The 07:15 Interview: Delay, Vulnerability and the Appropriate Adult
Deniz, 19, is arrested at 23:10 on suspicion of robbery and reaches the custody suite at 23:40. The custody officer authorises detention and reviews it at 23:55. Deniz asks for a solicitor. The duty solicitor cannot attend until 09:00. At 06:50 the custody officer tells Deniz he will be interviewed at 07:15 without a solicitor because robbery is serious and the inspector wants it finished before the shift change. No superintendent has considered the question. Deniz also says he has ADHD, has not taken his medication for two days, and cannot follow what is being said. Because he is 19, no appropriate adult is arranged. He tells the officer he wants to wait for the solicitor. The custody record contains no entry about the medication, the appropriate adult issue, or his wish to wait.
1. What breaches arise on these facts and what steps should you take before 07:15?
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1. The legal advice issue. The right to consult a solicitor is in s.58(1) PACE 1984. Access may be delayed only for an indictable offence, only on the authority of an officer of superintendent rank or above (s.58(6)), and only on one of the s.58(8) grounds (interference with evidence, injury to others, alerting other suspects, hindering recovery of property). Seriousness, the inspector's convenience and a shift change are not s.58(8) grounds, and an inspector is not a superintendent. A delay would therefore be unlawful.
2. Code C. Because the duty solicitor cannot attend until 09:00, Code C para 6.6 requires Deniz to be asked whether he wishes to wait. He does. Unless delay is properly authorised, the interview must not proceed without the solicitor.
3. Vulnerability. ADHD, two days without medication and an inability to follow what is said engage Code C para 1.13. Once there is any suspicion of mental vulnerability, the detainee must be treated as vulnerable and an appropriate adult arranged under para 11.15. Age 19 is irrelevant: the test is vulnerability, not age. Proceeding without an appropriate adult is a serious breach.
4. What to do. Obtain the custody record, put written representations to the custody officer and, if necessary, the superintendent, request a healthcare professional assessment, ask for the appropriate adult to be called, and record everything. Advise Deniz, in writing if possible, of the caution and the risk of adverse inference under s.34 CJPOA 1994, and take his instructions before any interview.
2. The interview goes ahead at 07:15 without a solicitor or appropriate adult, and Deniz makes admissions. How do you challenge them at trial, and what is the realistic prospect of exclusion?
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Routes of challenge. There are two:
- s.76(2)(b) PACE 1984 - the admission was obtained in circumstances likely to render it unreliable. The absence of an appropriate adult for a vulnerable, unmedicated young adult who says he cannot follow what is being said is a classic unreliability argument.
- s.78(1) PACE 1984 - admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. The relevant breaches are the unlawful refusal of legal advice (s.58), Code C para 6.6 (failure to honour his wish to wait), Code C para 11.15 (no appropriate adult) and the failure to record any of it. The test is whether the breaches are significant and substantial (R v Keenan; R v Walsh), and these plainly are.
Realism. Exclusion is not automatic. The court will weigh the seriousness of a robbery, the importance of the admissions to the Crown's case, whether there is independent evidence (the phone, CCTV, identification) and whether the admissions bear hallmarks of reliability such as detail only the robber would know. The weaker the independent evidence, the stronger the s.78 argument.
Preparation. Serve a defence statement, obtain the custody record, the custody CCTV, the officers' notebooks and any healthcare notes; consider an expert on ADHD and suggestibility; and list a voire dire. If the admissions are excluded, consider a Galbraith submission. If they are admitted, cross-examine on the breaches to reduce weight.