Dr Miranda Bevan
In April 2021 it will be 50 years since three teenagers confessed, in a South London police station, to having played a part in the murder of Maxwell Confait. Readers will no doubt be familiar with the case. Ahmet Salih had just turned 14, Ronald Leighton was 15, the eldest of the group, Colin Lattimore, was 18 years old, but was identified at the time of his arrest as having ‘the mental age of a 14 year old’. The Fisher Inquiry found that each had been questioned in the absence of a parent or independent adult, that they had not been informed of their legal rights and that Colin Lattimore had been subjected to oppressive and unfair questioning. Their convictions, which rested solely on their confessions, were overturned in 1975, but the disquiet caused by the case was a significant factor in the establishing of the Royal Commission on Criminal Procedure which led, in turn, to the passing of the Police and Criminal Evidence Act 1984 (PACE).
As we emerge from the Covid-19 pandemic, change is again on the horizon – with the legacy of the use of virtual legal advice in police custody under the Joint Interim Interview Protocol as yet unclear, the Criminal Legal Aid Review soon to report and resources ever more stretched. Against this backdrop, and as the anniversary of the Confait case looms, it seems a fitting time to ask: can we be satisfied that the sort of injustice experienced by the Confait suspects is not being repeated today?
The intervening decades have seen profound changes to the legal framework protecting children in trouble with the law, not least with the ratification by the UK of the United Nations Convention on the Rights of the Child in 1990. International, European and domestic instruments and guidance now require a child-friendly approach to be taken, and underline the importance of effective participation, including in the police station. PACE, and its attendant Codes of Practice have themselves been repeatedly amended. But, in practice, how far have we really come since Confait? In answering this question I draw on the findings of a qualitative research study (Bevan 2019; Bevan 2021), which included 41 interviews with children and young people with experience of detention as a ‘juvenile’ in police custody (referred to here as young participants and individually by pseudonyms), supplemented by observations in three force areas and further police, professional and volunteer interviews.
Appropriate adults: ‘My Mum’s not really good at all that law stuff, so she just keeps quiet’ (Zayn)
PACE Code C introduced the mandatory presence of an appropriate adult (AA) for child suspects, and AAs are now consistently present in child suspect interviews (Criminal Justice Joint Inspection 2011). However, despite the extraordinary demands placed on the AA (Code C 1.7A) – to support and advise the child, facilitate comprehension and exercise of their rights, safeguard their welfare, oversee due process, and support their communication with the police – the role is required primarily to be fulfilled by parents or other familial adults, and otherwise, most commonly, by trained, but lay, volunteers.
Familial AAs involved in the study frequently felt out of their depth, intimidated into going along with what officers said and lacked an understanding of what they were expected to do and how they might intervene effectively. At the same time, while the presence of familiar adults could be reassuring, it often introduced a layer of emotional complexity and tension which added to the challenges a child suspect had to navigate in detention. Lay volunteers, by contrast, had a better appreciation of the role and process, but young participants often found it difficult to connect with an unknown stranger, commonly very much older and of a different background and ethnicity to them.
Perhaps most significantly, child suspects on observation waited on average five and half hours to see their AA (in keeping with the Children’s Commissioner’s research) – the timing of their attendance frequently being organised for the convenience of the investigation rather than the needs of the child. As the role is currently conceived and fulfilled, the AA is too frequently ill-equipped to insulate a child from the sort of unfairness experienced by the Confait suspects.
Legal advice: ‘I didn’t want one (a solicitor)…I just wanted to get out’ (Alex)
Today the recitation by the Custody Officer of the right to legal advice is a routine event, but meaningful engagement with that right is not. In England and Wales child suspects as young as 10 are required to opt for legal advice (in contrast to the mandatory provision in a number of European states) and quantitative research has long identified the strikingly low uptake of legal advice by children (Kemp, Pleasence and Balmer, 2011).
Young participants provided a range of reasons for declining advice, including being too anxious and distressed to engage with the offer at all, failing to comprehend the benefits of legal advice, doubting the independence of solicitors, and being overwhelmed by desperation to get out of detention. AAs were not always informed of their right to request legal advice themselves, and family members often declined for the same reasons as their children. Charlie Taylor’s youth justice review proposed an ‘opt out’ position for legal advice for children – my findings suggest that such a change may not go far enough.
Interview techniques: ‘..even if you did say something they will try and twist it into thinking that you’ve said something completely different.’ (Harper)
While a murder investigation, such as the Confait case, would today likely be handled by officers with specialist interview training, the less serious offences for which children are more commonly detained are not. In stark contrast to the approach taken to child witnesses, child suspects are not required to be interviewed by officers with specialist training to elicit their best evidence (Gooch and von Berg, 2019). Young participants described a range of oppressive questioning approaches in interview – including unduly repetitive questioning, the drawing of unfair inference from leading questions and heightened pressure as a result of reference being made to release – many of the tactics for which Lattimore’s interview was criticised almost 50 years ago.
Nor is it clear that fitness for interview and risk assessment processes today are sufficiently tailored to ensure identification of the sort of learning difficulties experienced by Colin Lattimore. Even where vulnerabilities are identified, adjustments in interview, particularly intermediary assistance and speech and language support, are vanishingly rare. The blanket remedy is the presence of the AA, who is, by definition, not an expert in supporting more profound communication and comprehension difficulties.
Length and harshness of detention episodes: ‘It’s bare long. Honestly every minute feels like 10 minutes’ (Zoe)
In one significant respect things are worse than at the time of the Confait case – average detention periods have increased (Kemp, Pleasence and Balmer, 2011) . On observation the average time spent by a child in custody was 11 hours and 45 minutes. Additionally, despite their right to accommodation and support appropriate to their age and vulnerabilities, young participants had frequently experienced largely the same detention conditions as adults – held in adult cells and with little support to cope with lengthy periods of isolation. Granted, detention periods may be protracted as a result of safeguarding concerns, and to enable the attendance of the AA. But the effect on the child’s capacity to participate effectively in the interview can be profound. By the time they were required for questioning, young participants were often too exhausted, hungry or desperate to get out, to take in legal advice, or give a good account of themselves in interview. Alternatively, many described making ‘no comment’ to get it over with more quickly, or in an attempt to retaliate for what they considered to be unjustified treatment.
So, how far have we come since Confait? Whilst the protections for child suspects on paper promise much, in practice the position of the child in police detention is only minimally improved, if at all. Progress has, arguably, been more presentational than effective and the scope for injustice remains substantial. As no other, the Confait case taught us the critical significance of police interview, the extreme vulnerability of child suspects and the need for timely and specialist support. Fifty years on, as we contemplate further changes, we must make sure those lessons are learnt.
Dr Miranda Bevan is Lecturer in Law at Goldsmiths, University of London and a Visiting Fellow at the Mannheim Centre, LSE’. Email: firstname.lastname@example.org
‘The research was supported by an LSE Studentship and an ESRC Post-Doctoral Fellowship (Ref ES/V007084/1).’