The role of appropriate adults Update for criminal law practitioners

These regulations were developed to ensure national oversight and promoting consistency with the commencement of Section 42 of Criminal Justice (Scotland) Act 2016 (support for vulnerable persons), Section 102 (recommendations from quality assessor and training provider) and Section 103 (duty to ensure quality assessment takes place). Guidance for local authorities is issued under Section 104(2)(b) of the 2016 Act. 

Police Scotland are still to publish their Standard Operating Procedures. The training framework is still under development. We highlight the following aspects: 

Support for vulnerable persons

This is required where that person is in police custody, the police believe that the person is over 16  and owing to mental disorder, the person appears to the constable to be unable to (i) understand sufficiently what is happening or (ii) communicate effectively with the police.

Support is provided to vulnerable persons aged over 16 years of age where they:

• are or appear to be the victim of an offence or alleged offence
• are a witness or potential witness in relation to an offence or alleged offence
• are suspected of committing an offence or alleged offence
• are officially accused of committing an offence or alleged offence.

Intimation is sent from the police where an Appropriate Adult is required and the place at which the support is required.

These provisions apply where the vulnerable person is involved with investigations staff (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 Revenue and Customs.

Police and procedures

Where the police believe that an Appropriate Adult is required, and assistance is declined, an Appropriate Adult should explain their role. If the vulnerable person refuses, the police should decide how to proceed where processes will need to be in accordance with the 2016 Act.

Where the vulnerable person lacks capacity under the Adults with Incapacity (Scotland) Act 2000, the Appropriate Adult should not attend. The police should obtain assistance from a relevant specialist.

The police should be present during all contact between the Appropriate Adult and the person who is being supported.

Relevant procedures should not begin until the Appropriate Adult is present. The Appropriate Adult should be given an opportunity to speak to the person before the procedures start.

Where a conflict of interest arises, an Appropriate Adult should not act where they have a personal or professional relationship with that person or where they act for an accused person or suspect, they cannot support a victim or witness in the same case.

A complaints procedure is available to all involved with Appropriate Adults.

The Appropriate Adult’s role involves:

• identifying communication needs (and impact on their understanding of proceedings)
• raising concerns about communication needs or welfare
• ensuring understanding of their rights

The Appropriate Adult is:

•  independent and objective
• not professionally qualified to provide a formal assessment of an individual’s health or communications issues. (police responsibility)

When attending, the Appropriate Adult:

• has an active role to ensure any communication needs are addressed.
• is not to advise how to answer questions or intervene in procedures for any reason, other than facilitating communication and ensuring as far as possible that the right level of support is being provided.
• should not be present during the solicitor/client consultation
• is expected to pass on any information concerning the person’s communication needs to the solicitor