Voluntary police interviews and youths

A national working group comprised of representatives from the Police, CPS, Legal Aid Agency, Defence Practitioners, NHS England Health and Justice, the National Appropriate Adult Network, the Ministry of Justice and academic experts have recently produced new guidance in relation to voluntary police interviews to assist police officers and police staff from police forces across England and Wales in relation to conducting interviews under caution where an individual is not arrested.

Whilst the guidance covers a variety of areas relating to voluntary police interviews, within this article we will concentrate on the impact of a voluntary interview on children and young people.

The guidance states that when conducting a voluntary interview with children or young people interviewing officers should take a ‘child first approach’ concerning which child-friendly and child-centred strategies are adopted.

Interview under arrest to be ‘a last resort’ for children and young people

The guidance recognises the need to reduce the number of children and young people entering police custody suites and states that detention should only be used as a last resort. Accordingly, interviews outside of custody and consequently voluntary interviews should be prioritised.

The guidance goes on to state that the following principles should be uppermost when considering a voluntary interview in relation to a child or young person.

• Child first – children are not mini adults and anybody under the age of 18 should be treated as a child having regard to the need to safeguard them, promote their welfare and improve their wellbeing
• Minimise custody – policing processes and interactions can have a significant impact upon the lives of children and young people both in the short and long term. The guidance states that custody is a traumatic experience for children, and they should only enter custody when necessary and for the minimum time necessary. Even when the test for arrest is met under Code G of the Police and Criminal Evidence Act, officers should still consider alternatives including a voluntary interview.
• Equal safeguards – it is important to also recognise the risk to children of a voluntary interview. Children should not be criminalized for behaviour that can be dealt with more appropriately by other means. A voluntary interview under caution presents the same level of legal jeopardy for a child and alternatives to criminal justice should be considered
• Fair justice – all children are vulnerable to their age. They are particularly prone in certain circumstances to providing information that could be unreliable, misleading, or self-incriminating including providing false confessions. It is important to obtain corroboration of any facts given by children and young people. The guidance notes that younger children are particularly likely to waive their right to free legal advice and representation
• Treat as an individual – children who have contact with the Criminal Justice System are more likely to be vulnerable including suffering from trauma, having mental health difficulties, learning disabilities, communication needs, brain injury and neurodiverse conditions including ADHD and autism. Each child is an individual and a full understanding of each child’s circumstances should always be sought, their vulnerabilities identified and responded to effectively.

Arranging a voluntary interview

When arranging a voluntary interview with a child or young person the police should consider the following points:

1. Confirm the age of the child – procedural safeguards apply to all persons under 18 – referred in the Police and Criminal Evidence as juveniles including the mandatory involvement of an appropriate adult.
2. Identify any vulnerabilities – children in contact with the Criminal Justice System are significantly more likely to have additional needs than other children as referred to above.
3. Proposed location – officers should consider what location would be in the best interest of the particular child including considering the potential psychological impact on the child, their understanding of the significance and implications of an interview and the need to ensure appropriate support and safeguards.
4. Explain processes and rights – in the presence of an appropriate adult the officer should ensure any child fully understands the purpose and process of the interview, their rights and entitlements and the safeguards that apply to voluntary interviews. They should use language in terms that are appropriate to the child considering their age, language development and communication skills. The same should be explained to the child’s parent and guardian if they are not the appropriate adult.
5. Request informed agreement – before arranging the interview the police officer should obtain the informed agreement of both the child (in the presence of an appropriate adult) and the agreement of their parent or legal guardian. An appropriate adult who is not the child’s parent or guardian cannot provide agreement. If no parent or guardian can give agreement the interview should not be conducted on a voluntary basis until such agreement can be obtained.
6. Legal Advice – the officer should ask both the child and the appropriate adult whether they wish to have free legal advice and representation at the interview. It should be made clear to the child or young person that the police can arrange for a solicitor to attend, and they will be independent of the police. If an appropriate adult requests legal advice for a child, the officer must treat this as a request for a child even if the child has declined legal advice. A child cannot be forced to speak to their solicitor or legal representative. Some forces have chosen to adopt a position of presumed consent for legal advice for children i.e. that a solicitor will always be provided for a child or young person unless they wish to expressly ask that one not be provided. The guidance states that whilst this is not reflective of the Police and Criminal Evidence Act this is seen as best practice to ensure that children and young people are adequately protected. 

Before the interview takes place, the interviewing officers should ensure that the following steps are taken:

Rights and agreement

The officer should repeat their explanation of the voluntary interview, the child’s rights, and the caution. They should check the child’s understanding and again request their informed agreement to be interviewed. This should be recorded, along with the informed agreement of a parent or guardian. It is important that children are reminded of their right to remain silent, emphasising they are not obliged to answer questions.

Private consultation with appropriate adult

A child must be informed that they have the right to a private consultation with their appropriate adult at any time before or during the interview. The officer should ensure the child is aware that they can ask for a break to speak to their appropriate adult during the interview. The officer should ensure the child has an opportunity for a private consultation with their appropriate adult before the interview. This is an opportunity for the appropriate adult to check the child’s understanding of the process, rights, and the caution.

Consultations between a child and their appropriate adult are subject to confidentiality. The officer should ensure that a suitable private place is available for them to take place and that they do not question the appropriate adult.

Legal consultations

If the child and appropriate adult have previously waived the right to free legal advice, they should be reminded of the right and asked again immediately prior to the interview. The officer must ensure the child has an opportunity for a private legal consultation with their solicitor/legal representative. A child has the right to meet with their legal advisor in the absence of their appropriate adult if they wish. It should be noted that this is the decision of the child and not the appropriate adult or solicitor. These consultations are subject to legal privilege.

PACE Code C (1)(e) states an appropriate adult is not subject to legal privilege, however, case law suggests that if an appropriate adult is present in a legal consultation, they become bound by that legal privilege.

During the interview, communication should be adapted to meet the child’s age, ability, and needs.

Suggestions for best practice include:

• Using first names when making introductions.
• Not demanding eye contact as that can be intimidating.
• Avoiding long sentences and multiple questions.
• Not repeating questions if the child doesn’t answer straight away, as they may be scared or traumatised or simply need time to process the question and form their response
• Not using big words, acronyms, or police jargon – use instead short and simple language.
• Remembering that young children will use words they have heard but won’t necessarily know the meaning.
• Remaining patient, taking time and staying calm.
• Not making any promises that cannot be kept
• Remembering the value of listening and not being distracted by radios or phones.
• Young children may not understand what has happened or may not have the words to describe it, but they can remember. Officers may just need to work out how to help them explain, which may mean seeking advice from a specialist interview advisor.
• Allow for breaks to accommodate the child’s attention span, emotional state, and need for support from their appropriate adult and/or solicitor.

Safeguarding

Following an interview, officers should remain alert to safeguarding. The officer should accurately document any safeguarding concerns. Information should be shared with appropriate safeguarding referral units and youth justice partners. If there are concerns about the child’s welfare that require immediate action, officers should not leave the child until this has been properly dealt with.

Diversion from Criminal Justice System (CJS)

It is important that children are diverted away from the formal youth justice system wherever possible. Children should not be criminalised for behaviour which can be dealt with more appropriately by other means. Officers should work in partnership with the local Youth Justice Service (YJS), children’s services, and others to ensure that the right support and intervention is in place to address their needs and behaviour in turn reducing the likelihood of further involvement with the criminal justice system.

Information from NHS Liaison and Diversion services should be used to inform decisions about the most appropriate outcome for a child alongside the NPCC Child Gravity Matrix, a guide and triage tool to support officers’ decisions about the most appropriate outcome.

Olliers Solicitors – specialist criminal defence lawyers

At Olliers we are regularly contacted by concerned parents or family members who are looking to instruct a criminal defence firm on behalf of their child or other relative. Often, they are making the enquiry due to the age of their child. Sometimes it may simply be that the person accused of an offence is struggling dealing with what has happened, or they may be extremely apprehensive about making the enquiry for fear of being judged due to the nature of the allegation. We are always happy to speak to parents who are making enquiries on behalf of their child.

If someone you love and care for is in trouble with the police, please do contact us. We are sure we will be able to help. Please do not hesitate to contact our new enquiry team on 0161 8341515 (Manchester), 020 3883 6790 (London), by email to info@olliers.com or by completing the form below