Guide to Giving Pre-Interview Advice to Children in Police Custody

Guide to giving pre-interview advice to children in police custody

Children’s Court Criminal Division

May 2013

© 2013 Victoria Legal Aid. Reproduction without express written permission is prohibited. Written requests should be directed to Victoria Legal Aid, Research and Communications, 350 Queen Street, Melbourne Vic3000.

Disclaimer. The material in this publication is intended as a general guide only has been prepared for Victoria Legal Aid staff and community legal centre staff and volunteers for study purposes only. The information contained should not be relied upon as legal advice, and should be checked carefully before being relied upon in any context. Victoria Legal Aid expressly disclaims any liability howsoever caused to any person in respect of any legal advice given or any action taken in reliance on the contents of the publication.

Contents

Introduction 1

Special issues in advising children 1

Police requirements when interviewing children in custody 1

Advising the child client 1

First talk to the police 1

Speaking with the child 2

Initial issues to consider 2

Unopposed allegations 3

If doli incapax or mental impairment might apply 3

Opposed allegations 3

Concluding the interview 4

Conclusion 5

Victoria Legal Aid – Guide to giving pre-interview advice to children – May 2013

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Introduction

Special issues in advising children

This guide has been prepared to inform lawyers about various special issues that arise when giving pre-interview advice to children. Giving this advice to children can be difficult because:

·  the scheme for giving cautions tochildren is quite broad but reliant on them being ‘co-operative’ with police

·  children may be eligible for various unofficial diversion schemes, such as the Ropes Program, but this can also be dependent on them having been ‘co-operative’ with police

·  children – especially younger children, children in care and children with conduct disorders, learning difficulties or intellectual disabilities – are far from capable of speaking for themselves without being at risk of tripping over difficult questions or providing information beyond that known by the police.

Police requirements when interviewing children in custody

Section 464E of the Crimes Act 1958 (http://www.austlii.edu.au/au/legis/vic/consol_act/ca195882/s464e.html) provides that children in custody are not allowed to be questioned unless:

·  a parent of guardian is present (or if not available an independent person – in practice this will frequently be somebody from the Youth Referral and Independent Persons Program (YRIPP) (http://www.cmy.net.au/YRIPP/YRIPPHome)

·  the child has had an opportunity to communicate privately with that person.

If the child is intellectually disabled or mentally illthe police may need to consider whether not just an independent person, but an independent third person(http://publicadvocate.vic.gov.au/services/108) in accordance with the Victoria Police Manual – Procedures and Guidelines title 'Interviewing specific categories of person' which covers both children and those with a 'mental disorder'.

Advising the child client

A simple checklistsummarising all of thefollowing information is available at the end of this guide and as a separate document on VLA’s practice updates and materials web page. See ‘Children’s Court Criminal Division pre-interview advice checklist’ in Practice updates and materials (http://www.legalaid.vic.gov.au/information-for-lawyers/practice-resources/practice-updates-and-materials).

First talk to the police

When asked to speak with a child in custody, the starting point is actually to speak to the interviewing police officer to ascertain:

·  the allegations against the client, including details of any independent witnesses as to identification or other identifying details

·  the circumstances of the arrest, including whether it was immediately after the alleged offence or otherwise and if the client co-operated

·  what the client has said to them so far (to which they generally should answer ‘nothing’ because they are not yet meant to have interviewed the child, but sometimes a child will spontaneously say ‘it wasn’t me, or ‘it was them’ or something of that nature in which case you can question why that has been discounted by the police)

·  whether the client has a criminal history or anything pending.

If there is no history, or caution only, then discuss the prospect of a further caution or Ropes/other diversion – they won’t be able to be held to this, but it helps to get them thinking of this and to test whether or not it is a real possibility.

It is then important to find out what the police plan to do with the child at the conclusion of the interview, including:

·  what they think the charges might be and whether they plan to release the client with a summons pending or seek bail/remand. Sometimes the police will say they are uncertain about the latter in which case it is best to say that you are unable to advise the client until they have a clearer idea of whether or not they’ll be going home – the superior officer should be available for them to have this discussion reasonably quickly.

·  if they are proposing to seek remand of the child in custody, have they been in touch with Department of Human Services or if after hours, Central After Hours Assessment & Bail Placement Service (CAHABPS) (http://www.dhs.vic.gov.au/for-individuals/children,-families-and-young-people/youth-justice/hearings-and-going-to-court/central-after-hours-assessment-and-bail-placement-service-cahabp)

·  whether they intend to fingerprint the client and/or seek a forensic sample

·  who is present with the child (parent, guardian, carer, Youth Referral and Independent Person Program (YRIPP) person or other) ascertaining that there is no conflict of interest. For example, theplacement carer is inappropriate if the allegations related to an indecent in the residential unit.

·  if the child is suffering from a 'mental disorder' requiring an independent third party (see the Victoria Police Manual – Procedures and Guidelines titled 'Interviewing specific categories of person' which covers both children and those with a 'mental disorder' (available for download below))

·  query the need for an interpreter (for the child or their parent).

Speaking with the child

After getting basic information from the police, you then have what you need to speak to the child.Remember that the conversation may be able to be overheard – check with the client whether anyone else is in the room or nearby and may be able to overhear what they are saying.

Initial issues to consider

There are several issues to consider before advising the child:

·  If the child is under 14 or has a learning or intellectual disability, refer to the ‘Children’s Court Criminal Division capacity checklist ’ in Practice updates and materials (http://www.legalaid.vic.gov.au/information-for-lawyers/practice-resources/practice-updates-and-materials) and assess their capacity not only to give instructions but to handle the interview process, including understanding the right to silence.

·  Explain your role to the client, including that your job is to help them understand the police interview and what will happen afterwards. Also tell them that you are not going to talk about the allegations in great detail because of the risk of being overheard.

·  Check whether they have been hurt or injured by the police, security guards or others, and whether there is a need to ask for a doctor to be called to the station or for the child to attend their own doctor after leaving the station.

·  Explain the police allegations and take basic instructions. Try to avoid closed questions with a yes or no answer. Although it is difficult when you are trying to restrict the risk of being overheard, it is possible to say, ‘This is what the police say happened, without telling me details, do you agree with this or do you say that something else happened?’ and take the questioning from there.

Unopposed allegations

If the child indicates that the police version of events is correct, you think that the charges are made out and that there are no defences:

·  If this is a first or second offence in the caution/Ropes Program(or similardiversionary program)range, the evidence is strong then unless there is a potential doli incapax or mental impairment argument, the advice to the client would be that they need to choose between:

o  co-operating with the police and possibly avoiding a court outcome or

o  making a no comment record of interview just in case they might tell the police extra information that could make things worse or if they don’t trust the police to caution or refer to Ropes. In this case they need to understand that their chances of being given a caution or Ropes are very limited.

·  If the child has capacity, is not disputing the allegations and has already had diversion (or the offending is too serious) then advise them to make a no comment record of interview due to the risk of them making things worse for themselves.

If doli incapax or mental impairment might apply

If the child's capacity is in issue:

·  If the child might be doli incapax or if mental impairment due to a learning, conductor intellectual disability might be an issue (especially if they don’t understand their rights), it is usually best to strongly advise the client to make a no comment record of interview (even if there is a possibility of a caution or Ropes). The risk of getting intodifficulty with the interviewis too high. Ask for the client’s permission to speak to the independent person and explain your concern about their capacity. Stress the importance of them ensuring that the client is able to maintain a no comment record of interview, and their right to ask for the interview to be stopped for further legal advice if the police try pushing the child too hard.

·  If mental impairment due to mental health issues or substance abuse is an immediate issue, ask the police to either wait to interview the client or to send them home and arrange an interview by appointment at a later date. They should only immediately proceed with an interview in this scenario if they have a forensic specialist’s opinion that the child is fit for interview.

Opposed allegations

If the child disputes the police allegations then they should still make a no comment record of interview because the risk of them saying something they don't mean is too high. The only minor exceptions to this are:

·  If the child is disputing the allegations, says it was someone else and is willing to name them then:

o  advise them to say at the beginning of the interview ‘on legal advice I want to say that I had nothing to do with this, it wasX and I wish no make no further comment’ then answer all questions no comment

o  warn them that they are making things worse for themselves if they are lying and sending the police on a wild goose chase. If it was not X, or if X is likely to say that he was also involved, then better to just say no comment.

·  If the child is disputing the allegations and says that they have an alibi:

o  reality test them on the alibi, pointing out that defences on this basis are rarely successful

o  advise them to say at the beginning of the interview ‘on legal advice I want to say that I had nothing to do with this, I was actually with Y at Z address and I wish no make no further comment’ then answer all questions no comment

o  warn them that they are making things worse for themselves if they are lying and sending the police on a wild goose chase. If they were not with Y, or if Y is likely to break down under pressure from police, then better to just say no comment.

Concluding the interview

Advise the client about interview procedure:

·  police will give them their rights and they will need to repeat back in the own words

·  police will ask name, address and date of birth – answer these questions

·  police will ask that they confirm the time – do this

·  police will then launch into questioning – this is when to say whatever has been discussed

·  if answering no comment then say no comment to every question – picking and choosing questions to answer can make things worse.

Also advise the client about what may happen after the interview:

·  fingerprinting

·  caution, release with summons pending or bail

·  if bail – what this means especiallyabout failure to appeal

·  if remand – advise them about the bail justice process and the court processes including any possible forensic sample application.

Remind the client that they have the right to stop the interview and say that they need to speak to you again if they need more advice.

Also let the client know how to get in touch with you afterwards to arrange legal representation (or how to contact someone else if you can’t act). They won’t have a pen and paper so give them a few key words to google. Alternatively, you couldget permission to speak to their independent person to make a note of contact details to give to them.

Conclusion

If there are any questions about the information contained in this guide, please contact the author Suzanne Bettink in person, by email at or on 9269 0650 / 0412 954 674.

Acknowledgments

Thanks to the Youth Crime Managing Lawyer Jeremy Cass, Senior Lawyer Pam Barrand (YRIPP legal advice roster co-ordinator) and Professional Support Lawyer – LawGuru Helen Askew for their assistance in the preparation of this guide and checklist.

Victoria Legal Aid – Guide to giving pre-interview advice to children – May 2013

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