Are we letting down 17 year olds under PACE?

Posted by NAYJ on Mar 10, 2011

Letting down 17 year olds under PACE? NAYJ comments on a new report on appropriate adults and offers a challenging perspective on 17 year olds in police detentionYouth justice appropriate adult services must provide for 17 year olds
There has been a long standing lobby for 17 year olds to be treated the same as other children and young people for the purposes of PACE – including with regard to the provision of appropriate adults. At present, under PACE Codes of Practice, appropriate adults (AA) are provided to two groups of detainees, juveniles (aged 10-16) and ‘vulnerable adults’ (aged 17 and above). Young people aged 17 are not treated as children when detained by the police.
The law requires local authorities to provide AAs to juveniles as a ‘youth justice service’, but there is no statutory provision giving any agency or body a duty to provide AAs for vulnerable adults. Thus, those aged 17 can be doubly disadvantaged in comparison to other young people. In practice, a minority of youth justice appropriate adult (AA) services provide for 17 year olds as well as juveniles (aged 10-16). Some areas do provide AA services to both juveniles and ‘vulnerable adults’ (aged 17 and over) but in many there are separate arrangements for each group.
The NAYJ now makes a strong case that, even under the current statutory framework, youth justice service appropriate adult schemes must provide for 17 year olds as well as juveniles. In essence, this means that although 17 year olds requiring an appropriate adult might be processed as ‘vulnerable adults’ under the ‘PACE’ Codes of Practice, the actual AA service that they receive should be commissioned and provided as a youth justice service, rather than an ‘adult’ service.

A background report from NAAN
A recently published report by the National Appropriate Adult Network (NAAN) indicates a number of concerns about appropriate adult (AA) services in England and Wales. The report can be downloaded at http://www.appropriateadult.org.uk/police-survey-2010
NAAN surveyed all police force areas using a questionnaire (not all forces responded), covering AA provisions for both juveniles (10-16) and vulnerable adults.
The results exposed a lack of accurate data regarding numbers of AA requests and the proportion that involve a ‘professional’ AA as opposed to a relative or other untrained person.
The report finds some significant areas of concern, including:
• lack of AA provision ‘out of hours’
• poor identification of mental disorder and mental vulnerability in police detention, particularly for adults
• lack of clarity regarding statutory responsibility for providing AA services for adults
• lack of independence from the police in areas where the police directly commission AA services
• apparent lack of compliance with PACE Codes of Practice regarding AA presence for identification procedures and charging procedures (the Codes of Practice could be clarified regarding the latter)
• Separate procedures/services/commissioning regarding the British Transport Police
The report makes a number of recommendations which include legislating to include 17 year olds within the ‘juvenile’ definition.
The NAYJ believes that, even without new legislation, AA services for 17 year olds should be reviewed and that a shift in perception is demanded as to the local authority’s duties.

The case for youth justice appropriate adult services to provide fully for vulnerable 17 year olds
Commentators have tended to refer to the AA anomaly as 17 year olds being ‘treated as adults’. The NAYJ presents the view that, contrary to common perception, current law indicates that those aged 17 can and should be treated as young people, and differently to adults, with regard to AA services. This interpretation of the current position could improve the lot of 17 year olds pending new legislation bringing them within the juvenile provisions (legislation which may or may not actually materialise).
The reason that 17 year olds should be provided with the same AA services as ‘juveniles’ emerges from the Crime and Disorder Act 1998. That act gives local authorities a duty to provide ‘youth justice services’. Section 38 defines, and lists, those ‘youth justice services’ and includes appropriate adults services as follows:
Section 38(4) In this section and sections 39 to 41 below “youth justice services” means any of the following, namely—
(a) the provision of persons to act as appropriate adults to safeguard the interests of children and young persons detained or questioned by police officers;
The important aspect of this is that the local authority is here being required to provide appropriate adults for all children and young persons. ‘Children and young persons’ are defined in s107 of the Children and Young Persons Act 1933 and the Children and Young Persons Act 1969 – section 70 stating that a child is under the age of 14 and that:
“young person” means a person who has attained the age of fourteen and is under the age of eighteen years;
and that
“youth offending team” means a team established under section 39 of the Crime and Disorder Act 1998.
On the other hand, the PACE Act and the Codes of Practice do indeed treat 17 year olds as adults (by not including them in the definition of ‘juvenile’). The Codes go so far as to provide different definitions of ‘appropriate adult’ – one for ‘juveniles’ (10-16 years) and one for ‘vulnerable adults’ (17 years and above).
Thus, there is some anomaly and tension to resolve. The duty on local authorities to provide appropriate adults to 17 year olds (as ‘young people’) is in primary statute, whereas the provisions of the PACE Codes of Practice fall short of that status. Bearing in mind other principles and provisions of the Children Act 1989, the Human Rights Act 1998 and the legal obligations arising from the United Nations Convention on the Rights of the Child, it becomes apparent that the duty on local authorities to provide appropriate adults to vulnerable 17 year old detained young people outweighs any provision in PACE or the Codes of Practice – particularly as the latter are in tension with, or even in breach of, children’s human rights (in this sense, the NAYJ considers it to be shameful that many YOTs and even more police forces have opposed the notion of treating 17 year olds as juveniles ).
By way of comparison, a similar situation arises with regard to the duty to provide a youth justice service to ‘children and young people’ with regard to bail and remand – but, in contrast, this has never given rise to any confusion in that such services are provided for 17 year olds by the local authority (coordinated by the YOT).
With regard to AA services to juveniles, there is some confusion about the duty to provide youth justice services. Some sources, including the NAAN report, mistakenly consider the youth offending team to carry the burden of the duty. In fact, the CDA 1998 gives the duty to provide youth justice services to the local authority - with a consequential duty on the youth offending team to ‘coordinate’ those services - as must be set out in the local authority’s ‘youth justice plan’. Whilst there is, therefore, a clear statutory duty on the local authority to provide appropriate adults for children and young people, there is no such duty upon any agency with regard to AA services to vulnerable adults. It is therefore critical to the best interests of 17 year old young people that the NAYJ position is adopted.
This interpretation of the statutory framework suggests that many of the AA service models for juveniles across England and Wales are complying neither with the law nor with children’s human rights.
The principle that should apply, even without further legislation, is that:
Local authority youth justice appropriate adult services must provide for all ‘vulnerable’ 17 year olds as well as for ‘juveniles’.
Finally, the NAYJ stresses that this principle would improve compliance with the rights of 17 year olds, but would still fall short of resolving the problem of being ‘treated as an adult’. There are many other aspects of the rights and special treatment afforded to juveniles in detention that remain denied to 17 year olds. And the custody officer must make a decision about ‘vulnerability’ before requesting an AA – it is not automatic in the way that applies to juveniles. The next chapter of a case for 17 year olds would therefore turn to Healthy Children, Safer Communities with its application of ‘vulnerability’ to all those under the age of 18 in contact with the youth justice system.