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Legal advice

High quality legal representation is critical to ensuring a fair process and effective participation in custody and interviews.

Appropriate adults can insist on a legal representative attending a police station, even if a person has declined legal advice. We encourage positive professional relationships between AAs and legal advisors.  

Protecting legal aid funding

In late 2013, NAAN became aware that AA schemes were facing difficulties in relation to solicitors being called out by appropriate adults. Specifically, the Legal Aid Agency (LAA) stated that, where an AA calls out a solicitor, if the client ultimately refuses to take any legal advice, the solicitor would not be paid.

NAAN felt strongly that this undermined a fundamental and critical power of AAs, limiting their ability to protect vulnerable adults and children. If solicitors are unsure as to whether they will get paid, they will not want to respond to AA call outs.

Having raised the issue with the LAA and the Home Office, we were advised to contact the Ministry of Justice, who by coincidence were finalising the new solicitor’s contracts for 2015 onwards.

NAAN engaged with the Law Society (Criminal Law Committee), providing them with a briefing (2014) supported by detailed annexes, as well as meeting them in person. The Law Society was extremely concerned and supportive, and agreed to include our briefings within their own submissions. 

As a result, the following positive outcomes have been acheived.

The LAA has confirmed that whenever a solicitor responds to a call from the Duty Solicitor Call Centre (DSCC) the fixed fee is payable. This includes when an AA makes the request but advice is not taken up.

Quoting the Criminal Bills Assessment Manual paragraph 5.11.8, the LAA told the Law Society,

“The LAA accepts that, in some circumstances, the solicitor will attend the Police Station in good faith having been contacted by the DSCC. Where a solicitor responds to a call from the DSCC but, for circumstances out of the solicitor‘s control, no attendance takes place, a fixed fee is still claimable. A note should be kept on the file detailing the particular circumstances”.

In addition, in relation to ‘own client’ contract work, appropriate adults have, for the first time, been included explicitly in the 2015 Own Client Crime Contract Specification(paragraphs 4.26(c), 8.10(b) and 8.20(b)) as being able to instruct a solicitor on behalf of a child (including 17 year olds) or ‘protected party’ (someone who lacks capacity to conduct proceedings in accordance with the Mental Capacity Act 2005).

Solicitors and legal representatives may make a claim for legal aid provided that contact has been made with the client. This might be a phone call or a visit. This applies even if the person decides not to take up legal advice. 

Legal privilege

Safeguarding the rights of individuals through high-quality legal representation is of utmost importance. One crucial aspect that requires attention is the right of person to choose whether or not to have their appropriate adult present in their legal consultation. 

This concern arose when we observed a distressing PACE interview while shadowing an appropriate adult (AA). James, a 17-year-old child living in a foster home, who was arrested for theft and racially aggravated assault. A scheme AA had been called because James' foster carers declined to attend the police station, though he had asked for legal advice.

Upon our arrival, the legal consultation had already taken place, and the interview was underway. The police presented detailed CCTV footage, complete with color and sound, capturing James taking a single can of beer from a local shop. On a later occasion, the Asian shopkeeper recognised him and told James he was calling the police. James, in a moment of tension, made threatening remarks, and then claimed, “I’m a racist you know” before clarifying, “Well, not against black people”. In our observation, James seemed at least as frightened as he was frightening.

Although he admitted to the theft before the CCTV evidence, he insisted that only certain aspects of the video depicted him. “Where you can see my face, that’s me. But where you can only see the back of my head, or you can only hear me and not see me, that’s not me”, said James with faux confidence. The police looked bemused as he went on to admit walking through a door but not coming out the other side.

It was evident that James hadn't fully grasped his legal advisor's strategy. A trained appropriate adult could have played a positive role by facilitating communication and understanding during their consultation, much like they would during a police interview. Unfortunately, the absence of appropriate adults from legal consultations with children and vulnerable people is a widespread issue. While some justifications exist, the lack of clarity in law and guidance remains a significant contributing factor.

According to PACE Code C, "A detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if they want." This suggests that the presence of an appropriate adult is expected unless the client opts out. However, the same paragraph warns, "An appropriate adult is not subject to legal privilege." This creates ambiguity and discourages close collaboration without further explanation. The concept of legal privilege lies at the core of this issue.

In the case of Bozkurt v Thames Magistrates’ Court: Admn [2001], interpreters and apprporpiate adults were ruled to be protected by legal privilege when they attend a conference or consultation between a suspect and their solicitor. They are bound by the same confidentially as the solicitor.

In the case of A Local Authority v. B [2008] EWHC 1017 (Fam), Hedley J concluded that conversations with an appropriate adult are not legally privileged but emphasized that the presence of an appropriate adult during a conversation that would otherwise attract legal advice privilege does not negate that privilege.

Professor Ed Cape argues that this case law only covers enforced disclosure, leaving voluntary disclosure largely unaddressed. He advises solicitors to seek an undertaking from the appropriate adult not to disclose information but warns that such an agreement lacks legal enforceability. Richard Atkinson, Chair of the Law Society’s Criminal Law Committee, shares similar concerns, highlighting the risks faced by clients unless all parties present enjoy legal privilege. He notes that appropriate adults could even be called as witnesses for the prosecution.

Extending legal privilege to appropriate adults could provide a viable solution. Notably, the Supreme Court ruled against extending legal privilege to accountants in a recent case (R (on the application of Prudential plc and another) (Appellants) v. Special Commissioner of Income Tax and another [2013] UKSC 1) with a majority decision of five to two. It appears unlikely that appropriate adults would prevail in a similar battle without explicit legislation from Parliament.

Professor Kathryn Hollingsworth from Newcastle Law School points out that Hedley J's judgment explicitly states, "What was said on that occasion cannot be revealed beyond the three people who were present at it." This implies that an appropriate adult, whether a parent or otherwise, is excluded from voluntarily disclosing information to the police and is not compelled to disclose it.

However, the consequences of an appropriate adult's voluntary disclosure remain unclear. Courts may uphold legal privilege as a fundamental principle and exclude such evidence under PACE 1984 s.78. Additionally, Article 6 of the Human Rights Act (HRA) could potentially pave the way for further legal development. Hedley J, through obiter dicta, acknowledged that "art.6 rights are engaged," and if legal advice privilege were deprived, it could be deemed a violation of those rights.

To address these concerns, we propose amending PACE Code C to clarify that appropriate adults may attend legal consultations without compromising legal privilege. As the national body representing appropriate adult schemes, NAAN can encourage the formal adoption of agreements requiring appropriate adults to commit to non-disclosure as part of their contracts or memoranda.

Furthermore, it is crucial to consider measures to mitigate the risk of disclosure by parents and carers. The Law Society can play a critical role not only in raising awareness among solicitors but also in fostering further debate on this important issue.

Together, we can strive for a system that protects the rights of vulnerable individuals, ensuring that appropriate adults are present during legal consultations without compromising legal privilege.

Criminal Law & Justice Weekly

27 July 2014

Legal Privilege and Appropriate Adults

Remote legal advice

The Covid-19 response to police interviews was well-intentioned but in practice has not delivered a fair process for children or for people with a learning disability, speech and language need, autism, mental illness or brain injury.

While those in police custody have benefited from the continued in-person support of appropriate adults throughout the pandemic, this is no substitute for the invaluable physical presence of a lawyer. Children and vulnerable adults make up only 9% and 5% of arrests respectively. Given this new evidence, it is not logical or proportionate to ignore the existing rules that their legal advice should always be in person. Miscarriages of justice and failed prosecutions serve neither suspect nor victim.

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