The actual and perceived independence of AAs (by vulnerable suspects, courts and the wider public) is critical to the effectiveness of the AA system and the legitimacy of the justice system. A lack of independence may:
- render evidence inadmissible at court even where an AA was present;
- give rise to conflicts of interest;
- limit the extent to which a vulnerable person will engage or trust their AA
An AA must be a person who is independent of the police.
PACE Code C (1.7, 1F) and Code H (1.13, 1F) specify that the appropriate adult may not be:
- a police officer;
- a person employed by the police;
- a person who is under the direction or control of the chief officer of a police force;
- a person who provides services under contractual arrangements to assist that force in relation to the discharge of its chief officer’s functions;
PACE 1984 Act sections 63B (drug testing) and 66ZA (youth cautions), as amended by the Policing and Crime Act 2017 section 79, state that an appropriate adult for a juvenile may not be a person employed for, or engaged on, police purposes.
PACE 1984 section 77 (Confessions by mentally handicapped persons) states that “independent person” does not include a police officer or a person employed for, or engaged on, police purposes.
Police Act 1996 section 101(2)(c) states that “police purposes” in relation to a police area, includes civilians employed for the purposes of that force.
Changes to PACE Code C consulted on by the Home Office (December 2017) include the requirement that: "An appropriate adult who is not a parent or guardian in the case of a juvenile, or a relative, guardian or carer in the case of a vulnerable adult, must be independent of the police as their role is to safeguard the rights and entitlements of a detained person".
There is no formal 'independence test' in relation to AA provision. Independence should be considered to mean that AA provision is not controlled or unduly influenced by the police. Compliance with the minimum statutory requirements on who may act as the AA, does not automatically equate to independent provision.
For example, the PACE rules include: -
- no requirement for training in the role;
- no requirement for vetting the quality or suitability of a person beyond their being a ‘responsible adult’;
- no requirement that the person is known to the vulnerable person or knows anything about them;
- no test of person's attitude towards police or their motivations for fulfilling the role.
Furthermore, PACE does not specify all possible conflicts of interest and consequent risks. Approaches that are legally compliant may still create situations that may be contrary to a vulnerable suspect’s best interests. For example:
- when strip searching an 11 year old boy a police officer could technically comply with the PACE Codes by asking an adult male stranger, who happens to be walking past the custody suite, to act as the AA;
- an AA may agree to fulfill the role because they wish to to assist the police achieve their objectives;
- a person acting as an AA may be seeking future employment with the police and wish to avoid conflict with them.
There is no formal 'independence test' in relation to AA services. Independence should be a strategic thread that runs throughout AA arrangements (from the governance framework, to commissioning arrangments, to front line delivery). At all steps, efforts should be made to minimise actual and perceived association with the police, as well as confusion or potential conflicts of interest with other services in custody or matters occurring in the investigation (e.g. liaison and diversion, custody healthcare).
For example, steps can be taken with regard to:
- provider selection criteria and processes;
- AA recruitment, selection and vetting processes;
- initial training of AAs (particularly the nature of police involvement in it);
- professional development of AAs and scheme leaders;
- supervision of AAs;
- monitoring and evaluation frameworks;
- provision of separate facilities for AAs in custody (i.e. not with police).