(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 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 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 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. I found that the visitors were not independent, because all aspects of their work were controlled by the Police and Crime Commissioner, and the visitors were heavily influenced by the police. For instance, visitors’ group meetings were held at police stations, with the police and an official of the Police and Crime Commissioner present throughout. Some of the visitors were related to police officers. Visitors could be dismissed summarily; many did not keep their distance from the police; the very superficial training they received was mono-cultural and entirely from the police’s point of view; and the visitors failed to challenge the police when necessary. And when it came to the most important, defining issue of deaths in custody, almost all the visitors thought their work had little to do with it. In one case, shortly before the inquest about a detainee who had died in the police station visited by a particular team of visitors, the police actually sought to persuade those visitors to promote the police’s case that they had not been at fault. The inquest reached the opposite conclusion, but visitors did not raise the issue with the police.

Effectiveness

13. The visits took place at predictable times, and never during the night, with the consequence that the police were expecting the visits and that the visits were neither random nor unannounced. But no notice was given to the detainees, and the visitors’ meetings with them usually lasted only three minutes. Detainees, whom I interviewed for rather longer and in private, did not welcome the visits or understand the role of the visitors: and, most significantly, the detainees did not trust the visitors. As one detainee said: (PCO0014)

‘The only reason I talk to the visitors is because I’m a captive audience.’ Another said: ‘I didn’t think the visitors were there to help me.’ The meetings could be overheard by the custody staff, as can be seen from this photograph, so it is hardly surprising that the detainees were not candid with the visitors. As one detainee told me: ‘I wanted to tell the visitors I was annoyed because I had asked the guards (custody staff) questions two hours ago and had got no answers, but couldn’t tell the visitors because the guards were standing there.’ Like the custody staff in that quote, the visitors did not report back to detainees about the results of the representations made to the custody sergeant on their behalf. Before their reports were sent to the Police and Crime Commissioner, the visitors had to get their reports countersigned by the custody sergeant, which deterred visitors from confrontations with the sergeant. I found that the existence of the visiting scheme, and specific visits and the reports of those visits, made no significant impact on police behaviour, and that some individual police officers did not follow the party line of respect for the visiting scheme. The Police and Crime Commissioner gave no useful information to the public about the work of the scheme, and visitors had no public voice.

14. Custody visiting does not live up to the claims made for it in the official literature: it does not provide reassurance to the public about custody, nor does it contribute to police accountability. The visiting work does not meet international human rights obligations under the United Nations ‛OPCAT’ treaty2 which sets standards for custody visiting. If custody visiting achieves anything, it is probably counterproductive, because it obscures the need for proper, effective regulation of police conduct in custody blocks. If politicians and the public knew this, there would be pressure for reform.

Reform

15. I recommend the following reforms:

2 Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. (PCO0014)

 The primary purpose of custody visiting should be openly stated as the deterrence of police conduct that could lead to abuse or death of detainees.  Custody visitors should be independent of the police and the state.  Visitors should not be managed by the Police and Crime Commissioners, but by an independent body.  Visitors should have legal protection like whistle-blowers.  The recruitment and training of visitors should include contributions from defence solicitors.  Visitors should be trained to understand the subject of deaths in custody and the inquest system.  Visits should be genuinely random and unexpected.  Visitors should be given statutory powers for immediate access to custody blocks and all those detained in the blocks.  Visitors should be able to contact defence solicitors acting for detainees they see on their visits, to report on the detainees’ condition.  Visitors should be trained in communication skills.  Visitors’ meetings with detainees should be genuinely private and confidential, and they should not be rushed.  Visitors should give feedback to detainees about the results of their representations to the custody staff on their behalf.  Visitors should challenge the police where necessary.  Visitors should not have to show their reports to the custody sergeant.  Visitors should hold group meetings away from police stations and without the police being present throughout.  Visitors should be able to publish their findings without censorship.  There should be open, democratic discussions about custody, at forums including the Home Affairs Committee, to which visitors could make useful contributions.

The response of the authorities to the research

16. I approached Yvette Cooper MP, Committee Chair, in 2018, and she suggested the reforms could be piloted in a police area. I prepared a list of reforms which could be trialled without a change in the law and suggested a pilot to a Police and Crime Commissioner. At this point ICVA became involved. ICVA is the Independent Custody Visiting Association, which sounds like an organisation representing visitors, but in fact its only members are Police and Crime Commissioners. ICVA consulted the Home Office and the Association of Police and Crime Commissioners: as usual, no representative of detainees was consulted. ICVA concluded that the proposed pilot would not be effective in solving the issues it aimed to address, and they were therefore unable to support it. Despite that, ICVA also stated that much of their work would address some of the issues that the research had highlighted. Those issues would of course have been addressed in the pilot, had it been allowed to take place.

17. Prompted by another Committee member, Tim Loughton MP, I wrote to the Home Secretary (then Sajid Javid) about my research. The Home Office’s response (their letter was neither signed nor dated) was that the most effective means of ICVA delivering change was through ICVA’s grant agreement with the Home Office which allowed a ‛strategic overview’ of improvements. The Home Office went on to say the issues highlighted by my research were being addressed by many of the new approaches and (PCO0014)

improvements which ICVA and Police and Crime Commissioners were implementing as part of their current business plan, and that ICVA would consider my work, along with other research concerning independent custody visiting, in developing their future business plans. However, ICVA have not published any information about this. ICVA and the Home Office have declined either to comment on the individual issues raised by my research or to discuss any of those issues with me.

Conclusion

18. The reforms set out above are needed to contribute towards reducing the number of deaths in custody. There is currently a greater degree of public concern in the UK, as in the USA, about deaths in custody, following the killing of George Floyd by a police officer in Minneapolis in May 2020 and the growth of the Black Lives Matter movement. The death of Sean Rigg at Brixton police station in 2008 continues to reverberate, and a film is being made, based on the play about the death of Christopher Alder at a police station in Hull in 1998. There are vociferous campaigns about other more recent deaths. The custody visiting scheme should be tackling the issue of deaths in custody, which it emphatically fails to do. I do hope that the Committee will publicise my research and recommend that the Home Office and ICVA respond in detail and in public to the points made in the research. The proceedings of the Home Affairs Committee could be a springboard for publicity. If the public were properly informed there would be pressure for reform. A reformed custody visiting scheme would improve police conduct in custody blocks. The reforms would contribute to securing public confidence in the police conduct and discipline system.

September 2020