James, a 17-year-old foster child, had been arrested for theft and racially aggravated assault. His foster carers declined to attend the station but he had agreed to legal advice. The consultation had taken place before we arrived and went into interview. The police presented detailed CCTV footage, with colour and sound. James had taken a single can of beer from a local shop. At a later date the Asian shopkeeper recognized him and moved to call the police. James threatened violence and then claimed, “I’m a racist you know” before clarifying, “Well, not against black people”. To my eyes, James appeared at least equally frightened as he was frightening.
Having admitted the theft prior to the CCTV, the police asked James whether he was the one seen and heard in the video. “Where you can see my face, that’s me. But where you can only see the back of my head, or you can only hear me and not see me, that’s not me”, said James with faux confidence. The police looked bemused as he went on to admit walking through a door but not coming out the other side. I felt James had not fully comprehended the strategy of his legal advisor and that a trained AA could have contributed positively by facilitating communication and understanding during their consultation, just as they would during a police interview. The absence of AAs from legal consultations with children and mentally vulnerable adults is common. While there may be some genuine justifications, the ambiguity in law and guidance is undoubtedly the major factor. PACE Code C states, “A detainee should always be given an opportunity, when an appropriate adult is called to the police station, to consult privately with a solicitor in the appropriate adult’s absence if they want”. This implies that the AA ought to be there unless the client opts out. Yet the same paragraph warns, “An appropriate adult is not subject to legal privilege”. Without further explanation this signals risk and discourages close working.

It is this fundamental principle of legal privilege that lies at the heart of the issue. In A Local Authority v. B [2008] EWHC 1017 (Fam) , Hedley J concluded that, “It is not that conversations with an AA are legally privileged but only that the presence of an AA at a conversation which would otherwise attract legal advice privilege does not destroy that privilege”. However, Professor Ed Cape, argues that the case law only extends to enforced disclosure, with little to prevent voluntary disclosure. He advises solicitors to seek an undertaking from the AA that they will not divulge information but warns that this is legally unenforceable. Richard Atkinson, Chair of the Law Society’s Criminal Law Committee, is similarly concerned, saying, “Clients remain at risk unless all parties present have legal privilege. Appropriate adults could be called as a witness for the prosecution”. Extending privilege to AAs might provide a neat solution. Last year the Supreme Court ruled against extending legal privilege to accountants by a majority of five to two (R (on the application of Prudential plc and another) (Appellants) v. Special Commissioner of Income Tax and another [2013] UKSC 1). AAs seem unlikely to win a similar battle and would need Parliament to legislate explicitly. In a helpful email exchange, Professor Kathryn Hollingsworth, of Newcastle Law School, points out Hedley J’s judgment notes that, “What was said on that occasion cannot be revealed beyond the three people who were present at it”. She asserts that this excludes an AA, parent or otherwise, from voluntarily giving the information to the police, in addition to not being compelled to disclose. However, she agrees that the consequences, should an AA so disclose, are very unclear. Courts might uphold legal privilege as a key principle and exclude such evidence under PACE 1984 s.78. Article 6 of the HRA might provide a route for future legal development. Through obiter dicta, Hedley J stated that: “It is accepted that art.6 rights are engaged and, insofar as the consequence could be to deprive a juvenile or mentally vulnerable adult of the benefits of legal advice privilege, it would seem difficult to avoid the conclusion that those rights would have been infringed”. PACE Code C should be amended to clarify that AAs may attend legal consultations without destroying legal privilege. As the national body, NAAN can encourage formal AA schemes to require AAs to agree to non-disclosure as part of any contract or memorandum between them.
Further consideration must be given to mitigating the risk of disclosure by parents and carers. The Law Society has a critical role to play, not only in raising awareness amongst solicitors but in encouraging further debate around this important issue.

Chris Bath
Chief Executive, www.appropriateadult.org.uk
Issue: Vol.178 No. 27