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.
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.
Children and vulnerable people have the right to decide if their appropriate adult (AA) is present during legal consultations at a police station. But a common misunderstanding about ‘legal privilege’ often leads to AAs being excluded—leaving individuals without essential support.
Legal privilege ensures conversations with a lawyer stay confidential, protecting people from self-incrimination. This is especially crucial for children and vulnerable people, when communication may need to be adapted to ensure legal consultations are effective.
We saw this in James’s case—a child in foster care arrested after stealing a single can of beer from a shop. Without an AA present during his legal consultation, James became confused during his police interview, hurting his ability to participate effectively.
The exclusion of AAs is often due to lawyer’s concerns for the interests of their clients. PACE Code C states: “An appropriate adult is not subject to legal privilege.” While it’s true that conversations between children and AAs aren’t privileged, courts have ruled that privilege remains intact when AAs are present for legal consultations.
In a key court judgment, Mr. Justice Hedley emphasised: “…it cannot be right either as a matter of principle or policy that a vulnerable juvenile should in practice be deprived of the opportunity of confidential legal advice” and called the note in Code C “misleading”.
NAAN has proposed changes to PACE Code C to clarify that AAs attending legal consultations cannot share information. We also want the Code to confirm that private conversations between AAs and the individuals they support are protected by a duty of confidentiality.
These changes will safeguard the rights and participation of children and vulnerable people. Click the articles to read more on this issue.
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.
Find out more about our work on this issue using the buttons below.
