28 December 2020
Not reviewed after the date of publication
I have a question regarding the definition of ‘vulnerable’ in PACE Code C - particularly para. 1.13(d) and Note 1G and the implications it has in relation to the need for an Appropriate Adult.
Does it mean that every person with a mental health condition or mental disorder automatically requires an Appropriate Adult or can a person who suffers from a mental health condition or mental disorder (i.e. bipolar or personality disorder) still be classified as not vulnerable and therefore would not need an Appropriate Adult.
Paragraph 1.4 of Code of Practice C outlines that if at any time an officer has any reason to suspect that a person of any age may be vulnerable, in the absence of clear evidence to dispel that suspicion, that person shall be treated as such.
PACE Code C outlines the definition of vulnerable as:
‘1.13(d) vulnerable applies to any person who, because of a mental health condition or mental disorder (see Note 1G and 1GB):
(i) may have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with:
their arrest and detention; or (as the case may be)
their voluntary attendance at a police station or their presence elsewhere (see paragraph 3.21), for the purpose of a voluntary interview; and
the exercise of their rights and entitlements.
(ii) does not appear to understand the significance of what they are told, of questions they are asked or of their replies.
(iii) appears to be particularly prone to:
becoming confused and unclear about their position;
providing unreliable, misleading or incriminating information without knowing or wishing to do so;
accepting or acting on suggestions from others without consciously knowing or wishing to do so; or
readily agreeing to suggestions or proposals without any protest or question.’
Note 1G also states:
‘A person may be vulnerable as a result of a having a mental health condition or mental disorder. Similarly, simply because an individual does not have, or is not known to have, any such condition or disorder, does not mean that they are not vulnerable for the purposes of this Code. It is therefore important that the custody officer in the case of a detained person or the officer investigating the offence in the case of a person who has not been arrested or detained, as appropriate, considers on a case by case basis, whether any of the factors described in paragraph 1.13(d) might apply to the person in question. In doing so, the officer must take into account the particular circumstances of the individual and how the nature of the investigation might affect them and bear in mind that juveniles, by virtue of their age will always require an appropriate adult.’
Therefore, a person may be treated as vulnerable if their condition or disorder affects the factors outlined in paragraphs 1.13(d)(i)-(iii). Note 1G also expands this further stating that even if an individual does not have a condition or disorder, they can still be considered vulnerable if any of the factors described in the paragraphs above apply.
The current test is very much a two stage process:
Step 1 – identification of any vulnerability (1.4)
Step 2 – what practical effect will the vulnerability have on the fairness of the custody / investigatory process (1.13(d))
So, for example, a person diagnosed with a mental disorder/condition who is taking all their prescribed medication may potentially be deemed by the custody officer as not vulnerable, should the custody officer not suspect that the person shows any of the factors in 1.13(d)(i)-(iii) apply.
Prior to the changes to Code of Practice C in 2018, which changed the actions for identifying a vulnerability and when an appropriate adult is required, the case of R v Aspinall 1999 outlined that when a detainee is suffering from a mental illness (in this case schizophrenia) they automatically required an appropriate adult. However, due to the changes we have mentioned above to the PACE Code of Practice in our opinion this case is no longer relevant.
Whilst we believe that a mental disorder, and certainly a serious one such as schizophrenia, may lead a custody officer to suspect the detainee may be vulnerable, consideration of how that will affect them needs to be assessed on a case by case basis. Although an examination of all relevant parts of Code C - Para 1.4, 1.13(d), Notes 1G, 1GA, 1GB, 1GC and Annex E, still requires the custody officer to err on the side of caution, simply because a detainee is suffering from schizophrenia no longer automatically means they are vulnerable and they must have an appropriate adult. However, we stress that this is not a decision that can be generalised and each case has to be determined on its own set of facts.
Ultimately it is the decision of the custody officer whether a person is to be treated as vulnerable and if a person is deemed vulnerable an appropriate adult must be used, as stated in paragraph 3.15 Code C.
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