John Kendall PhD
External Associate, Centre for Crime Justice and Policing, University of Birmingham
The purpose of the Independent Custody Visiting Scheme is supposed to be to safeguard detainees from harm, and its first proponents saw it as a means to deter police misconduct which could lead to the death of detainees (Kendall, 2018: 34). Custody visitors make unannounced visits to police stations and report on what they find. Official literature claims that the Scheme contributes to police accountability (Home Office, 2001). However, as Casey points out in her study of the Met, there is very little police accountability (Casey, 2023), and her view is echoed in my finding that there is little police accountability provided by custody visiting.
Accountability requires there to be some outside body to whom to account, which body may then regulate the conduct of the police. Remarkably, the police provide most of the regulation of their own conduct in custody suites (Kendall, 2018: 29). There is an average of up to 23 deaths in police custody each year, and over 50 suicides of detainees shortly after leaving custody (IOPC). Police and Crime Commissioners, whose role it is to hold the police to account (Police Reform and Social Responsibility Act 2011, sections 1 and 3), need to know what is going on in police custody, not just from what the police tell them, but from independent scrutiny. One of the sources of that scrutiny is the Independent Custody Visiting Scheme. The visitors are managed by the Police and Crime Commissioners, whose Scheme Administrator collects reports from the visitors. This official discusses the reports privately with the police, and the Police and Crime Commissioner may then require the police to make changes. That at least is the theory of the part played by custody visiting in police accountability. Accountability is defined as the tangible process of justifying one’s actions or decisions to external democratic scrutiny (Syrett 2011: 160). The external democratic scrutiny of the police is therefore claimed to be provided by a combination of custody visitors and Police and Crime Commissioners, and the Commissioners then hold the police to account. Very little is known about how this operates. What evidence there is does not support the claim that custody visiting contributes to police accountability (Kendall, 2018: 117).
There is no mention of custody visiting in Caless and Owens (2017). Some evidence has been found in my research into the work of the Scheme in a large urban area (Kendall, 2018), which also contained proposals for reform of the Scheme. What I found is rhetoric obscuring the reality, which is quite a feature of this subject (Kendall, 2018: 134-135). I heard the Scheme Administrator tell new recruits that the visitors provided information to the Police and Crime Commissioner, which the Commissioner used to hold the police to account, but the same Scheme Administrator also told me that the Commissioner had never used visitors’ reports for that purpose. The Commissioner published an annual report on custody visiting, but there was nothing in it which could remotely be described as a record of the Commissioner holding the police to account. The public therefore had no way of finding out about any of this, and the process of accountability could not be described as democratic, beyond the stark fact that the Commissioner is an elected official. I was not allowed access to the correspondence between the Scheme Administrator and the police, so it was impossible to ascertain the extent to which custody visiting could be said to be holding the police to account and the Commissioner requiring changes (Kendall, 2018: 117).
One of my proposals for reform of the Scheme is that defence solicitors should provide some of the training for visitors. This was agreed by both the Independent Custody Visiting Association (ICVA) and by the West Midland Police and Crime Commissioner (WMPCC). I arranged for a solicitor to address a WMPCC training session, but I was not allowed to take part in the session nor was I introduced to those present. The training session, which was attended by some 50+ visitors and appropriate adults, took place in the Police Headquarters building, part of which is used by WMPCC. As well as occupying the same building, the two organisations use the same email system. WMPCC seem to me to be too closely connected with the police.
My colleague the defence solicitor gave his talk, which went down well and provoked some lively debate and questions. The incident which I want to focus on happened when we arrived, at the end of the previous session which was overrunning. Visitors were asking questions of a senior police officer. One visitor, with eight years’ experience, said he had, every year over that eight-year period, reported on the failure of the police to provide detainees with washpacks and showers. Despite the visitor’s repeated requests, each year there had been no change to the police practice, with the police excusing this by saying that they were short-staffed. Staff shortages would create difficulties with arranging showers, but surely not with handing out washpacks. The visitor spoke with heartfelt concern about the issue and great frustration at the lack of a positive response.
The Assistant Commissioner with whom I had been working was not present at this event, so I wrote to him to say that I believed that this was an issue about which the Commissioner should be holding the police to account, and asked him to let me know whether he agreed, and if so, whether he could confirm that in future detainees would be given washpacks and showers, and asked him to copy his email to the people present at the training. I exchanged emails with the Assistant Commissioner over a period of nearly two months, in which he failed to give straight answers to these questions and eventually put forward a more junior colleague to say, in effect, that the correspondence was closed. What no one would say was whether the Commissioner had told the police to provide the washpacks and to tell detainees about the availability of showers, or whether the visitors had been informed about the outcome of the visitor’s complaint.
I find this both astonishing and deeply depressing. The Assistant Commissioner was prepared to say that everyone took this hygiene issue seriously, but he was not prepared to take the simple action of instructing the police to take the necessary action: or maybe he had issued the instruction to the police, but he didn’t like to say so. Or is the explanation that the Commissioner doesn’t tell the police what to do, even when everyone thinks it’s a good idea? Or is it that Commissioners are elected on a populist mandate to reduce crime and to obtain value for money, and they are not sufficiently focussed on the welfare of detainees (Reiner, 2016: 139)? Or is it that this Commissioner is embarrassed about not getting their way with the police? Or is this an example of a state institution being unwilling to let the light of day into their activities? It makes one wonder what is the point of it all. Who is in charge? Why does the Commissioner not hold the police to account about this? Is this an example of Steven Lukes’ theory of power, where the weaker party, here the regulator, the Commissioner, does not act against the stronger party, the regulatee, the police, whom they do not want to confront? (Lukes, 2005: 204-6.) If Lukes’ theory applies here, the Commissioner is doing what they think the police want them to do, that is to suppress criticism.
This reminded me of two incidents I observed during my original research. The first occurred when I was accompanying visitors on a visit to a police station. As we arrived at the door of one of the cells, the detainee said: ‘it’s a bit awkward, having other people in your cell, when you haven’t had a shower for two days.’ The police hadn’t told him that he could have a shower, so the visitors told hm he could (Kendall, 2018, 104). On another occasion when I was observing the life of a custody suite, I heard a member of the custody staff say to a colleague that a detainee had asked for a toothbrush, so the detainee’s girlfriend must be visiting (personal recollection not previously published): the implication was that this detainee (or maybe any detainee) wouldn’t otherwise bother to clean his teeth. Both these incidents show contempt for the detainees by the custody staff, or at least lack of care, or maybe just laziness, in omitting to provide for the detainees’ ordinary human needs. These incidents do not illustrate my point about accountability, but they do show the culture of at least some of the police, and maybe of society generally. Detainees are, after all, some of the most demonised members of society, even though many are released without further action. Very few people think about detainees at all, except maybe to reflect that being arrested by the police and detained in police custody is something that happens to other people, like AIDS or bankruptcy.
Finally, I’d like to note the outcomes of the washpacks and showers story. First, the police will feel that they can continue not being bothered to take these simple steps for the benefit of detainees’ hygiene and human dignity. The second is that visitors will come to the conclusion that it is not worth making complaints because no one is listening, and they may just give up and leave the Visiting Scheme. This is what the system leaves us with: no trouble for the police, and demoralised visitors. Here is a chasm, between the rhetoric about the contribution of custody visiting to police accountability, and the reality of ineffectiveness and waste.
References
The Baroness Casey Review Final Report March 2023: https://www.met.police.uk/SysSiteAssets/media/downloads/met/about-us/baroness-casey-review/update-march-2023/baroness-casey-review-march-2023a.pdf
Caless, B and Owens, J (2017) Police and Crime Commissioners: the Transformation of Police Accountability Bristol: Policy Press
Home Office (2001) Circular HOC 15/2001 Independent Custody Visiting London: Home Office
Kendall, J (2018) Regulating Police Detention, Voices from behind closed doors, Bristol: Policy Press
Lukes, S (2005) Power, a Radical View (2nd edn) Basingstoke: Palgrave Macmillan
Reiner, R (2016) ‘Power to the People? A social democratic critique of the Coalition Government’s police reforms’, in Lister R and Rowe M (eds) Accountability of policing London Routledge 132-49.
Syrett, K (2011) The Foundations of Public Law, Basingstoke: Palgrave Macmillan