Familiar faces not welcome

I was recently instructed to attend at and appear for a client at a police station interview. This was organised by way of a prearranged appointment. It was agreed that the client would attend at 9am. The client was an adult and one with significant mental health issues. The client had arranged to bring his support worker with him – one with whom he had worked for some time. However, it became apparent on the morning of the interview that the support worker would not be permitted to sit in with the client during the interview. Instead, the client would have to have another “appropriate adult” sitting beside him – one he had never met before.

The interview proceeded on that basis. It was quite a bewildering experience for the client, given that the support worker whom he knew and trusted was to be suddenly replaced with someone he did not know.

It might be useful to set out briefly the relevant statutory provisions. Broadly speaking, s 32(2) of the Criminal Justice (Scotland) Act 2016 entitles a person to insist on a solicitor being present at interview. Also, s 42 makes provision for support for vulnerable persons. Chapter 2 of part 6 of the Act (under “Support for Vulnerable Persons”) makes further provisions. However, the basis for having such a drastic switch of plan prior to the commencement of this interview was due to the drafting of the policy contained in Police Scotland’s Appropriate Adults – Standard Operating Procedure, which was published in January 2018. The standard operating procedure (“SOP”) itself appears to stem (see para 2 of the SOP) from legacy guidance issued by the long since defunct Scottish Home & Health Department back in 1990.

At the outset, I would accept that the requirements for the appropriate adult do appear to be fairly stringent. I do not doubt that much thought and consideration went into drafting the SOP, which in itself is 34 pages long. However, para 4.4 of the SOP narrates that appropriate adults must not “Have a conflict of interest, i.e. have a current or ongoing professional or personal relationship with the individual”.

“Professional relationship”?

At first glance, there would appear little if anything improper about this specific provision. However, the real and substantial difficulty is the assertion that the individual must not have an ongoing professional relationship with the individual. In my own experience, clients with mental health issues can and almost always do appreciate a familiar face – even when meeting their own solicitor for that matter. It is far from clear therefore why an individual is not permitted to be assisted by their own mental health worker, for example. In any event, the policy is also vague and unclear in that it is not adequately defined or explained how or in what way a professional relationship is constituted, nor how the relationship can be seen as “ongoing”. By analogy, the translation of this aspect of the SOP would mean therefore that a client could not instruct their own solicitor to appear at an interview and would have to depend on a solicitor whom they had never met before. That is clearly not the case on any view, but the underlying logic of the policy is questionable.

I entirely accept that the ink is still drying on both this SOP and the 2016 Act, but I am of the view that the issue as a whole has to be revisited – ideally without one having to resort to judicial review proceedings.