Ed Cape, in the introduction to his seminal guide to police station representation notes that “[d]efending suspects at the police station is not easy.” This is, to put it mildly, something of an understatement, and it is particularly true when representing young people in police custody. For decades, police custody was an anomalous space where a 17 year old would be somewhat arbitrarily treated as an adult, and would therefore not need to be accompanied by an appropriate adult. This year, the Codes of Practice have been revised and now detainees up to the age of 18 are to be treated as children and given the same degree of protection. This change may, however, create new challenges.
Criminal cases are rarely won or lost by barristers in the courtroom; the outcomes are often determined months earlier in small, windowless interview rooms where decisions made quickly by solicitors can be extremely consequential. The Criminal Justice and Public Order Act 1994 (ss34-37) modified the right to silence by creating the possibility of an adverse inference being drawn at trial if a defendant has not disclosed pertinent facts during the interview. Good advice can protect a client at trial or lay the foundations for a plea in mitigation. Bad advice can lead to a miscarriage of justice, and a succession of cases has shown that a defendant may not be able to avoid an inference on the basis that they were advised to make no comment (see R v Beckles  1 WLR 2829 which sets out the two-stage test that the jury should be directed to apply).
The police station is a lonely place for the defence representative navigating a series of relationships with custody staff, investigating officers, identification officers and of course, clients, without support from colleagues and often in the middle of the night. The Children’s Commissioner notes that 83,000 young people are arrested each year, and Her Majesty’s Inspectorate of Probation has noted that young detainees are ‘the most vulnerable of the vulnerable and the least able to represent their own interests’. The vast majority of people in custody feel high levels of stress, which can make the representatives’ task of taking instructions and ensuring advice is understood more difficult. Young clients are statistically more likely to have a number of disadvantages that add to their vulnerability and increase the challenges for the defence representative.
In July 2018 the revised PACE Codes of Practice were published, confirming that an appropriate adult must be provided for detainees up to the age of 18. This change was a response to the decision in R (on the application of HC) v Secretary of State for the Home Department  EWHC 982 (Admin) which found that treating a 17-year-old as an adult in police custody was wrong, and the refusal to contact the claimant’s mother was a violation of Article 8: the right to a private a family life. On the one hand, this can be seen as a welcome development that provides additional protection for young persons in custody. However, the presence of an appropriate adult can be problematic from a defence perspective. The role of the appropriate adult is to ‘safeguard the interests of children and young persons’, to offer support and advice, to facilitate communication, to ensure the interview is conducted fairly and properly and to make sure that the young person understands their rights. The appropriate adult should normally be a parent or guardian, but if none is available, or it is otherwise inappropriate to use a family member, then it would usually be the responsibility of the Youth Offending Team to provide an appropriate adult who may be a volunteer or a qualified professional.
The role of the solicitor or legal representative is considerably simpler to explain, as PACE Code C notes: “The solicitor’s only role is to protect and advance the legal rights of their client”.
The legal rights of a young person can be construed more narrowly than the ‘interests’ that an appropriate adult seeks to protect. Several studies (see for example: Pierpont; Quinn and Jackson) have noted the conflict that can occur between professional or volunteer appropriate adults and legal representative. A social worker or an employee of the youth offending team may determine that it is in the interests of the young person to take responsibility for their wrongdoing in circumstances where the legal representative’s position is that the evidence is weak enough to justify a no comment interview in order to avoid prosecution.
There is less literature discussing the difficulties that arise in the far more common situation where the appropriate adult is a family member, but the position is potentially more problematic. Firstly, the use of a family member as an appropriate adult is more likely to lead to a decision to proceed without legal representation. Pierpoint notes that only a third of juvenile detainees obtain legal advice, but in around 75% of cases a volunteer or professional appropriate adult will insist on it. Secondly, where legal advice is sought, the representative must note that the appropriate adult is not bound by legal privilege and, therefore, as a matter of good practice, should be excluded from the private consultation. This is a difficult issue to raise with a parent who will often wish to insist on being present. Thirdly, parents are sometimes (and often understandably) angry with their child and anxious to take a disciplinary stance. This could be detrimental to advancing a defence, and can have consequences at trial. In the case of R v Jefferson  1 All ER 270 the defendant was refused permission to exclude the evidence from his interview where his father had been angry with him and contradicted his account. Lastly, it is not clear how a parent is supposed to understand the requirements of procedural fairness they are asked to protect in the police station.
For the above reasons, the response of defence solicitors to the revised PACE Codes of Practice is likely to be ambivalent. Detention in police custody engages multiple rights and it is critical that safeguards exist to ensure that any interference with those rights is both necessary and proportionate. The purpose of the revision is to ensure better protection for a young person’s right to a private and family life, but it is not clear that the change will better protect their right to a fair trial. On the contrary, the research suggests that the presence of an appropriate adult (and, in particular, a family member) may undermine the protection of a young person’s legal position. Whilst of course it is good to see statutory acceptance that vulnerability does not cease to exist when a young person is 17 years old, many of us would prefer that it was legal representation, not the presence of an appropriate adult, that was mandated.
Vicky Thirlaway is a qualified solicitor and a Senior Lecturer in Law at Sheffield Hallam University. Email: V.Thirlaway@shu.ac.uk