Can – and Should – Lawyers be Considered ‘Appropriate’ Appropriate Adults?
| DOI | http://doi.org/10.1111/hojo.12288 |
| Author | DANIEL NEWMAN,ROXANNA DEHAGHANI |
| Published date | 01 March 2019 |
| Date | 01 March 2019 |
The Howard Journal Vol58 No 1. March 2019 DOI: 10.1111/hojo.12288
ISSN 2059-1098, pp. 3–24
Can – and Should – Lawyers be
Considered ‘Appropriate’
Appropriate Adults?
ROXANNA DEHAGHANI and DANIEL NEWMAN
Lecturers in Law, School of Law and Politics, Cardiff University
Abstract: This article furthers the debate on vulnerable suspects by bringing together
research on appropriate adults and criminal defence lawyers. The Police and Criminal
Evidence Act 1984 (PACE) forbids all lawyers from acting as appropriate adults. The
courts, in very limited case law, have taken a differentapproach, leaving a space in which
lawyers might be considered suitable to fill the gap left by an appropriate adult’s absence.
This account is supported by exploring the views of custody officers on the appropriate
adult and its use, drawing upon empirical data. Fieldwork with defence lawyers is
then explored to highlight how lawyers might have some of the suitable characteristics
of the appropriate adult but could not realistically perform such duties in practice (or
conceptually). This article illustrates that lawyers are ill-equipped to deal with a client’s
vulnerability and therefore argues that they should never be viewed as an ‘appropriate
adult replacement’.
Keywords: appropriate adults; lawyers; legal aid; Police and Criminal Evidence
Act 1984 (PACE); vulnerable suspects
The appropriate adult safeguard was introduced by the Police and Crim-
inal Evidence Act 1984 (PACE) to provide additional protection for vul-
nerable suspects. Rather than being contained within PACE, the safeguard
is found in the Codes of Practice C, D, and H (see Home Office 2017,
2018a, 2018b). The appropriate adult should support, assist and advise
the suspect, facilitate communication between the suspect and the police,
ensure that the police are acting fairly, and ensure that the suspect under-
stands their rights (Home Office 2018a, para. 11.17). Young suspects, that
is, those under the age of 18 years (known under Code C as ‘juveniles’)
and adults who meet one or more of the criteria under the functional test1
(Home Office 2018a, para. 1.13d, Note 1G))2are considered vulnerable.
It is recognised that vulnerable suspects are ‘often capable of providing
reliable evidence’ but it is similarly recognised that they may nevertheless
‘without knowing or wishing to do so, be particularly prone in certain
circumstances to provide information that may be unreliable, misleading
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2018 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol58 No 1. March 2019
ISSN 2059-1098, pp. 3–24
or self-incriminating’ (Note 11C). In addition to their presence at inter-
view, appropriate adults should also be present during charge(para. 16.1)
and cautioning (paras 7, 10.12), and when warnings in relation to adverse
inferences are given (paras 10.11, 10.11A), samples – such as fingerprints,
photographs, and DNA – are to be taken, or intimate searches conducted
(see Annex A, para. 2B). Yet,this does not mean that appropriate adults are
always present in such circumstances; their absence is particularly marked
in relation to adult suspects (see Dehaghani 2016; National Appropriate
Adult Network 2015).
This article brings together two empirical studies, which complement
one another by providing an insight into the role of the appropriate adult
and the problems with giving such duties to lawyers.3It offers largely un-
published material from these studies and extends previous analyses to
provide a new argument that takes forward the debate around the appro-
priate adult safeguard. Study 1 looked at custody officers’ operationalisa-
tion of the appropriate adult safeguard, using non-participant observation
of custody officers at the ‘booking-in desk’ and semi-structured interviews
with officers. Two custody suites were visited (across two English cities) with
consent obtained from 31 custody officers (COs) (20 from Site 1 (CO1–20)
and eleven from Site 2 (CO21–24, 27–31, 33). Study 2 looked at defence
lawyers’ treatment of suspects and defendants in a twelve-month fieldwork,
split between the three largest criminal legal aid firms in another English
city. Participant observation of nine months was divided equally between
the firms, followed by a month each of semi-structured formal interviews
with the same 29 lawyers (F1 L1–10; F2 L11–19; F3 L20–29). For the pur-
poses of the present article, the data from both studies were analysed using
thematic analysis, a method for identifying, analysing, and reporting pat-
terns across a data set, allowing the authors to draw out new insight for the
current exploration (Braun and Clarke 2006). This article is one of the first
to address how custody officers and courts interpret the appropriate adult
safeguard while also considering whether lawyers are ‘appropriate’ appro-
priate adults. Literature exists on both appropriate adults and criminal
defence lawyers separately, but the originality of this article is in bringing
these two areas of research together for the first time in academic scholar-
ship. The insight this provides allows for a more holistic understanding of
the experience of vulnerable suspects and furthers the debate on the role
of the appropriate adult in the criminal justice system.
The article begins by outlining the role of the appropriate adult safe-
guard and how this has been interpreted by the courts, before addressing
the way in which custody officers have interpreted the appropriate adult’s
role, focusing on the provision of the safeguard for adult suspects. The
article moves on to look at the role that defence lawyers should perform
towards their clients; a role which might make it tempting to suggest that
they could perform the appropriate adult’s function(s). Thereafter, the
article considers the challenges faced within the lawyer-client relationship
and the obstacles that render it unwise to accord the role of the appropriate
adult to lawyers. In conclusion, the article argues that lawyers should
never be viewed as a replacement for appropriate adults.
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2018 The Howard League and John Wiley & Sons Ltd
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