Youth Custody Rights for Under-18s

Who counts as a juvenile

Code C paragraph 1.5 says: “Anyone who appears to be under 18, shall, in the absence of clear evidence that they are older, be treated as a juvenile for the purposes of this Code and any other Code.”^[1] PACE uses the same age. Section 37(15) defines an “arrested juvenile” as a person arrested who “appears to be under the age of 18”.^[10] So if there is doubt about age, the safeguards apply.

Telling a parent or carer

Section 34 of the Children and Young Persons Act 1933 says that where a child or young person is in police detention, “such steps as are practicable shall be taken to ascertain the identity of a person responsible for his welfare”. That person must be told that the child has been arrested, why, and where they are being held, “as soon as it is practicable”.^[2] Code C paragraph 3.13 repeats the duty, and adds that this is on top of the child's ordinary right not to be held incommunicado.^[1]

GOV.UK puts it simply: “The police must also try to contact your parent, guardian or carer to let them know where you are, even if they’re not your appropriate adult.”^[8] If the child is subject to a youth rehabilitation order, section 34(7B) says the responsible officer must also be informed.^[2] Code C paragraph 3.14 says reasonable steps must be taken to notify the responsible officer under any supervising court order, normally a member of the youth offending team.^[1]

The appropriate adult

Code C paragraph 1.7 says the appropriate adult for a juvenile is the parent or guardian (or a representative of the local authority or organisation if the child is in care), a social worker, or failing these “some other responsible adult aged 18 or over” who is not a police officer or employed by the police.^[1] GOV.UK gives the same list, including “a member of a local scheme of trained appropriate adults”.^[8]

A parent is not always suitable. Note 1B says a person, “including a parent or guardian”, should not be an appropriate adult if they are suspected of involvement in the offence, are the victim or a witness, are involved in the investigation, or received admissions before attending.^[1]

Under paragraph 1.7A, the role is “to safeguard the rights, entitlements and welfare” of the young person. That includes supporting and advising them, and observing whether the police are acting properly and fairly and telling an inspector or above if they are not.^[1] The Home Office guidance for appropriate adults describes the role in the same terms.^[9] GOV.UK adds that an appropriate adult cannot “give you legal advice or answer questions on your behalf”.^[8]

The custody officer must tell the young person why an appropriate adult is needed and that they “can consult privately with the appropriate adult at any time” (paragraph 3.15). If the appropriate adult arrives after the young person has been told their rights, those rights must be given again in the appropriate adult's presence (paragraph 3.17).^[1]

Legal advice: whose decision it is

Legal advice at the police station is free. Code C paragraph 6.1 requires the person to be told “that free independent legal advice is available”.^[1] Paragraph 6.5A deals with juveniles. The appropriate adult “should consider whether legal advice from a solicitor is required”. If the young person wants advice, it “should not be delayed until the appropriate adult arrives”. If the young person says they do not want advice, the appropriate adult “has the right to ask for a solicitor to attend”. But “the person cannot be forced to see the solicitor if they are adamant that they do not wish to do so.”^[1] The Home Office guidance says appropriate adults “can ensure legal advice is available in a police station, even if a child or vulnerable person says they do not want it.”^[9]

The young person is the client. Note 1E says a detainee “should always be given an opportunity … to consult privately with a solicitor in the appropriate adult’s absence if they want”, and that “an appropriate adult is not subject to legal privilege.”^[1] In practice that means anything said to a parent acting as appropriate adult is not protected in the way a conversation with the solicitor is. A parent can ask for a solicitor, but cannot instruct the solicitor in the young person's place or overrule the advice the young person chooses to follow.

Interviews

Code C paragraph 11.15 says a juvenile “must not be interviewed regarding their involvement or suspected involvement in a criminal offence or offences, or asked to provide or sign a written statement under caution or record of interview, in the absence of the appropriate adult” unless the urgent-interview exceptions apply.^[1] Those exceptions (paragraph 11.18) need an officer of superintendent rank or above who considers delay will lead to the consequences listed in 11.1, such as harm to evidence or people, and who is satisfied the interview will not significantly harm the young person. Questioning must stop once enough has been obtained to avert those consequences (11.19).^[1]

In the interview, the appropriate adult must be told they are “not expected to act simply as an observer”. Their purpose is to advise the young person, observe whether the interview is conducted properly and fairly, and help communication (paragraph 11.17).^[1] Paragraph 11.16 says juveniles “may only be interviewed at their place of education in exceptional circumstances and only when the principal or their nominee agrees.”^[1]

Cells, searches and samples

Code C paragraph 8.8: “A juvenile shall not be placed in a police cell unless no other secure accommodation is available” and the custody officer considers it is not practicable to supervise them outside a cell, or that a cell is more comfortable. “A juvenile may not be placed in a cell with a detained adult.”^[1]

For a strip search that exposes intimate parts of the body, Code C Annex A paragraph 11(c) requires the appropriate adult to be one of the people present, except in urgent cases. The search can go ahead without the appropriate adult only if the young person says, in the appropriate adult's presence, that they do not want them there and the appropriate adult agrees.^[1] GOV.UK guidance also lists searches “involving the exposure of intimate body parts” among the procedures that cannot normally take place without an appropriate adult.^[9]

Where a procedure needs consent, the rules depend on age. Under PACE section 65, “appropriate consent” for a 14 to 17-year-old means “the consent of that person and his parent or guardian”, and for a child under 14, the consent of the parent or guardian alone.^[4] Code D paragraph 2.12 applies the same rule to procedures under that Code, such as identification procedures.^[5]

Detention reviews and after charge

At each review of detention, the review officer must give the appropriate adult, if available, an opportunity to make representations (Code C 15.3).^[1]

After charge, a custody officer can keep a juvenile in custody on the grounds that apply to adults, or if they have “reasonable grounds for believing that he ought to be detained in his own interests” (PACE s.38(1)(b)).^[3] If the young person is kept in, section 38(6) says the custody officer must “secure that the arrested juvenile is moved to local authority accommodation” unless they certify it is impracticable or, for a child aged 12 or over, that no secure accommodation is available and other local authority accommodation would not protect the public from serious harm.^[3] Code C 16.7 repeats this and requires the certificate to be produced to the court.^[1]

Youth cautions

Adult-style simple cautions are not available for under-18s. Section 66ZA(6) of the Crime and Disorder Act 1998 says: “No caution other than a youth caution or a youth conditional caution may be given to a child or young person.” A youth caution needs sufficient evidence to charge and an admission, and “must be given in the presence of an appropriate adult.”^[6]

The Youth Justice Board guidance says “under no circumstances should anyone suggest that a child should admit to an offence solely to receive a Youth Caution and avoid attending court”, and that support from the youth justice service or an appropriate adult “is in addition to and not a substitute for legal advice”. It also says a record will be kept by the police and that the caution is spent immediately but “may be disclosed to employers in certain circumstances”.^[7] In my experience, because a youth caution depends on an admission, the interview is often where the outcome is decided. That is a good reason to take advice first.

An illustration (invented example)

This is an invented example to show how the rules fit together. It is not a real case. A 15-year-old is arrested after a fight outside a shop. His mother rushes to the station, but she saw the fight and gave the police an account. Under Note 1B she should not be his appropriate adult, so the police arrange a trained appropriate adult from the local scheme. They still tell her where he is, as section 34 of the 1933 Act requires. He asks for a solicitor and speaks to them alone before the interview. The advice is for him, and his mother cannot tell the solicitor what advice to give.