POLICE AND CRIMINAL EVIDENCE ACT (PACE) and notes on the APPROPRIATE ADULT
Changes to Pace, Code C, are described on Panda’s website here
PACE Code G concerns the Police’s power to arrest:
1.1 “The Equality Act 2010 makes it unlawful for police officers to discriminate against, harass or victimise any person on the grounds of the ‘protected characteristics’ of age, disability, [etc.] —autism is a ‘protected characteristic’ under PACE
1.2 The exercise of the power of arrest represents an obvious and significant interference with the Right to Liberty and Security under Article 5 of the European Convention on Human Rights set out in Part I of Schedule 1 to the Human Rights Act 1998.
1.3 The use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Absence of justification for exercising the power of arrest may lead to challenges should the case proceed to court. It could also lead to civil claims against police for unlawful arrest and false imprisonment. When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner which is compatible with the Right to Liberty under Article 5.
PACE Code C (revised 2018) concerns the detention, treatment and questioning of suspects in police custody:
1.4 If at any time an officer has any reason to suspect that a person of any age may be vulnerable (see paragraph 1.13(d)), in the absence of clear evidence to dispel that suspicion, that person shall be treated as such for the purposes of this Code and to establish whether any such reason may exist in relation to a person suspected of committing an offence (see paragraph 10.1 and Note 10A), the custody officer in the case of a detained person, or the officer investigating the offence in the case of a person who has not been arrested or detained, shall take, or cause to be taken, (see paragraph 3.5 and Note 3F) the following action:
(a) reasonable enquiries shall be made to ascertain what information is available that is relevant to any of the factors described in paragraph 1.13(d) as indicating that the person may be vulnerable might apply;
(b) a record shall be made describing whether any of those factors appear to apply and provide any reason to suspect that the person may be vulnerable or (as the case may be) may not be vulnerable; and
(c) the record mentioned in sub-paragraph (b) shall be made available to be taken into account by police officers, police staff and any others who, in accordance with the provisions of this or any other Code, are required or entitled to communicate with the person in question. This would include any solicitor, appropriate adult and health care professional and is particularly relevant to communication by telephone or by means of a live link (see paragraphs 12.9A (interviews), 13.12 (interpretation), and 15.3C, 15.11A, 15.11B, 15.11C and 15.11D (reviews and extension of detention).
See Notes 1G, 1GA, 1GB and 1GC.
NOTES
1G. A person may be vulnerable as a result of a having a mental health condition or mental disorder. Similarly, simply because an individual does not have, or is not known to have, any such condition or disorder, does not mean that they are not vulnerable for the purposes of this Code. It is therefore important that the custody officer in the case of a detained person or the officer investigating the offence in the case of a person who has not been arrested or detained, as appropriate, considers on a case by case basis, whether any of the factors described in paragraph 1.13(d) might apply to the person in question. In doing so, the officer must take into account the particular circumstances of the individual and how the nature of the investigation might affect them and bear in mind that juveniles, by virtue of their age will always require an appropriate adult.
1GA. For the purposes of paragraph 1.4(a), examples of relevant information that may be available include:
• the behaviour of the adult or juvenile;
• the mental health and capacity of the adult or juvenile;
• what the adult or juvenile says about themselves;
• information from relatives and friends of the adult or juvenile;
• information from police officers and staff and from police records;
• information from health and social care (including liaison and diversion services) and other professionals who know, or have had previous contact with, the individual and may be able to contribute to assessing their need for help and support from an appropriate adult. This includes contacts and assessments arranged by the police or at the request of the individual or (as applicable) their appropriate adult or solicitor.
1GB. The Mental Health Act 1983 Code of Practice at page 26 describes the range of clinically recognised conditions which can fall with the meaning of mental disorder for the purpose of paragraph 1.13(d).
[…]
3.15 If the detainee is a juvenile or a vulnerable person, the custody officer must, as soon as practicable, ensure that:
• the detainee is informed of the decision that an appropriate adult is required and the reason for that decision (see paragraph 3.5(c)(ii) and;
• the detainee is advised:
~ of the duties of the appropriate adult as described in paragraph 1.7A; and
~ that they can consult privately with the appropriate adult at any time.
• the appropriate adult, who in the case of a juvenile may or may not be a person responsible for their welfare, as in paragraph 3.13, is informed of:
∼ the grounds for their detention;
∼ their whereabouts; and
• the attendance of the appropriate adult at the police station to see the detainee is
secured.
[…]
11.18. The following interviews may take place only if an officer of superintendent rank or above considers delaying the interview will lead to the consequences in paragraph 11.1(a) to (c), and is satisfied the interview would not significantly harm the person’s physical or mental state (see Annex G):
(a) an interview of a detained juvenile or vulnerable person without the appropriate adult being present (see Note 11C);
(b) an interview of anyone detained other than in (a) who appears unable to:
• appreciate the significance of questions and their answers; or
• understand what is happening because of the effects of drink, drugs or any illness, ailment or condition;
(c) an interview, without an interpreter having been arranged, of a detained person whom the custody officer has determined requires an interpreter (see paragraphs 3.5(c)(ii) and 3.12) which is carried out by an interviewer speaking the suspect’s own language or (as the case may be) otherwise establishing effective communication which is sufficient to enable the necessary questions to be asked and answered in order to avert the consequences. See paragraphs 13.2 and 13.5.
11.19. These interviews may not continue once sufficient information has been obtained to avert the consequences in paragraph 11.1(a) to (c).
11.20. A record shall be made of the grounds for any decision to interview a person under paragraph 11.18.
[…]
Note 11C. Although juveniles or vulnerable persons are often capable of providing reliable evidence, they may, without knowing or wishing to do so, be particularly prone in certain circumstances to providing information that may be unreliable, misleading or self- incriminating. Special care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person’s age, mental state or capacity. Because of the risk of unreliable evidence it is also important to obtain corroboration of any facts admitted whenever possible. Because of the risks, which the presence of the appropriate adult is intended to minimise, officers of superintendent rank or above should exercise their discretion under paragraph 11.18(a) to authorise the commencement of an interview in the appropriate adult’s absence only in exceptional cases, if it is necessary to avert one or more of the specified risks in paragraph 11.1.
[…]
17G. Appropriate adult in paragraph 17.7 means the person’s–
(a) parent or guardian or, if they are in the care of a local authority or voluntary organisation, a person representing that authority or organisation; or
(b) a social worker of a local authority; or
(c) if no person falling within (a) or (b) above is available, any responsible person aged 18 or over who is not:
∼ a police officer;
∼ employed by the police;
∼ under the direction or control of the chief officer of police force; or
∼ a person who provides services under contractual arrangements (but without being employed by the chief officer of a police force), to assist that force in relation to the discharge of its chief officer’s functions;
whether or not they are on duty at the time.
ANNEX E SUMMARY OF PROVISIONS RELATING TO VULNERABLE PERSONS
1. If at any time, an officer has reason to suspect that a person of any age may be vulnerable (see paragraph 1.13(d)), in the absence of clear evidence to dispel that suspicion that person shall be treated as such for the purposes of this Code and to establish whether any such reason may exist in relation to a person suspected of committing an offence (see paragraph 10.1 and Note 10A), the custody officer in the case of a detained person, or the officer investigating the offence in the case of a person who has not been arrested or detained, shall take, or cause to be taken, (see paragraph 3.5 and Note 3F) the following action:
(a) reasonable enquiries shall be made to ascertain what information is available that is relevant to any of the factors described in paragraph 1.13(d) as indicating that the person may be vulnerable might apply;
(b) a record shall be made describing whether any of those factors appear to apply and provide any reason to suspect that the person may be vulnerable or (as the case may be) may not be vulnerable; and
(c) the record mentioned in sub-paragraph (b) shall be made available to be taken into account by police officers, police staff and any others who, in accordance with the provisions of this or any other Code, are entitled to communicate with the person in question. This would include any solicitor, appropriate adult and health care professional and is particularly relevant to communication by telephone or by means of a live link (see paragraphs 12.9A (interviews), 13.12 (interpretation), and 15.3C, 15.11A, 15.11B, 15.11C and 15.11D (reviews and extension of detention)).
See Notes 1G, E5, E6 and E7.
2. In the case of a person who is vulnerable, ‘the appropriate adult’ means:
(i) a relative, guardian or other person responsible for their care or custody;
(ii) someone experienced in dealing with vulnerable persons but who is not:
~ a police officer;
~ employed by the police;
~ under the direction or control of the chief officer of a police force;
~ a person who provides services under contractual arrangements (but without being employed by the chief officer of a police force), to assist that force in relation to the discharge of its chief officer’s functions,
whether or not they are on duty at the time.
(iii) failing these, some other responsible adult aged 18 or over who is other than a person
described in the bullet points in sub-paragraph (ii) above.
See paragraph 1.7(b) and Notes 1D and 1F.
2A The role of the appropriate adult is to safeguard the rights, entitlements and welfare of ‘vulnerable persons’ (see paragraph 1) to whom the provisions of this and any other Code of Practice apply. For this reason, the appropriate adult is expected, amongst other things, to:
• support, advise and assist them when, in accordance with this Code or any other Code of Practice, they are given or asked to provide information or participate in any procedure;
• observe whether the police are acting properly and fairly to respect their rights and entitlements, and inform an officer of the rank of inspector or above if they consider that they are not;
• assist them to communicate with the police whilst respecting their right to say nothing unless they want to as set out in the terms of the caution (see paragraphs 10.5 and 10.6); and
• help them understand their rights and ensure that those rights are protected and respected (see paragraphs 3.15, 3.17, 6.5A and 11.17).
See paragraph 1.7A.
3. If the custody officer authorises the detention of a vulnerable person, the custody officer must as soon as practicable inform the appropriate adult of the grounds for detention and the person’s whereabouts, and secure the attendance of the appropriate adult at the police station to see the detainee. If the appropriate adult:
• is already at the station when information is given as in paragraphs 3.1 to 3.5 the information must be given in their presence;
• is not at the station when the provisions of paragraph 3.1 to 3.5 are complied with these provisions must be complied with again in their presence once they arrive.
See paragraphs 3.15 to 3.17
4. If the appropriate adult, having been informed of the right to legal advice, considers legal advice should be taken, the provisions of section 6 apply as if the vulnerable person had requested access to legal advice. See paragraphs 3.19, 6.5A and Note E1.
5. The custody officer must make sure a person receives appropriate clinical attention as soon as reasonably practicable if the person appears to be suffering from a mental disorder or in urgent cases immediately call the nearest appropriate healthcare professional or an ambulance. See Code C paragraphs 3.16, 9.5 and 9.6 which apply when a person is detained under the Mental Health Act 1983, sections 135 and 136, as amended by the Policing and Crime Act 2017.
6. Not used.
7. If a vulnerable person is cautioned in the absence of the appropriate adult, the caution must be repeated in the appropriate adult’s presence. See paragraph 10.12.
8. A vulnerable person must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult unless the provisions of paragraphs 11.1 or 11.18 to 11.20 apply. Questioning in these circumstances may not continue in the absence of the appropriate adult once sufficient information to avert the risk has been obtained. A record shall be made of the grounds for any decision to begin an interview in these circumstances. See paragraphs 11.1, 11.15 and 11.18 to 11.20.
9. If the appropriate adult is present at an interview, they shall be informed they are not expected to act simply as an observer and the purposes of their presence are to:
• advise the interviewee;
• observe whether or not the interview is being conducted properly and fairly;
• facilitate communication with the interviewee. See paragraph 11.17
10. If the detention of a vulnerable person is reviewed by a review officer or a superintendent, the appropriate adult must, if available at the time, be given an opportunity to make representations to the officer about the need for continuing detention. See paragraph 15.3.
11. If the custody officer charges a vulnerable person with an offence or takes such other action as is appropriate when there is sufficient evidence for a prosecution this must be carried out in the presence of the appropriate adult if they are at the police station. A copy of the written notice embodying any charge must also be given to the appropriate adult. See paragraphs 16.1 to 16.4A
12. An intimate or strip search of a vulnerable person may take place only in the presence of the appropriate adult of the same sex, unless the detainee specifically requests the presence of a particular adult of the opposite sex. A strip search may take place in the absence of an appropriate adult only in cases of urgency when there is a risk of serious harm to the detainee or others. See Annex A, paragraphs 5 and 11(c)
13. Particular care must be taken when deciding whether to use any form of approved restraints on a vulnerable person in a locked cell. See paragraph 8.2.
Notes for Guidance
E1 The purpose of the provisions at paragraphs 3.19 and 6.5A is to protect the rights of a vulnerable person who does not understand the significance of what is said to them. A vulnerable person should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the absence of the appropriate adult if they want.
E2 Although vulnerable persons are often capable of providing reliable evidence, they may, without knowing or wanting to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or self-incriminating. Special care should always be taken when questioning such a person, and the appropriate adult should be involved if there is any doubt about a person’s mental state or capacity. Because of the risk of unreliable evidence, it is important to obtain corroboration of any facts admitted whenever possible.
E3 Because of the risks referred to in Note E2, which the presence of the appropriate adult is intended to minimise, officers of superintendent rank or above should exercise their discretion to authorise the commencement of an interview in the appropriate adult’s absence only in exceptional cases, if it is necessary to avert one or more of the specified risks in paragraph 11.1. See paragraphs 11.1 and 11.18 to 11.20.
E4 When a person is detained under section 136 of the Mental Health Act 1983 for assessment, the appropriate adult has no role in the assessment process and their presence is not required.
E5 For the purposes of Annex E paragraph 1, examples of relevant information that may be available include:
• the behaviour of the adult or juvenile;
• the mental health and capacity of the adult or juvenile;
• what the adult or juvenile says about themselves;
• information from relatives and friends of the adult or juvenile;
• information from police officers and staff and from police records;
• information from health and social care (including liaison and diversion services) and other professionals who know, or have had previous contact with, the individual and may be able to contribute to assessing their need for help and support from an appropriate adult. This includes contacts and assessments arranged by the police or at the request of the individual or (as applicable) their appropriate adult or solicitor.
E6 The Mental Health Act 1983 Code of Practice at page 26 describes the range of clinically recognised conditions which can fall with the meaning of mental disorder for the purpose of paragraph 1.13(d). The Code is published here:
UNRELIABLE CONFESSIONS
Here are the CPS’s guidelines on “Confessions, Unfairly Obtained Evidence and Breaches of PACE”.
Unreliable confessions were also given a broad interpretation by the Court of Appeal in R v Fulling:
Confessions obtained as the result of an inducement – for example a promise of bail or a promise that a prosecution would not arise from the confession;
Hostile and aggressive questioning;
Failure to record accurately what was said;
Failure to caution;
Failure to provide an appropriate adult where one is required;
Failure to comply with the Code of Practice in relation to the detention of the accused – for example a failure to allow sufficient rest prior to an interview;
Failure of the Defence Solicitor or Appropriate Adult to act properly – for example by making interjections during interview which are hostile to the defendant. It is important that prosecutors take into consideration whether confessions can be adduced to be reliable or not by the Courts.
NOTE: The final point here about Appropriate Adults failing to act properly is a serious concern. Few appropriate adults provided by the voluntary and statutory sector (as opposed to friends or relatives acting in that capacity) have the skills or training to understand the particular vulnerabilitIies of those who are autistic. This places the vulnerable adult at even greater risk. It is the same with the role of the Health Care Professional in custody suites. Nurses and doctors who are responsible for assessing whether a mentally vulnerable adult is fit for detention and interview, often have little or no knowledge of autism, or worse, have a close working relationship with the police. Same goes for Duty Solicitors called in by the police. And so even where PACE is properly followed, safeguarding often beaks down through lack of awareness, lack of training and skills, and sometimes even indifference.
