For most parents, the idea their child could be suspected of having committed a crime is a terrifying prospect, and one which they feel ill-equipped to deal with.

If a child comes under police investigation – and as a result faces the prospect of arrest and potential prosecution – there are some basic facts every parent should know.

Here, Anna Jemmison – an expert in this area of law – sets out ten facts about the criminal investigation of children that parents and guardians of any child in this situation should know.

1. Establish a clear line of contact with the police

For the purposes of the criminal law, a child is defined as someone aged under 18 at the time of arrest. At the other end of the age scale, someone can only be criminally prosecuted if they meet the age of criminal reasonability, which in England and Wales is ten years old.

The following therefore applies to children aged between 10 and 17 at the time of their arrest.

While the law should apply equally to any child, the reality is that there is a spectrum of vulnerability within the category of “child” which police often take account of.

Younger children are often treated differently from 16 and 17-year-olds.

Irrespective of this, whenever a young person is arrested, the police must inform their parents or guardians of this fact as soon as possible.

On becoming aware of their child’s arrest, one of a parent’s first responsibilities should be to establish a clear line of contact with the police. Doing this allows the officers in the case know precisely who they should contact as the matter progresses.

Establishing a clear line of communication also helps ensure that the police officers overseeing any custody arrangements are aware of any specific vulnerabilities that the young person may have, for example and physical, education, cognitive or mental health needs.

2. Get legal representation, and do not say anything until you do

It is generally advisable for the child and their parents NOT to discuss their case with the police until they have first spoken to a criminal defence lawyer. 

All criminal suspects have the right to legal representation at the police station. This can be provided for free by a nominated Legal Aid solicitor or through the duty solicitor scheme.

Alternatively, a specialist criminal defence solicitor can be instructed privately.

It is in the young person’s best interest to instruct a criminal defence solicitor with expertise of youth justice work. Not only do children generally respond better to a more caring, sensitive approach than adults; but some criminal justice system outcomes are only available to young people.

The strategies and tactics required to best represent a young person in custody can be very different to those used to represent an adult.

3. Agree on an ‘appropriate adult’

All children have the right to have an “appropriate adult” with them at the police station.  This person’s role is to support the child throughout their interactions with the police.

The appropriate adult should generally be present during searches and sample-taking; throughout the interview; and when the police confirm the outcome of interview.

This adult will usually be a parent or guardian. However, this is not always the case. In certain types of offence – most obviously sexual cases – the young person may feel uncomfortable with parent playing this role.

A parent or guardian is also unsuitable as an appropriate adult if they are potentially involved in the case, for example as the complainant of a crime; if they may offer witness or alibi evidence; or if they are also accused of criminality.

In such cases, the police should work with the child and (if appropriate) their parents / guardian to establish who the appropriate adult should be. This important role may best be played by another family member, or and adult family friend.

If no nominated individual can be found, the police can make arrangements for an independent appropriate adult to attend.

4. Know your (and your child’s) rights.

There is clear legal guidance on how the police should treat child suspects.

Where possible, a child’s legal representative should seek to prevent the police from arresting their client. While this won’t always be possible, in some cases the police will agree to a voluntary interview under caution in place of arrest.

If the young person has already been arrested and taken to custody it may still be the case that the legal representative can argue for the young person to be bailed and released immediately with a view to return to the police station on a different day, when they will engage in a voluntary interview under caution. 

The law recognises that police custody and cells are not a suitable place for children.

The Police and Criminal Evidence Act 1984 requires that children who have been charged with a crime, and denied bail, be moved to appropriate Local Authority accommodation. There is a related duty under the Children Act 1989 for Local Authorities to accept these transfers.

Section 11 of the Children Act 2004 requires both police and Local Authorities to have regard to the welfare and protection of children welfare of children. In in 1991 the UK ratified the UN Convention on the Rights of the Child, agreeing that police custody be used “only as a measure of last resort and for the shortest appropriate period of time”

If it looks as if a child will be remanded into police custody, it is important that their legal representative make strong representations against this.  

If they are charged with a crime, the manner in which a child moves through the Criminal Justice System depends on their age when criminal proceedings begin; the offence(s) they are charged with; and with whom they are charged.

It is beyond the scope of this blog to set out all these variables, and the various strategies a legal representative may pursue.

However, it is worth noting that, in all but the very rarest cases, criminally prosecuted children are granted anonymity such that it is a crime for the media to report their identities.

Parents should note that while the established media generally adhere to this law, the same may not hold true for social media.

5. Shut down social media gossip

Many children’s first instinct, whenever anything dramatic happens, is to tell their friends….and post about it on social media.

It is imperative this does not happen when a child faces the prospect of a criminal investigation.

Parents should strongly encourage their children not to post anything about their case on social media: both on public-facing accounts and in supposedly private messages to friends. This advice holds for platforms such as Facebook, Snapchat and Instagram as much as it does for digital messaging services such as WhatsApp and text message.

There are many reasons for this advice, but the primary one is that this information may be used as evidence in any future prosecution.

At the same time, children and their parents should not seek to delete information they have already published or saved. Doing this could be viewed negatively by investigators (as investigators are often able to recover deleted material). This could be viewed as trying to ‘cover up’ evidence which, in some circumstances, may even constitute a further offence.  

6. Prepare for interview

Sometime the police will offer a ‘voluntary interview’ in which the child is offered the opportunity to be interviewed without first being arrested.

While a voluntary interview may feel less serious than an interview after arrest (and is sometimes framed as such by the police) it carries the same evidential weight.

Anything a child says during the voluntary interview can be used in a future prosecution.

Sometimes parents do not bring a solicitor to these interviews for fear of ‘looking bad’; or ‘making a bad situation worse’. This can often be a mistake.

The parents of any criminal suspect should treat every interaction with the police with extreme seriousness and work on the assumption that anything revealed to the police may be recorded and potentially used in evidence.

7. Do not attempt to ‘explain away’ behaviour

It is often the case that parents – in an understandable desire to help – try to explain their child’s behaviour in a way they believe portrays their child in a favourable light.

They may say things such as: “he didn’t appreciate it was that big a deal”; or “he’s done similar things in the past and nothing bad has happened”; or “he only did it because he was provoked.”

These sorts of explanations can harm a child’s defence. As someone who often gets involved in these matters at later stage, I regularly work to exclude these kinds of comments from being used as prosecution evidence.

In some cases, a parent’s attempt at explanation can open their child up to more legal trouble. A typical example of this is when a parent suggests to the police that their child may have been coerced into getting involved in drug supply (perhaps as a victim of a “county lines” type gang).

The parents may volunteer this information without knowing any of the particulars of the allegation or, the instructions of the young person.

While intended to be exculpatory, this kind of account could backfire. To take the above example, the parent’s account of potential gang involvement may alert the police to more serious offences they may never have previously considered.

Parental insight can be helpful, but it is always preferable to discuss these issues with a legal representative before taking the information to the police. 

8. Strategise for the future

While police investigations rarely move rapidly, cases involving children should theoretically move quicker than they do for adults.

There is a general awareness, within the criminal justice system, that in order to minimise the negative impact of a traumatic event such as an arrest and criminal investigation, they should be dealt with efficiently as possible.

This being the case (and depending on the circumstances of the matter) it may be advisable for a child’s legal representative to apply pressure on the police to expedite a criminal investigation.

There may be especially clear benefits in cases where a child is approaching 18-years-old.

If a young person is produced at court before the age of 18, they will first attend the Youth Court which is a child centred venue with the primary aim of safeguarding the welfare of the child and preventing re-offending. 

If charged at the age of 18, they will appear before the adult court.

9. Know your legal options

The best defence strategy depends on the specifics of the case, but there are various ways to successfully combat a ill-founded allegation of child criminality.

One potential tactic is, when appropriate, to send ‘letters of representations’ to the Crown Prosecution Service and police in which the defence sets out why the matter should be closed either with no further action, or else some form of disposal other than a charge. Issues commonly raised in these letters include:

– weaknesses in the prosecution evidence;

– public interest arguments against charge;

– facts about the child (such as vulnerabilities) which mitigate against prosecution.

Another beneficial tactic may be to highlight any imbalance between the alleged criminality and the impact of the investigation.

It may be the case, for example, that a child risks missing their GCSE exams (and thus potentially ruining their chances of further education) because they are under police investigation for crime for which, even if they were to be found guilty, the maximum sanction would be relatively slight.

10. Don’t panic

This is much easier said than done but parents and carers should not panic if the child they are responsible for is accused of – or arrested in connection with – a crime.

They can take comfort from the fact that, with the right legal representation, it is possible to bring any unnecessary or inappropriate police interest to an end, without major harm to the child.