news analysis of prospects for justice of people with learning difficulties after the Stephen Downing case

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.