Interrogations-and-Confessions-Handbook

The English Law on Confessions 263
deal satisfactorily with this important area (Gudjonsson, Hayes & Rowlands,
2000). Indeed, in one study (Fenner, Gudjonsson & Clare, 2002), we found that
none of the police detainees fully understood the police caution when it was
read out in its entirety, as happens in practice, although, when asked, 90%
claimed to have understood it. In another study (Clare, Gudjonsson & Harari,
1998), some police officers were not able to articulate a proper understanding
of the police caution themselves. Similar problems with comprehension have
been identified with the Scottish caution (Cooke & Philip, 1998). These findings
emphasize the importance of suspects having proper legal advice whilst
being detained at the police station. In view of this, when appropriate adults
are in attendance, they should ensure that detainees also seek the services of
a solicitor. It is interesting that the complexity of the current police caution is
recognized in Section 58 of the Youth Justice and Criminal Evidence Act 1999,
where it is no longer permissible for the courts to draw adverse inferences from
silence in cases where the detainee did not have access to legal advice.
Medford, Gudjonsson and Pearse (2000) found, in their study of 26 835 custody
records at all Metropolitan Police Stations over a one month period in 1997,
that the majority of psychologically vulnerable adult detainees, as evidenced
from entries in the custody record, were not provided with the services of an appropriate
adult or a solicitor. Therefore, even when there were clear indications
in the custody record that the person was psychologically vulnerable (e.g. a documented
history of mental illness or learning disability), the police often failed
to act on this information by calling in an appropriate adult. The researchers
also found that there was no well organized national training for appropriate
adults, although in some areas there are voluntary appropriate adult training
schemes available.
There are other important problems with the use of appropriate adults, including
problems with initial identification. The great majority of vulnerable
detainees are not identified as such by the police and are therefore not provided
with their legal entitlement to the presence of an appropriate adult (Gudjonsson
et al., 1993). This situation has been improved by the Metropolitan Police
adopting our recommendation to the Royal Commission on Criminal Justice,
that detainees should routinely be asked searching questions relating to selfidentification
of vulnerabilities (Clare & Gudjonsson, 1992). This procedure was
introduced by the Metropolitan Police in 1998 and is referred to as Form 57M.
Future studies will be able to demonstrate the effectiveness Form 57M has on
improved identification of vulnerable detainees.
In cases where there has been a breach with regard to the failure of the police
to call in an appropriate adult, the courts may exclude the police interview from
the jury (e.g. R. v. Fogah [1989], Crim.L.R. 141; Maloney and Doherty [1988],
Crim.L.R. 523). However,
The absence of an appropriate adult from an interview, at which the defendant’s
solicitor is present, is unlikely by itself to be a reason to exclude the interview:
R. v. Law-Thompson [1997] Crim.L.R. 674, CA. There is no rule that a confession
obtained from a mentally handicapped person in the absence of a solicitor and an
‘appropriate adult’ should automatically lead to exclusion under Section 78: R. v.
Ali [1999] 2 Archbold News 2, CA (98 04160 X2) (Richardson, 2001, p. 1525).