1. Introduction and background
1.1 This statutory guidance is published by the Scottish Ministers under the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”) and contains information for local authorities pertaining to the delivery of Appropriate Adult services and related training duties. Local authorities must have regard to this guidance when undertaking these functions. Those using this guidance are advised to have an awareness of the relevant legislation and seek their own legal advice as required.
1.2 Sections 99 to 101 of the 2016 Act allow Ministers to confer the functions of:
- ensuring the availability of Appropriate Adults;
- the assessment of quality of Appropriate Adult support; and
- the training of Appropriate Adults.
1.3 The Criminal Justice (Scotland) Act 2016 (Support for Vulnerable Persons) Regulations 2019 (“the 2019 Regulations”) confer the functions referred to above.
1.4 Appropriate Adults provide communication support to vulnerable victims, witnesses, suspects and accused persons, aged 16 and over, during police investigations. The first Appropriate Adult service in Scotland was established in 1991 following a Scottish Home and Health Department Circular, which gave guidance to Chief Constables regarding the procedures to be adopted. In 1998 the Scottish Office issued “Guidance on Appropriate Adult Services”, which encouraged the establishment of such services across Scotland. Appropriate Adult services thereafter operated on a non-statutory basis across Scotland until the functions set out above were conferred by the 2019 Regulations.
1.5 The development of a sustainable Appropriate Adult service with national oversight to promote consistency is seen as necessary in supporting the commencement of a new duty in Section 42 of 2016 Act which requires the police to request support for vulnerable individuals in their custody.
1.6 The model for a statutory service was developed in consultation with a range of stakeholders, including cross-policy representatives from Scottish Government, local authorities, Appropriate Adult services, criminal justice partners, third sector organisations, academics and health specialists. The model which was developed was then publically consulted on, with the responses from the consultation feeding into further development of the model.
1.7 This work resulted in the functions in the 2016 Act being conferred as follows:
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1.8 The primary legislation is the Criminal Justice (Scotland) Act 2016 (“the 2016 Act”). Part 1 of the 2016 Act, which includes section 42, as set out below, applies to Police Scotland and other forces with power of arrest in Scotland.
1.9 The following sections summarise the relevant provisions in the 2016 Act for the information of local authorities:
Section 42 – Support for vulnerable persons in police custody
1.10 Section 42 of the 2016 Act places a duty on the police to facilitate support for vulnerable persons in police custody.
1.11 Section 42(1) applies where:
- a person is in police custody,
- a constable believes that the person is aged 16 or over, and
- owing to a mental disorder, the person appears to the constable to be unable to
- understand sufficiently what is happening, or
- communicate effectively with the police.
1.12 The meaning of mental disorder is taken from Section 328 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and includes any:
- mental illness;
- personality disorder; or
- learning disability
however caused or manifested.
1.13 Section 42(3) defines the support that the police should provide for the vulnerable person as being support to:
- help the person in custody understand what is happening, and
- facilitate effective communication between the person and the police.
1.14 As well as applying to constables of Police Scotland, section 42 of the 2016 Act also applies (where the vulnerable person is in custody) to
- investigations staff designated by the Police Investigations and Review Commissioner (PIRC) and the following persons when operating in Scotland:
- members of the Ministry of Defence Police
- constables of the British Transport Police
- members of the Civil Nuclear Constabulary
- immigration officers (for an immigration or nationality offence)
- designated customs officials
- officers of Revenue and Customs
Section 98 – Meaning of Appropriate Adult support
1.15 Section 98 of the 2016 Act sets out the definition of Appropriate Adult support as being the type of support outlined in section 42(3) of the 2016 Act, and the 2019 Regulations have extended this to include support at any stage during a police investigation for victims, witnesses and those suspected or accused of committing an offence.
Section 99 – Responsibility for ensuring availability of Appropriate Adults
1.16 Section 99 of the 2016 Act enables Scottish Ministers to confer a duty on a person to deliver Appropriate Adult services in Scotland. This duty has been placed on local authorities to the extent that each local authority has the function of ensuring that people are available to provide Appropriate Adult support when it is required within that local authority area.
1.17 Local authorities have a duty to provide Appropriate Adult services to the police when intimation is made under section 42(2) of the 2016 Act (i.e. for persons in custody) and when intimation is made under regulation 3(1)(c) of the 2019 Regulations (i.e. when Appropriate Adult support is requested at any stage during a police investigation for victims, witnesses and those suspected or accused of committing an offence).
1.18 Local authorities also have a duty to provide Appropriate Adult services to the other persons to which section 42 of the 2016 Act applies - which are listed in paragraph 1.14 above - when intimation is made under section 42(2) of the 2016 Act (i.e. for persons in custody). All sections of this guidance which refer to local authorities providing Appropriate Adult support to the police for persons in custody are also applicable when relevant requests are made by these other persons.
1.19 Regulation 4(2) in the 2019 Regulations allows for local authorities to enter into contracts with others when delivering Appropriate Adult services. This means that local authorities can work in partnership with other local authorities / organisations and can enter into contracts with third parties to deliver Appropriate Adult services.
1.20 The responsibility to ensure that people are available to provide the support always rests with the local authority where the police procedure is taking place. However, by way of example, if a request for Appropriate Adult support relates to a person who is resident in a different local authority area to where the police procedure is taking place, then a contract entered into under regulation 4(2) might allow for the Appropriate Adult to be provided by the local authority where the person is resident.
1.21 Entering into contracts with others does not relieve the local authority of the overall responsibility for the function in its own area. If a local authority enters into a contract with another person, the local authority should ensure that the other person is under an obligation to have regard to this guidance to the extent that it is relevant.
Section 100 – Assessment of the quality of Appropriate Adult support
1.22 Section 100 of the 2016 Act enables Scottish Ministers to confer a duty to assess the quality of Appropriate Adult services. This duty has been placed on Social Care and Social Work Improvement Scotland (commonly known as “the Care Inspectorate”).
Section 101 – Training for Appropriate Adults
1.23 Section 101 of the 2016 Act enables Scottish Ministers to confer a duty to provide training for Appropriate Adults. This duty has been placed on local authorities. As set out in section 4 of this guidance, “Training Appropriate Adults”, it is expected that the management structure of the Appropriate Adult service will have involvement in this function.
1.24 Regulation 6(2) in the 2019 Regulations allows for local authorities to enter into contracts with others when undertaking the training function. This means that local authorities can work in partnership with other local authorities / organisations and can enter into contracts with third parties to provide training to Appropriate Adults.
1.25 Entering into contracts with others does not relieve the local authority of the overall responsibility for the function in its own area. If a local authority enters into a contract with another person, the local authority should ensure that the other person is under an obligation to have regard to this guidance to the extent that it is relevant.