The Police and Criminal Evidence Act 1984 was intended to offer a better standard of justice to vulnerable adults, but has it been fully implemented? Lauren Revans reports.
Your 18th birthday is supposed to be a celebration of coming of age. For the first time you are able to vote and legally buy alcohol. But for recently convicted Stephen Downing, turning 18 was a very different affair. His right to vote had been vetoed when a jury had returned a guilty verdict earlier that year. And there was precious little for him or his family to drink to.
Stephen Downing was 17, with a below average IQ and a poor reading level, when he was convicted in 1974 of the murder of Wendy Sewell. In September 1973, Sewell was attacked in the grounds of the cemetery where Downing worked in Bakewell, Derbyshire. When Downing found her, he raised the alarm then volunteered to help the police with their inquiries. He did not realise he was a suspect. Yet, after nine hours of interrogation, he signed a confession - written by a policeman - admitting to Sewell's murder.
During his interrogation, Downing had no access to a solicitor and he was not allowed to see his parents. Thirteen days later, Downing retracted his statement. He has proclaimed his innocence ever since and, last week, the court of appeal finally quashed Downing's conviction. Aged 45, Downing is now free to catch up on 27 lost years.
Most people would argue that, thanks to changes in the criminal justice system since Downing's case, such a miscarriage of justice could not happen today. On paper that argument appears well-founded.
Under the Police and Criminal Evidence Act 1984, all interviews with suspects must now be tape-recorded. In addition, code C of the guidance that accompanies the act brought new protections in relation to the detention, treatment and questioning of vulnerable people, including anyone who may be "mentally incapable of understanding the significance of questions put to him or his replies".
The code stipulates that, for such people, an "appropriate adult" must be informed and asked to come to the police station to "assist and advise" them when they are being questioned, observe whether or not the interview is being conducted fairly, and facilitate communication. The guidance says an appropriate adult can be a relative, a guardian, a carer, or someone with experience of dealing with people with learning difficulties or mental health problems or, failing that, some other responsible adult aged 18 or over who is not employed by the police.
A person who has learning difficulties or mental health problems, whether suspected or not, must not be interviewed or asked to provide or sign a written statement in the absence of the appropriate adult.
All of these provisions ought to mean that if Downing had been accused of murder any time after that act came into force in 1986, the whole case would have been handled very differently.
Unfortunately, it is not that straightforward. The 1984 act is only worth the paper it is written on if it is implemented by the police, the courts and other agencies responsible for delivering the criminal justice system. Some 18 years later, there are doubts about whether this always happens.
In 1998, 12 years after the act had supposedly been implemented, there were just three appropriate adult schemes in the country: in Portsmouth, Sheffield and Derby.
Elaine Parry-Crick, the former police officer who founded the Derby scheme, says that when she started to look at the issue of appropriate adults in the late 1980s, she found it very difficult to find anyone who knew what they were talking about. She also found it difficult to persuade police officers that they were doing anything wrong.
Crick, who now works for Voice UK, a charity that serves people with learning difficulties who have experienced crime or abuse, adds that, before the scheme, people acting as appropriate adults hadn't had any training and "weren't aware what they were supposed to be there for".
Assistant scheme co-ordinator Nigel Houldon describes the method for implementing code C of the act in Derbyshire prior to 1998 as "very ad-hoc".
"If police identified someone as being vulnerable, they would call on social workers, and they wouldn't always respond, or response times were very poor," he recalls.
Houldon says that although appropriate adult schemes are "less patchy" now than they used to be, there is still something of a postcode lottery. "In Derbyshire, we are truly there. We provide a very effective service and have all the links with the various organisations. But I know that some neighbouring counties are struggling and the service is still provided by social services. And then it depends on the time of day the person is arrested." He adds that a national appropriate adult network has now been formed and will hold its first conference in March.
For Rowena Daw, head of policy at mental health charity Mind, the key to ensuring the 1984 act is followed to the letter is more training for the police, particularly in interviewing vulnerable people.
"The first issue is how to determine if someone needs extra explanation and help," Daw says. "Then, how to go about questioning someone in a way you can be sure they understand. Those are the problems and they still persist."
Michael Mansfield QC, who has fought against many high-profile miscarriages of justice, believes the courts have been assiduous about trying to uphold the letter of the law, but agrees that more training and education for the police, solicitors and the public is crucial.
"For the act to be a total success, it does necessitate those working within the system being able to recognise when the provisions are triggered," Mansfield says. "The officer at a police station needs to know what the signs are. They tend to think that, providing you are standing on two feet and can speak, that's OK. And it's the same with solicitors. They don't know what to look for and who to contact in order to get the right appropriate adult in to the police station."
Until now, training on identifying and working with people with learning difficulties and mental health problems has not been a top priority for the police, the courts and the legal profession. It is obvious that that needs to change if these vulnerable client groups are to get a fair deal in the criminal justice system.
The expected publication this week of guidance on implementing those sections of the Youth Justice and Criminal Evidence Act 1999 that relate to vulnerable witnesses could help this cause. The guidance will explain how special measures similar to those introduced for child witnesses will become available for vulnerable adult witnesses during criminal proceedings. These measures include the use of screens in court, live links, the removal of wigs and gowns, video evidence, and intermediaries.
Police forces and courts are having to prepare for this change. Inspector Andy Stokes, who is on Derbyshire's working party on implementing the 1999 act, estimates that the introduction of special measures for vulnerable witnesses will see the use of video evidence and other special measures increase by 5,000 per year for Derbyshire.
"We are assessing what we are going to need," Stokes says. "Interviewing children is totally different to interviewing people with learning difficulties. There will need to be more training."
As training in interviewing vulnerable witnesses becomes more common, it is inevitable that it will also benefit vulnerable people questioned as suspects and lead to more effective implementation of the 1984 act. Perhaps then, vulnerable people will finally begin to receive a truly equitable service, wherever they may be in the criminal justice system.
Derbyshire moves to implement 1984 act
The Derby scheme, which now covers the whole county, was initially set up by the police as a pilot after an independent survey of custody records in Derbyshire and three other areas in the late 1980s highlighted the deficiencies of the 1984 act and concluded that the police did not understand mental health or learning difficulties.
Derbyshire Appropriate Adult Scheme is now an independent charity, funded by the social services department and manned by volunteer appropriate adults who respond to around 65 calls from the police per month. Volunteers receive 24 hours' training over an eight-week period, covering all aspects of mental health and learning difficulties, and an in-depth look at the 1984 act.
