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1. The Review is seeking views on how the rights of children and vulnerable adults who are suspected of committing an offence should be safeguarded.
Children: definition of a child
2. The Review is seeking views on how a child suspect should be defined. The United Nations Convention on the Rights of the Child defines a child as a human being under the age of 18 years unless, under the law applicable to the child, majority is attained earlier. In Scotland the age of majority is 18.
3. For the purposes of the 1995 Act generally, a "child" is defined as:
- a person under 16; or
- a person aged 16 or 17 who is subject to a supervision requirement.
4. The provisions relating to section 14 detention define a child as "a person under 16 years of age". There is some recognition of the vulnerability of 16 and 17 year olds who are subject to local authority supervision. The power of the Sheriff to remit 16 and 17 year olds to the Children's Reporter on conviction of a summary offence recognises the need, in some cases at least, for 16 and 17 year olds to be treated as children. It may be difficult to resist the conclusion that in relation to child suspects "child" ought to be defined as any person under eighteen years of age.
5. It may be thought, however, that there should be differences between the safeguards for younger and for older children. Children under 12, for example, may be criminally responsible but are not liable to criminal prosecution, as distinct from referral to the Children's Hearing. But criminal acts may result in a referral to the Children's Hearing on offence grounds which, if established, may have long term consequences for the child. It may be that particular safeguards are required to protect such children. Equally it may be thought that different considerations apply to older children, and in particular to 16 and 17 year olds, who may face prosecution. If this is the case, the Review seeks views on how best to cater for an approach which distinguishes between children of different ages.
6. The United Nations Convention on the Rights of the Child affords children a number of rights which apply in this context. Of particular importance are Article 37:
"No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child's best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances.
Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court …"
and Article 40:
"A child accused or found guilty of breaking the law must be treated:
1 …in a manner consistent with the promotion of the child's sense of dignity and worth… and which takes into account the child's age …
2. (b) Every child alleged as or accused of having infringed the penal law has at least the following guarantees: … (ii) To be informed promptly and directly of the charges against him or her, and, if appropriate, through his or her parents or legal guardians, and to have legal or other appropriate assistance in the preparation and presentation of his or her defence; (iii) To have the matter determined without delay by a competent, independent and impartial authority or judicial body in a fair hearing according to law, in the presence of legal or other appropriate assistance and, unless it is considered not to be in the best interest of the child, in particular, taking into account his or her age or situation, his or her parents or legal guardians; (iv) Not to be compelled to give testimony or to confess guilt;…(vii) To have his or her privacy fully respected at all stages of the proceedings.".
7. At present, the fact that a suspect is a child is a factor to be taken into account in determining the fairness of any police interview, but there are few additional protections which exclude or restrict questioning of child suspects. In the event of detention or arrest, the police must intimate that fact to the child's parent or guardian who then has a right of access to the child, subject to any restrictions required for the purposes of investigation.
8. The 1995 Act also contains provisions which state that, where a child is arrested and cannot be brought "forthwith" before a sheriff, a police officer of the rank of inspector or above or the officer in charge of the police station must "inquire into the case" and may liberate the child on certain undertakings. The child ought, if practicable, not to be kept in the police station pending any court appearance.
9. When a child is interviewed, a parent or other suitable person (such as a social worker) will normally be present during that interview.
10. The recently published ACPOS Manual of Guidance on Solicitor Access provides that:
"The test of [the] approach to the rights of children and vulnerable adults will include if the individual's rights were fully explained and understood, and if any waiver of rights was an 'informed waiver'.
For children and those aged 16 and 17 there is a presumption that they should have access to advice from a solicitor and every effort should be made to obtain those services. It may be more difficult to establish informed waiver for these individuals.
Where the suspect is a child, a parent or other responsible adult must be contacted and asked to be present and assist when the rights of solicitor access are explained to the child.
In dealings with both children and vulnerable adults it is expected that in the majority of cases the services of a solicitor will be sought. If this is not the case then this fact and the reasons should be fully recorded.".
11. The current approach is therefore focused on the need to secure legal advice and the support of a parent or other responsible person.
12. The Review is seeking views on what, if any, additional measures may be required to safeguard the rights of children, who are in custody or who are to be questioned.
13. In practice, a parent may express views or offer advice which conflicts with the views of the child and, potentially, any legal advice which is given. Dilemmas are likely to arise where, for example, the child or his/her parents consider that the right to legal advice should be waived in circumstances in which an objective observer may consider that such advice is vital. Careful judgments, therefore, require to be made about how the child's views are obtained and how his/her interests are best safeguarded.
14. In some jurisdictions the attendance of a lawyer is mandatory - there is no waiver available to the child. This may be an option, but it would not provide the flexibility to adopt a proportionate approach. It can be argued that the more adults that are required to attend a child's interview, the longer the child may have to be kept in detention - and the more intimidating the environment might be. All of this requires to be considered in the context of the particular child's age and maturity. Views are sought on how such matters should be addressed in practice.
15. Part 5 of the 1995 Act makes comprehensive provision for the treatment, during criminal proceedings, of accused persons who are vulnerable by reason of a mental health condition. In addition, any vulnerability on the part of the suspect (whether attributable to a mental health condition or otherwise) will be a factor to be taken into account, at common law, in determining the overall fairness of the proceedings. Where an interview is unfair, it will be inadmissible. However, as with children, there are few specific rules which make provision for the treatment of the vulnerable suspect at the stage of the police investigation.
16. The ACPOS Manual provides that:
"Where officers have reasonable grounds to believe that an adult suspect may be unable to advise if they wish a private consultation with a solicitor prior to interview, due to mental disorder or lack of capacity, the services of an Appropriate Adult must be sought to assist in explaining the suspect's rights.".
17. The current approach to vulnerable adult suspects is thus focused on the need to secure legal advice and, in appropriate cases, the presence of an Appropriate Adult at interview.
Identifying vulnerable adults
18. Identifying an adult suspect as vulnerable undoubtedly requires sound judgment by the investigating and custody officers. While there will be suspects whose vulnerability is patent and attributable to a particular condition, there may be some whose vulnerability is latent. There is no statutory or other definition of who should be regarded as a vulnerable suspect or how the rights of such suspects should be regarded.
19. There is, however, a statutory definition of a vulnerable witness. Section 271 of the 1995 Act classifies a person as vulnerable if:
"(1)(b) . . . there is a significant risk that the quality of the evidence to be given by the person will be diminished by reason of-
- mental disorder…, or
- fear or distress in connection with giving evidence at the trial".
What interest requires to be safeguarded?
20. According to the vulnerable witness test, a special approach is justified where the quality of the evidence to be given by the vulnerable person will be diminished by reason of his vulnerability. It is the ability of the vulnerable person to give complete and undiminished evidence which must be safeguarded. The same safeguards apply where the accused is a vulnerable person and he/she elects to give evidence at his/her own trial. But what are the interests of the vulnerable suspect which require to be safeguarded during the police investigation? The aim must be to safeguard the vulnerable person's Convention rights. It may be said that that is done, in part, by safeguarding the ability of the vulnerable suspect to understand the proceedings and to engage in them in a meaningful way. It is necessary that he/she understands his/her rights and is able to exercise them. It is essential that he/she understands not only the questions asked and the answers given but also the implications of what he/she is asked and what he/she says. As is noted above, the ACPOS guidance requires that the individual's rights are fully explained and understood and that any waiver of rights is "informed waiver". In England and Wales the PACE Code of Practice (Code C) defines a person as mentally vulnerable where, by reason of his/her mental state or capacity, he/she: "may not understand the significance of what is said, of questions or of their replies".
How should vulnerability be assessed?
21. The vulnerable witness legislation identifies two types of vulnerability: mental disorder and fear or distress in connection with giving evidence at the trial. Central to the regime is a recognition that vulnerability may arise, not merely because of some pre-existing mental condition, but also from the circumstances in which the (otherwise non-vulnerable) person finds him/herself.
22. In determining whether a witness should be regarded as vulnerable (whether on grounds of a mental health condition or fear and distress in connection with giving evidence) the court is required to take account of a number of factors, including:
- the nature and circumstances of the alleged offence to which the proceedings relate,
- the nature of the evidence which the person is likely to give,
- the relationship (if any) between the person and the accused,
- the person's age and maturity,
- any behaviour towards the person on the part of -
- the accused,
- members of the family or associates of the accused,
- any other person who is likely to be an accused or a witness in the proceedings, and
- such other matters, including -
- the social and cultural background and ethnic origins of the person,
- the person's sexual orientation,
- the domestic and employment circumstances of the person,
- any religious beliefs or political opinions of the person, and
- any physical disability or other physical impairment which the person has, as appear to the court to be relevant.
23. When there is a mental health condition, which may affect the ability of the vulnerable adult to engage in the investigation in a meaningful way, particular measures such as the presence of an Appropriate Adult may be justified. Equally, there may be physical disabilities or language barriers which will require a particular approach to the investigation; in particular, during the interview of the suspect. There may, however, be other circumstances in which an adult suspect should be regarded as vulnerable in the absence of any mental health or physical condition or difference. The Review is seeking views on whether such circumstances exist and, if so, what factors should be taken into consideration.
The likelihood of the suspect's interest being compromised
24. For the vulnerable adult witness a special approach will only be justified where the risk of the witness's evidence being diminished is significant. For the vulnerable adult suspect, however, the threshold for taking particular measures should, perhaps, adopt a more cautious approach, having regard to the irretrievable prejudice which can be caused, both to the suspect and the investigation, where a latent vulnerability has not been identified. ACPOS guidance provides that an Appropriate Adult must be sought to assist in explaining the suspect's rights where officers have reasonable grounds to believe that the suspect may be unable to make a decision about accessing legal advice due to a mental disorder or lack of capacity. In England and Wales, the suspect should be treated as mentally vulnerable and an Appropriate Adult called where the custody officer has any doubt about the mental state or capacity of a detainee.
25. The measures required to safeguard the interests of a vulnerable adult may vary significantly from case to case. Where there is a significant condition and, perhaps, doubt over the suspect's capacity or fitness to be questioned, a medical opinion may be required. In other instances, however, it may be that the suspect can be interviewed with additional support and assistance from a professional experienced in mental health. An Appropriate Adult is often present during the interview of a vulnerable adult. The role of the Appropriate Adult is [i]:
" . . . to facilitate communication between a mentally disordered person and the police and, as far as is possible, ensure understanding by both parties.".
26. The presence of an Appropriate Adult is an important additional means of safeguarding the interests of a vulnerable suspect during the police investigation, but the Review is seeking views on whether there are other measures which may be required to safeguard the interests of vulnerable suspects and the circumstances in which any such measures should be taken.
1. What age should define the child suspect? Should any distinction be drawn between older children and younger children?
2. Are current safeguards sufficient to protect the Convention rights of the child suspect? If not, what other provision should be made for the protection of child suspects?
3. How should the question of waiver be approached in respect of children?
4. How should the vulnerable adult suspect be defined?
5. What rights of the vulnerable adult suspect, beyond those in the Convention, require to be safeguarded and how should those rights be defined?
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