The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, D and H) Order 2017 came into effect on 27 February 2017. The Order brought into force three revised codes of practice under the Police and Criminal Evidence Act 1984 (“PACE”), which supersede the pre-existing Codes of Practice. The revisions to Code C and Code H implement amendments to PACE made by the Criminal Justice and Courts Act 2015 (“CJCA”), which defines a “juvenile” for the purpose of detention as a person who is under the age of 18, rather than under the age of 17. This now requires a 17 year-old to be treated as would be a 16 year-old rather than an adult of 18 years or over.

The catalyst for the amendment to PACE was the High Court ruling in R (HC) v (1) SSHD and (2) Comr of Police of the Metropolis [2013] EWHC 982, [2014] 1 WLR 1234, which required that PACE Codes of Practice C and H be amended to provide 17-year olds with an appropriate adult and for the police to be required to inform a parent or legal guardian of their detention, as was the case with 12-16 year-olds in police custody. 

The Government launched a consultation to examine the law in the light of the High Court ruling. The resulting recommendation was to amend all provisions within PACE and the Codes of Practice so as to treat 17 year-olds as 16 year olds rather than as adults. The Government made minor revision to Codes C and H in October 2013. However, there remained provisions in primary legislation which continued to require 17 year olds to be treated as adults. 

The opportunity to make wholesale amendment and to change the definition of “arrested juvenile” became possible in the CJCA. Section 42 of the CJCA, which came in to force on 26 October 2015, changed the definition of “arrested juvenile” in section 37(15) of PACE to include a person aged 17 (previously the definition covered 10-16 year-olds). 

The recent (27 February 2017) revisions to Code C and Code H implement that amendment to PACE. The revised codes incorporate the new definition contained in PACE section 37(15) which now reads: “arrested juvenile” means a person arrested with or without a warrant who appears to be under the age of 18” (see for example. Code C Paragraph 1.5).

In addition, the principle ‘juvenile’ related change is stated at paragraph 11.17A of Code C. Historically, a juvenile or person who was mentally disordered or otherwise mentally vulnerable could not be interviewed or asked to provide or sign a written statement under caution in the absence of the appropriate adult save where specific provisions applied. Once the appropriate adult arrived at the interview, there was no power to exclude them from the interview process. 

The new provision at paragraph 11.17A of Code C permits an appropriate adult to be removed from interview if they prevent proper questioning. This new provision was arguably necessary to ensure consistency with the provisions, which have been in Code H since 2006, and they are modelled on paragraph 6.9 of Code C concerning the removal of a solicitor from an interview if they prevent proper questioning. 

The provision incorporates a safeguard, namely that before an appropriate adult can be removed, both Codes C and H require a superintendent (or in default an inspector) to be called on to determine whether the appropriate adult should be excluded and to remind the adult about their role and advise them of the concerns about their behaviour. The advice, if accepted, would then enable the appropriate adult to remain. If the advice is not accepted the officer consulted will then decide if the interview should continue without the attendance of that appropriate adult. If they decide that it should, another appropriate adult must be obtained before the interview continues unless the provisions of paragraph 11.18 apply – namely the urgency of the interview for the reasons specified in paragraph 11.1(a)-(c). 

The changes to Code C are mirrored in Code H (see. Paragraph 11.10A), as applicable, for persons detained under terrorism provisions.