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Legal framework

This section provides summaries of law related to the development of AA provision

Criminal justice

The Appropriate Adult role was created with the introduction of PACE 1984 and its associated codes of practice. The Act sets out the powers and duties of police, including in relation to people in police detention.

  • Section 63B(10)(a) defines who may act as an Appropriate Adult. If a parent, guardian, representative of the organisation responsible for their care or a local authority social worker is unavailable, any responsible person aged 18 or over may fulfil the role, with the exception of police employees. This section of the Act actually only applies to Testing for presence of Class A drugs. However, within Code C the definition is applied generally. 

  • Section s.66(1)(b) requires the Secretary of State to issue codes of practice in connection with the detention, treatment, questioning and identification of persons by police officers. These are known as the PACE Codes.

  • Section s.67 requires codes of practice, and revisions to them, to be made by statutory instrument. It provides that breaches of the codes are neither a criminal nor civil offence but are admissible in evidence and shall be taken into account by courts and tribunals.  

  • Section 76 requires courts to exclude from evidence a confession that was made in consequence of anything said or done likely to make it unreliable, unless the prosecution can prove beyond reasonable doubt that it was not. An example is the omission of an AA when one was required under PACE.
  • Section 77 states that if a court case depends wholly or substantially on a confession by a person who is "in a state of arrested or incomplete development of mind which includes significant impairment of intelligence and social functioning" and that confession was not made in the presence of an independent person (not include a police officer or a person employed for, or engaged on, police purposes) the court shall treat the case as one in which there is a special need for caution before convicting.
  • Section 78 (Exclusion of unfair evidence) enables courts to refuse evidence that was obtained in circumstances that mean it would have such an adverse effect on fairness that they ought not to admit. Courts have excluded evidence and quashed convictions under this section due to the absence of an AA
  • Section 38(6) states that whenever a juvenile (a child aged 10-16) is detained after charge, the custody officer must arrange for them to be transferred to local authority accommodation. The only exceptions are that: it is 'impracticable' to do so (e.g. floods or blizzards) or (in the case of a juvenile of at least 12 years) there is no secure accommodation is available and other accommodation would not be adequate to protect the public from serious harm. A reciprocal duty is placed on local authorities by the Childrens Act 1989 section 21(2)(b).
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PACE Codes of Practice

Detailed information on the role, responsibilities and powers of an Appropriate Adult is provided throughout various sections of the following PACE Codes: -

  • Code C sets out the requirements for the detention, treatment and questioning of suspects not related to terrorism.
  • Code D governs the exercise by police of statutory powers to identify people, including fingerprinting and ID parades.
  • Code E governs audio recording interviews with suspects
  • Code F covers visual recording with sound of interviews with suspects
  • Code H mirrors much of Code C, but includes special requirements for suspected terrorists
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Download this Code of Practice

  • Section 4.1.4 requires that, where the young person is aged 16 years or under, the explanation and warning must be given in the presence of an appropriate adult.
  • Section 16.1 requires that the explanation of the effect of the youth conditional caution must be given in the presence of an appropriate adult if the young person is aged 16 or under or if they are aged 17 and there is reason to doubt the capacity or ability of the young person to fully understand the nature and requirements of a youth conditional caution.
  • Section 16.3 highlights that those under 18 are not adults. Particular care is required and time must be taken to ensure understanding. Explanations must be given in a language that the individual can understand. PACE Code C requirements in relation to mentally vulnerable individuals and non-English speakers must be borne in mind.

View the code of practice for youth conditional cautions

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  • Section 38 places a duty on local authorities, via their YOTs, to ensure the provision of persons to act as Appropriate Adults to safeguard the interests of children and young persons detained or questioned by police officers.

  • Section 39 places a duty on YOTs to co-ordinate the provision of youth justice services for all those in the authority’s area who need them.

  • Section 66ZA (as amended by the Legal Aid, Sentencing and Punishment of Offenders Act 2012) requires that a youth caution must be carried out in the presence of an Appropriate Adult. The police must also explain, in ordinary language and to both the child and the Appropriate Adult, the effects of section 66ZB (Effect of youth cautions) subsections (1) to (3) and (5) to (7), as well as any guidance published under subsection (4). Note: There is no requirement for consent. 

  • Section 66B states that an Appropriate Adult must be present when the police explain the effect of the youth conditional caution to the child and warn them that failure to comply with any of the conditions attached to the caution may result in them being prosecuted for the offence. Notes: The child's consent is required for a conditional caution. 

  • Section 17 requires local authorities to have due regard to the need to, and do all it can to, prevent crime and disorder, re-offending and the misuse of drugs, alcohol and other substances. All policies, strategies, plans and budgets must therefore be considered with the potential contribution to the above.

  • Sections 5 to 7 form the basis for Community Safety Partnerships, including local authorities, police and clinical commissioning groups (CCGs) as statutory partners, require the implementation of joint strategies as per section 17 and provide reports to the Secretary of State.

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Section 1 of the Act created the role of the police and crime commissioner and detailed its main statutory responsibilities. In London and Greater Manchester, this role is held by the Mayor's office. 

Each police and crime commissioner must:-

  • secure that the police force for their area is maintained and is efficient and effective; and
  • hold the chief constable to account for the exercise of their functions and those of all persons under their direction and control.

In particular, they must hold the chief constable to account for: 

  • having regard to police and crime plan;
  • having regard to strategic policing requirement);
  • having regard to codes of practice issued by Secretary of State;
  • their arrangements for co-operating with other persons in the exercise of their functions;
  • their arrangements for engagement with local people;
  • securing value for money;
  • the exercise of duties relating to equality and diversity that are imposed on the chief constable by any enactment;
  • the exercise of duties in relation to the safeguarding of children and the promotion of child welfare.

Section 10 (Co-operative working) creates additional duties on police and crime commissioners. In exercising their functions, they must:

  • have regard to the relevant priorities of the local authority, chief constable, probation, and any clinical commissioning group whose area is in whole or in part in the police force area
  • act in co-operation with responsible authorities in the development and implementation of crime and disorder strategies 
  • along with the chief constable, CPS, Lord Chancellor, Prisons Minister, YOTs and probation, make arrangements so far as it is appropriate to do so for the exercise of functions so as to provide an efficient and effective criminal justice system for the area.

More information on the role of the police and crime commissioner is available from the Association of Police and Crime Commissioners website and the Home Office (gov.uk) website

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Children

  • Section 34 requires that, where a child or young person is in police detention, whether in relation to terrorism or not, all possible steps will be taken to identify a person responsible for their welfare. That person must informed as soon as possible that the child or young person has been arrested, the reasons why and where they being detained. This includes the local authority if the child is being provided accommodation under section 20 of the Children Act 1989.

  • Section 34 also defines the persons responsible for the welfare of a child or young person as their parent, guardian, local authority (if in care); or any other person who has for the time heing assumed responsibility for their welfare.

  • Section 107(1) (as amended by the Criminal Justice Act 1991) defines a young person as between the ages of 14 and 17 years old. However, when it was brought into force in 1992, an exception was made for 17 year olds in police stations (under s.31 and s.34 of the 1933 Act) who continue to not be included in the definition of a young person in law (though an AA is required under PACE Code C).

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  • Section 17

    (1) Gives local authorities a general duty to safeguard and promote the welfare of children within their area who are in need; and, so far as is consistent with that duty, to promote the upbringing of such children by their families, by providing a range and level of services appropriate to those children’s needs.

    (3) States that any of the above services may be provided for the family if it is provided with a view to safeguarding or promoting the child’s welfare.

    (4A) Local authorities must, so far as is reasonably practicable and consistent with the child’s welfare, ascertain the child’s wishes and feelings regarding the provision of those services; and give due consideration (having regard to his age and understanding) to such wishes and feelings of the child.

    (5) Every local authority shall facilitate the provision by others (including in particular voluntary organisations) of these services and may make such arrangements as they see fit for any person to act on their behalf.

    (10) A child is 'in need' if: they are unlikely to achieve or maintain, or to have the opportunity of achieving or maintaining, a reasonable standard of health (mental or physical) or development (physical, intellectual, emotional, social or behavioural) without the service; their health or development is likely to be significantly impaired, or further impaired, without the service or they are disabled.

  • Section 21(2)(b) requires local authorities to provide accommodation for children in police detention when it is requested under section 38(6) of the Police and Criminal Evidence Act. The police are required to transfer to local authority accommodation any juvenile that is charged and authorised for continued police detention.

  • Schedule 2 section 7 requires every local authority to take reasonable steps designed to reduce the need to bring criminal proceedings against children in their area, to encourage them not to commit criminal offences and to avoid the need for them to be placed in secure accommodation.

  • Section 25 (as modified by The Children (Secure Accommodation) Regulations 1991) states that a child may not be placed or kept in secure accommodation unless it appears that any other acoomodation is inappropriate because if placed in it they are likely to abscond or or injure themselves of other people.
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  • Section 10 requires each local authority to make arrangements to promote cooperation with the local policing body and other appropriate bodies working with children in the area, with a view to improving the wellbeing of children, including protection from harm.

  • Section 11 places a duty on various public bodies, including police and YOTs, to ensure their functions, and any services that they contract out to others, are discharged with regard to the need to safeguard and promote the welfare of children.  

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  • Article 1 is the definition of a child. Everyone under the age of 18 has all the rights in the Convention.
  • Article 3 states that the best interests of children must be the primary concern in making decisions that may affect them.
  • Article 4 states that governments have a responsibility to take all available measures to make sure children’s rights are respected, protected and fulfilled
  • Article 12 states that when adults are making decisions that affect children, children have the right to say what they think should happen and have their opinions taken into account
  • Article 19 states that children have the right to be protected from being hurt and mistreated, physically or mentally
  • Article 37 states that children should be: detained only as a measure of last resort and for the shortest appropriate period of time; treated with humanity, respect dignity and taking into account age-related needs; and given prompt access to legal and other appropriate assistance.
  • Article 40 states that children who are accused of breaking the law have the right to legal help and fair treatment in a justice system that respects their right
  • Article 42 states that governments should make their rights known to adults and children
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Health and social care

The Act provides a new framework for safeguarding adults and significantly increases local authority responsibility for health and social care.

  • Section 1 (Promoting wellbeing) requires local authorities carrying out any care and support function, to promote a person’s well-being, including mental health and emotional well-being; protection from abuse and neglect; social and economic well-being; personal dignity and their contribution to society. Critically, the Act does not specify the services which must be commissioned.
  • Section 6 (Local Co-operation) creates a duty of co-operation between a local authority and partners (police, probation, NHS, local authorities) in relation to adults with needs for care and support.
  • Section 43 and Schedule 2 (Safeguarding Adults Boards) require each local authority to establish a Safeguarding Adults Board (SAB) to help and protect adults where there is reasonable cause to suspect they have needs for care and support, are at risk of abuse or neglect, and are unable to protect themselves. Statutory members include CCGs and chiefs of police. Annual strategic plans and reports must be made and shared with the Chair of the local Health and Wellbeing Boards.
  • Section 67 (Independent Advocacy Support: requires that, local authorities must, when engaging with a person under the Act, arrange for an independent person to represent, support and facilitate their involvement. This applies when they would experience substantial difficulty in understanding, retaining, using or weighing relevant information or communicating their views.

Though the Act focuses on vulnerable people as victims, its statutory guidance states that, “Everyone is entitled to the protection of the law and access to justice.” It also states that where a suspected abuser “has care and support needs and are unable to understand the significance of questions put to them or their replies, they should be assured of their right to the support of an appropriate adult if they are questioned by the police under the Police and Criminal Evidence Act 1984 (PACE)” (Department of Health, 2014).[1]


[1] Care and Support Statutory Guidance, Issued under the Care Act 2014, Department of Health

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Alongside the Care Act in England, this Act establishes entirely separate social care legislation for England and Wales. Many of the principles and much of the wording are similar to the Care Act 2014. The duties to promote well-being, co-operate and share information are similar.

  • Section 132 establishes a National Independent Safeguarding Board, supporting SABs and reporting on them to Ministers
  • Section 134 establishes Adult Safeguarding Boards
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  • Section 1(2) states that ‘mental disorder means any disorder or disability of the mind’. There are several hundred definitions of mental disorders alone (American Psychiatric Association, 2013)11 but include Alzeimer’s disease, autism, Down’s syndrome, dementia, personality disorders, psychosis and schizophrenia. Learning disability (defined as ‘a state of arrested or incomplete development of the mind which includes significant impairment of intelligence and social functioning’) is included for most purposes in the Act and always where the ‘disability is associated with abnormally aggressive or seriously irresponsible conduct’. The PACE Codes use this definition, while the PACE Act retains the term ‘mentally handicapped’.
  • Section 130A establishes Independent Mental Health Advocates (IMHA) to provide advice and support around rights, options and in raising concerns about the care received for those in secure mental health detention, although they are not legal advisers. IMHAs are provided by various organisations and funded by a Department of Health Grant passed down to local authorities.
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The Mental Capacity Act 2005 and Code of Practice set out five principles which provide the framework for defining capacity and best interests.

  • Section 1 sets out five underpinning principles:
    • presumption of capacity;
    • right for individuals to be supported to make their own decisions;
    • right to make unwise decisions;
    • best interests; and
    • the least restrictive intervention.
  • Sections 35 and 36 establish Independent Mental Capacity Advocates (IMCAs) to safeguard people to whom authorities are seeking to apply safeguarding powers and enable the local authority to “make such arrangements as it considers reasonable” to ensure IMCA availability.

Most adults who require an AA under the provisions of PACE will not lack capacity. A person does not need to lack capacity in order to require an AA. They are two different test under different pieces of legislation.

If an AA has doubts about whether a person has capacity, and therefore whether they are able to participate effectively, they can request a professional MCA 2005 assessment.

The presumption of capacity and the right to make unwise decisions does not:

  • Enable a person to choose not to have an AA if the PACE threshold is met
  • Prevent an AA from exercising their power under PACE to ensure a legal representative attends.
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The Act requires the Secretary of State to prepare and publish an autism strategy for meeting the needs of adults with autistic spectrum conditions by improving the provision of relevant services to such adults by local authorities, NHS bodies and NHS foundation trusts and to issue guidance to them to ensure implementation.

Under the strategy, ‘Think Autism: Fulfilling and Rewarding Lives’ (HM Government, 2014), priority challenge 13 is “If I break the law, I want the criminal justice system to think about autism and to know how to work well with other services”. People with autism need access to support when suspected of committing a crime. The police should ensure they have access to expertise to support adults with autism.

The Department of Health has published statutory guidance for local authorities and NHS organisations to support implementation of the adult autism strategy. It makes a number of relevant statements: -

  • It applies to local authorities and health bodies working with justice system agencies
  • Local authorities should ensure they are looking at the needs of their local autism population, including those who do not meet thresholds for care and support.
  • Without “preventative support and safeguarding in line with the Care Act” people with autism can spiral into contact with the justice system.
  • People with autism need access to support whether they are a victim, or witness, or are suspected of committing a crime.
  • When people with autism come into contact with the criminal justice system it is often up to them, or their carer, to explain what having autism means. In some cases, it can positively change the way that police or courts view a situation.
  • Police, probation services, courts and prisons should be supported so that they are aware of the communication challenges experienced by people with autism.
  • The role local authorities, via Community Safety Partnerships (CSPs), is to bring agencies together to develop plans to support the Autism Strategy.
  • The role of health bodies is to deliver on the Liaison & Diversion Programme to ensure people with autism are referred into services and diverted from offending, and to share information to enable more informed decisions about charging, case management and sentencing.
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  • Article 13 states that "States Parties shall ensure effective access to justice for persons with disabilities on an equal basis with others, including through the provision of procedural and age-appropriate accommodations, in order to facilitate their effective role as direct and indirect participants, including as witnesses, in all legal proceedings, including at investigative and other preliminary stages."
  • Article 13 also states that, "In order to help to ensure effective access to justice for persons with disabilities, States Parties shall promote appropriate training for those working in the field of administration of justice, including police and prison staff."
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Other rights

This Act implemented the European Convention on Human Rights directly into UK law. 

  • Article 2 (Right to life) imposes an obligation to protect individuals in state detention whose life is at risk, including from suicide. This includes a duty to put in place appropriate systems designed to protect lives. According to the ECHR (2015), in relation to police detention, this includes but is not limited to1: -
    • Freedom from abuse, bullying, threats, disrespectful treatment and neglect
    • Freedom from unlawful restraint
    • An effective risk assessment by a qualified practitioner as soon as practicable and timely access to medical and mental health treatment
    • Access to support, plus information and advice in an appropriate format on how to access it
  • Article 6 gives rights including the right to a fair, public, independent hearing within a reasonable time and the presumption of innocence until proven guilty. Once charged, rights related to (a) being fully informed of the accusation (b) being able to prepare a defence; (c) legal assistance ;(d) witness examination; (e) interpretation. Case law has held that Article 6 becomes necessary when a person is a suspect and is interrogated by police. It has also held that Article 6 requires special protections for children.
  • Article 8 states that; (1) Everyone has the right to respect for his private and family life, his home and his correspondence; (2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The second clause is, in effect, a proportionality balancing test. In relation to children, courts have decided that this engages the UN Convention on the Rights of the Child. Areas such as police fingerprinting and photography, for which AAs should be present, may come under this Article.
  • Article 14 (discrimination) requires rights under all articles to be afforded without unjustifiable discrimination between groups, including people who are disabled.

Note: The Equality and Human Rights Commission Inquiry published a Human Rights Framework for Adults in Detention and recommended its adoption and use as a practical tool in police custody.


1. Equality & Human Rights Commission (2015) Preventing Deaths in Detention of Adults with Mental Health Conditions. London: EHRC

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Places an equality duty on public sector organisations. Reasonable adjustments must be made to standard practices & structures to respect the rights of detainees who would otherwise be disadvantaged or placed at risk.

  • Sections 6 and 15: define disability as a physical or mental impairment, which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities; and prohibit unfavourable treatment that is not proportionate and legitimate where the disability was known or could reasonably have been.
  • Section 28 requires reasonable adjustments to be made to standard provisions, criteria, practices or physical features to avoid disadvantage. Reasonable steps must be taken to provide any ‘auxiliary aid’ without which a disabled person would be disadvantaged.
  • Section 149 establishes a proactive, public sector equality duty. Section 153 gives a Minister power to impose specific duties on specific public authorities following consultation with the Equality and Human Rights Commission.
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Under the Optional Protocol to the UN Convention against Torture (OPCAT), the UK must ensure torture and ill treatment in detention is prevented through independent monitoring by a “national preventive mechanism”. The UK’s NPM consists of 20 bodies, including HMIC, HMIP and ICVA, who operate jointly to discharge these responsibilities in respect of police custody.

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Commissioning

The Act requires people who commission public services to think about how they can also secure wider social, economic and environmental benefits.

Before they start the procurement process, commissioners should think about whether the services they are going to buy, or the way they are going to buy them, could secure these benefits for their area or stakeholders.

Section 3 states that purchasing authority must consider—

(a) how what is proposed to be procured might improve the economic, social and environmental well-being of the relevant area, and

(b) how, in conducting the process of procurement, it might act with a view to securing that improvement.

The Government has provided guidance, including case studies, on Gov.uk  "Social Value Act: information and resources

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