Independent Custody Visiting – new Home Office codes of practice

Report: 8
Date: 24 April 2003
By: Clerk

Summary

Previous reports have been presented to this committee highlighting the Police Authority responsibility for Independent Custody Visiting. Section 51 of the Police Act 2002, which placed independent custody visiting on a statutory basis, came into force on 1 April 2003. Section 51 (6) of the Act requires the Home Secretary to issue a relevant code of practice. Members’ attention is drawn to this code, the key issues arising requiring members attention and the implications for the resourcing of the responsibilities contained are outlined in this report.

A. Recommendations

That

1. the Committee notes the Home Office code of practice on independent custody visiting and the key issues requiring attention in paragraph 5;
2. notes the work that is already underway in the CDO Unit to progress some of the best practice developments for the scheme;
3. agrees the proposals outlined in paragraphs 6 – 8 for resourcing the additional work that will need to be carried out over the next 12 – 18 months to get the scheme to operate on a consistent level London-wide; and
4. notes the parallel developments in codes of practice on the Appropriate Adults scheme issued by the Home Office.

B. Supporting information

1. Independent custody visiting is a well-established system, recommended by Lord Scarman following the Brixton disorders of 1981. The scheme involves pairs of volunteers attending police stations, unannounced, to check on the treatment of detainees and the conditions in which they are held and that their rights and entitlements are observed. The scheme offers protection to both detainees and the police and reassurance to the local community. Independent custody visiting was one of the key functions that that Authority inherited on its formation in July 2000.

2. In 2001, the Authority appointed an officer to look into the area and to make recommendations into its operations. Since then, an officer in the Consultation and Diversity Unit has been working closely with the Home Office and the Independent Custody Visiting Association, to inform and influence the development of the scheme. It was anticipated that the scheme would be put on a statutory basis and much of the development that has been underway, was aimed at preparing the local panels for these changes and incrementally implementing the need for consistency in practices, processes and visiting procedures across the 32 panels in London.

3. Section 51 of the Police Act 2002, and the Code of Practice issued by the Home Secretary on 1 April 2003, now places independent custody visiting on a clear statutory footing; it requires members of this committee to give full consideration to this activity and to receive regular reports on the performance of panels, to ensure that the Authority is meeting its statutory responsibility in this function.

4. The Code of Practice on Independent Custody Visiting is attached at Appendix 1. Each Police Authority is responsible for organising and overseeing the scheme, in consultation with the Chief Constable; ensuring that they have effective procedures in place for maintaining the independence of the scheme, including the allocation of resources to this function and the appointment of a nominated officer to be accountable for the administration of the scheme. The Head of the Consultation and Diversity Unit has held this position in the interim and it is proposed that this role be maintained, until other arrangements are made in any reorganisation of the current structure. The Consultation Policy Officer and other support staff will provide the day-to-day support for the delivery of this function.

5. Many of the arrangements in the code of practice are similar to that of previous codes, however, the following changes are brought to members attention

• Paragraph 7 – 8
  The recruitment process. To date the MPA has allowed local panels to carry out their own recruitment. The code of practice proposes that this should be the responsibility of the authority and a process will need to be developed for how this section of the code can be properly supervised. Officers have already developed guidelines for recruitment and thought will need to be given as to how the unit will address this requirement at a corporate level.
• Paragraph 21–22
  Basis for service. Each local borough has to date, issued ICVs with local passes for entry into local police stations. After much negotiation, the MPS Security and Vetting section has agreed that all ICVs will be issued with generic passes, following a further level of security checks. The cost for this is in the region of £5,000, and it is planned that this will be funded from the unallocated ICV budget for this financial year.
• Paragraph 23
  Tenure. The new code of practice has removed the age limit for ICVs. Currently the Authority has a policy of not appointing visitors who have reached the age of 70 years. The new code leaves it open to police authorities to reach local decision on this area, and Members’ views are sought on whether the MPA should retain the current policy or whether this should be extended. There are potential health and safety risks associated with increasing the age limit, and should members be inclined to approve increasing the age limit to beyond 70 years, more detailed considerations may need to be given to this aspect of the code.
• Paragraph 35
  Conducting a Visit. It has been the practice that visits should be carried out in pairs, however the new code has made arrangements for visitors to carry out visits alone, following a robust assessment of the risk to the visitor. Members may wish to support the proposal to maintain the practice that visits within the MPD continues to be carried out in pairs. Subject to approval of the recommendation, this will be incorporated into the MPA ICV handbook that will be amended to incorporate the codes of practice.
• Paragraph 64
  Reviewing Performance. This is not a new requirement; however, it is brought to members’ attention to highlight the fact that arrangements to secure commonality and consistency in reporting have taken some time to achieve. Some visitors have been highly resistant to adopting a common reporting form, however, this is decreasing and a significant proportion of panels, but not all, are now using the standardised report form. Minor revisions still need to be made to the form and it is aimed that all Panels will be required to use it from July 2003.

Development areas

6. The Authority has made good progress in a number of areas in its work with ICV, one area being the development of an annual programme of events, which is now available to all Visitors. There are a number of areas that also need to be progressed, this attached at Appendix 2.

7. The recruitment of a Policy Officer and Administrator/Project Assistant, who will provide dedicated time to this area of work should enable the Unit to progress, however, there will remain the need to buy in additional support, as is the case with the increasing requirement for training for custody visitors and chairs of panels. Two experienced visitors (one a former panel chair) now provide training, support and other development opportunities for the panels; however, there is a need to increase the pool of trainers available to assist in the delivery of the annual programme.

8. Members will note that the current development budget once all the groups have been allocated their budget is in the region of £25,000. This sum will not be adequate to fund the developments that are required for the coming year. It is therefore proposed that £30,000 from the CPCG development cost be transferred to the ICV budget code to fund these activities.

Appropriate Adults

9. This is not a key responsibility of the Authority, however the Home Office has recently published guidance (attached at Appendix 3). These have been made available to ICV panels, as a number of custody visitors are also Appropriate Adults (AA). Discussions are already underway with the MPS on the need to collect data on the level of adult detainees that are detained and require and AA, this is currently not known. MPA officers have also been in discussions with the Appropriate Adults Network to look at ways in which the MPA can work closer with them to ensure similarity in the levels of training and support that is provided for AAs.

C. Equality and diversity implications

The MPA Race Equality Scheme has highlighted the need for work to be done with visitors to develop a greater understanding about the impact of race and equal opportunities on the operation and practice of the scheme. Training sessions have been put in place and will continue to be delivered. Issues for detainees with learning difficulties, mental health and other forms of disabilities will be considered to ensure that the scheme reflects best practice in all areas of equal opportunities.

D. Financial implications

An additional £30,000 will be required to progress the development that are required in this financial year. It is propose that this is transferred from the CPCG development budget.

E. Background papers

None

F. Contact details

Report author: Julia Smith, CDO Unit, MPA.

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

Appendix 1

Code of practice on Independent Custody Visiting

Introduction

1. This Code of Practice on independent custody visiting is issued further to section 51(6) of the Police Reform Act 2002. Police authorities and independent custody visitors shall have regard to the Code in carrying out their relevant functions.

2. Independent custody visiting is the well established system whereby volunteers attend police stations to check on the treatment of detainees and the conditions in which they are held and that their rights and entitlements are being observed. It offers protections to both detainees and the police and reassurance to the community at large.

3. The Code will be supported by more detailed National Standards, which expand on the relevant procedures and systems and set out established good practice.

Organisation and Infrastructure

4. The responsibility for organising and overseeing the delivery of independent custody visiting lies with police authorities, in consultation with chief constables. Police authorities must therefore ensure that they have in place robust and effective procedures for establishing and maintaining their independent custody visiting schemes, including the allocation of appropriate resources to this function.

5. Overall responsibility for the central administration of the scheme must be given to a nominated officer on the police authority’s staff, supported as necessary by other personnel and resources.

6. At police authority level, groups or panels of volunteers must be organised to visit police stations in the authority’s area. Every group needs to have its own co-ordinator, appropriately resourced to perform that task.

Recruitment and conditions of service

Organising recruitment

7. Police authorities are responsible for recruiting, selecting and appointing independent custody visitors and must ensure these functions are adequately resourced.

8. Adequate numbers of suitably trained and accredited independent custody visitors must be available at all times.

The recruitment process

9. Recruitment must be based on clear job descriptions, as well as person specifications setting out the qualities independent custody visitors require carrying out their role effectively.

10. Recruitment must be open, non-discriminatory and well publicised.

11. All selections must be made on the basis of a standard application form.

12. No person shall be appointed as an independent custody visitor without an interview-taking place. The selection panel must record the reasons for decisions about appointment or non-appointment.

13. Any appointment must be made solely on merit and all independent custody visitors must be at least 18 years old.

Who should be selected?

14. The police authority must seek to ensure that the overall set of independent custody visitors is representative of the local community and provides a suitable balance in terms of age, gender and ethnicity.

15. All reasonable adjustments must be made to accommodate those with disabilities and those who do not have English as their first language where they are considered suitable candidates.

16. Visitors must be independent persons who are able to make informed judgements in which the community can have confidence and which the police will accept as fair criticism when it is justified.

17. Where an applicant has convictions (whether spent or unspent) for criminal offences, or has received any formal caution, warning or reprimand, or has failed to disclose any such finding, the specific circumstances must be considered in assessing suitability to become an independent custody visitor. However, past offending is not an automatic barrier to acceptance.

18. In appointing independent custody visitors, care must be taken to avoid any potential conflict of interest. For example, serving police officers and other serving members of police or police authority staff will be unsuitable for that reason. The same will apply to special constables, justices of the peace and members of the police authority.

Other Possible Roles for Custody Visitors

19. Independent custody visitors may also act as appropriate adults. However, individuals must not switch between those roles during the course of a visit to the same police station.

20. Independent custody visitors may also act as lay observers appointed under the Criminal Justice Act 1991 to inspect the conditions under which prisoners are transported and held.

Basis of service

21. The police authority must provide each independent custody visitor with a written memorandum of understanding summarising their agreed responsibilities and the legitimate expectations of both parties.

22. The police authority must provide each independent custody visitor with an identity pass as their authority to visit any police station in the force area that is holding detainees on a regular or temporary basis.

Tenure

23. Appointments must initially be for three years and must not be confirmed until a six-month probationary period has been satisfactorily completed. Full re-assessments of suitability must take place at regular intervals but no longer than three years apart. The key factors in renewing appointments for further periods must be the continuing ability and willingness of the individuals involved to do the job effectively.

Removal

24. A police authority can remove an independent custody visitor’s accreditation because of misconduct or poor performance.

25. Procedures for considering possible removal must follow the principles of natural justice and be publicised.

Complaints procedures

26. Procedures must be in place to deal with complaints against independent custody visitors by detainees, police personnel or others. There must also be a clear mechanism for handling complaints from visitors and issues of concern arising from their work.

Payment

27. Independent custody visitors are entitled to be reimbursed for their legitimate expenses incurred in carrying out their role.

Insurance

28. The police authority must ensure adequate cover and provision for claims arising from independent custody visitors’ role.

Training

29. The basic responsibility for training lies with the police authority and a structured plan with clear objectives must be developed in consultation with the police service and the local independent custody visiting community.

30. The police authority must evaluate the effectiveness of training and the extent to which it is achieving its objectives.

Frequency and coverage

31. The police authority should liaise with the chief constable about the frequency with which visits should be carried out.

32. Visits must be sufficiently regular to support the effectiveness of the system, but not so frequent as to unreasonably interfere with the work of the police.

33. The frequency of visits must be monitored against expectations and reported to the police authority at regular intervals. Where insufficient visits are taking place, the causes must be investigated and corrective action taken.

34. Consideration must be given to making visits to all police stations where detainees are held even where they are only accommodated for relatively short periods of time.

Working arrangements

Conducting visits

35. Visits should normally be undertaken by pairs of independent custody visitors working together. Visits should only be undertaken by a single independent custody visitor working alone where the police authority has carried out a thorough and robust assessment of the risks that presents and has concluded that it is, in all the circumstances, the best option.

Visiting procedures at stations

36. Independent custody visitors must be admitted to the custody area immediately. Delay is only permitted when immediate access may place the visitors in danger. A full explanation must be given to the visitors as to why access is being delayed and that explanation must be recorded by the visitors in their report.

37. Independent custody visitors must have access to all parts of the custody area and to associated facilities such as food preparation areas and medical rooms. However, it is not part of their role to attend police interviews with detainees.

38. Police staff must be alert to any specific health or safety risks independent custody visitors might face and must advise them appropriately.

39. The custody officer or a member of custody staff must accompany independent custody visitors during visits. (See paragraph 46)

Access to detainees

40. Subject to the exceptions referred to in paragraph 43, independent custody visitors must be allowed access to any person detained at the police station. However, detainees may only be spoken to with their consent and the escorting officer is responsible for establishing whether they wish to speak to the independent custody visitors.

41. Juveniles may be spoken to with their own consent.

42. If a detainee is not in a position to give consent, the escorting officer must allow the visit unless any of the circumstances set out in paragraph 43 apply.

43. The police may limit or deny independent custody visitors’ access to a specific detainee if an officer of or above the rank of inspector reasonably believes that to be necessary for the visitors’ safety. Such an officer may also deny or restrict access where they reasonably believe that such access could interfere with process of justice.

44. Where any of the circumstances referred to in paragraph 43 apply consideration should be given to allowing the visitors some limited form of access to the detainee, such as speaking to them through the cell hatch.

45. Any decision to deny or limit access must be recorded in the detainee’s custody record (together with the relevant authorisation) and by the independent custody visitors in their report of the visit.

Discussions with detainees

46. Discussions between detainees and independent custody visitors must normally take place in sight but out of hearing of the escorting officer where that is practical.

47. Discussions must focus on checking whether detainees have been offered their rights and entitlements under PACE and confirming whether the conditions of detention are adequate.

48. Independent custody visitors must remain impartial and must not seek to involve themselves in any way in the process of investigation. If a detainee seeks to make admissions or otherwise discuss an alleged offence, the visitor must tell them that the relevant contents of the visit may be disclosed in legal proceedings.

49. If an independent custody visitor realises they know or are known by a detainee, they must declare this and consider whether to withdraw from the visit.

50. Independent custody visitors must not pass messages to or from detainees or offer to perform other tasks on their behalf. If they are asked to do so they must immediately inform the custody officer.

51. If a detainee indicates they may harm themselves or any other person, this must immediately be brought to the attention of custody staff.

52. Subject to obtaining the detainee’s consent to examine their custody record, the independent custody visitors should check its contents against what they have been told by the detainee.

53. If a detainee is for any reason incapable of deciding whether to allow access to their custody record, the presumption must be in favour of allowing the independent custody visitors to examine it.

Medical issues

54. Independent custody visitors have no right to see the detainee’s medical records, even where these are attached to the custody record. However, key points relevant to medical treatment should be recorded in the custody record itself.

Dealing with issues and complaints

55. Where a detainee makes a complaint or raises an issue about their general treatment or conditions, independent custody visitors must (subject to the detainee’s consent) take this up as soon as possible with police staff in order to seek a resolution. The same applies to similar issues identified by visitors in the course of their attendance.

56. If a detainee makes a complaint of misconduct by a specific police officer, they must be advised to address it to the duty officer in charge of the police station.

Effective working relationships

57. For independent custody visiting to be effective, it is essential that visitors and police staff develop and maintain professional working relationships based on mutual respect and understanding of each others’ legitimate roles.

Reporting on a visit

58. At the end of each visit, and while they are still at the police station, independent custody visitors must complete a report of their findings in a standard format. One copy of the report must remain at the station for the attention of the officer in charge. Copies must go to the co-ordinator of the local independent custody visiting group.

59. Report forms must include an undertaking not to reveal the names of persons visited or other confidential information obtained in the course of a visit.

Feedback

60. Systems must be in place to ensure that the output from visits is drawn rapidly to the attention of those in a position to make the appropriate response.

61. Co-ordinators are responsible for drawing together issues and identifying trends emerging from visits in their area and addressing these with relevant police supervisors.

62. The central administrator must have a regular and formal opportunity to raise concerns and issues with a designated senior officer with force-wide responsibilities. It will usually be appropriate for that officer to be of Assistant Chief Constable rank. The central administrator must also produce regular reports for the police authority summarising the output from independent custody visiting and the way in which concerns have or have not been addressed. These reports must be discussed at police authority meetings as appropriate and reflected in an entry about independent custody visiting in the police authority’s own annual report.

Sharing experience

63. The police authority must ensure that independent custody visitors have regular opportunities to meet together to discuss their work.

Reviewing performance

64. Police authorities must take steps to assess how effectively their independent custody visiting arrangements are working. Key aspects of that process will be reviewing the quality of reports, the frequency with which visits take place and the number of occasions on which detainees refuse to speak to visitors.

Home Office
1 April 2003

Appendix 2

ICV Events Calendar from January 2003 to December 2003

Appendix 3

Further guidance for appropriate adults

Rights of detained persons

When you arrive at the police station the custody officer must tell the detained person, in your presence, that they have the following basic rights:

• The right to have someone informed of their arrest.
• The right to consult privately with a solicitor and the fact that independent legal advice is available free of charge.
• The right to consult the Codes of Practice setting out the powers, responsibilities and procedures of the police.

These are continuing rights which may be exercised at any stage during the person's period in custody. However, there are some special times when some or all of these rights may be delayed.

The custody officer must also give the detained person a written notice of these basic rights, together with an additional notice of their other entitlements such as reasonable standards of physical comfort, adequate food and drink, access to toilet and washing facilities, clothing, medical attention, and exercise where practicable. That notice of entitlements should also mention the circumstances in which an appropriate adult should be available to the detained person.

Your rights as an appropriate adult

• To be told why the detained person is being held.
• To speak to the detained person in private at any time.
• To inspect the written record of the person's period in detention (the custody record) at any time.
• To see copies of the notices of rights and entitlements referred to above.
• To see a copy of the Codes of Practice setting out the powers, responsibilities and procedures of the police.
• To intervene in an interview if you feel it is necessary and in the interests of the detained person to help them communicate effectively with the police.
• To ask for a break in any interview, either to seek legal advice or consult with the detained person (particularly if the interview is a lengthy one or if the detained person is distressed or ill).

You are entitled to be present during any procedure requiring information to be given by or sought from the detained person. Also, when any form of consent is sought from the detained person or they are asked to agree and/or sign any documentation. In particular, you are entitled to be present:

• When the custody officer informs the detained person of their rights and entitlements.
• When the detained person is cautioned.
• During any police interview with the detained person at a police station.
• When the detained person is charged.
• Subject to strictly limited exceptions, during any search of the detained person involving the removal of more than outer clothing.
• When the need to keep the person in detention is reviewed.
• During any form of identification procedure such as an identification parade.
• During any process involving the fingerprinting or photographing of the detained person or when a sample is taken from them.

You are not entitled to be present during private legal consultations between the detainee and their legal representative.

Legal advice

You should consider whether legal advice from a solicitor is required. You should normally speak to the detained person in private before deciding whether legal advice should be requested.

The detained person can speak to a solicitor at the police station at any time. It will cost them nothing and they can speak to the solicitor privately either on the telephone or at the police station.

Even if you decide that a solicitor is not necessary when you first arrive at the police station, you can change your mind about that at any time.

Even if the detained person says that they do not want legal advice you have the right to ask for a solicitor if you feel that would be in their best interests.

However, while a solicitor can be called to the police station, the detained person cannot be forced to see them if they are adamant they do not wish to do so.

If you or the detained person want a solicitor to be called you should tell the custody officer at once.

Questioning

One of the main reasons for detaining a person at a police station is to ask them questions. The police should only ask them questions in your presence and before questioning begins the detained person should be cautioned in the following terms:

"You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence."

Your main role is to ensure that in any interview which follows the person detained understands the questions which are being asked and that the police do not ask questions in a way which is confusing, repetitive or oppressive.

Almost all interviews are audio tape recorded, but more and more interviews are video recorded. There is a procedure for recording. In an interview you should not feel that you have to remain silent. You are entitled to intervene at any stage.

You should always make sure that when questions are asked the person detained understands them and that the police understand the reply.

If you are unhappy about the way in which the interview is being conducted then you are entitled to ask them to stop the interview so that legal advice can be taken from a solicitor.

Any queries or complaints about the conduct of the interview should be made to the custody officer.

Identification

In the course of the police enquiry they may well ask the person for their consent to the taking of fingerprints, photographs, the giving of DNA samples or the taking of intimate or non?intimate samples. The rules for sample taking are complex and you and the detained person may wish to take legal advice before agreeing to any of these requests by the police.

Similarly, the police may ask the detained person to agree to take part in an identification parade or other identification procedure which could include identification by video, in a group or through a confrontation.

These too can be complex and you and the detained person may wish to take legal advice before consenting to or refusing to take part in any of these procedures if asked to do so by the police.

How long can a person be detained?

The custody officer should ensure that police inquiries are conducted as quickly as possible and that detained persons are released as soon as the need for detention has ceased to apply. A person may be detained for up to 24 hours without charge, having had their detention reviewed by the review officer. A person can only be kept for longer than 24 hours in the most serious cases and the consent of a superintendent or a court is required. If the police suggest that they wish to keep a person for longer than 24 hours then the detained person should take legal advice from a solicitor.

What happens next?

At the end of a police investigation the custody officer will consult with the officer in the case before deciding whether to release the detained person from custody without charge or to release them from custody to come back to the police station for a further interview on another day or to charge them and if so whether to keep them in custody to appear before the next available court or release them on bail to appear in court on a future date.

You will have to be present at the time when the detained person is told of this decision and, if the person is charged with an offence, when the charge is read to them. If the detained person is to be charged or cautioned the police may want to take photographs, fingerprints and perhaps a DNA swab from the mouth and/or a sample of body hair. You will need to be present for all of these procedures.

People you may meet at the police station

1. Custody officer

The custody officer is the person responsible for the welfare of people in custody. The custody officer is not involved in the investigation of the offence. The custody officer keeps a full record of the detained person's time at the police station and decides what happens to them at the end of the investigation having spoken with the officer in the case.

2. Officer in the case

The officer in the case is the police officer responsible for investigating the crime that is suspected. They would usually conduct the interviews with the detained person and should not speak to the detained person except in your presence.

3. Review officer

Usually an inspector or above who is not directly involved in the investigation. Under normal circumstances, a person's detention is reviewed not later then 6 hours after they first arrived at the police station and if they are detained longer it will be reviewed at intervals of not more than 9 hours after the first review. It is the review officer's job to ensure that the reasons for detention still exist and representations can be made to the review officer by the detained person, the appropriate adult or a solicitor about the continuing need for detention or any connected matter of concern.

4. Defence lawyer

A defence lawyer is a solicitor or representative who is independent of the police, and whose job it is to protect and advance the legal rights of the detained person. They are required to act in the best interests of the detained person. The detainee and defence lawyer can meet privately without an appropriate adult.

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