Children, Young People and Requests for Police Station Legal Advice: 25 years on from PACE
| Author | Pascoe Pleasence,Nigel J. Balmer,Vicky Kemp |
| Published date | 01 April 2011 |
| DOI | 10.1177/1473225410394288 |
| Date | 01 April 2011 |
| Subject Matter | Articles |
Article
Article
Corresponding author:
Dr Vicky Kemp, Legal Services Research Centre, Legal Services Commission, 4 Abbey Orchard Street, London,
SW1P 2BS, UK.
Email: vicky.kemp@legalservices.gsi.gov.uk
Children, Young People and
Requests for Police Station Legal
Advice: 25 years on from PACE
Vicky Kemp, Pascoe Pleasence and
Nigel J. Balmer
Abstract
Informed by data extracted from 30,921 police electronic custody records, drawn from 44 police stations
across four police force areas and including 5153 records of juveniles aged 10 to 17 years, this article
examines the take-up of legal advice by children and young people in police stations in England and Wales.
There are wide variations in the extent to which juveniles request and receive legal advice when compared
to adults but also between juveniles of different ages. Such variations are explored both in relation to the age
of detainees and the type and seriousness of offence and case disposal. Also examined are variations based
on different police force areas. The implications emanating from children’s differential access to legal advice
at police stations are considered in relation to children’s rights.
Keywords
children’s rights, decision-making, doli incapax, final warnings, police station legal advice
Introduction
2011 marks the 25th anniversary of the implementation of the Police and Criminal
Evidence Act 1984 (PACE), which provides that those detained by the police have a right
to free and independent legal advice.1 The Act has had a profound effect on access to
advice in the police station. Prior to PACE, estimates of the rate at which detainees
requested legal advice ranged from 3% to 20% (see Bottomley et al., 1989; Brown, 1991;
Softley et al., 1980). Since PACE, the rate has slowly increased, from 25% in 1987
(Brown, 1989), to 32% in the early 1990s (Brown et al., 1992), to 40% in 1995/96 (Bucke
and Brown, 1997) and to around 45% presently (Pleasence et al., 2011). However, despite
the right to legal advice constituting a key safeguard to procedural propriety – a matter of
particular importance in relation to so-called ‘vulnerable’ detainees (including children/
juveniles) – there is limited evidence around the use of advice by children and young
people in the police station.
Youth Justice
11(1) 28–46
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DOI: 10.1177/1473225410394288
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Kemp et al. 29
There is some broad indication of how frequently juveniles request advice. For example,
Phillips and Brown’s (1998) study of 1993/4 custody records found that juveniles req-
uested advice at a lower rate than adults (33% compared to 39%). However, they sug-
gested that the lower take-up of legal advice was due to juveniles being dealt with for less
serious offences than adults. When later examining 1995/96 custody records, Bucke and
Brown (1997) found that, for the first time, the request rates of juveniles had overtaken
that of adults (41% compared to 39% respectively).
In neither of the mid-1990s studies was consideration given to the possibility that the
advice take-up rates of juveniles might vary by age. This may be because the presumption
of doli incapax2 applied at that time, which meant that very few 10 to 13 year-olds were
drawn into the formal criminal justice system and there was a greater emphasis placed on
diverting children and young people from court (see Goldson, 2000). However, this was
to change with the Crime and Disorder Act 1998, which brought about a more rigid and
punitive youth justice system (see Home Office, 1997). Changes included abolition of the
presumption of doli incapax, with children aged 10 to 13 years now presumed to have the
same level of understanding as adults.3 The 1998 Act also introduced the Final Warning
scheme, which replaced the system of cautioning for juveniles. Within this new context of
pre-charge decision-making, the need to ensure that the legal rights of children are prop-
erly protected within the early stages of the criminal justice process becomes more urgent
(Goldson, 2000).
Furthermore, in light of Pleasence et al.’s (2011) recent finding that – after controlling
for seriousness and type of offence, police station, police force area and basic demo-
graphic factors – those aged 10 to 13 years request/have access to legal advice less
frequently than others, the need for further investigation is self-evident.
This article sets out a more detailed picture of the take-up of legal advice by young
detainees in police stations in England and Wales, and provides a better basis for consid-
ering the current treatment of the youngest persons susceptible to criminal proceedings.
We examine requests for legal advice by juvenile detainees of different ages, with refer-
ence to the type and seriousness of offence and the outcome of detention. We also look at
the extent to which legal advice is actually received and how this might vary between dif-
ferent police force areas.
Methods
This study is based on data extracted from 30,921 police electronic custody records,
drawn from 44 police stations across four police force areas;4 including 5153 records of
juveniles aged 10 to 17 years. The data include details of all new cases brought into the
police stations during the months of March and September 2009. Details include the type
of offence, details of the individual, whether or not legal advice was requested and the
outcome of detention.
First, overall rates of requesting advice were established for juvenile and adult detainees,
treating all detention periods separately, looking only at first detentions and also at indi-
viduals across all detentions.
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