Abstract
Appropriate Adults (AAs) are an important procedural safeguard for young and vulnerable people in a criminal investigation. The significance of their role is recognised by Parliament in the Police and Criminal Evidence Act 1984 (PACE) and the appending Codes of Practice, most notably Code C.
However, the ability of AAs as to perform their role is being impeded by a lack of clarity around their status and the rules that they are governed by. Often at the behest of lawyers, AAs are excluded from the conversations which lawyers have with their clients as a pragmatic solution to the uncertainty in the status of AAs. This means that AAs are rarely able to properly perform their vital role. Consequently, vulnerable people are not receiving the meaningful support they should receive. This represents a missed opportunity to protect the rights and interests of vulnerable people in the criminal justice system. When AAs are deployed effectively and appropriately, they can empower young or vulnerable suspects in an adversarial criminal justice system which, in turn, can help recalibrate the scales of justice to allow for a fairer outcome.
This article will examine and critique the state of the current law, clarify the law on Legal Professional Privilege (LPP) and how that relates to Aas and propose a modest incremental extension to the principles of confidentiality to cover confidential discussions between AAs and young or vulnerable people in the criminal justice system.
Keywords
Appropriate Adults (AAs) are an important procedural safeguard for young and vulnerable people in a criminal investigation. The significance of their role is recognised by Parliament in the Police and Criminal Evidence Act 1984 (PACE) and the appending Codes of Practice, most notably Code C. However, the ability of AAs as to perform their role is being impeded by a lack of clarity around their status and the rules that they are governed by.
The lack of clarity has two sources. First, the uncertainty around their legal status, specifically, whether or not Legal Professional Privilege (LPP) applies to confidential conversations between lawyer and client for which they are present and second, what, if any, duty of confidentiality they owe to the child or vulnerable adult they are present to assist. The lack of clarity causes many lawyers being wary and distrustful of AAs. Often at the behest of lawyers, AAs are excluded from the conversations which lawyers have with their clients as a pragmatic solution to the uncertainty in the status of AAs. This means that AAs are rarely able to properly perform their vital role. Consequently, vulnerable people are not receiving the meaningful support they should receive. This represents a missed opportunity to protect the rights and interests of vulnerable people in the criminal justice system. When AAs are deployed effectively and appropriately, they can empower young or vulnerable suspects in an adversarial criminal justice system which, in turn, can help recalibrate the scales of justice to allow for a fairer outcome.
There has been ample research and analysis on the shortcomings of the AA regime under PACE and the implementation of the AA scheme by Custody Officers, 1 or of the efficacy of the assistance provided, 2 but there has been less consideration given to the short comings of defence lawyers in making use of this procedural safeguard. It may perhaps be convenient for defence lawyers to seek to criticise the statutory framework, Police Officers or AAs for the mechanism not working as it should. However, to do so in the absence of consideration of how defence lawyers make use of AAs would be a disservice to the suspects that they represent. This article will examine and critique the state of the current law, clarify the law on LPP and how that relates to AAs and propose a modest incremental extension to the principles of confidentiality to cover confidential discussions between AAs and young or vulnerable people in the criminal justice system.
The Appropriate Adult Regime
The AA role was developed as a procedural safeguard in response to concerns about false confessions. In particular, public concern arising from the Maxwell Confait case, led Parliament, via a Royal Commission, to introduce PACE which established the AA regime.
3
In that case two young boys and an adult with learning difficulties confessed to the murder of a male prostitute which medical evidence later showed they could not have committed. To ensure that in the future children and vulnerable suspects would be treated fairly, with respect for their rights and entitlements and be able to participate effectively in procedures, the AA role was established. It was envisaged that to achieve this, among other things, the AA would act as a check against the suggestibility of a vulnerable suspect and whether a vulnerable person understood the meaning and significance of information provided to them. In the Royal Commission’s view, it was essential that: a juvenile [or other vulnerable person] should have an adult present other than the police when he is interviewed and it is highly desirable that the adult should be someone in whom the juvenile has confidence…. Juveniles may not as readily understand the significance of questions or what they themselves say and are likely to be more suggestible that adults. They may need the support of an adult presence; of someone to
The current provisions for AAs continue to be found in Code C to PACE, which sets out that: The role of the appropriate adult is to safeguard the rights, entitlements and welfare of juveniles and vulnerable persons (see paragraphs 1.4 and 1.5) to whom the provisions of this and any other Code of Practice apply. For this reason, the appropriate adult is expected, amongst other things, to: support, advise and assist them when, in accordance with this Code or any other Code of Practice, they are given or asked to provide information or participate in any procedure; observe whether the police are acting properly and fairly to respect their rights and entitlements, and inform an officer of the rank of inspector or above if they consider that they are not; assist them to communicate with the police whilst respecting their right to say nothing unless they want to as set out in the terms of the caution (see paragraphs 10.5 and 10.6); help them to understand their rights and ensure that those rights are protected and respected (see paragraphs 3.15, 3.17, 6.5A and 11.17).
5
The significance of the role of AAs was recognised by the Court of Appeal in R v W [2010] EWCA Crim 2799. The Court noted that one of the functions of an AA is to ‘ensure that the accused fully understands his rights and understands the position which he finds himself in’. 6 In W, the Court in acknowledging the import of the role that an AA can play in a suspect understanding the police station process, quashed a conviction where a suspect with learning difficulties who was not provided with an AA at the Police Station and who declined the services of a solicitor made admissions in the Police interview, which was the primary evidence against him.
AAs and Legal Professional Privilege
One of the factors preventing AAs from achieving the purpose for which they were introduced is, undoubtedly, a misunderstanding of how the rules on LPP affect them. The confusion arises, primarily, from Code C of PACE which states that: A detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if they want.
Legal Professional Privilege
LPP is a common law and human right conferring enhanced protection over the confidentiality of certain types of communication made between a professional legal adviser and client. 8
The right exists to recognise the sanctity of confidential communications between a client and a lawyer. It is recognised that an individual has the right to legal advice, however, for that right to be effective, the individual must have the confidence matters can be disclosed in the course of legal consultations without the fear that they will be revealed against the client’s wishes.
9
Where the right exists, it is absolute and cannot be overridden other than by Parliament which, with clear and compelling words in primary legislation, can abrogate or curtail it.
10
The right belongs to the client not the lawyer. It is, therefore, the client’s to waive. A clear statement of the reason for the principle is found in the speech of Lord Taylor of Gosforth CJ in the House of Lords in R v Derby Magistrates’ Court ex parte B [1996] 1 AC 487, 1995 4 All ER 526. Having considered the authorities on LPP he stated that: The principle which runs through all these cases, and the many other cases which were cited, a man must be able to consult his lawyer in confidence, since otherwise he might hold back half the truth. The client must be sure that what he tells his lawyer in confidence will never be revealed without his consent. Legal professional privilege is thus much more than an ordinary rule of evidence, limited in its application to the facts of a particular case. It is a fundamental condition on which the administration of justice as a whole rests.
11
There are many definitions of privilege, this article will use the one found in of PACE s 10(1): Subject to subsection (2) below, in this Act “items subject to legal privilege” means— (a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client; (b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings….
This definition demonstrates that there are two strains of LPP, Legal Advice Privilege (LAP) as set out in s 10(1)(a) and Litigation Privilege (LP) as set out in PACE s 10(1)(b). 12 One of the key differences between the two is how privilege attached to third parties such as AAs.
Legal Professional Privilege and Third Parties
LPP can attach to third parties in certain circumstances, most commonly by the operation of LP, which, unlike LAP, is not dependent on the involvement of a lawyer.
13
For communications to be protected by LP they must: Be made in connection with or in contemplation of litigation proceedings; and Have been made for the dominant purpose of use in such proceedings.
14
There is an argument, which is not explored fully here, that an AA’s communications with a suspect should be covered by LP. Such communications will usually take place in a Police Station where the vulnerable adult or child is present as a suspect. In respect of the first limb, whether or not criminal proceedings are actually in contemplation would be something for the child or vulnerable adult to assert and for the Crown to disprove. However, given the circumstances in which the communications are made, it would not be a difficult assertion to make convincingly. In respect of the second limb, the Court of Appeal has confirmed that the purpose of the communications is not limited to defending litigation in progress. LP can arise at investigation or pre-investigation stage and communication for the purpose of resisting or avoiding proceedings will satisfy the purpose test. 15
For LAP to attach to a conversation it must be confidential and involve the client and the lawyer. There is no dominant purpose requirement. It is commonly understood that the introduction of certain third parties—friends or family members, for example—will render a conversation non-confidential. When it comes to interlocutors, such as AAs, that principle presents difficulties.
There is, currently, a lack of clarity among practitioners about the protection that LPP—specifically LAP—affords conversations conducted in the presence of AAs, in circumstances where there should be no confusion.
Relevant Case Law
The earliest case of relevance is Imam Bozkurt v Thames Magistrates Court which concerned an interpreter who, contrary to guidance, had acted at the Police Station and at the same suspect’s first appearance, including in conference with the Defendant’s lawyer.
16
The Prosecution sought to call the interpreter as a witness in order to give evidence about the procedure followed at the Police Station. For reasons of privilege, Mr Bozkurt resisted. The interpreter was ultimately permitted to give his evidence. However, it was found that the conversations between Mr Bozkurt and his lawyer which the interpreter continued to be covered by LAP as they would have been had the interpreter not been present. In reaching that conclusion Lord Wolf CJ unequivocally stated: …in a conference which takes place between a solicitor and his client, at which the interpreter interprets, the privilege which attaches to that communication also attaches to the interpreter. The interpreter is under an equal duty to that of the solicitor to keep confidential what he or she hears during a conference.
17
Furthermore: The fact that the interpreter is in that position means in my judgment, that there should be no question of anything which passed between the solicitor and his client being conveyed to any third party, in particular to the prosecution. It is absolutely critical that that should be the position because otherwise a defendant or any other client of a solicitor who is unable to communicate with the solicitor without the assistance of an interpreter could not obtain advice without the risk of not receiving the protection of legal professional privilege which is so important to the administration of justice.
18
The decision in Bozkurt established that a conversation will continue to be subject to LAP even where an interlocutor is present, provided that they are there for the purpose of facilitating the client to receive advice from the lawyer.
The next and most informative authority on this issue is A Local Authority v B. 19 The circumstances were that allegations of abuse had been made against B, a 15 year old boy, by his 8 year old sister. When the boy was arrested, the Custody Sergeant determined that an AA would be required. In the circumstances, it would not have been appropriate for the boy’s parents to act as an AA. The Custody Sergeant requested that a local authority social worker act as an AA. B’s solicitor refused to hold a private consultation with him on his own, instead conducting it in in the presence of the AA. In the consultation, B made partial admissions to the allegations. Acting on legal advice, B then gave a ‘no comment’ interview.
Following the interview, the AA became aware that a potential conflict had arisen between her statutory duties as a social worker and any duties of confidentiality she now had toward B, potentially including those arising from LPP. She made her employer aware that she had received confidential information which both she and the local authority owed statutory duty to disclose to the relevant child protection agencies, including the police. Finding itself in a legal dilemma, the Local Authority applied to the High Court for direction. As recognised by Hedley J, the crucial issue in the case was ‘whether or not this conversation was protected by legal advice privilege’. 20
In the course of determining the issue, Hedley J considered the common law authorities on LPP, the version of PACE, Code C and the Home Office Guidance in existence at the time. As it still does, Code C stated that ‘an AA is not subject to legal privilege’. Similarly, the Home Office Guidance to AAs also warned that AAs ‘conversations with the detained person are not covered by legal professional privilege’.
21
Headley J found the suggestion in Code C and the Home Office’s Guidance that that the presence of an AA destroys privilege to be misleading.
22
In his judgment, what B had said to the solicitor in the presence of the AA was covered by LAP. This conclusion was based on: the same broad issue of principle as did Lord Woolf CJ in the Bozkurt case. I appreciate of course that the position of interpreter and AA are different though part of the AA’s purpose is to facilitate communication between solicitor and client (as the solicitor in this case expressly recognised). Nevertheless it cannot be right either as a matter of principle or policy that a vulnerable juvenile should be in practice deprived of the opportunity of confidential legal advice.
23
He came to that view having considered that: Were the local authority’s submissions to be sound, it would mean that many of the most vulnerable children (and of course suspects with mental illness or disability) could not in practice avail themselves of confidential legal advice at a police station.
24
Considering the relationship between AAs and LAP he noted that: It is not that conversations with an AA are privileged but only that the presence of an AA at a conversation which would otherwise attract legal advice privilege does not destroy that privilege.
25
In An Application by Jonathan Sweeney, the Divisional Court of Northern Ireland considered the Registered Intermediary (‘RI’) regime in Northern Ireland. 26 RIs are accredited intermediaries who provide specialist assistance to victims, witnesses and defendants with communication difficulties. Relying on Bozkurt, Mr Sweeney argued that the principles that applied to RIs were analogous to those which applied to interpreters which meant that for reasons of LPP he should have two RIs—one for consultations with his lawyer and another for his trial. The Court did not agree. It found that LPP protected conversations between Mr Sweeney and his lawyers which were observed by RIs (who themselves received training on the principles of LPP). 27
By contrast, the case of R v Edward Brown illustrates how the presence of a third party, who has not been introduced to facilitate the provision of legal advice to a client, will prevent LPP from arising. Mr Brown had two previous convictions for attempted murder and had planned to kill his solicitor. He was also known to be a danger to himself. At court, for his own safety and that of others, the trial Judge ruled that the Mr Brown must be handcuffed to a minimum of two nurses if he was to be in direct contact with a third party, including during consultations with his lawyers.
It was argued on Mr Brown’s behalf that the presence of the nurses breached his common law right to consult with his lawyers in private as well as his art 6(3)(c) rights under European Convention on Human Rights. The Court’s discussion focused on the circumstances in which the inviolable nature of LPP could, legitimately, be interfered with. The Court summarised the question facing it as ‘whether it should prevent the protection of legal privilege being utilised to enable individuals to inflict violence on themselves or others’.
28
It found that the introduction of the nurses to the consultations ‘constituted a legitimate exception to the protection which the common law provides as regards legal professional privilege and the linked right of a person to consult a lawyer in private’.
29
In other words, LPP did not arise during the conversations for which the nurses were present. To prevent the same issues arising again the Court suggested, obiter, that: In future [the nurses] would need to be instructed in the clearest terms that they must treat anything they overhear in confidence and that they should not disclose the contents of the discussion save in wholly exceptional circumstances.
30
The decision in Brown exemplifies that the purpose of the third-party’s introduction to a legal consultation is determinative on the matter of whether or not LAP will arise. If the purpose is to facilitate the giving and receiving of legal advice (Bozkurt, Sweeney and B) LAP will still arise, however, where the introduction is for some other purpose, for example personal safety LAP will not arise.
Conversations LAP Will Not Protect
At present, the law does not recognise a duty of confidence between AAs and the suspects they are present to assist. The absence of a duty becomes problematic when an AA speaks to a suspect in circumstances where the protection of LPP cannot arise, for example, when a lawyer is not present. The case of R v Ward is illustrative of the issue and helps explain the reasons why defence lawyers frequently perceive AAs as more of a hindrance to their clients than a help.
Mr Ward had been arrested on suspicion of a number of non-recent sexual offences. He was taken to a Police Station where he was seen to be extremely nervous. He was informed of his right to consult with a solicitor, but he declined one. Due to his increasing anxiety and issues with reading, it was determined that an AA should be made available for Mr Ward. A volunteer AA was already at the Police Station having assisted on another matter. She was asked to act as AA and she agreed. She was then asked to sit with Mr Ward as he was ‘very shaken’ and ‘in a bad way of anxiety’. The AA did so, explained her role and also told Mr Ward about his right to have legal representation. Mr Ward then asked for a solicitor and the AA informed the Custody Sergeant. Whilst waiting for the solicitor to arrive, Mr Ward made a number of comments to the AA which purported to be admissions to the offence. Mr Ward’s solicitor duly arrived, a consultation was conducted and Mr Ward gave a ‘no comment’ interview under caution.
At trial, the Crown called the AA to give evidence about Mr Ward’s purported admissions. The defence resisted. No argument could be made by the defence on the basis of LAP because the admissions had been made to the AA outside of a consultation with his solicitor. Instead, it was argued that it would be unfair to allow the jury to hear what Mr Ward had told the AA in circumstances where he had been in a vulnerable state, had not been told that the AA owed no duty of confidentially towards him and the AA had allowed the conversation to go on for a long time before it occurred to her that the conversation she was having was highly inappropriate. Both the Crown Court and Court of Appeal rejected the arguments. The Court of Appeal also rejected submissions that to admit the evidence would undermine the very role of AAs—namely ‘to ensure that the accused fully understands his rights and the position which he finds himself in’.
31
The Court held that: in our view, the position was no different to that which would apply if the applicant had made confessional statements to anyone else either inside or outside the Police Station who was unconnected with the investigation of the offences or charging an offender.
32
Ward stands in sharp contrast to R v H, where Court of Appeal held that a duty of confidentiality was owned by a Youth Offending Service officer. 33 H concerned an appeal against conviction by a person convicted of murder. During the course of the appeal proceedings, the Crown sought to adduce evidence of admissions made by the defendant. They had obtained the evidence from notes that the Appellant’s case manager at the Youth Offending Service had made of conversations with the Appellant held post-conviction. Although ‘such discussions are not subject to privilege in the sense that something a defendant or appellant tells his lawyers would be’, the Court of Appeal nonetheless held that it would be ‘contrary to public policy to breach the confidentiality of discussions of [this] kind save for very good reason’. 34
Analysis and Recommendations
In order to afford practitioners greater clarity and to prevent problematic scenarios like that in Ward and B from arising, three proactive steps are proposed. First, reformulate the wording of the guidance in PACE Code C and the Home Office guidance so it more accurately reflects the law. Second, recognise the presence of a duty of confidentiality between AA and vulnerable person. Third, regulate more closely the pool of adults from which AAs are drawn.
Reformulation of the Guidance
The authorities show that confidential conversations between lawyers and suspects conducted in RI or AA, may be covered by LPP, specifically LAP. 35 However, this not reflected by the current formulation of Code C of PACE and the Home Office’s guidance to AAs which has not been updated to reflect the judgment in B. 36 Consequently, it remains open to readers of the guidance to infer that conversations involving AAs and suspects could never be protected by LPP.
It was noted as long ago as 2009, when B was decided, that the Home Office and Code C guidance was misleading, yet it remains unchanged. Redrafting of the guidance so that it accurately reflects the correct legal position would lift the veil of confusion around AAs and LPP which, in the pressurised circumstances of a Police Station interview, it is not always convenient to look behind.
A Relationship of Confidentiality
It is also suggested that the existence of a relationship of confidentiality between suspect and AA should be formally recognised. The case of Ward serves as a paradigm illustration as to the reason why defence lawyers are reticent for AAs to be in involved in any communications with their clients. They are concerned that AAs may become formal or informal conduits of evidence or intelligence to the police or the prosecution or evidence in the case against their client. Until lawyers and suspects can trust that the information AAs hear will not be revealed by them or that AAs will not become unwitting prosecution witnesses, AAs will remain side-lined in a passive role which fails to serve their intended purpose.
At the police station will often be the first time a young or vulnerable person will meet with a lawyer. Typically, it will be a time-sensitive and stressful situation. It is understood from anecdotal evidence, many defence lawyers refuse to meet their client in the presence of an AA and they are informally trained that it is best practice not to do so. This confines the role of the AA to observing the general custody procedure and the interview. As a result, AAs are unable to assist in the crucial stage, build a relationship of confidence with the vulnerable suspect or ‘befriend, advise and assist them to make their decisions’ as was envisaged by the Royal Commission. 37 Undoubtedly, this is to the detriment of the vulnerable suspect.
The courts have recognised that a relationship of confidence is capable of existing between suspects and interpreters, RIs, Youth Offending Service officers and nurses which begs the question, why not recognise a relationship of confidentiality between suspect and AA? Were such a relationship recognised, the effect would be two-fold. First, the confidential status of the conversation would mean that problematic situations such as that in Ward and B would not arise. Second, defence lawyers, suspects and AAs could operate in a more certain environment knowing that whatever is said between them, no matter who is present at any one time, the suspect’s confidence will be maintained. This would facilitate a more open and trusting environment which, in turn, would enable the young or vulnerable suspect to receive effective advice and representation to their benefit and in discharge of the AA’s primary purpose.
Finding a relationship of confidence between AA and suspect would also have the added benefit of closing the current lacuna that risks miscarriages of justice arising in circumstances similar to those in Ward. At present, there is nothing to stop mendacious investigators or custody staff deliberately arranging for a suspect to meet with an AA before they take legal advice (if they do so at all) and then seeking disclosure of any information shared with the AA. Following the Court of Appeal’s ruling in Ward, admissions and, presumably, inconsistent statements made to an AA are admissible at a trial unless the trial judge exercises discretion to exclude the evidence. The very purpose of AAs is to assist and advance the rights of the suspect. Therefore, the interactions AAs have with the suspects they are present to assist must only be capable of doing just that.
Which Adults Are Appropriate?
A further proposal is that greater thought should be given to those who can act as an AA. For example, given their competing statutory duties, perhaps social workers or employees of local authorities should be precluded from acting as AAs due to the risk of a conflict of interest. Further, as matters currently stand, any adult, regardless of training or experience can act as an AA. Unlike Interpreters or RIs there is no standard AAs are required to meet or level of competence they are required to demonstrate. Undoubtedly, there is a considerable variance in standard among the AAs. The National Appropriate Adult Network was created to improve the safeguarding of children and vulnerable adults by assisting its member organisations to operate to national standards. There is considerable benefit in drawing AAs from the pool of organisations set up to assist them in doing the best they can for the children and vulnerable adults they assist, rather asking whoever happens to be in or near the Police Station when the need for an AA arises.
Conclusion
AAs were devised to play a crucial role in the criminal justice system. They are currently being inhibited from doing so. Adopting the relatively modest adjustments outlined above should prevent this encumbrance from continuing unnecessarily.
Further, if the current issues with AAs are resolved, there is no practical reason why AAs should be confined to assisting at the Police Station only. Sadly, professionals in the criminal justice system often overlook how complex criminal law and procedure is, or quite how frightening the uncertainty of an adversarial system is. A criminal investigation often starts before and ends after an interview. AAs could play a crucial role throughout the life of an investigation. They may even be able to assist a young or vulnerable suspect through the course of any resulting prosecution, ensuring that the suspect understands the court procedure and the advice of their lawyers akin to the role performed by Registered Intermediaries. Considering the overriding objective and the generous approach to confidentiality in respect of other third parties taken by the Courts, what would be the objection to these proposed reforms? 38
Footnotes
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author(s) received no financial support for the research, authorship, and/or publication of this article.