31 August 2020
Not reviewed after the date of publication
Is the physical presence of an appropriate adult required even when consent has been obtained via the telephone?
Section 61 of the Police and Criminal Evidence Act 1984 (PACE) provides for the power to take fingerprints with and without the appropriate consent where the requirements of the legislation are satisfied.
The guidance with regard to appropriate adults and juveniles can be found in the PACE Codes of Practice.
Paragraph 2.15 of PACE Code of Practice D provides:
‘2.15 Any procedure in this Code involving the participation of a suspect who is mentally disordered, otherwise mentally vulnerable or a juvenile must take place in the presence of the appropriate adult. See Code C paragraph 1.4.’
Paragraph 1.7 of PACE Code of Practice C outlines who may be considered as an appropriate adult for a juvenile:
‘The appropriate adult means, in the case of a:
(i) the parent, guardian or, if the juvenile is in the care of a local authority or voluntary organisation, a person representing that authority or organisation (see Note 1B);
(ii) a social worker of a local authority (see Note 1C);
(iii) failing these, some other responsible adult aged 18 or over who is not:
a police officer;
employed by the police;
under the direction or control of the chief officer of a police force; or
a person who provides services under contractual arrangements (but without being employed by the chief officer of a police force), to assist that force in relation to the discharge of its chief officer's functions whether or not they are on duty at the time. See Note 1F.’
Paragraph 2.12 of PACE Code of Practice D provides:
‘2.12 If any procedure in this Code requires a person's consent, the consent of a:
mentally disordered or otherwise mentally vulnerable person is only valid if given in the presence of the appropriate adult
juvenile is only valid if their parent's or guardian's consent is also obtained unless the juvenile is under 14, when their parent's or guardian's consent is sufficient in its own right. If the only obstacle to an identification procedure in section 3 is that a juvenile's parent or guardian refuses consent or reasonable efforts to obtain it have failed, the identification officer may apply the provisions of paragraph 3.21 (suspect known but not available).
See Note 2A.’
Note 2A provides:
‘2A For the purposes of paragraph 2.12, the consent required from a parent or guardian may, for a juvenile in the care of a local authority or voluntary organisation, be given by that authority or organisation. In the case of a juvenile, nothing in paragraph 2.12 requires the parent, guardian or representative of a local authority or voluntary organisation to be present to give their consent, unless they are acting as the appropriate adult under paragraphs 2.14 or 2.15. However, it is important that a parent or guardian not present is fully informed before being asked to consent. They must be given the same information about the procedure and the juvenile's suspected involvement in the offence as the juvenile and appropriate adult. The parent or guardian must also be allowed to speak to the juvenile and the appropriate adult if they wish. Provided the consent is fully informed and is not withdrawn, it may be obtained at any time before the procedure takes place.’
Therefore, the person being asked to provide their consent for the procedure may be the parent, guardian or representative of a local authority or voluntary organisation and this person may not necessarily be acting as the appropriate adult for the detainee. So, in the circumstances you provide, even where consent has been provided over telephone, where that person is not acting as the appropriate adult, the appropriate adult will still need to be present for the actual procedure as per paragraph 2.15 detailed above.
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