Written evidence submitted by Just for Kids Law (CVB0051)

About Just for Kids Law  

Just for Kids Law (JFKL) was founded in 2007. Through a unique model of holistic representation, we provide client-led support, advice and legal services to children and young people in London and push for nationwide systemic change through strategic litigation and policy and public affairs work. The Children’s Rights Alliance for England (CRAE) merged into JFKL in 2015. CRAE was established in 1991 when the UK ratified the UN Convention on the Rights of the Child (CRC) and pushes for full implementation of the CRC in England. The Youth Justice Legal Centre (YJLC) was set up by Just for Kids Law in 2015 to provide legally accurate information, guidance and training on youth justice law. It aims to raise standards in criminal courts and supports lawyers doing vital work representing children and young people across England and Wales.

This submission is informed by our work monitoring implementation of the CRC in England, as well as our direct advocacy and legal case work with children and young people. We share your concerns about the impact that Government measures to tackle Covid-19 is having on BAME people and welcome this inquiry. We are particularly concerned about Black, Asian and Minority Ethnic (BAME) children and young people coming into contact with the police and criminal justice system – some of the most vulnerable in our society.

All primary and secondary legislation relating to the pandemic should be subjected to a full and transparent Child Rights Impact Assessment (CRIA), with input from the Children’s Commissioner and other relevant children’s rights organisations, so measures taken can be monitored, are proportionate to the crisis, and can be revoked as soon as possible.

Factors that made BAME communities vulnerable to the effects of the virus

In our response to the Unequal Impact: coronavirus and the impact on people with protected characteristics inquiry we submitted that, before the coronavirus pandemic, BAME children and young people were disproportionately coming into contact with the police and criminal justice system. For example:

• Children and particularly BAME children are disproportionately stopped and searched. Between October 2017 and September 2018, the largest proportion stopped of all age groups (42,424) were 15-19 year olds.[1] Between 2009/10 and 2018/19 Black people had the highest stop and search rates in every police force area for which there was data.[2]
• Between April 2018 and March 2019, Taser was used on children in England and Wales 1,700 times.[3] Between January and October 2019, there were already 1,009 uses of Taser on children by the Metropolitan Police Service (MPS). Of those, nearly 74% was on BAME children.[4] Across the whole of 2017 and 2018, BAME children accounted for 34% of spit-hood use nationally and 72% of MPS use.[5]
• In the year ending March 2019, there were just over 60,200 arrests of children (aged 10-17) by the police in England and Wales (excluding Lancashire)[6] for notifiable offences.[7] Black children were over four times more likely than White children to be arrested. BAME children account for 29% of children arrested.[8]
• In 2019, BAME children accounted for two thirds (67%) of the 7,038 children detained overnight by the MPS.[9]
• An annual survey of children in prison for 2018-2019 revealed over half (53%) identified as being from a Black and Minority Ethnic background – its highest level on record. Nearly one in 10 (9%) indicated that they were from a Traveller community. It is estimated that BAME children make up approximately 17% of the 10-17 years old general population.[10]

The impact of the pandemic on BAME communities

Since the UK government imposed lockdown measures in England on 26 March 2020, BAME children and young people have been further disproportionately impacted by the effect of the virus. For example:

• Young black men were stopped and searched by police more than 20,000 times in London during the coronavirus lockdown – the equivalent more than a quarter of all black 15- to 24-year-olds in the capital. More than 80% of the 21,950 searches between March and May resulted in no further action.[11]
• Analysis by Liberty Investigates and the Guardian shows that BAME people received as many as 2,218 of the 13,445 fixed-penalty notices (FPNs) under distancing regulations recorded from 27 March to 11 May, while white people were given about 7,865.[12]
• BAME people in England were 54% more likely to be fined than white people, with around 2,218 fines being meted out to BAME people and 7,865 to white people.[13] 
• BAME people account for 15.5% of the population in England, according to 2016 population figures. BAME people received at least 22% of the coronavirus lockdown fines, according to NPCC data, which was most recently updated on 15 May.[14]
• Met Police data shows BAME people almost 50 per cent more likely to be arrested for breaching coronavirus laws. Between March 27 and May 14, 414 BAME people were taken into custody in London, compared to 284 white people.[15]

These figure point to the significant levels of disproportionality within the criminal justice system. Further, BAME children and young people have been at a heightened risk of contracting the coronavirus thorough arrest and detention.

Below, we give some examples from our legal casework and frontline work relating to the arrest and detention of BAME children and young people during the coronavirus pandemic:

• 29.03.20 – In one case a 15-year-old was arrested for being in a stolen vehicle and taken to Walworth Police Station. The solicitor’s enquiries revealed that no pandemic-related safety measures (such as cleaning interview rooms or social distancing) were in place and there were no facilities to enable the solicitor to dial in to the interview (on video or via the loudspeaker function on a telephone).  The solicitor eventually negotiated disclosure by email and was able to give advice to the child over telephone.  The child was in police custody in a cell for a number of hours, interviewed without a lawyer before later being told that No Further Action would be taken.
• 06.04.20 – In another case, a 17-year-old was arrested in the early evening for possession of cannabis (medium snap bag found on this person) in Hammersmith. He was taken Islington Police station because Hammersmith Police custody was full. The police insisted on interviewing him despite this being contrary to the Interview Protocol between National Police Chiefs’ Council, Crown Prosecution Service, The Law Society, Criminal Law Solicitors’ Association and London Criminal Courts Solicitors’ Association (see Annex A). He was interviewed at 1am in the morning. His lawyer was able to be present by dialling into the interview on the telephone which was on loudspeaker.  He was Released Under Investigation at 6am the next day. This appears to be a hugely disproportionate risk to both the child, who suffers from asthma, and his family’s health as well as those involved in his arrest and detention. Our understanding is that not all officers were in masks or gloves and this was particularly concerning as the child involved is asthmatic. 
• 16.04.20 – On one occasion the police stopped the vehicle in which our client was travelling on, searched the car and found two bags of cannabis and £1,000 on our client. The police decided to arrest everyone in the car, including our client, his 17-year-old brother (who is also our client) and their uncle who was driving the car. All three males were arrested and taken to the police station, this is despite nothing being found on the younger sibling and the uncle and there being no evidence of drug dealing. We were able to conduct a video interview for both of our clients using Microsoft Team. The 17-year-old was kept in police cell overnight and Released Under Investigation the following day. The 18-year-old spent two nights in police cell, due to also being in breach of his bail condition, and was Released Under Investigation two days later. Both siblings have been deemed victims of modern slavery/criminal exploitation and are incredibly vulnerable.
• 22.04.20 – In another case, our 16-year-old client spat at the glass window between the bus driver and passengers. The spit was forensically linked to him, due to his information already being on the police database, and he was identified on CCTV. The police later informed us that there was an overwhelming amount of evidence linking our client to the offence. However, rather than issuing a postal requisition order requiring him to attend court, the police decided to arrest our client in his care home. Our client is a Looked After Child. Upon arrest, after taking him to the police station, putting him in police custody, the police decided that an interview would not be appropriate. The police were concerned that, due to Covid-19 and given the allegation of spitting, their welfare may be at risk. No consideration was given to the welfare of the young person. Our client was charged and released.

Recommendations

The Government must:

• Collect data on children and young people coming into contact with the criminal justice system under the emergency legislation, which must be fully disaggregated by gender, ethnicity and age.
• Ensure that data is available on the numbers of under-18s arrested since the UK government imposed lockdown measures on 26 March 2020, disaggregated by ethnicity and reason for arrest.
• Issue urgent national guidance requiring police officers and custody sergeants to refrain from arresting children and young people, detaining them and therefore exposing them to greater risk of contracting COVID-19, unless absolutely necessary, and only pursue most serious offences committed by children and young people.
• Issue specific guidance to police officers and custody sergeants as to how to interact with children and young people coming into contact with the police.

July 2020

References