Appropriate adults and defence agents: who does what?

Numbers of suspects being interviewed in police stations in Scotland requiring the services of an appropriate adult (AA) are increasing. (There were 5,442 facilitated interviews in 2014-15, compared to 5,183 in 2013-14: Scottish Appropriate Adult Network (SAAN) Annual Report 2014-15.) That demand will rise, given the greater recognition of suspects’ vulnerability in requiring an AA, compliance with the equality legislation – disability being one of the “protected characteristics” – and the volume of police interviews being held.

Defence solicitors must learn to work with AAs. Feedback anecdotally indicates a lack of understanding by AAs and solicitors as to their respective functions and roles in relation to the suspect.

This article seeks to raise awareness for the profession as who the AA is, identify problem situations and set out the current position. Promoting discussion here should enhance the mutual understanding of the respective AA and solicitor roles.

The AA role

The AA service in Scotland originates from 1990. Procedures were then introduced to facilitate communication in police interviews where a suspect had mental health issues. While the Scottish service is provided nationally, it has no statutory basis. Service provision (organisation, selection and funding) varies across Scotland.

Guidance and National Standards for Appropriate Adult Services in Scotland 2015 (revised March 2015) has been published. It states that services are provided for adults having a mental disorder as defined under s 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 as a mental illness, personality disorder or learning disability.

Learning disability alone covers a spectrum of abilities including dyslexia and ADHD. Solicitors must be fully aware that it is not always clear cut when exactly a suspect requires an AA. Processes for identification vary from earlier police detention markers to perceived problems responding to standard questioning at the charge bar.

AAs are recruited on basis of their prior experience (professional or voluntary) of working with adults with a mental health issue. Completion of training is mandatory. The role is independent of the police, though retired police officers in certain areas do undertake the role. AAs cannot be a relative, friend or advocate. (Children detained in police stations currently under 16 years require a responsible adult. That is a quite separately administered system.)

The AA facilitates communication, and provides support and reassurance for the suspect including the purpose of the police interview. The AA explains their rights, requirements for consent to police procedures such as the solicitor access recording form (SARF), medical examination, caution and charge. Overlap with the solicitor’s duties is obvious.

Interaction between the role of a solicitor and an AA

Initial

The AA is selected for their specialist knowledge of relevant mental disorders. They are well placed to provide valuable information about the suspect’s vulnerabilities to the solicitor during the telephone consultation or on arrival at the police station. They have spent time with the suspect and have facilitated an early understanding of the police role and procedures.

Experience tends to show that AAs can be reluctant to engage with solicitors, erroneously perceiving that they develop personal liability for the information being relayed by them to the solicitor. Failure by an AA to communicate is a lost opportunity, lacking cohesion between the AA and the solicitor. Professional advice to the suspect as to any required attendance at the police station and the conduct of any interview is entirely a matter for the solicitor. Information from an AA would only be one factor on which to base such advice.

Legal consultation with the client

Whether on the phone or in person, there are no circumstances where the AA should be present. Advice is confidential between the solicitor and client. An AA requires to provide a statement to the police at the end of their attendance and may be called as a witness in any subsequent proceedings. If party to any solicitor’s advice, the AA is not subject to privilege. Where the solicitor decides not to attend a police interview, the AA does not subsume the professional responsibilities of a solicitor.

Police interview

Here, potential difficulties can arise. The AA role existed prior to the Cadder decision and the increase in solicitors attending at police stations. AAs and solicitors have not fully reflected on how that impacts on their respective roles.

Professional advice tendered as to the response to police caution or to a no comment/silent interview can become confused, especially if the AA intervenes to ascertain that the suspect understands police questioning. AAs may intervene to seek clarification with the suspect, prompting him to respond. It is the solicitor who must take charge to ensure the suspect’s understanding of the professional advice. Equally, the AA can offer practical advice, for instance on the need for regular breaks during a lengthy interview. Both the legal profession through the Law Society of Scotland, and the AA through SAAN, should ensure that guidance reflects these changes.

Conclusion

Section 33 of the Criminal Justice (Scotland) Bill (stage 2 completed at time of writing) contains draft provisions as to support in police custody for vulnerable persons. How that service is to be provided is a matter of high level consultation by the Scottish Government. However such a service is to be administered and run, consistency is required across Scotland in providing a service to be implemented by AAs and within which solicitors can operate. That ensures that the interests of those identified as vulnerable are best served.

Scottish solicitors should be aware too of the finding of the Home Office Report, There to Help (although English AAs have a slightly different role). It indicates that there is a lack of service provision, and stresses the need for better police record keeping and a need to “demystify what can be a confusing, sometimes frightening experience in police custody”. Its aspiration to “fair justice for all” for vulnerable adults should be a common concern too for the Scottish AA service provision.

To build up a picture of what is happening more widely, the Criminal Law Committee encourages those solicitors with experience to let them know how AAs are working in practice.