Criminal Justice System Support.
What is the legal position supporting a on a vulnerable child or adult in criminal law?
Police and Criminal Evidence Act 1984 (PACE) – Code C
Revised Code of Practice for the detention, treatment and questioning of persons by Police Officers
ANNEX G FITNESS TO BE INTERVIEWED
1. This Annex contains general guidance to help police officers and healthcare professionals assess whether a detainee might be at risk in an interview.
2. A detainee may be at risk in an interview if it is considered that:
(a) conducting the interview could significantly harm the detainee’s physical or mental state;
(b) anything the detainee says in the interview about their involvement or suspected
involvement in the offence about which they are being interviewed might be considered unreliable in subsequent court proceedings because of their physical or mental state.
3. In assessing whether the detainee should be interviewed, the following must be considered:
(a) how the detainee’s physical or mental state might affect their ability to understand the nature and purpose of the interview, to comprehend what is being asked and to
appreciate the significance of any answers given and make rational decisions about
whether they want to say anything;
(b) the extent to which the detainee’s replies may be affected by their physical or mental condition rather than representing a rational and accurate explanation of their
involvement in the offence;
(c) how the nature of the interview, which could include particularly probing questions, might affect the detainee.
4. It is essential healthcare professionals who are consulted consider the functional ability of the detainee rather than simply relying on a medical diagnosis, e.g. it is possible for a person with severe mental illness to be fit for interview.
5. Healthcare professionals should advise on the need for an appropriate adult to be present, whether reassessment of the person’s fitness for interview may be necessary if the interview lasts beyond a specified time, and whether a further specialist opinion may be required.
6. When healthcare professionals identify risks they should be asked to quantify the risks. They should inform the custody officer:
• whether the person’s condition:
~ is likely to improve;
~ will require or be amenable to treatment; and
• indicate how long it may take for such improvement to take effect.
7. The role of the healthcare professional is to consider the risks and advise the custody officer of the outcome of that consideration. The healthcare professional’s determination and any advice or recommendations should be made in writing and form part of the custody record.
8. Once the healthcare professional has provided that information, it is a matter for the custody officer to decide whether or not to allow the interview to go ahead and if the interview is to proceed, to determine what safeguards are needed. Nothing prevents safeguards being provided in addition to those required under the Code. An example might be to have an appropriate healthcare professional present during the interview, in addition to an appropriate adult, in order constantly to monitor the person’s condition and how it is being affected by the interview.'
It is therefore vital that those with brain injury caused through Prenatal Alcohol Exposure 'Likely FASD' and a confirmed diagnosis FASD are not misunderstood and where assumptions are not made where they are provided with a health assessment through a neuropsychological assessment by a trained FASD Clinical Psychologist to consider their vulnerability, suggestibility and risk of coercion BEFORE they are cautioned and interviewed.
Individuals will need to be assessed to see if they are 'fit to understand a caution, or 'fit' to be interviewed'.
Police will need to consider findings under PACE guidelines.
By law, in England and Wales, a police officer or investigator must administer 'a caution' before any questions regarding an alleged offence are put to a suspect.
If the caution is not given, any answers provided cannot be used as evidence in court. If they are not fit or cannot understand a caution then Police cannot proceed.
If an individual is not fit for a police interview it means a custody officer (or similar rank) deems them medically or mentally unfit to be interviewed, either because it could harm the individual (physical/mental state) or their answers would be unreliable in court.
To support advocacy and communication with Police Officers and a Liason and Diversion Officer please consider getting an 'FASD Informed' Wallet Card where many carers and parents this can be a gamechanger to support difficult conversations at time of trauma.
1. Fetal Alcohol Spectrum Disorder (FASD) is a permanent brain injury to the brain. FASD is a neurodevelopmental disability which affects the way a person understands communication and interacts.
Logic cannot be expected from a person with FASD during a crisis. NEVER ASK WHY the person did or is doing something. The person may have no idea. A person with FASD is prone to both impulsivity and a lack of personal insight.
2. Recollections of the exact sequencing of an event is unlikely to be consistent or match the actual sequence of what happened. The sequence could be mixed up because individuals with FASD have brain damage where they have trouble with memory & where they might 'confabulate' pieces of information together.
Further, abstract concepts of time and money can also big stumbling blocks for those with FASD. The answers given to the same questions may be different even in the space of a minute.
3. When possible, communications should be conducted in a quiet and safe environment. For example surrounding a person with FASD with several law enforcement officers and rapidly asking questions would be overwhelming and not be PACE compliant.
One-on-one interpersonal interactions are preferable but the individual should be supported by an appropriate adult and a solicitor who understands FASD.
At no time should the individual be left alone.
The professional should act quietly and calmly, without any emotion.
Those with FASD are highly influenced by the emotional atmosphere around them. Any frustration or intense emotion on the law enforcement officer’s part will be absorbed and magnified back by the person with FASD.
Individuals with Fetal Alcohol Spectrum Disorder (FASD) have a neurodevelopmental spiky profile where they are on average half or less their chronological age; this will need specialist support.
4. Individuals with FASD may admit to something they have not done, omit relevant information or deny something because they do not truely understand the questions or what an Officer is saying.
They may say 'yes' to please or stop themselves from feeling confused or uncomfortable.
Those with FASD are highly suggestible; take advise from an FASD Informed clinical professional where it is likely that they will need a 'suggestibility assessment' and or a neuropsychological assessment from an FASD Informed Clinical Psychologist.
Please refer to PACE guidelines at all times & seek advise regarding mental capacity assessment through an FASD advocate.
5. Professionals should be sure to help a person with FASD orient to the situation. This should include clearly explaining what is happening at each step during the process. The use of clear, simple, and short sentences can be incredibly beneficial.
The professional should continue to reassure the person with FASD and let him or her know that he or she is safe. Professionals should help minimise the risk of catastrophising.
6. Always ask a person with FASD how to contact his or her 'safe person.' Be sure to give individuals the opportunity to communicate with their safe person.
Check system or NHS file for name of carer or parent or if carrying 'FASD Informed Card' with their 'safe persons' details.
7. People with FASD often struggle to understand another person’s intent. As such, law enforcement officers should slow down conversations and use straightforward language that can encourage comprehension.
What may appear to be blatant disobedience could be their disability, their brain damage; an example of the person’s inability to understand and follow directions.
Things that might help:
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When possible, call the person by name to get his or her attention.
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Speak in short slow sentences.
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Wait around 20 seconds for a response.
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If you need to repeat say the same sentence in the same way.
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A law enforcement officer may need to repeat something several times but you must wait at least 20 seconds for them to process the answer.
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If you need to repeat the question say it in exactly the same way otherwise the person with FASD will think you have asked another question and start processing 2 questions and so on, where they become stuck and unable to answer.
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Seek support of the Liaison & Diversion Officer
An individual with FASD is classified as vulnerable where Officers should follow the Police and Criminal Evidence Act 1984 (PACE) and its accompanying Codes of Practice, specifically Code C, to address the treatment of vulnerable individuals, including those with mental health conditions or learning disabilities, during police interactions. These guidelines ensure vulnerable individuals are treated fairly and receive necessary support during police investigations.
To support advocacy and communication with Police Officers and a Liason and Diversion Officer please consider getting an 'FASD Informed' Wallet Card where many carers and parents this can be a gamechanger to support difficult conversations at time of trauma.
For FASD Criminal Justice System research studies please consider reviewing the University of Salford website:
1. An international study on FASD and the Criminal Justice System
Individuals with FASD possess unique strengths; however, research shows that individuals with FASD are over 19 times more likely to encounter the CJS than individuals who do not have FASD.
2. FASD and Fitness to Plead Study
Studying the ability of individuals with FASD to plead within the courts in England and Wales.
Newly published document: Police & Mental Health; how to get it right locally
"As the National Policing lead for Mental Health and Disability, I really welcome this guide which offers practical advice to officers and staff when interacting with people with mental health problems, and provides examples of some of the innovative police practice from around the country. The findings and recommendations contained in the report section 'At risk', yet dismissed highlight where police practice could be improved to better support and encourage victims with mental health problems to report crime; this guide is an excellent resource that can be used to support forces and partner agencies in developing their policies and practices to achieve this".
Chief Constable Simon Cole, National Policing Lead for Mental Health and Disability
