I once was in a police station faced with a female client, on a minor charge but who was clearly in a state of mental collapse. She could not stop sobbing. I tried to calm her to no avail. I found out from her that she had two days before been told by her GP that she needed to be admitted as a voluntary mental health patient. I reported to the custody sergeant that in my honest view she was in need of an appropriate adult and frankly I suspected that her mental condition was such that she was not fit for interview.
The Custody sergeant said that in his opinion she did not need an appropriate adult. If I insisted in maintaining she was unfit he would call in the on call GP. (Divisional surgeon). I said ‘she hasn’t got a broken leg. She has mental problems.’ The sergeant ignored me apart from informing me that I would have to wait outside for the GP. I did so but followed the GP back in (unauthorised) and there we found the custody sergeant in the corridor marching the poor sobbing lady up and down saying ‘Come on now. Pull yourself together. There’s a good girl.’ He saw me, looked a tiny bit embarrassed and showed me into the consultation room whilst the medical examination took place elsewhere.
I am afraid my experience of the on call Divisional surgeons was mixed and my opinion was not enhanced by what happened next. The Doctor told me ‘I can see she is a bit upset but I think she can cope with an interview’. I shook my head in disbelief. The custody sergeant could hardly contain his glee.
We went into interview and the young officer tried to explain the caution and ascertain the client’s understanding of it. This lasted for 20 minutes during which all the suspect said was ‘I want –sob- my husband- sob’ over and over again. I said to the officer ‘in the name of common humanity for God sake stop this tragic farce NOW!!!’ It took every inch of professional self-restraint to keep control such was my anger at them all.
She was bailed to another date. She was admitted to hospital. A report was obtained. I made a formal complaint that was upheld and that resulted in a letter being sent to all police stations in Kent saying ‘if a solicitor or any other professional informs the custody sergeant in good faith that an appropriate is needed then the benefit of the doubt must be exercised in favour of securing such person.’
Many of us have stories like this. I have more which I will not trouble you with.
After many years of incremental improvements in the position of vulnerable suspects the clock is about to be turned back to a darker age or less enlightened times. I remember this period and have always fought hard to improve the position of vulnerable suspects under arrest, with modest success, for example in helping to secure funding in Kent for what was then innovative Community psychiatric intervention in police custody. What matters now though is that positive safeguards are being eroded in proposed changes to the relevant Police Codes C and H. It has had little attention which is regrettable. Practitioners need to ready themselves for a harder time in securing decent treatment for those they represent. It is shocking really and against the tide of modern trend in policing and our justice system.
To what retrograde steps do I refer? It is the change in the PACE code from what is currently reflected in the present PACE code 1.4 to a far inferior protection. This provided:- ‘If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion, the person shall be treated as such for the purposes of this Code’ and thus automatically triggers the calling in of an appropriate adult under PACE code note 1G:- ‘When the custody officer has any doubt about the mental state or capacity of a detainee, that detainee should be treated as mentally vulnerable and an appropriate adult called.’
What is changing? Firstly the definition is changed from ‘mentally disordered or otherwise mentally vulnerable’to ‘vulnerable adult’ but defined under para.1.13(d) to mean a person who (paraphrasing): -‘may have difficulty understanding the implications procedures and processes including their rights and entitlements because:-
(i) they may not understand the significance of what they are told, of questions they are asked or of their replies;
(ii) may be particularly prone in certain circumstances to:
- providing unreliable, misleading or incriminating information without knowing or wishing to do so;
- accepting or acting on suggestion from others without consciously knowing or wishing to do so; or
- becoming confused and unclear about their position.”
Here below are the likely battle lines I suggest, arising in the revised Note 1G which in my view, very regrettably, firstly says:-
‘but the fact that someone has a mental health condition “does not, in itself, mean that they are vulnerable”. That has to be determined by the custody officer on a case by case basis, taking all the circumstances into account.’
So whereas we almost had a fail-safe default position that someone at least with a diagnosed mental health condition would be assisted by an appropriate adult that will no longer be the case. In a sense the custody sergeant is retrospectively qualifying or ignoring an existing medical diagnosis without needing anyone else to tediously express a contrary view. What will happen is that after a cursory few seconds discussion at the custody desk, provided the suspect grasps as few basic concepts rattled off in those seconds, the Custody sergeant will happily say ‘I am satisfied he understood the ‘implications procedures and processes including the rights and entitlements’.
But, you may say, perhaps the interviewing officer will discover the problem and stop the interview. In my experience all the interviewing officer generally wants to do is to get through the process as quickly as possible. Certainly most junior officers will not want to challenge a custody sergeant’s judgment.
But perhaps the Solicitor can save the day and make representations? After all they will have had a far better opportunity to assess the client in a consultation than a busy sergeant at the custody desk. Well that depends if there is one present. About half of suspects do not request legal representation. Vulnerable people are perhaps often not able to make that judgement call in their own interest. Secondly the redraft of Note IG no longer has the final sentence of the existing text advising that in case of doubt, the person should be treated as vulnerable and an appropriate adult be called. So looking back at my story of the Custody sergeant arm in arm marching a suspect up and down snapping ‘pull yourself together’ do you think that sergeant would listen to the solicitor or would they say ‘in MY judgement I am satisfied he-she understood the ‘implications procedures and processes including the rights and entitlements’ when I booked him/her in’. No longer will the Solicitor be able to say ‘Now look sergeant and with all respect, in my opinion this client is vulnerable and as I am telling you that in good faith you should treat the client as such under PACE code 1G’ because that safe guard is removed.
So prepare for amateur custody sergeant medical diagnosis over ruling your professional judgement as to vulnerability of your client in interview. Your experience and even knowledge of the client will potentially be swept aside.
The absence of an appropriate adult also weakens resistance to attacks via the inference of silence with prosecutors relying on their absence to bolster an assault upon the exercise of the right to remain silent which can be crucial to the vulnerable. ‘Well it was not considered that he needed an appropriate adult’.This will also conversely of course result in more challenges based on the unfairness of the procedure under S78/S76 etc. You would be entitled to argue, possibly with medical evidence that due to the incorrect decision by the custody sergeant that the interview should be excluded. This may be a costly change indeed. We have taken a backward step in the treatment of the vulnerable. Back to the dark ages.
Monday, December 11, 2017