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. This means that that are not influenced or controlled in any way by 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 and 66ZA (as amended by the Policing and Crime Act 2017 section 80) state that an appropriate adult 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".
However, compliance with the minimum legal requirements on who may act as the AA, does not equate to effective practice. For example, the PACE rules: -
- include no requirement for training or even basic knowledge of the role;
- include no requirement for vetting the quality or suitability of a person beyond their being a ‘responsible adult’;
- include no requirement that the person is known to the vulnerable person or knows anything about them;
- include no test of person's attitude towards police or their motivations for fulfilling the role.
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 technicallycomply 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.
Developers / commissioners should ensure that the model they select avoids any potential conflicts of interest or confusion with other roles. The chosen approach should seek to minimise actual or perceived:
- association with the police
- involvement with any other services in custody or matters occurring in the investigation.