Dr. Roxanna Dehaghani, University of Cardiff, Wales.
Vulnerable suspects should be provided with an appropriate adult (AA) according to Code of Practice C to the Police and Criminal Evidence Act 1984 (PACE). Until July 2018, vulnerable suspects were those under the age of 18, or adults who could be considered “mentally disordered” or “mentally vulnerable” (Home Office 2017). The vulnerability requirements for adults changed in July 2018 such that adults who, because of a mental health condition or a mental disorder, meet the ‘functional test’ (Dehaghani and Bath, 2019); that is, they may: (1) experience difficulty understanding the processes and procedures connected with arrest and detention, or voluntary attendance, or their rights and entitlements; and/or (2) appear not ‘to understand the significance of what they are told, of questions they are asked or of their replies’; and/or (3) become confused or unclear, and/or (4) provide unreliable, misleading or incriminating information without knowing or wishing to do so; and/or (5) be suggestible or acquiescent (Home Office 2018).
The AA safeguard should be implemented so as to: provide the suspect with support, advice and assistance, ensure fairness, protect rights and entitlements, and enable communication. Without the safeguard, there is a risk that the suspect will falsely incriminate him/herself or otherwise provide unreliable or misleading information, thus potentially resulting in a miscarriage of justice. Indeed, the safeguard was introduced following a miscarriage of justice in 1972 (the Confait Affair; see Price and Caplan, 1977). The AA safeguard is therefore designed to place the suspect in the position that he or she would not otherwise be in, were it not for their vulnerability.
Whilst the safeguard may be important to facilitate the right to a fair trial (as such a right extends to pre-trial detention under Article 6 ECHR, following Teixeira de Castro v Portugal), there are problems with how – or, indeed, whether – it is implemented, particularly for adult suspects. Previous research has pointed towards the problems with how the safeguard was implemented in practice (see Dehaghani, 2016 for discussion), yet the focus was squarely on issues with the identification of vulnerability. The National Appropriate Adult Network (NAAN) (2015, Paper A: 5) identified problems with implementation rates, citing:[1]
a lack of effective and systematic screening, a lack of training for the police, …no visual or behaviour clues…, the influence of alcohol or drugs complicating the assessment, a disregard of self-reporting, the failure to use historical information… to identify learning disabilities, [suspect reluctance to disclose], [the use of standardised questions].
With a keen interest in police investigations and miscarriages of justice, I decided to investigate further why the safeguard was left unimplemented. Between November 2014 and June 2015, I conducted research in police custody (across two police forces in England), using ethnographic research methods. This involved a total of 6 months of observing police custody officers whilst they were ‘booking’ suspects in, informal conversations, and formal (semi-structured) interviews. I found, consistent with previous research, that the AA was often unimplemented for adults (although I did not ever observe a young suspect being ‘processed’ without an AA present). Whilst my research commenced before the NAAN report was published, the work of NAAN exposed the issues with AA implementation and led to a Home Office Working Group on Vulnerable Adults. I was then able to feed into the Working Group discussions, drawing upon my ethnographic research.
My research reaffirmed many of the well-reported issues with implementation, but also exposed additional obstacles to implementing the AA safeguard for vulnerable adult suspects. Consistent with previous research, I found that the police indeed lacked effective screening tools and training, that some suspects were not obviously vulnerable or were reluctant to disclose personal (and sensitive) information regarding mental health, and that sometimes suspects were under the influence of alcohol or drugs (often resulting in flippant answers to the risk assessment questions). Similar to McKinnon and Grubin (2010), I found that risk assessment questions were often designed to aid the identification of mental health problems but were limited when attempting to identify learning disabilities or difficulties. Additional questions within the risk assessment intended to identify vulnerability were centred on unhelpful and misguided stereotypes about those with learning disabilities such as whether they went to a ‘special school’; misguided because many people with learning disabilities may attend ‘mainstream school’ and would therefore answer no to this question (see also Bradley, 2009).
Yet, I also found that there were issues with the interpretation of the word ‘vulnerability’. As Bean and Nemitz (1995) had previously suggested, this problem lay, at least in part, with how police custody officers made sense of the information provided to them. I witnessed many adults being left without an AA even where the information provided to the police suggested that the suspect was vulnerable and in need of an AA. For example, many suspects self-reported mental health problems, some disclosed problems with reading and writing, and some very obviously struggled to understand the various processes and procedures; some even struggled to grasp why they had been arrested and seemed not to understand their rights and entitlements. There were two main reasons why they were not provided with an AA even where their vulnerability could be identified: they were not viewed as sufficiently vulnerable according to the police and/or the police were not convinced that an AA was needed. In respect of the former, I found that police custody officers struggled to articulate the terms ‘mentally vulnerable’ and ‘mentally disordered’ and when these terms were mentioned, they failed to draw connections with Code C definitions. Often, certain mental health conditions were disregarded as ‘real’ vulnerability: depression was often cited as a ruse to receive social welfare or as something circumstantial (i.e. simply because ‘they’ve been arrested’). Neurodiverse conditions were also dismissed as something that warranted the AA safeguard because autistic individuals were purportedly intelligent and articulate (indeed, this may be the case, but some autistic individuals struggle with police custody process, as Holloway et al’s (2020) research demonstrates).
I also found that there were incentives and disincentives to implementing the AA safeguard; some centred around the exclusion of evidence (see Dehaghani, 2019 for further discussion). Whilst the Home Office Working Group sought to address issues with AA implementation (although focused on identification rates), my recent report with Bath (Bath and Dehaghani, 2020) has found that implementation rates in custody interviews, although improving slightly since 2017/18, have not increased in a manner that is statistically significant (and nor does this increase reflect the prevalence of vulnerability).[2] Much more needs to be done to protect vulnerable suspects; a ‘sea-change’ is required throughout the criminal justice system to take seriously the needs of vulnerable suspects. Until such a change happens (if it ever does), vulnerable suspects may continue to journey through the process unaided.
References
Bath, C. and Dehaghani, R. 2020. There to Help 3: Identification of vulnerable adult suspects and application of the appropriate adult procedural safeguard in police investigations in 2018/19. NAAN. Available at: www.appropriateadult.org.uk/policy/research/theretohelp3
Bean, P., and Nemitz, T., 1995. Out of depth and out of sight. Loughborough: University of Loughborough.
Bradley, K.J.C., 2009. Review of People with Mental Health Problems or Learning Disabilities in the Criminal Justice System. London: Department of Health.
Dehaghani, R., 2016. He’s just not that vulnerable: Exploring the Implementation of the Appropriate Adult Safeguard in Police Custody. Howard Journal of Crime and Justice, 55 (4), pp. 396-413.
Dehaghani, R. 2019. Vulnerability in Police Custody: police decision-making and the appropriate adult safeguard. Abingdon: Routledge.
Dehaghani, R. and Bath, C. 2019. Vulnerability and the appropriate adult safeguard: examining the definitional and threshold changes within PACE Code C. Criminal Law Review, pp. 213-232.
Holloway, C.A., Munro, N., Jackson, J., Phillips, S. and Ropar, D. 2020. Exploring the autistic and police perspectives of the custody process through a participative walkthrough. Research in Developmental Disabilities, 97.
McKinnon, I., and Grubin, D., 2010. Health screening in police custody. Journal of Forensic and Legal Medicine, 17, pp. 209-12.
National Appropriate Adult Network, 2015. The Home Secretary’s Commission on Appropriate Adults: There to help: Ensuring provision of appropriate adults for mentally vulnerable adults detained or interviewed by police. NAAN.
Price, C. and Caplan, J. 1977. The Confait Confessions. London: Marion Boyars.
Teixeira de Castro v Portugal (1998) EHRR 101
[1] The report was based on review of literature, relevant legislation and case law, as well as police data on AA uptake, discussions with vulnerable suspects, and interviews with ‘strategic stakeholders’, and a survey of police custody officers.
[2] Rates have declined in relation to voluntary interviews.
Defending Vulnerability 