A help or a hinderance? Why Criminal Defence Lawyers’ Perceptions of the Appropriate Adult Safeguard Matter

Chloe Macdonald, PhD researcher, Cardiff University

Roxanna Dehaghani, Reader in Law, Cardiff University

Thomas Smith, Associate Professor in Law, University of the West of England

Keywords: Autism, Criminal Justice, Lawyer, Appropriate Adult

Autism, Criminal Defence and Appropriate Adults

Autistic individuals who encounter the criminal justice system as suspects often face significant barriers, despite the existence of various safeguards designed to protect their rights and facilitate their effective participation. Recent research exploring access to justice for autistic suspects and defendants through the perspectives of criminal defence lawyers identified the Appropriate Adult (AA) safeguard as a focal point of discussion and critique. The AA role – which must be carried out by a person independent of the police – is intended to protect the rights, entitlements, and welfare of vulnerable suspects during police detention (and associated procedures) and questioning. This blog outlines why defence lawyers’ perceptions of the AA matter.

Setting out the role of the Appropriate Adult

The AA role can be performed by a myriad of people. Parents or guardians may perform the role for young suspects, as well as a social worker, or any other person over 18 who is not a police officer. Similarly for vulnerable adults, a parent or guardian may perform the role, or a social worker or other person over the age of 18 not employed by the police. However, it is preferred that the person appointed for an adult is someone who possesses rather than lacks qualifications relating to vulnerable people. AAs therefore typically fall into two groups: family members and professionals. Professionals are often trained volunteers or paid staff, while family members, though familiar with the suspect’s needs, will lack the necessary training to effectively fulfil the role.

The AA’s primary function is to "support, advise and assist" vulnerable individuals during police procedures. This includes interviews, informing of rights, charging decisions, searches, and identification procedures. AAs also help suspects understand their rights and facilitate communication between suspects, police and legal advisors. Additionally, they can offer emotional support by being empathetic and developing rapport with the people they are supporting. In essence, the role of the AA is a vital safeguard to protect the rights, entitlements, and welfare of vulnerable persons within police custody. Previous research has examined various aspects of the AA’s role, as discussed below.

Addressing the Gap: AA literature and the Absence of Criminal Defence Lawyers

Existing literature has examined various aspects of the AA role, including whether it should be performed by social workers or volunteers and the efficacy of the safeguard. The role has been described as “ill-understood and variably exercised” reflecting concerns about its implementation. AA research has reconceptualized the role through a human rights framework to enhance effective participation for vulnerable suspects; and debated whether lawyers themselves should be permitted to act as AAs. Prior research highlights inconsistencies in AA interventions in interviews and variations in the availability of AA schemes. The AA can be crucial in ensuring access to legal representation, and AAs can request a legal advisor for a suspect—even if the suspect has initially declined one—if it is deemed in their best interest. This highlights the vital connection between AAs and lawyers in safeguarding the rights of vulnerable suspects. Yet, the interplay between lawyers and AAs has not been significantly in focus, and to date no research has examined how criminal defence lawyers conceptualize the AA role.

“It’s a double-edged sword”: Lawyers’ perspectives on the AA safeguard

Lawyers can play a pivotal role in either promoting or discouraging the use of an AA for vulnerable suspects. For example, if a lawyer is aware that the suspect requires an AA but has not yet provided one, they may be willing to advocate for its use to both the suspect and the police. Their perceptions of the AA safeguard, whether they see it as beneficial or ineffective, can influence both how the suspect feels about the AA and whether the police decide to secure one. When lawyers believe that the AA will support the suspect, they are more likely to advocate for its use and press the police to ensure it is in place. On the other hand, if a lawyer does not raise any concerns about the absence of an AA, it is unlikely that the police will take steps to secure one.

When an AA is present, moreover, a lawyer who holds negative perceptions of the AA safeguard may seek to limit the AA’s involvement, such as sidelining them in police interviews or excluding them from conversations about the suspect’s welfare (it is important to note that AAs may justifiably be excluded from lawyer-client consultations as they do not have legal privilege). A sidelined or excluded AA is undoubtedly more ineffective, and as such may undermine the intended purpose of the safeguard. Conversely, if the lawyer holds positive perceptions about the AA safeguard, they may seek to be more active in including the AA during processes. The lawyer may, for example draw on the AA’s expertise as someone who specialises in the suspect’s welfare and may include the AA as an active and important participant during the police interview.

Understanding how the lawyer perceives the AA role is therefore vital to understanding how the AA may be more or less effective in practice.

Conclusion

This blog has offered insight into what the AA is and why lawyers’ perceptions of the AA matter. We are currently writing up findings to be able to contribute to this important but underexplored topic within police custody literature, although we have thus far generally found that lawyers perceive family members as more useful than professional AAs. More research is required to understand the relationship and interactions between AAs and lawyers and the impact that this may have on Autistic and other vulnerable suspects. Further work is underway to understand lawyers’ perceptions of the AA safeguard, including Macdonald’s PhD on AA effectiveness, which will, inter alia, gather and analyse lawyers’ experiences and perceptions of the AA role.

Acknowledgements

We are grateful to the solicitors, barristers, and accredited police station representatives who have been generous in sharing their thoughts, experiences, and (ever-dwindling) time with us. We are also grateful to the British Academy/Leverhulme for funding this research and to several Neurodivergence in Criminal Justice Network members for their feedback on survey and interview questions. The research team is currently writing up the findings from this project and would welcome any enquiries into the research.