book accompanies this submission. The research is an original, in-depth investigation of custody visiting, never attempted before, and the first study to take account of and publish the views of detainees – the voices from behind closed doors. The book has been endorsed by the former Court of Appeal Judge Sir Stephen Sedley, who wrote: ‘This innovative and objective study of the system of external supervision of police custody, and of its failure to let daylight in, should alert everyone concerned with the tension between authority and liberty.’ Details of the submission (PCO0014) Under-regulation of police conduct in custody blocks 7. There is no outside scrutiny of police conduct in custody blocks except for the visits made by the custody visitors. Otherwise there is self-regulation by the police and associated agencies. The police maintain custody records, which they have sometimes been found to have falsified. Visits are made by police inspectors. An inspection of each custody block is conducted once every five years by joint teams from Her Majesty’s Inspectorate of Constabulary, Fire and Rescue Services (HMICFRS) and Her Majesty’s Inspectorate of Prisons (HMIP). Custody visiting is supposed to provide the Police and Crime Commissioners with material with which to hold the police to account, but this did not occur in the area studied. Dangers for detainees in custody 8. Detainees may be kept in custody for 36 hours, or considerably longer with authorisation or if suspected of terrorist offences, although many are released with no further action. Custody is disorienting, lonely and potentially dangerous. The police say that the primary purpose of detention in custody is to ‘make the suspect amenable to investigation’:1 in other words, custody is about getting confessions. A former custody sergeant interviewed for this research characterised custody in police stations as ‘a very locked-down environment, the police’s world, which nobody else except custody visitors really gets a view into’. Detainees run the risk of being abused by the police, whatever the extent of any actual abuse, and some lose their lives. The deaths in custody figures show a high proportion of BAME detainees: 25 deaths including 6 BAME detainees in 2017, 20 deaths including 3 BAME detainees in 2018, and 17 deaths including 4 BAME detainees in 2019 (figures from INQUEST). There were 63 suicides after police custody, including a lower proportion of BAME detainees at 4, in the 12 months to July 2019 (figures from IOPC). What is custody visiting? 9. Custody visiting operates in England and Wales under a statutory scheme known as the Independent Custody Visiting Scheme and run by Police and Crime Commissioners. Similar schemes operate in Scotland and Northern Ireland. Members of the public acting as volunteers make what are supposed to be random and unannounced visits to police stations to check on the welfare of detainees. They report their findings to their local Police and Crime Commissioner. Policy 10. The policy and design of custody visiting have been developed by the police and the Home Office. The scheme was not the brainchild of government, and the official approach to its development has been radically different from the 1 Emphasis added: https://news.npcc.police.uk/releases/new-national-vision-and-strategy- announced-for-custody. (PCO0014) lines envisaged by the original proponents, Michael Meacher MP, who made the proposal for custody visiting in his evidence to the Home Affairs Committee investigating deaths in custody in 1980-81, and Lord Scarman, who made a similar proposal in his 1981 report on the Brixton disorders. A voluntary scheme started in the mid-1980s, and the statutory scheme started in 2003. The Home Office have organised both versions of custody visiting in a way that causes the police the minimum of trouble, and they have consistently airbrushed out the idea that custody visiting could be a deterrent to police misconduct that might lead to deaths in custody. The effect of police power 11. The police hold the unique and defining role in society of being authorised to use force, combined with being gifted with a very wide degree of discretion as to how they use that force. A custody block is very much police territory, and all outsiders are subject to the effect of their awareness of that power on their behaviour, even when that power is not actually exercised. This includes the visitors, who are unable to act as regulators of an organisation with much more power than they have. The visitors need to have strong statutory powers to counter the power of the police, along with much better training, and courage. Independence 12. Custody visitors are required by statute to be independent of the police and the Police and Crime Commissioners: and, in any case, to do their job properly, visitors need to be independent.
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