When I say you can

The buzzer at the gate access point sounds within custody. A detention officer answers. Over the sound of the van engine the officer can be heard to say “One male on board. I’ll need a hand with this one.” The access gates begin to open and the van dock shutter doors are released to the secure area. The vehicle is monitored on cctv from the gate and into the dock. The shutter doors are closed behind. Meanwhile the remaining detention officers and one of my fellow Sgt’s have “gloved up”. Limb restraints are stuck in pockets and as they head to the van dock they pull a spit hood from the wall of the holding area.

The van dock cameras are trained on the back of the van. If I turn through 120 degrees I can view the unfolding events on a monitor without leaving my seat. The welcoming committee is ready and the doors on the internal cage are opened up. The sight of so many officers has on this occasion pushed all the fight out of this one. He comes in compliantly but it hasn’t stopped his mouth. This continues in a state of overdrive about how badly he has been treated, how tight the cuffs are and how he has done nothing wrong. This transmits to us on the microphones as he is walked through the air lock doors of the holding area.

He is escorted into the charge area and around the desk toward me with an officer on each arm. His vociferous complaints suddenly change tack on sight of myself. “Sarge I want a solicitor right now” he bellows, “and I want a phone call.” I dodge the demands with a well used phrase “I’m sure you do. Lets get you booked in and we’ll get all that sorted.” His reply is a common one. “No. I’m tellin’ you nothing ’til my brief gets here”. I point out that he’s in for drunk and disorderly and it’s 3am and that no solicitor worth his salt, no matter how important he thinks he is will get out of bed and come and see him right now. He continues this endless stream of demands and eventually the previous complaints start to come back too. I ask if he is going to cooperate with the booking in procedure but his constant ranting probably stops him from hearing me.. “Get my solicitor on the phone NOW! You’re denying me my rights. When can I have my solicitor?” He demands this as he struggles with officers, squares up to them and makes comment about how they must have been bullied at school and if it were just him and them one on one he’d sort them out. My reply to his legal demand… “When I say you can”. He is dispatched to a cell and will get nothing until he is sober, compliant and in a fit state to understand his rights and present no risk to myself, the officers or my team.

The next customer arrives but contrastingly different. This person is meek, frightened and tearful. He has never been arrested before and has arrived in custody after a fall out with his wife and the shouting attracted the attention of the neighbours who have called the police. Invariably there is uncertainty, a genuine respect for the police but a look of complete bewilderment. He is a duck out of water.

Two very different case scenarios. The first is clearly a frequent flyer. He knows his rights but alcohol is affecting how he behaves. He believes he has the upper hand. He is in charge and he will get what he wants. The second case is someone who is intimidated and frightened by the system and needs a lot of help and support to get through the process.

In the first case have I denied him his rights? The answer is no. He is not in a fit state to be given them due to his demeanour and PACE states I can delay giving his rights to him until he is more compliant. He does have an understanding of the system though and he knows he can have a solicitor. Yet I have the power to tell him he can have a solicitor “When I say you can”. To a casual observer this could be misconstrued as me being oppressive or controlling but this isn’t denying his rights, it’s simply delaying them. Later in the morning when the day staff have taken over he will get his rights and legal advice can be obtained if requested.

The second scenario is a little different. I work through his rights with him. I progress slowly and methodically. There is a lot for him to take in and obfuscation is not the name of the game. He will generally tell me he doesn’t know if he should have a solicitor or not and ask me for advice as he’s never been in this situation before. Through the basic custody processes and the paperwork that has arrived with him I can see this is a simple, no injury, domestic assault contrary to S39 Criminal Justice Act 1988 and he has no previous police history. I advise him that this decision is his alone. I cannot advise him either way but as I tell him this I may be casually nodding my head. This man needs support and guidance and whilst I cannot tell him outright, I can steer him in the right direction.

In our drunk and disorderly case he will most likely drop his request for a solicitor in the morning. He will know it’s simply D&D and he is not going to be interviewed. He’ll sort his solicitor out before court. If however he did feel the need to obtain advice then the call will be made for him. Recent changes to the DSCC system now mean that in such cases he will not get to speak to his “chosen” solicitor. His request will be passed to CDS and they will offer telephone advice. There is of course nothing stopping him then going to visit his own solicitor after release and before court.

In our second case he decides, encouraged by my nodding, to take up the opportunity to have legal representation. He doesn’t know of any particular firm so he asks for the duty solicitor. The call to the DSCC is made. As he is to be interviewed the case is passed directly to the duty solicitor and by-passes CDS. A short time later one of our regular solicitors makes contact, takes some basic details, speaks to the client on the phone and advises that he will be there when the police are ready to interview.

In domestic abuse cases the police in recent years have gone a little overboard in chasing figures. There is a behemoth of an article about this by Insp Simon Guilfoyle here  In the past officers have attended domestic situations. The injured party does not wish to make a complaint and the police have left. Sometimes dropping the other half off somewhere else so there are no more problems that night. This led to a situation where some women were systematically abused by their partner and it never led to an arrest never mind court. Changes were gradually introduced and every force now manages a database that records details of incidents relating to domestic occurences and vulnerable people. This led to many policy decisions being made that directed officers to take “positive action” in all domestic incidents. On the face of it this ensures that the repeat victim, despite her lack of complaint, gets some protection as the offender is locked up. We can also look at alternative ways of prosecuting him with or without her support. However, in the number chasing game officers have taken “positive action” to mean “arrest every time”. This is wrong. Yes we have to make an evidence based decision on our course of action but on occasions positive action could be as little as taking him to his mums for the night. It has to be a decision based on intelligence and the surrounding circumstances. This seems to be improving at the moment but sadly there are many people who have been criminalised because of positive action and figure chasing.

Lets look at scenario two in a little more detail;

A)
This man has never been arrested before. He has never had any involvement with the police. He trusts us. We are not likely to stitch him up. He’s prepared to talk to us about his argument tonight. He does not need a solicitor because in his eyes he has done nothing wrong. We subsequently interview him. He admits they had an argument and he says he had decided to leave and stay at his mums for the night. His wife stood at the door and told him not to leave. He decided it was better he did. He took hold of his wife by the arms, moved her to one side and left the address. It was then that the police arrived and arrested him. He has by definition committed an assault but his wife did not want to make a complaint. The officers took positive action and arrested him. On the basis of his own admission he is given an adult caution for the offence. This is not a conviction but does result in a criminal record that will flag up on CRB checks and something he may have to disclose to current or future employers. This is a black mark on his character.

B)
Having elected to have the duty solicitor he duly attends and recieves disclosure from the interviewing officer. This includes the fact that there are no injuries, no independent witnesses and no complaint. In the resulting interivew, no matter how bizarre it seems to the client, he follows his legal advice and makes no comment to all questions. He is released with no further action.

As somebody who has never been in trouble before what option would you prefer? A or B? I’m guessing B would be your first choice.

I would have to say that I don’t agree with scenario A but this has happened time and time again in my force and I’m confident every other force in the country is the same. In many cases, I have even had solicitors in custody who have accepted this disposal decision. Such cases are an abuse of the system but it allows the police to obtain a tick for a detection. It is an abuse of the system because the evidence to support an adult caution must be of the same standard to allow it to stand up in court. In these circumstances without the victim’s support the case would not make court so therefore the caution is unsound. In scenario B we get nothing. We are now moving toward less bean counting decisions. They are more focussed on the wishes of the victim, the interests of the offender, the intrests of the criminal justice system and then the interests of the police last. I have many times, even when an admission has been given for a no injury, no previous convictions, no witnesses, no complaint domestic assault who has not had legal advice released them NFA. Why? Because had they not been in a position where they trust the police not to abuse that trust for a detection and taken a solicitor they would have had “no comment” advice and walked out a free person. This is fair, honest and I can sleep at night knowning I’ve done what’s right.

The government are looking at cost saving right across the the board. The police are no exception and I have blogged on this previously. It is now the turn of the defence solicitors. They recenly had some major changes to the way the system works and more are being mooted. An article by fellow tweeter @crimsolicitor can be found here

There have been firms who to be quite blunt, have abused the old legal aid system and made a considerable amount of money out of it. I never saw it myself and rumours are a dangerous thing but I have heard that some major firms in a city I once worked in would send out hampers to their best clients at Christmas! Talk about giving the wrong message. Anyway the reforms were a long time coming and whilst the system isn’t as good as it could be it still works. The government are now trying to knock this again. They are trying to increase the number of offences that will only attract telephone advice and considering means testing before free legal advice is given. The above blog is a perfect example of why this is not appropriate. In my experience the CDS call staff are abrupt, ask some of the most ridiculous questions that are clearly for tick boxes on their computer system and make demands that are a) ignored and b) never asked of by their more erudite colleagues who attend the police stations. This is a dangerous situation.

Over the years there has been a “them and us” culture between the police and solicitors. I have experienced enmity from both sides that is destructive to the whole process. At least where I work now is different. We have a positive relationship with all our solicitors and legal reps. The police are not looking for a “cough” every time. We are looking for the truth. I posted a comment on a blog by another tweeter @kateharney a few weeks ago here We should all work together to ensure justice is done. Not pull in opposite directions.

The right to free independent legal advice and face to face consultation with your solicitor is enshrined in PACE. It should stay there for all the reasons I note and for the excellent blog by @crimsolicitor linked above. If your car exhaust drops off do you put it in the hands of an expert or do a botch job yourself? You put it in the hands of an expert. It stands to reason that should you ever find yourself in custody, either for the first time as in B or as the most recent visit of many ealier ones as A that you get the most appropriate advice from a specialist in that field and don’t do it yourself. Anything less than this is, in the long run, going to cost you, me and all the taxpayers an awful lot more than the fee the solicitor will acrue.

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8 thoughts on “When I say you can”

  1. A welcome view from someone in your position.
    My concern is that being who you are, and having the conscience and presence of mind to think and write this way, you may yourself be the exception that proves the rule.
    I'd genuinely like to know whether you think you are, or alternatively, do you think you represent the majority view amongst Custody Sgts?

  2. Excellent blog. This is a situation all to familiar and gets so frustrating. I am constantly battling Inspts on this one and batting off 'you will give a caution' comments as we don't want an undetected domestic. Having a solicitor present is essential for some people and the right to face to face consultation should most defiantly remain

  3. Can I just say that I am heartened by your comments which do you great credit. Like the poster above I suspect that your views may be in the minority amongst your colleagues but perhaps I am mistaken in that regard. As a defence Solicitor of some 20 years your views have gone a little way to restoring my faith in a system which is so dangeroulsy being dismantled. Thank you

  4. Thebungblog – I think it's important to recognise this as 'my' view and take on the issue. I'm confident there are many custody sgts in the same position who will agree. The difficulty is getting people to go against the trend. I have many colleagues who will agree with my action in such cases but when the decision falls to them they will take the path of least resistance.. in many ways for a quiet life. I'm known for not being afraid of sticking my head above the parapet and doing things differently… I guess I'm either blazing a trail or documenting my downfall!

    RuralSgt… you and I share many similar views and challenges. Caution decisions recently dropped back to us mere Sgt's and I quite like it that way though there are some issues about the quasi-judicial function in this case and whether the custody sgt is becoming part of the investigation. For the time being it seems to be running without challenge. I have many times cautioned people “on behalf” of the Insp who has simply authorised it. I have also refused and said that I disagree and if they want to caution they can come and do it themselves. More hot water for thecustodysgt!! :o)

  5. Typical, criminalise the husband. If the roles were reversed and he tried to stop her leaving you'd do him for kidnap or some other such BS. Now all wifey has to do is attack hubby to her heart's content and no matter what he does you **** will arrest him,after all only men can commit DV.

  6. It's taken me longer to get round to commenting on this than I had liked.

    Your post raises actually raises a number of fundamental issues. The first is obviously the provision of Legal Aid. It really is quite disgraceful that the Government are attempting to limit this right even more than is already the case. In Scotland we only just last year won the right to have access to legal advice and assistance while in custody (and that was only after the UK Supreme Court got involved and stated we were in breach of Article 6). Prior to that a person could be detained and questioned by the Police for up to 6 hours and were only allowed to have a Solicitor notified of the fact they were detained.

    I do think that one of the biggest threats to justice is the target culture within the police. I often think it leads to totally nonsensical decisions. I was utterly shocked to read in a book written by a Police Constable that officers need to justify why they did not arrest someone as opposed to why they did. If that is a true and accurate account of what is going on inside the police then it is a sorry state of affairs. Please don't take this the wrong way; I know the nonsensical decisions come from above and are made by people so far removed from the front line they wouldn't know it if it were to come up and smack them across the face. Take your chap above for instance. Yes, he may have technically committed an assault, but I doubt there is any reasonable person in the land who would be of the view that he should have been arrested and certainly not convicted.

    Domestic Violence is exactly one of those areas where targets have resulted in, for the most part, a complete loss of common sense. Yes, there are people (both men and women) who suffer horrendous abuse at the hands of their partner. Yes, many of them are far too scared to take action through the legal system. However, I have faith that the vast majority of officers can tell the different between “just an argument” and something more serious. I think times have changed and moved on and that officers on the ground recognise domestic abuse, take it seriously and are unlikely to turn a blind eye. However, innocent men and women should not have to suffer having their name tarnished by a caution or conviction for a “domestic assault” because of a few police officers who lack any moral integrity to take action when it need to be taken. I’ve seen it in Courts up here as well and I’ve seen Sheriffs criticise the Crown and even declare that they are wasting the Court’s time. One case I remember vividly was the case of a boyfriend and girlfriend who, while both totally off their faces on alcohol, chucked some crockery at each other during a dispute. Both taken to court by the Crown (for domestic assault) and both found Not Guilty by a Sheriff.

    Anyway, returning to the issue of Legal Aid. It’s a totally unworkable policy that will have a negative impact upon justice and I’m glad to see everyone involved in the Criminal Justice system from Police to defence agents to probation officers and social workers all condemning it as a bad idea. Surely when so many “stakeholders” in the system say it’s a bad idea the Government should sit up, listen and take action?

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