‘Vulnerable by law (but not by nature)’: examining perceptions of youth and childhood ‘vulnerability’ in the context of police custody

Abstract

This paper, drawing upon qualitative data produced through interviews with custody officers (COs) at two custody suites in England, examines how the vulnerability of children and young people is conceptualised generally, within the criminal process, and then, more specifically, in police custody. It uses the appropriate adult (AA) safeguard under Code C to the Police and Criminal Evidence Act 1984 as the point of reference and explores, firstly, how childhood is conceptualised and, secondly, how childhood vulnerability is understood by COs. The responses of COs are perhaps indicative of a wider issue within the criminal process – the construction of youth and childhood and, accordingly, the criminal law response to children and young people. Within this paper, whilst it is accepted that childhood and vulnerability are non-static concepts, it is nevertheless contended that children and young people are vulnerable, particularly when facing the criminal process.

Keywords:

• Custody
• police
• appropriate adults
• vulnerability
• youth

Acknowledgements

I would like to thank the two anonymous police forces for granting me access, and the officers who took part. I would also like to thank Eugenia Caracciolo di Torella, Jo Phoenix, Charlotte Walsh, Steven Cammiss and the anonymous reviewer for their insightful comments on earlier drafts. As always, all errors and omissions are my own.

Notes

1. The term ‘child’ refers to those below the age of 15, youth refers to those between 15 and 24 (see United Nations Department of Economic and Social Affairs n.d.). Within this paper, I am concerned with young suspects between the age of 10 (the age of criminal responsibility) and 17 (as at 18 a suspect is considered an ‘adult’ within custody).

2. Although the criminal justice system does not necessarily view children and young people in this way – see later discussion.

3. Pierpoint has explored this latter element – see Pierpoint, 2000, 2001, 2006, 2008.

4. Although it should be noted that the youth justice system is becoming increasingly less punitive – see Bateman, 2015.

5. Newburn also discusses the history of childhood and the developments herewith (1997).

6. For example, individuals below the age of 18 are typically unable to apply for Jobseeker’s Allowance or Housing Benefit. As such, they can experience economic dependence.

7. The UNCRC(1989) is an international human rights treaty and sets out various rights (civil, economic, political, social, health and cultural) of children. States that ratify it are bound by it in international law.

8. Yet there are difficulties in implementing children’s rights where the geopolitical area does not subscribe to the same attitudes, cultural ideals and politics (Boyden, 1997, p. 203). Hanson (2016) has highlighted some of the problems with the UNCRC.

9. This will be seen later in the paper.

10. It is worth noting that the United States has still not ratified the UN – see UN Children’s Rights BlogSpot (n.d.).

11. For discussion see Bandalli, 1998. For recent discussion see Fitz-Gibbon, 2016.

12. Although the Age of Criminal Responsibility Bill seeks to raise this to 12.

13. Perhaps the most well-known case is that of Robert Thompson and Jon Venables, for the death of the two-year-old James Bulger in Bootle, Liverpool in 1993. This will be discussed in greater detail later.

14. See CRIN 2016.

15. They may however no longer avail of reprimands or warnings (these were abolished in April 2013 by virtue of s 135 (1) Legal Aid Sentencing & Punishment of Offenders Act, 2012).

16. This is at the discretion of the trial judge – see R. (on the application of C) v Sevenoaks Youth Court [2009] EWHC 3088 (Admin); [2010] 1 All E.R. 735.

17. This was previously set at 16. This will be discussed below.

18. The Code also requires that the mentally disordered and the mentally vulnerable be provided with an AA (Code C 2014).

19. They provided, or at least enshrined in law, numerous police powers.

20. The safeguard also applies to those deemed ‘mentally vulnerable’ or ‘mentally disordered’ – see Code C 2014.

21. Unless, of course, the 18-year-old was considered ‘mentally vulnerable’ or ‘mentally disordered’ – see Code C.

22. This has since been given affect by legislation – see Criminal Justice & Courts Act 2015 s 42. R (on the application of HC) has ensured that the provision for AAs corresponded with other aspects of the youth justice system such as the age threshold in the Youth Court.

23. This is in marked contrast to the approach taken towards children as victims and witnesses. Lord Judge, in the Annual Law Reform Lecture of the Bar Council in 2013, suggested that, in the future, children may no longer have to give evidence as witnesses to or victims of a crime – see Lord Judge, 2013.

24. See above in relation to doli incapax.

25. As Muncie has noted, the criminal justice response may favour ‘punitive values’ rather than ‘protection and support’ (Muncie, 2008, p. 110).

26. Muncie is using Garland’s concept of responsibilisation (see Garland, 2001). Increasing responsibilisation is seemingly part of a greater neoliberal agenda and applies not only to youth justice (see Liebenberg, Ungar, & Ikeda, 2015; Phoenix & Kelly, 2013) but also other areas such as sex work (see Scoular & O’Neill, 2007).

27. See Fionda, 2005 for greater discussion. See also Newburn, 1997.

28. They argued that sentence handed down by the Home Secretary violated Articles 5 and 6 ECHR.

29. ‘[G]rowing up’ is certainly becoming more complicated (Newburn, 1997, p. 651).

30. Parents recently protested the introduction of primary tests for children as young as seven (Couglan, 2016).

31. Similarly, such labelling may be part of neoliberal state encroachment (Munro & Scoular, 2012, p. 189; see also Brown, 2015). The term ‘vulnerability’ is therefore not unproblematic however due to its use within Code C it will be continue to be deployed within this paper.

32. See Dehaghani (in press) for a discussion of this argument in the context of adult suspects.

33. Kemp also highlighted the concerns about the police response to inappropriate complaints made by children’s care home staff – see Kemp, 2014, p. 283. See also Howard Howard League, 2016. Whilst the ‘offences brought to justice’ targets were abolished, Kemp has highlighted their enduring impact on police practice (2014).

34. See Dehaghani (2016) for greater discussion on methods.

35. As Charmaz has noted, grounded theory can lead to theory construction of ‘sharpened thematic analyses’ (2006, p. 366).

36. Some COs explained this of their own volition.

37. The term ‘young adults’ was reiterated by CO1.

38. The Policing and Criminal Justice Bill seeks to ‘create legislative consistency’ in this regard (see Queen’s Speech’s, 2015).

39. ‘Nicking from Sportsworld’ could be an indicator of being poor or disadvantaged i.e. a vulnerability – see Muncie, 2006, p. 22.

40. This, in my view, is not unsurprising or problematic because vulnerability, as aforementioned, can be exacerbated by contact with the criminal process.

41. 18-year-olds could indeed be vulnerable and the cut-off of 17 could be viewed as arbitrary.

42. Vulnerability is therefore also bound-up with knowledge and understanding (as explored above and as will be explored later) – see also Kemp & Hodgson, 2016.

43. Also note the gendered dimension to this lack of vulnerability (see also Brown, 2015). See also above in relation to gender and criminalisation.

44. Links could be made here with responsibilisation – it is not the police or the criminal justice system who are potentially responsible for any errors/misgivings but rather the child or young person.

45. Although Moses LJ did highlight how the criminal process can reinforce vulnerability (see above).

46. The rules regarding young suspects and the AA safeguard can therefore be viewed as ‘inhibitory’ (Policy Studies Institute, 1983).

47. See n 46 above.

48. As ascertained during observations, members of the Youth Offending Team seemed particularly thorough when checking whether the child or young person had been provided with, for example, regular and sufficient nutrition and hydration.

49. These figures, based on officially recorded data, ‘are likely to be significant underestimates’ (Jacobsen et al., 2010 in Gray, 2015, p. 434).

50. Gray, in his study, uses biographical narrative methods to highlight the experiences that negative life events have had on these three young men. The life histories of these young men highlight profound and complex vulnerabilities (see Gray, 2015). On the negative life experiences of young people in custody see Grimshaw, 2011.

51. As Kemp and Hodgson have highlighted, custody is, of itself, perceived by young suspects as a punishment (2016, p. 149). This echoes the well-known contention that the process is the punishment (Feeley, 1992, as above).

52. The interpretation of vulnerability within police custody and within the wider justice system could also help engender understanding of how unaccompanied minors are viewed and thereby treated.