The Home Office ran a consultation last year about changes to the Police and Criminal Evidence Act 1984 (‘PACE’) Codes of Practice. One proposed change was about when does an officer decides a suspect is vulnerable, which triggers the requirement for an appropriate adult (AA) to be present for key aspects of the suspect’s time in custody such as their police interview.
The existing relevant section in the current Code C is:
1.4 If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion, the person shall be treated as such for the purposes of this Code. See Note 1G.
The proposed change was:
1.4 If at any time an officer has a reason to believe that a person is a ‘vulnerable adult’ (see paragraph 1.13(d)), in the absence of clear evidence to the contrary, the person shall be treated as such for the purposes of this Code. See Note 1G.
I had sent in some concerns about that specific proposed update. Here’s the full text of my response:
From my experience as both an Independent Custody Visitor (ICV) and being autistic, I find the proposed change to section 1.4 of PACE Code C particularly concerning.
The change from 'has any suspicion, or is told in good faith,’ to the much higher standard 'has a reason to believe’ means that there would now be a strong presumption against calling an Appropriate Adult (AA) as an officer would have to reach the higher threshold of ‘a reason to believe’ to consider the detainee to be vulnerable and that an AA is needed.
Also disregarding ‘is told in good faith’ would be disempowering for the detainee and start the relationship by showing disrespect. Disabilities can be part of someone’s identity. So for instance no longer accepting an autistic detainee telling a custody sergeant they are autistic ‘in good faith’ would be denying their identity. In addition to the lack of respect, by being adversarial about the detainee’s identity and/or lived experience this might negatively affect cooperation and further stress the detainee.
Such a change to section 1.4 would also affect monitoring of whether an AA is called when one must. ICVs, for instance, wouldn’t be able to ensure that an AA has been called for detainees that appear to them to be vulnerable or tell them in good faith they are vulnerable, as an ICV cannot know the custody sergeant and/or interviewing officer’s belief, which is how a detainee would be deemed to be vulnerable.That what a detainee may say in good faith about their vulnerability would no longer be relevant will mean, if these changes happen, that ICVs will likely encounter situations where a detainee tells the ICVs that their vulnerability has been ignored while the custody sergeant tells ICVs they don’t believe that detainee to be vulnerable, basically creating an impossible situation where a detainee would have to prove their vulnerability to get access to an AA.
The Home Office recently published a summary of the responses it received (pdf). In that document, I’m identified as ‘11. Member of the public – independent custody visitor.’ Here’s the bit about section 1.4:
2.2.2 The main concerns were that certain safeguards for juvenile and vulnerable suspects were not sufficient and respondents proposed a number of further changes to address these issues. [emphasis in the original] These responses argued that:
- the police were not adequately trained to recognise when a suspect needed an appropriate adult;
- the proposal to raise the threshold for determining whether a suspect was vulnerable from ‘suspicion’ to ‘belief’ would exclude many who needed help and should not be implemented;
The revised Code C (pdf), taking into account the responses received, has also been published and will come into force 21 days after The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes of Practice C, E, F and H) Order 2018 is made. (All the revised PACE Codes are published on the Consulation’s page.) Here’s the final revised text of section 1.4:
1.4 If at any time an officer has any reason to suspect that a person of any age may be vulnerable (see paragraph 1.13(d)), in the absence of clear evidence to dispel that suspicion, that person shall be treated as such for the purposes of this Code and to establish whether any such reason may exist in relation to a person suspected of committing an offence (see paragraph 10.1 and Note 10A), the custody officer in the case of a detained person, or the officer investigating the offence in the case of a person who has not been arrested or detained, shall take, or cause to be taken, (see paragraph 3.5 and Note 3F) the following action:
(a) reasonable enquiries shall be made to ascertain what information is available that is relevant to any of the factors described in paragraph 1.13(d) as indicating that the person may be vulnerable might apply;
(b) a record shall be made describing whether any of those factors appear to apply and provide any reason to suspect that the person may be vulnerable or (as the case may be) may not be vulnerable; and
(c) the record mentioned in sub-paragraph (b) shall be made available to be taken into account by police officers, police staff and any others who, in accordance with the provisions of this or any other Code, are required or entitled to communicate with the person in question. This would include any solicitor, appropriate adult and health care professional and is particularly relevant to communication by telephone or by means of a live link (see paragraphs 12.9A (interviews), 13.12 (interpretation), and 15.3C, 15.11A, 15.11B, 15.11C and 15.11D (reviews and extension of detention)).
See Notes 1G, 1GA, 1GB and 1GC.
1.13 In this Code:
(d) ‘vulnerable’ applies to any person who, because of a mental health condition or mental disorder (see Notes 1G and 1GB):
(i) may have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with:
- their arrest and detention; or (as the case may be)
- their voluntary attendance at a police station or their presence elsewhere (see paragraph 3.21), for the purpose of a voluntary interview; and
- the exercise of their rights and entitlements.
(ii) does not appear to understand the significance of what they are told, of questions they are asked or of their replies:
(iii) appears to be particularly prone to:
- becoming confused and unclear about their position;
- providing unreliable, misleading or incriminating information without knowing or wishing to do so;
- accepting or acting on suggestions from others without consciously knowing or wishing to do so; or
- readily agreeing to suggestions or proposals without any protest or question.
1G A person may be vulnerable as a result of a having a mental health condition or mental disorder. Similarly, simply because an individual does not have, or is not known to have, any such condition or disorder, does not mean that they are not vulnerable for the purposes of this Code. It is therefore important that the custody officer in the case of a detained person or the officer investigating the offence in the case of a person who has not been arrested or detained, as appropriate, considers on a case by case basis, whether any of the factors described in paragraph 1.13(d) might apply to the person in question. In doing so, the officer must take into account the particular circumstances of the individual and how the nature of the investigation might affect them and bear in mind that juveniles, by virtue of their age will always require an appropriate adult.
1GA For the purposes of paragraph 1.4(a), examples of relevant information that may be available include:
- the behaviour of the adult or juvenile;
- the mental health and capacity of the adult or juvenile;
- what the adult or juvenile says about themselves;
- information from relatives and friends of the adult or juvenile;
- information from police officers and staff and from police records;
- information from health and social care (including liaison and diversion services) and other professionals who know, or have had previous contact with, the individual and may be able to contribute to assessing their need for help and support from an appropriate adult. This includes contacts and assessments arranged by the police or at the request of the individual or (as applicable) their appropriate adult or solicitor.
1GB The Mental Health Act 1983 Code of Practice at page 26 describes the range of clinically recognised conditions which can fall with the meaning of mental disorder for the purpose of paragraph 1.13(d). The Code is published here:
Update 2018-07-14: Following the publication of the The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, E, F, and H) Order 2018, the revised codes will come into force on 2018-07-31. (On that date, the updated versions will also be added to the Police and Criminal Evidence Act 1984 (PACE) codes of practice web page).
Update 2018-07-31: The National Appropriate Adult Network (NAAN) has published an excellent detailed guide to the PACE Codes changes (PDF).