Comment: The loophole which allows police to treat 17-year-olds as adults

By Fiona Bawdon

Kesia Leatherbarrow was just 17 when she was found dead in a friend's garden in December 2013.

Four days earlier, she had been picked up by Greater Manchester police for possessing a small amount of cannabis and kept at the police station all weekend. She was sent to Tameside magistrates court on Monday morning, who bailed her to come back the next day, when the youth court would be sitting. Within hours, Kesia was dead.

Thanks to a legal loophole, the police station is the only part of the criminal justice system where 17-year-olds can be treated as adults. If Kesia had been 16, she could have been transferred overnight to local authority care, where specially-trained staff could have assessed and cared for her, rather than being kept in a police cell.

During the three days and two nights she was held by police, Kesia had become distraught, banging her head and pulling her hair.

Her mum, Martina Brincat Baines says: "Kesia was a struggling vulnerable child. She should have had more help." The first Martina knew of her daughter's arrest was after her death.

Kesia's is the third death in three years to highlight the anomaly that denies arrested 17-year-olds the full range of welfare protections given to younger children.

In August 2012, 17-year-old Joe Lawton killed himself after being arrested for drink driving and held overnight by police. His parents weren't told. Two days later, his father found his body at the family home, the police charge sheet at his feet. Nick Lawton believes his son was so traumatised and ashamed after being arrested "he couldn't find the words to tell us".

In 2011, Eddie Thornber, also 17, killed himself after being arrested for having 50p's worth of cannabis. Eddie had accepted a police warning but when a court summons was sent to him in error, he killed himself. Like Joe, his parents only found out about the arrest after his death.

Both the Lawtons and Thornbers believe that if they had been able to support their sons, Joe and Eddie would have understood that their arrests didn't have to be the end of the world.

During a recent House of Lords debate on this issue, Labour peer Helena Kennedy QC, who has parented three 17-year-olds in her time, said young people this age often "appear to be very mature and yet at the same time, they are childlike and vulnerable". Baroness Howe described police custody as "intimidating and frightening, unsuitable for children, particularly the sort of children who are as damaged as those who are likely to be in that situation".

However, what the deaths of Kesia, Eddie and Joe show is that all arrested 17-year-olds are vulnerable – whether they have a history of depression and self-harm like Kesia, or are a former headboy and sports team captain, like Eddie. Ironically, Nick Lawton thinks the fact that Joe was a high achiever, with no real experience of setbacks, meant he couldn't see beyond his slip-up, and thought his previously bright future was now irreparably blighted.

In 2013, Joe and Eddie's parents joined forces with the charity Just for Kids Law to campaign for a change in the law. Following a high court ruling in April that year, the home secretary was forced to make significant changes to the way 17-year-olds are treated. As a result, they now have the right to have an adult with them and their parents have the right to be informed.

Sadly, as Kesia's subsequent death showed, there is still more work to be done. All six bereaved parents, who have since become friends, have now written to Theresa May calling on her to close all the remaining loopholes that deny 17-year-olds the full range of protections. In particular, they want them to have the right to be transferred out of the police station, to overnight accommodation more suitable for a vulnerable child, something that was not available to Kesia.

Just for Kids Law is also planning further legal action. The Home Office says a review is underway, but has made clear it intends to resist the legal challenge, not least on grounds of additional costs to local authorities.

By continuing to defend legislation which treats arrested 17-year-olds as adults, Theresa May is out of step with her counterpart at the Ministry of Justice, who seems clear that they should be treated as children. Justice secretary Chris Grayling recently announced that 15-17 year olds in Young Offender Institutions (YOI) now have to be tucked up in bed with the lights out by 10.30pm.

Grayling's comments highlight just how inconsistent and contradictory the current system is, and why urgent reform is needed. Whereas a 17-year-old in a YOI is too much of a child to decide his or her own bedtime; Kesia was deemed adult enough to be kept in a police cell for two nights and three days.

Lord Faulks, justice minister, recently told fellow peers that the treatment of arrested 17-year-olds is an issue which the government takes "extremely seriously". But as of last week, the government's review – announced nine months ago – seems to have made little progress. New policing minister Michael Penning admitted that it doesn't keep centralised figures of the number of children this age held in custody each year.

The government's lack of urgency is perhaps not surprising, given there are few votes in protecting the rights of teenagers, particularly ones who have been arrested. Seventeen-year-olds rarely attract much media sympathy, from publications of any political hue. A columnist on Socialist Worker found the terrible death of schoolboy Horatio Chapple an occasion for mirth and an opportunity to make bad puns ('Eton by bear? The inquest begins').  I suspect it was the fact he was 17 which made Horatio seem fair game for this kind of juvenile bile, in a way that an equally posh 16-year-old wouldn't have been.

While it may be understandable for armchair revolutionaries to be confused about where the line between child and adult should be drawn, there should be no such confusion among legislators.The United Nations Convention on the Rights of the Child, to which the UK is a signatory, stipulates that all under 18s should be recognised and protected as children.

In their letter to Theresa May, the three devastated families wrote: "We will not stop campaigning on this issue until every piece of legislation that treats 17-year-olds as adults in the criminal justice system is amended to give the most vulnerable among us the help they are entitled to."

To date, all Theresa May has been able to offer them are her condolences.

Fiona Bawdon is a freelance journalist writing about legal affairs. She is working with Just for Kids Law on its #stillachildat17 campaign to change the law relating to 17 year olds in the police station.  Follow her on Twitter

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