Appropriate adults: a legal framework

For the past three decades, appropriate adults have been able to support vulnerable accused people held by police. While practices and procedures have evolved, it is worth recalling that this role predates the seismic change in Scots law with the Cadder case and the resulting requirement for solicitors to attend police station interviews. The roles of solicitors and appropriate adults have sometimes been blurred, and even 30 years on, it appears that neither fully recognise and/or understand each other’s role.

On 10 January 2020, the appropriate adult network was placed on a statutory footing under the control of local authorities. New guidance, emanating from the Criminal Justice (Scotland) Act 2016, provides solicitors with an opportunity to understand better the role and remit of appropriate adults, and how their respective roles can interact successfully to best assist the client, the vulnerable accused in police custody.

A commencement order (SSI 2019/363), and the Criminal Justice (Scotland) Act 2016 (Support for Vulnerable Persons) Regulations 2019 (SSI 2019/437), provide for the commencement of s 42 of the 2016 Act.

Guidance for local authorities has now been issued under s 104(2)(b) of the Act: www.gov.scot

When is an appropriate adult required?

Appropriate adult support is provided for those aged over 16 years, in police custody, where owing to mental disorder they appear to the police to be unable to (i) understand sufficiently what is happening, or (ii) communicate effectively with the police.

Support can be provided where the vulnerable person:

• is or appears to be the victim of an offence or alleged offence;
• is a witness or potential witness in relation to an offence or alleged offence;
• is suspected, or is officially accused, of committing an offence or alleged offence.

This support applies equally when the vulnerable person is in custody in relation to investigations through the Police Investigations and Review Commissioner and, where operating in Scotland, the Ministry of Defence Police, British Transport Police, Civil Nuclear Constabulary, immigration officers (for an immigration or nationality offence), and customs officials and officers of HM Revenue & Customs.

The guidance

The guidance covers a range of information. The following may be helpful for solicitors:

Police responsibilities and procedures

An appropriate adult should be requested to explain their role even where a vulnerable person declines their assistance. If refusal continues, the police should decide how best to proceed. That should be in accordance with the 2016 Act. If the vulnerable person lacks capacity in terms of the Adults with Incapacity (Scotland) Act 2000, an appropriate adult should not attend. The police should obtain assistance from a relevant specialist. The Police Standard Operating Procedures relating to Appropriate Adults have still to be published.

The police should be present during all contact between the appropriate adult and the vulnerable person.

Delivery of appropriate adult services

All recruitment, training and complaints are the responsibility of local authorities.

An appropriate adult should not act, in case of conflict of interest, where they have a personal or professional relationship with the vulnerable person. Where they are acting for an accused person or suspect, they cannot support a victim or witness in the same case.

There is a complaints procedure available to all individuals and organisations.

The role of the appropriate adult includes:

• identification of communication needs and the impact on the person’s understanding of proceedings;
• raising concerns about the person’s communication needs or welfare with the police or relevant individuals;
• ensuring that the person understands their rights;
• remaining independent and objective.

Appropriate adults are not professionally qualified to provide a formal assessment of an individual’s health or communication issues, so any such assessment should be taken by the relevant specialist.

An appropriate adult should not be present during the solicitor/client consultation.

The appropriate adult should take an active role to make sure any communication needs are addressed. However, they should not advise the person they are supporting how to answer questions, or intervene in procedures for any reason other than to facilitate communication and ensure as far as possible that the right level of support is being provided.

The appropriate adult should ensure they pass on any information concerning the person’s communication needs to the solicitor, either directly or through the police, and this should also be included within the appropriate adult’s statement.

Training appropriate adults

Training of appropriate adults is being revised under the auspices of a Scottish Government group which includes input from the Society. It will incorporate much of the current training provided by local authorities, supported by external organisations with specialist input, and will also include information on the role and responsibilities of a solicitor.

Where a vulnerable person is in a police station, solicitors should seek out advice from appropriate adults on communication needs to help them act in the best interests of their client.