When you read this post, please don’t think about the pros and cons of vulnerable people being legally represented in custody. This post is not about solicitors for vulnerable people. Think about the right of personal autonomy – to take one’s own decisions where we have the capacity to do so. This post is not a police officer lamenting about how great it may be if only people were not legally represented – either because it would be faster to deal with people or for any other reason.
I can’t imagine, for example, a situation where I would not want my son to have a solicitor if he were in police custody – guilty or innocent of any allegation; or if detained under the Mental Health Act.
This post is about how I want to live in world where we respect personal autonomy as far as we possibly can do so – there will come a point where my son has the right and the responsibility to make his own decision and this will happen well before he is eighteen years old. I’m sure I will wrestle with this as generations have before me.
I wrote about a case previously briefly in “The Appropriate Adult” and having done so an alarm bell later went off in my head regarding something altogether more important arising from it. You may remember, there had been a disagreement between a mental health professional who had come to act as an appropriate adult and the detainee they had turned up to assist. An adult man, suffering with schizophrenia, had been arrested after being alleged to have caused criminal damage. He was still awaiting interview when I left the police station to come home there having been something of a delay after his arrest because of the need to secure a Force Medical Examiner’s opinion about the impact of his schizophrenia upon the investigation, including consideration of whether a full Mental Health Act assessment may be needed.
We learned at the end of the FME’s examination, that the man was known to local community mental health services, had a forensic history as well as the previous convictions that we already knew about. That said, mental health services informed the FME that he had been engaging with care after release from prison and they agreed with the FME that formal assessment for admission was not required. The man was taking medication, keeping medical appointments and was stable in his recovery. He was living free from any restriction on liberty arising from his mental illness; restricted only by the terms of his prison licence for his offending behaviours.
Therefore, the question for the police officers was whether he did or not did commit criminal damage; to make a decision about whether he should be charged with this and what impact, if any, that decision may have on his licence. So we need to interview him and the FME had rightly said he would require an appropriate adult. Unfortunately, there was no-one from friends or family who could undertake this role so we sought support from the local authority.
The appropriate adult who turned up was experienced and one of the first things he asked was whether the man had requested a solicitor? He had not done so, despite it being offered. The appropriate adult stated that a solicitor should have been called, incorrectly insisting that “all vulnerable adults in custody have to have an appropriate adult. It is the law.” It is not the law – not at all.
This disagreement became fascinating for two reasons: firstly, incorrectly quoting the laws within PACE to a sergeant is guaranteed to wind them up – especially the professional, experienced and knowledgable custody officer on duty at that time who knew without looking it up that what he had just heard was nonsense. It was also fascinating for another reason: the detainee protested to the appropriate adult in front of the custody officer and said he didn’t want one.
So what does the law say?
Paragraph 6.5A of Code C of the Codes of Practice to the Police and Criminal Evidence Act is the answer: it provides that the appropriate adult has the right to insist upon a solicitor being called if they believe it is in the detainee’s best interests, however it reinforces that detainee cannot be compelled to see or accept the solicitor if they are adamant that they do not want one. The law on this point was only amended in July 2012 to allow the appropriate adult to insist upon calling a solicitor.
So at this point my thoughts turned to the concept of mental capacity around this man’s decision and his own personal autonomy. The law of England demands that this man be presumed to have capacity to take his own decisions unless an assessment concludes that he does not. An unwise decision is not, of itself, reason to argue that someone lacks capacity and any attempt to take a decision against the wishes of someone else in their best interests should be predicated upon an assessment that they lack capacity.
Is it unwise to decline a solicitor in police custody? Maybe, but not necessarily. Maybe he knew exactly what he wanted to say about the allegation and was confident of doing so? Who knows …
But many public sector organisations who agree to support mentally disordered suspects in custody have a blanket policy of insisting that all detainees be legally represented. As many of the professionals who undertake this role are mental health professionals who operate in a world of patient empowerment against a legislative backdrop that attempts to respect individual autonomy, it seems at least curious that there is no individualization in this regard.
I also had one further concern: did the appropriate adult inform the detainee in proper terms about his legal rights whilst he was busy attempting to over-rule him? – of course, it is not the role of the appropriate adult to give legal advice. Maybe the detainee needed a solicitor to handle his appropriate adult, rather than the police?!
So was it made absolutely clear that a solicitor could not be forced upon the man and if he continued to resist his decision would be respected? Home Office guidance to Appropriate Adults is available and it makes this clear. In light of the fact that the appropriate adult incorrectly believed he had a right to insist the detainee be represented, it seems likely that he declined to explain the truth to the man detained, mainly because he did not know what the truth was. As he was determined to exercise a policy of seeking legal advice against the wishes of a detainee – who we should remember was not acutely ill, not in need of admission under the Mental Health Act and who is presumed, by law, to have the capacity to take decisions – it seems improbable that a proper explanation of his legal rights was provided – that if he insisted upon not wanting a solicitor, none would be forced upon him.
Now – all of this is difficult stuff, isn’t it? Anyone could read this and suggest that this is just a police officer arguing outrageously against the legal representation of vulnerable people in custody. Actually, as stated at the start of this piece, what I am actually arguing for is respect for personal autonomy. This post is not about legal representation, that is merely the vehicle for making the point. If this man lacked the capacity to take the decision about legal representation – and there was no reason that he did following examination by a s12 Doctor – there is a legal opportunity to manage that. Let us remember that an unwise decision does not mean someone lacks capacity and let us remember what the appropriate adult is for – it is to assist in communication and ensure fair treatment from the police. Investigating and interviewing suspects without legal representation is not inherently oppressive or unfair – it happens everyday in this country where people have taken a free choice not to be represented.
Having arrested, detained and reviewed thousands of people in police custody over fifteen years, there are a range of valid, weird and private reasons for this. Why should people with a mental disorder be treated any differently when their treatment is safeguarded by the appropriate adult ensuring proper conduct by officers and clear communication of what is occurring? The man was demonstrably concerned that the appropriate adult’s decision to over-ride his wishes would – in his own opinion – unnecessarily extend his time in custody. You may judge the importance of such a reason for declining a solicitor. My point is, that it is his decision to make.
As I say – this post is not about legal representation at all; it is about autonomy.