Inappropriate Adults? A Review of the Current Use of Appropriate Adults in the Criminal Justice System

Publication Date01 February 2021
AuthorSean O’Beirne,Nick Dent
DOI10.1177/0022018320963547
Date01 February 2021
SubjectArticles
CLJ963547 44..53 Article
The Journal of Criminal Law
2021, Vol. 85(1) 44–53
Inappropriate Adults?
ª The Author(s) 2020
Article reuse guidelines:
A Review of the Current Use
sagepub.com/journals-permissions
DOI: 10.1177/0022018320963547
of Appropriate Adults in the
journals.sagepub.com/home/clj
Criminal Justice System
Nick Dent
Kingsley Napley LLP, UK
Sean O’Beirne
Kingsley Napley LLP, UK
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, legal professional privilege, legal advice, police station, Police and Criminal
Evidence Act
Corresponding author:
Nick Dent, Criminal Department, Kingsley Napley LLP, Knights Quarter, 14 St John’s Lane, London EC1M 4AJ, UK.
E-mail: ndent@kingsleynapley.co.uk

Dent and O’Beirne
45
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 confidenti-
ality 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 Commis-
sion, 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
1. See for example: Dehaghani, R. (2016), He’s Just Not that Vulnerable: Exploring the Implementation of the Appropriate Adult
Safeguard in Police Custody, Howard Journal of Crime and Justice, 55 (4), 396–413; Hodgson, J. (1997), ‘Vulnerable Suspects
and the Appropriate Adult’, Criminal Law Review, 785–795.
2. Medford, S., Gudjonsson, G.H. and Pearse, J. (2003), ‘The efficacy of the appropriate adult safeguard during police inter-
viewing’, Legal and Criminological Psychology, 8(2), 253–266; National Appropriate Adult Network (2015), Pierpoint, H.
(2001), The Performance of Volunteer Appropriate Adults: A Survey of Call Outs, Howard Journal of Criminal Justice, 40(3),
255–271; There to help: Ensuring provision of appropriate adults for mentally vulnerable adults detained or interviewed by
police, National Appropriate Adult Network, Available at: http://www.appropriateadult.org.uk/images/pdf/2015_theretohelp_
complete.pdf

3. Report of the Royal Commission on Criminal Procedure (London HMSO January 1981) 2 [1.5].

46
The Journal of Criminal Law 85(1)
person understood the meaning and significance of information provided to them. In the Royal Com-
mission’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 con-
fidence . . . . 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 befriend, advise and assist them to make their decisions.4 (emphasis added)
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
...

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