Legal Framework

Statutory Codes of Practice

PACE Codes (under Police and Criminal Evidence Act 1984) 

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

Access the latest versions of the PACE Codes of Practice

Code of Practice for Youth Conditional Cautions (under Crime and Disorder Act 1998)

  • 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.

Primary Legislation

Police and Criminal Evidence Act (PACE) 1984 

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 (see above).

  • 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 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.

Crime and Disorder Act 1998 

  • 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.This section is not currently applicable to 17 year olds, however in light of the Judicial Review in 2013, 17 year olds must now have an Appropriate Adult under PACE Code C. 

  • 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 66ZA is not currently applicable to 17 year olds, however legislation is currently passing through Parliament which will include them.

  • 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 66B is not currently applicable to 17 year olds, however legislation is currently passing through Parliament which will include them.

 

Legal context

In addition, the provision of an Appropriate Adult scheme should be seen in light of the following UK and international legal requirements.   

Police and Criminal Evidence Act (PACE) 1984 

  • 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).

 Children Act 2004 

  • 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.  

Children Act 1989 

  • 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.

Children and Young Persons Act 1933

  • 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).

Human Rights Act 1998 (implementing the European Convention on Human Rights)

  • 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 but it is not clear if it applies outside of police custody. 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 relaiton to children, courts have decided that this engages the UNCRC below).

 UN Convention on the Rights of the Child (ratified by UK in 1991) 

  • 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  

UN Convention on the Rights of Disabled People (ratified by UK in 2009) 

  • 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."

  • It 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."

Also see 

  • Equality Act 2010 - 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
  • Mental Capacity Act 2005 and Code of Practice – in particular the five principles which provide the framework for defining capacity and best interests
  • 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 and HMIP, who operate jointly to discharge these responsibilities in respect of police custody.

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