He's Just Not That Vulnerable: Exploring the Implementation of the Appropriate Adult Safeguard in Police Custody

DOIhttp://doi.org/10.1111/hojo.12178
Published date01 December 2016
AuthorROXANNA DEHAGHANI
Date01 December 2016
The Howard Journal Vol55 No 4. December 2016 DOI: 10.1111/hojo.12178
ISSN 2059-1098, pp. 396–413
He’s Just Not That Vulnerable:
Exploring the Implementation
of the Appropriate Adult Safeguard
in Police Custody
ROXANNA DEHAGHANI
PhD Candidate and Graduate Teaching Assistant, University of
Leicester School of Law
Abstract: This article examines the treatment of vulnerable suspects in police custody,
with particular emphasis upon how the police define vulnerability in relation to adult
suspects. Drawing upon qualitative data produced through observation of and interviews
with custody officers (COs) at a custody suite in England, the article will explore why
the appropriate adult (AA) safeguard is often left unimplemented. It builds upon pre-
vious research on the identification of vulnerability, but goes further by also addressing
how vulnerability is defined. In discussion, the article draws upon legalist, cultural-
ist, and structuralist arguments to offer explanations for non-implementation of the
AA safeguard.
Keywords: vulnerability; police; Police and Criminal Evidence Act 1984
(PACE); custody; appropriate adult (AA)
The Police and Criminal Evidence Act 1984 (PACE)was introduced as a leg-
islative framework in order to regulate police powers and suspects’ rights.
Prior to the implementation of PACE, the Judges’ Rules and the accompa-
nying Administrative Directions governed police practice for the treatment
of suspects in custody. The Judges’ Rules attracted criticism for lacking
enforceability and failing to protect suspects – most notably the Confait
‘confessions’ (see Price and Caplan 1977). Whilst the convictions were later
quashed, the Judges’ Rules were deemed inadequate in protecting the vul-
nerable (Brown, Ellis and Larcombe 1992, p.70; see also Fisher 1977/78).
The report of the Royal Commission on Criminal Procedure (RCCP)
(1981) formed the basis of PACE and the Codes of Practice, and sought
to achieve ‘fairness, openness and workability’ (Brown 1997, pp.1–2)
whilst also highlighting the need for better protection of vulnerable sus-
pects, also resulting in the introduction of the appropriate adult (AA) safe-
guard. This guidance on vulnerable suspects and the AA safeguard exist
396
C
2016 The Howard League and John Wiley & Sons Ltd
Published by John Wiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK
The Howard Journal Vol55 No 4. December 2016
ISSN 2059-1098, pp. 396–413
to ensure that suspects are protected; however, practically speaking, the
safeguard is not error-free.
The AA safeguard1is not enshrined within PACE but rather in the
Code of Practice for the Detention, Treatmentand Questioning of Persons
by Police Officers (Code C: Home Office 2014a) and, to a lesser extent, the
Code of Practice for the Identification of Persons by Police Officers (Code
D: Home Office 2010) and the Revised Code of Practice in Connection
with Detention, Treatment and Questioning by Police Officers under the
TerrorismAct 2000 (Code H: Home Office 2014b). The focus of this article
is firmly on Code C, which requires that an AA be provided for those
under the age of 18 years (‘juveniles’2), those with mental disorder or
those with mental vulnerability. Those who are considered vulnerable, as
per these categories, must not typically be interviewed regarding their
involvement, or suspected involvement, in a criminal offence or offences,
or asked to provide or sign a written statement under caution or record
of interview, in the absence of the AA (Code C, para. 11.15). The AA must
be independent from the police inquiry, that is, they must not be a police
officer nor someone employed for, or engaged in, police work. Their role
is to facilitate communication, assist and advise the suspect,3and ensure
that the police are acting fairly (Code C, para. 11.17). The AA is also seen
to have a supportive function (Home Office 2011). Whilst the definition
of ‘juvenile’ is clearly stated at the start of the Code, the definitions of
‘mentally vulnerable’ and ‘mentally disordered’ are provided later in the
Notes for Guidance, 1G where it states:
‘Mentally vulnerable’ applies to any detainee who, because of their mental state
or capacity, may not understand the significance of what is said, of questions
or of their replies. ‘Mental disorder’ is defined in the Mental Health Act 1983,
section 1(2) as ‘any disorder or disability of mind’. When the CO has any doubt
about the mental state or capacity of a detainee, that detainee should be treated as
mentally vulnerable and an appropriate adult called.
Although PACE was ostensibly an improvement on the Judges’ Rules,there
have been problems with its implementation. A great deal of research
has addressed the efficacy of the AA safeguard, particularly in relation to
identification of vulnerability and implementation of the safeguard (Bean
and Nemitz 1994; Bradley 2009; Brown, Ellis and Larcombe 1992; Bucke
and Brown 1997; Gudjonsson et al. 1993; Irving and McKenzie 1989;
Medford, Gudjonsson and Pearse 2003; National Appropriate Adult Net-
work 2015; Palmer and Hart 1996; Phillips and Brown 1998). In Irving
and McKenzie’s (1998) study they recognised that custody officers (COs)
had difficulty in identifying vulnerability in adult suspects but claimed that
the safeguard was ‘working as the exigencies of the problem allow’, suggest-
ing that, if the diagnostic ability of the police could not be improved, the
role of medical and social work staff should have greater priority (p.203).
Moreover, Gudjonsson et al. (1993) found that ‘the police were very good
at identifying the most disabled and vulnerable suspects, and ensured that
an appropriate adult was called when they considered it necessary’ (p.26).
Both studies essentially suggested that COs were not at fault for failing
397
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2016 The Howard League and John Wiley & Sons Ltd

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