I am currently undertaking some research on section 38 Police and Criminal Evidence Act


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NameI am currently undertaking some research on section 38 Police and Criminal Evidence Act
A typeResearch


Information Access Team

Inf Information Compliance and Records Management Unit























































Mr Charles Bell











Our ref: GSA /13















When calling or telephoning

please ask for Roger Coles
10th June 2013


Dear Mr Bell,
FREEDOM OF INFORMATION REQUEST REFERENCE NO: 1964/13
I write in connection with your request for information dated 24.05.2013, received by Greater Manchester Police. I note you seek access to the following information:


Request
I am currently undertaking some research on section 38 Police and Criminal Evidence Act.

Section 38(6) states "any reference, in relation to an arrested juvenile charged with a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious

personal injury, whether physical or psychological, occasioned by further such offences committed by him."

This criterion flows from the criteria to impose a custodial sentence and is reflected in the statutory criteria that apply before a young person can be remanded to secure detention.
1. What policy, guidance,research, risk assessment tools, analysis of case law and precedent,instructions etc has your organisation developed in relation to the application of this criterion to those aged under 18 years in respect to legislation (not just section 38)where it is applied in practice? Please provide copies thereof.

2. Does your organisation consider that in addressing this criterion the assessment should be focused on the period to which it applies....for example the risk posed overnight in the case of a detained juvenile until court appearance next day or the period for which a court can remand a child to secure detention?

3. In relation to section 38 and remands for those under 18, having considered bail as being inappropriate, in considering the application of the criterion are decision-makers entitled to justify it on the basis of the grounds why bail has been refused or
is evidence over and above such grounds required to support the application of the criterion? If so what are they?

4. Mental vulnerability is now widely recognised as an issue for many who come into conflict with the law. Does your guidance, policy etc advocate an assessment to be undertaken by a mental health or other professional to inform a decision that falls due to

be made in respect of the criterion?

This question has been sent to several organisation representative of those within the youth justice system so I apologise for its generality. Please respond as best you can. It will assist in informing some research I am undertaking on children detained under section


Result of Searches


Following receipt of your request, searches were conducted within Greater Manchester Police (GMP) to locate the requested information and I can confirm that the information being requested is held by GMP.

Result
Section 38 (6) of PACE states: Where a custody officer authorises an arrested juvenile to be kept in police detention under subsection (1) above, the custody officer shall, unless he certifies -

(a) that, by reason of circumstances as are specified in the certificate, it is impracticable for him to do so;

(b) in the case of an arrested juvenile who has attained the age of 12 years, that no secure accommodation is available and that keeping him in other local authority accommodation would not be adequate to protect the public from serious harm from him,

secure that the arrested juvenile is moved to local authority accommodation.

Section 38 (6A) states: In this section -

local authority accommodation

means accommodation provided by or on behalf of a local authority (within the meaning of the Children Act 1989);

minimum age

means the age specified in HYPERLINK "http://pnld.westyorkshire.pnn.police.uk/docmanager/content/D1918.htm"section 63B(3)(b) below;

secure accommodation

means accommodation provided for the purpose of restricting liberty;

sexual offence

means an offence specified in HYPERLINK "http://pnld.westyorkshire.pnn.police.uk/docmanager/content/D13162.htm"Part 2 of Schedule 15 to the Criminal Justice Act 2003;

violent offence

means murder or an offence specified in HYPERLINK "http://pnld.westyorkshire.pnn.police.uk/docmanager/content/D13161.htm"Part 1 of that Schedule;

and any reference, in relation to an arrested juvenile charged with a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.

With regard to the four questions asked:
1.) The guidance that GMP has in relation to protecting the public from serious harm with a post charge juvenile under section 38 (6A) of PACE is contained in the Force Custody Policy, paragraph 5.7.1 contains information on juveniles under section 38 of PACE.  Also the Custody Newsletter from February 2013, which also includes a flowchart (sent as an attachment to this response-mail) that custody officers should follow. Further guidance on secure remand is available to custody officers by applying the stated cases contained in attachments 3 and 4 above from the Police National Legal Database, the first is guidance on the provision of secure remand accommodation and the second is on the custody officer insisting on secure local authority remand accommodation.
Further information has been supplied to custody officers in the form of the commentary from Blackstone's Criminal Practice 2013 which states: The PACE 1984, section 38 (6)(b), provides that, in the case of juveniles between the ages of 12 and 16, the custody officer can take into account the lack of secure accommodation where keeping the suspect in other local authority accommodation would not be adequate to protect the public from the risk of serious harm from him. It is understood that this subsection was intended to apply only to juveniles of that age who were charged with violent or sexual offences. However, somewhat strangely, section 38 (6A) provides that 'any reference, in relation to an arrested juvenile charged with a violent or sexual offence, to protecting the public from serious harm from him shall be construed as a reference to protecting members of the public from death or serious personal injury, whether physical or psychological, occasioned by further such offences committed by him.' Therefore the possibility of keeping a juvenile in police custody after charge under section 38 (6) is not confined to those charged with a violent or sexual offence. Furthermore, the justification of 'protecting the public from serious harm' is defined only in respect of those charged with a violent or sexual offence. It is suggested, however, that this definition gives an indication of the gravity of the threat of harm to the public that would be required in order to keep a juvenile charged with any other offences in police custody.

2.) The legal texts make it clear that the custody officer is only responsible for the post charge period for which the juvenile is held in police custody and this is supported in the shape of section 39 (4) of PACE which states:  If an arrested juvenile is moved to local authority accommodation under HYPERLINK "http://pnld.westyorkshire.pnn.police.uk/docmanager/content/D253.htm"section 38(6) above, the custody officer shall cease in relation to that person to be subject to the duty imposed on him by subsection (1). This is supported by the commentary in Blackstone's Custody Officers' Manual which states: The local authority must ensure that the detainee appears in the next available court. In fact, once the juvenile has been transferred to the care of the local authority, the custody officer will cease to have any PACE responsibility for him/her (section 39 (4)). Under section 38 (7) of PACE the custody officer must produce a certificate of the decision made in respect of an arrested juvenile who has been detained in a police station and not transferred to the local authority. The certificate should outline the offence charged and the reasons for not transferring. The certificate must be produced to the court at which the juvenile appears.

3.) PACE and the legal texts make clear what a custody officer must take into account on granting or denying bail to a post charged juvenile detainee. Under section 38 (1)(b) of PACE a juvenile will be denied bail if any of the requirements in section 38 (1)(a) are met other than  in the case of paragraph (a)(iiia) only if the arrested juvenile has attained the minimum age, or he ought to be detained in his own interests.  Blackstone's Custody Officers' Manual on When will the public be at risk of serious harm states: …It will be a subjective test for the custody officer, who will have to make a balanced decision based on the offence charged, and the nature of the serious harm feared. It further states: …the juvenile may be responsible for a relatively minor offence (e.g. theft), but may have been responsible for threatening a witness with a knife, which would give rise to the fear that serious harm may come to the public. It is not the offence that matters but the conduct of the juvenile, together with the matter of whether secure accommodation is available. So on considering the serious harm criteria, the custody officer has to weigh everything up in terms of the juveniles conduct, which may involve studying the juveniles behaviour over and above the actual offence for which he or she has been arrested.        

4.) Section 38 of PACE requires a custody officer to advocate a mental health assessment be undertaken by a medical professional when considering the serious harm criteria.


Complaint Rights
Your attention is drawn to the attached sheet, which details your right of complaint.
Should you have any further queries concerning this matter, please write or contact me on telephone number 0161-856-2529 quoting the reference number above.
Yours sincerely,


Roger Coles

Information Access Officer




COMPLAINT RIGHTS


Are you unhappy with how your request has been handled or do you think the decision is incorrect?
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Complaints should be made in writing and addressed to:
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Greater Manchester Police

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The Information Commissioner

After lodging a complaint with Greater Manchester Police if you are still dissatisfied with the decision you can make an application to the Information Commissioner for a decision on whether the request for information has been dealt with in accordance with the requirements of the Act.
For information on how to make an application to the Information Commissioner please visit their website at www.informationcommissioner.gov.uk. Alternatively, phone or write to:
Information Commissioner's Office

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Water Lane

Wilmslow

Cheshire

SK9 5AF

Phone: 01625 545 700

Information Access Team, Information Compliance and Records Management Unit,

Openshaw Complex, Lawton Street, Manchester, M11 2NS

Tel: 0161 856 2529, Fax: 0161 856 2535, Minicom: 0161 872 6633,

Email: freedomofinformation@gmp.police.uk


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