Interpreting and Reframing the Appropriate Adult Safeguard

Abstract The appropriate adult (AA) safeguard is an important procedural safeguard that can be implemented to protect vulnerable suspects at the police investigative stage of the criminal process. The safeguard is available for young suspects (below the age of 18) and adult suspects who are defined as vulnerable, and can be performed by a vast array of individuals. It is intended to protect evidence, enable effective participation and avoid miscarriages of justice. However, the safeguard lacks an underpinning conceptual framework; it is, and can, be interpreted in multiple ways, thus undermining its efficacy. Drawing upon doctrinal and socio-legal analysis, this article examines how the safeguard is—and, crucially, can be—conceptualised. It is argued that, although it is used principally as an evidential safeguard, the appropriate adult could be reimagined through the United Nations Conventions on the Rights of Persons with Disabilities and the United Nations Conventions on the Rights of the Child, with a specific focus on allowing for effective participation of the vulnerable suspect.


Introduction
The Police and Criminal Evidence Act (PACE) 1984, implemented in 1986, provided a legislative framework through which to protect suspects' rights and entitlements, and to regulate police powers and procedures. This legislative framework introduced through Codes of Practice, namely Code C, 1 the requirement for vulnerable suspects (children and young people below the age *Senior Lecturer in Law, Cardiff School of Law and Politics. Email: Fatemi-dehaghanir@cardiff.ac.uk. I would like to thank Louise Austin, Chris Bath, Sara Drake, Anna Heenan, Phillip Johnson, Vicky Kemp, Huw Pritchard, Lucy Series, Caer Smyth and Elen Stokes for their comments on previous drafts. Thanks also to Pauline Roberts for her advice on discussion of the Equality Act 2010, Marianne Doherty for her comments on the revised version and the reviewers for their insightful comments. As ever, all errors and omissions remain my own. 1 Home Office, Code C Revised Code of Practice for the detention, treatment and questioning of persons by Police Officers (TSO 2019); Home Office, Code D Revised Code of Practice for the identification of persons by Police Officers (TSO 2017); Home Office, Code of Practice in connection with: The detention, treatment and questioning by Police Officers of persons in police detention under Section 41 of, and Schedule 8 to, the Terrorism Act 2000. The treatment and questioning by Police Officers of detained persons in respect of whom an authorisation to question after charge has been given under Section 22 of the Counter-Terrorism Act 2008 (TSO 2018); Home Office, Code E Revised Code of A clear purpose may also engender commitment to the regime through, and by, key stakeholders, such as the police, the courts, AA practitioners, managers and commissioners, legal representatives, healthcare professionals and suspects. Without grappling with the underpinning purpose of the safeguard, it is difficult-if not impossible-to argue in favour of compliance; such actors must understand why the safeguard is there, what it aims to achieve and/or whether its purpose has been fulfilled. Without a clearly defined purpose, the safeguard may be interpreted in multiple and potentially conflicting ways. As the police station is essentially becoming the site of the trial as fewer and fewer cases reach the courts, 10 it is imperative that procedural safeguards at the pretrial stage provide the necessary protection to suspects.
In section 2, this article will examine how the AA safeguard is conceptualised by examining and critiquing the evidential origins, current AA framework and existing case law. These, it will be argued, do not provide an unambiguous conceptualisation of the safeguard, but rather point towards the AA as an evidential safeguard, ie one that protects the integrity of the evidence. Further, the AA safeguard, as is examined herein, was not, and still is not, designed to meet the specific needs of vulnerable suspects. In section 3, drawing upon existing research, the article will consider how the safeguard for vulnerable suspects has thus far been constructed. Yet, it will be argued that the research does not fully examine the implications of the models put forth. Thereafter, in section 4, it will be argued that the safeguard could be reconceptualised through equality and human rights provisions in order to adequately protect vulnerable suspects. In doing so, the possibilities and limitations of equality and human rights approaches will be identified.

Evidential Origins and Contemporary Context
In this section, the evidential origins of the safeguard will be explored, in addition to the current legislative framework. The contention, as will be set out below, is that the safeguard is principally one of evidential protection.
A. Evidential Origins PACE and its accompanying Codes of Practice (which, as noted above, include the requirement for the AA safeguard) emerged from noted deficiencies in the Judges' Rules. The Rules were first introduced in 1912 and provided guidance to the police on the various procedures and practices to be followed when detaining and questioning suspects, 11 detailing what the police were permitted (or not) to do to ensure the admissibility of evidence at court. Failure to follow the rules could render the evidence inadmissible. However, problems with the Judges' Rules were evidenced after three vulnerable individuals-an 18-year-old adult who was deemed 'mentally subnormal' and two children (aged 14 and 15) one of whom had educational difficulties and the other of whom spoke English as a second language-were wrongfully convicted of various offences relating to the death of Maxwell Confait. 12 An inquiry 13 into the case and the Judges' Rules, which focused on the nature of police questioning of children and the 'educationally subnormal', found the Rules to be inadequate when protecting vulnerable suspects. 14 The Royal Commission of Criminal Procedure (RCCP)   15 was subsequently formed, leading to the introduction of PACE. 16 The resultant legislative framework-PACE and its accompanying Codes of Practice-was designed to achieve 'fairness, openness and workability'. 17 Importantly, PACE included enhanced safeguards for vulnerable suspects under the guise of the AA.
Yet, two problems emerge within this framework: PACE focuses its attention on safeguarding the evidence in a similar vein to the Judges' Rules (it is no coincidence that it is called the Police and Criminal Evidence Act) and, in doing so, does not adequately protect the suspect. Within this framework, the tasks of identifying vulnerability and implementing the safeguard are left with the police and the remedy for breach involves exclusion of evidence at trial, which in itself requires that a trial will take place. Further, a 'one safeguard fits all' approach was taken in response to multiple vulnerabilities. These contentions will be explored in more detail through examination of the contemporary context below.

B. PACE and Code C
The first problem is that the PACE framework does not contain any information on vulnerability or the AA safeguard. 18 Instead, the provisions are contained within the Codes of Practice, which, as soft law, can present obstacles 12 18 The closest that PACE comes to providing a definition of vulnerability is the mention of the term 'mentally handicapped' in s 77. This provision-a jury direction (therefore only available in a Crown Court trial)requires that the jury is advised that a 'mentally handicapped' person has confessed in the absence of an 'independent person'. The independent person can be an AA, but could equally be an accredited or probationary representative, a probation worker or a healthcare professional.

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Oxford Journal of Legal Studies VOL. 42 to compliance and enforceability. 19 As the AA safeguard is contained within the Codes rather than in PACE itself, failure to implement the AA safeguard-or a safeguard that is 'appropriate' 20 -cannot result in civil or criminal sanction. 21 Rather, the only remedy offered by the PACE framework is exclusion of evidence at trial, through sections 76 and 78. 22 The first rule relates to confession evidence alone: to be excluded, the confession must have been obtained through oppression or otherwise rendered unreliable through things said or done, 23 which can include breaches of the Codes of Practice where such breaches render the confession unreliable. The second rule allows any evidence to be deemed inadmissible should it adversely impact upon the fairness of the proceedings, although such determinations are made at the judge's discretion. 24 Within this framework, therefore, the question rests not simply with breach of the Codes, but with whether this breach has amounted to unreliability or unfairness; the concern is not for the suspect, but for the integrity of the evidence. The manner in which vulnerability has been defined also lends support to an evidential contention. Prior to 2018, Code C made no mention of the importance of the AA to securing the suspects' rights and entitlements. Rather, the definition of vulnerability in respect of adult suspects was on the ability to 'understand the significance of what is said, of questions or of their replies'. 25 Further, the rationale for protecting vulnerable suspects was focused on their ability to provide reliable evidence-those who were vulnerable were thought to 'without knowing or wishing to do so, be particularly prone in certain circumstances to provide information that may be unreliable, misleading or selfincriminating'. 26 The focus was on the provision of reliable and accurate information, and there was little to no recognition of the broader process such as, inter alia, the understanding of, and ability to enforce, rights and entitlements. In July 2018, the definition of vulnerability was expanded in respect of adult suspects (as above). The 'functional test' introduced does not apply to children, who are recognised as vulnerable on the basis of age alone, but is now 19 22 Alternatively, in a trial on indictment (ie at the Crown Court), a direction may be given to the jury that the confession was given by a 'mentally handicapped' person in the absence of an 'independent person'. However, this requires that (i) the person is deemed 'mentally handicapped' (a more restrictive definition than 'vulnerable person' under Code C) and (ii) no independent person was present (for the purposes of s 77, a solicitor or legal representative can also be an independent person). 23  imperative in the assessment of vulnerability in adults. 27 Whilst the test includes a greater range of 'vulnerabilities'-to include an explicit recognition of rights and entitlements and an acknowledgment of suggestibility and compliance-than the previous Code, which focused on reliability of evidence alone, the determination still rests with the custody officer, who is nevertheless a police officer. 28 As noted in the Introduction, Code C also provides detail on the role and purpose of the AA. The AA should: provide support, advice and assistance in relation to various procedures; ensure that the police are acting fairly and advise an officer of at least Inspector rank if they are not; facilitate communication whilst respecting the right to silence; and ensure that the suspect's 'rights are protected and respected'. 29 It was not until the changes in 2018 that the AA's role involved any appreciation of the suspect's rights, 30 and it was also not until these changes that the right to silence was explicitly acknowledged in Code C. 31 Nevertheless, there remain significant obstacles that undermine the AA's ability to protect the suspect, as will be explored below.
The AA is required to facilitate communication, yet although the AA does not destroy privilege, they are not subject to it either, 32 and could therefore be compelled to give evidence against the suspect at trial. The absence of legal privilege may undermine the safeguard by discouraging open lines of communication between the suspect and the legal representative where the AA is present or, where not present, by preventing the AA from gaining knowledge and awareness of the discussions between the suspect and their legal representative, which, of course, may include an explanation of the advice offered by the legal representative. This may seriously hinder the AA's involvement in a police interview setting. Further, AAs are not always present for each and every procedure, particularly for adult suspects, and the interview tends to be the principal focus. 33 At interview, the AA is also discouraged from taking an active role in that he or she cannot be unreasonably obstructive during interview, 27 But see Dehaghani and Bath (n 4 otherwise the AA can be asked to leave. 34 This may also sit in tension with the suspect's right to silence: the AA could be construed as 'obstructive' if reminding the suspect of his or her right to silence or-as a recent case demonstrated 35 -the right to legal advice. The problem here is that the Code does not elaborate on what constitutes an unreasonable obstruction, and although this could be beneficial from a police perspective (as they will have met their Code C obligations by calling out an AA, 36 even if that AA is nothing more than 'wallpaper' 37 ), by failing to provide clarity regarding when the AA is and is not permitted to intervene, it may not ensure that the suspect is adequately protected. The AA's presence can thus protect the integrity of the evidence, but may be ineffectual when assisting the suspect. It could be argued that such issues are resolved at court, yet this relies upon the case reaching court and the court then determining that the evidence is inadmissible.

C. Case Law, the Courts and the AA
The manner in which the AA safeguard is implemented and indeed understood is also partly influenced by the case law. As noted above, under the PACE framework, the courts are responsible for deciding whether evidence should be admitted; it is through the rules of admissibility that compliance with the AA safeguard is achieved. 38 In the limited case law available, the courts have explored the definition of vulnerability and the purpose of the AA safeguard. In Weekes, for example, young suspects were said to require an AA because they may 'sometimes say things they do not mean'. 39 The AA is someone who is 'more experienced' and should be present to assist the young person. 40 In Weekes, the appellant had 'entered into the realm where fairness demanded that [he] was supported by somebody older who could assist him in answering the questions or advising him if he could not'. 41 For the young suspect, then, the AA is someone older, who can answer questions the suspect may have or provide advice. 42 In the 2013 case of R (on the application of 34 Dehaghani, 'Defining the "Appropriate"' (n 20). See Home Office, Code C 2018 (n 1) para 11.17A. 35 The author was alerted to this case through contact with the National Appropriate Adult Network. The author was asked to provide advice (from an academic perspective) on how the provisions could be interpreted. In this case, the AA was deemed by the police to be obstructive because he or she reminded the suspect of his or her right to legal advice during the police interview. 36  HC), 43 where the courts considered the extension of the AA provision to 17year-olds, the High Court stated that the AA was there to assist the young person 'in the face of an intimidating criminal justice system'. 44 Reiterating the Codes, the Court of Appeal viewed the AA as something that could minimise the risk that unreliable information would be provided by the accused 'by seeing that the interview is properly and fairly conducted and by facilitating communication between the police and the suspect'. 45 In practice, the AA may only be called for interview; 46 however, the Court of Appeal deemed the AA's presence as not simply limited to interview. 47 In essence, the court, when deciding upon the admissibility of the evidence, is not simply considering whether the AA should have been present or whether the AA was suitable (as this is not sufficient for the exclusion of evidence); rather, they are assessing whether the AA's absence or unsuitability renders the evidence inadmissible based on the PACE admissibility rules. Thus, their interpretation of admissibility relies on unreliability of confession evidence (section 76) or unfairness of admitting evidence (section 78) and not on whether the suspect should have had an AA or one that was suitable in the circumstances. If the evidence is excluded, the admissibility rules may offer the suspect some level of protection against, for example, wrongful conviction, yet the approach that the courts take is more akin to that of an evidential protection.
Whilst the limitations within the remedial framework were created by the legislature, the judiciary are not prevented from using their discretion (or, rather, interpretative judgment) 48 when ruling upon admissibility. The courts could, for example, interpret as unreliable any confession obtained in breach of the Code C requirements under section 76 PACE or interpret as adversely impacting upon the fairness of the proceedings any evidence obtained in breach of the Code C requirements under section 78. Instead, the courts have often read these provisions rather restrictively; even where suspects have been unfairly or harshly treated by the police, the courts have still seen fit to admit the evidence. This can be seen in the case of Nazish, 49 where the court dismissed as 'fanciful' the defendant's claim of police oppression and the resultant impact on the reliability of his confession, despite the support of expert evidence. 50 Similarly, in Beeres, 51 the court failed to set aside the confession of the defendant, who was 'quite drunk' upon her arrest and, contrary to PACE, permitted less than eight hours' sleep during detention. non-implementation of the AA safeguard, the courts have taken a similar, although not always consistent, approach and have interpreted reliability narrowly. 52 The courts have also used section 77-a jury direction which can be given where a 'mentally handicapped' suspect has confessed in the absence of an 'independent person' (taken to include a legal representative in addition to an AA)-to justify not excluding evidence under sections 76 and 78. This is despite section 77 being more restrictive in scope (requiring that the individual concerned is 'mentally handicapped' rather than 'merely' vulnerable) and requiring a lesser remedy than sections 76 and 78 (jury direction rather than exclusion of evidence). In the case of Lewis, 53 for example, the court deemed section 78 to be of little relevance and, whilst accepting that the AA was absent, were not convinced that this called into question the reliability of the confession (under section 76). The court was not satisfied that the conviction rested wholly or substantially on the confession and further held that a solicitor could act as an independent person for the purposes of section 77 PACE. 54 However, the courts have gone further than merely condoning breaches; they have also empathised with the police, such as in Glaves, where Owen J stated that it was 'not always easy' for police officers 'to have every item of the Code in mind' and that it was 'of no consolation to the public at large that the police may be criticised'. 55 Such could be viewed as reminiscent of the lack of criticism of the police during the Fisher Inquiry, 56 and could lend further weight to the evidential safeguard contention. The AA's function is not, however, simply limited by the Code or by the courts: it is also limited by the practical realities of who implements the safeguard and why, and who performs the role and for whom. In such instances, power dynamics may be at play.

D. Practical Realities and Power Dynamics
As noted in the Introduction, the responsibility for implementing the safeguard is left with the custody officer or the investigative officer. Previous research has documented the issues with implementation, particularly for adult suspects: the police may exclude large swathes of the adult suspect population from the protection of the safeguard by adopting a narrow definition of vulnerability, 57 may fail to identify whether a suspect is vulnerable 58 and may 52 Dehaghani, Vulnerability in Police Custody (n 9). 53 [1996] Crim LR 260. 54 The courts were correct to hold that a solicitor could act as an 'independent person' for the purposes of s 77 PACE but could be seen to have erred when interpreting the provisions under s 76 or 78. 55  decide not to call an AA because they do not think that the AA's absence will be called into question at a later date. 59 When deciding whether to call an AA, the officers principally consider whether the integrity of the evidence may be called into question. Yet, even where an AA is called, there may be problems with the safeguard itself, including: the quality of AAs 60 or particular 'types' of AAs (such as volunteers, family members and friends, social workers or members of Youth Offending Teams (YOTs)); inconsistencies in service delivery; 61 the functions of AAs; 62 and the interpretation of the role and position of the AA. 63 Further, the AA may be limited by power dynamics: similar to the solicitor, the AA, most notably for his or her safety, is dependent upon, and must therefore maintain a good working relationship with, the police. 64 Thus, supposing that the AA knows when intervention may be required, the reality of having to navigate the power dynamics inherent within such relationships will invariably impact on the AA's ability or willingness to intervene when the police are acting unfairly. Yet, the AA safeguard faces a more fundamental problem: it seeks to address multiple, and often conflicting, needs which exist across an array of different frameworks.

E. Divergent Needs and Disparities
Whilst the AA safeguard appears only in the PACE Codes of Practice for adult suspects-and often only in the Notes for Guidance, which assume an even lower position 'in terms of their authority' 65 than the main body of the Code-provisions for young suspects can be found in legislation. The Crime and Disorder Act (CDA) 1998 requires YOTs 66 to attend as AAs for young suspects where, for example, an AA known to the suspect, such as a family member, cannot otherwise be secured. This provision thus places the AA safeguard on a statutory footing for young suspects, creating disparities in how and whether the safeguard is implemented for young as compared with adult suspects, with the latter often at the mercy of the police officer's decision making. 67 Further, the safeguard, in seeking to address the vulnerabilities of both young and adult suspects, may further undermine the applicability of the safeguard for the latter. In previous research, custody officers were seen to apply the safeguard to children, but often limited it to adults who were 'childlike', 68 with such categorisations often replicated in case law. 69 This not only creates problems with implementation-where adults do not sufficiently 'perform' childlike characteristics, they may not be provided with an AA-but also runs the risk of infantilising adult suspects.
Further, there are differences within the adult suspect population: a suspect may be vulnerable because of a mental health condition, mental disorder, additional education need, neurodiverse condition, learning disability or difficulty, acquired brain injury or circumstance, or a combination thereof. The AA safeguard is not necessarily designed to address the needs of the suspect; indeed, it is intended to meet a vast array of different, and often divergent, needs. Taking the facilitation of communication as an example, given that the AA is not a specialist in autism spectrum condition (ASC) and, more importantly, how to meet the needs of someone with ASC (such as not being able to follow tagged or complex questioning), he or she may be limited when providing the facilitative link between the suspect and the police-or, indeed, anyone else. Even where the AA has been informed of specific needs, he or she may not have the expertise sufficient to address these needs. This issue may be ameliorated where the AA is known to the suspect and is aware of both the suspect's needs and how to respond to them. However, in such cases, the AA will not necessarily have the legal and procedural knowledge required to protect the suspect. An AA from an organised scheme may be required to attend for adult suspects within these broad categories and to meet their undoubtedly complex and varied needs. Whilst specialism may be desired, it may be difficult to envisage a role where all eventualities and capabilities are covered. It is, however, both possible and preferable to aim to provide a safeguard that, at the very least, recognises the differences between children and adults. Before examining the potential of human rights and equalities frameworks to underpin the AA safeguard, it is worth acknowledging and exploring some alternative constructions of the AA safeguard and the limitations inherent within these constructions. 66 These are multi-agency teams which are coordinated by a local authority to reduce reoffending amongst children and young people. 67 Dehaghani, Vulnerability in Police Custody (n 9). 68 ibid. 69 ibid.

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Social Constructions of the Safeguard
Pierpoint has examined how the AA's role is interpreted by volunteer AAs and argued that the safeguard should be centred around welfare. 70 Her work identified four threads to the AA's role-crime control, due process, welfare and crime reduction. With the first two-crime control and due process-she relied upon Packer's often discussed and debated value-types. 71 For Pierpoint, crime control 'prioritizes the conviction of the guilty, even at the risk of the conviction of some innocent people and with the cost of infringing civil liberties to achieve its goal'. 72 For the AA's role, crime control can be evidenced by the way in which the AA acts (for example, berating the suspect or being pro-police) or by the way in which the police approach the safeguard (for example, failing to advise the AA of his or her role). Due process 'prioritizes the acquittal of the innocent, even at the risk of the frequent acquittal of the guilty. It is most concerned with protecting civil liberties and upholding values of reliability, equality and moral standards.' 73 According to Pierpoint's data, volunteer AAs espoused due process values such as 'preventing unfair questioning, checking comprehension of questions and processes (such as the caution), and comforting the suspect'. 74 Pierpoint further argues that the AA adhering to police procedures and reading the custody record is evidence of due process. 75 She acknowledges, however, that much of this role lends itself more readily to 'welfare', which is taken to mean a response to the suspects's emotional and physical needs. 76 Volunteer AAs acted in a manner consistent with a welfare approach: they ensured that the suspect had food, water and adequate rest, and/or diverted the suspect 'away from the harmful effects of custody'. 77   motivations of potential or actual offenders to deter them from future offending'. 78 Such an approach, as Pierpoint highlights, is explicitly recognised in section 37 of the CDA 1998, which requires that 'all those involved in the youth justice system, [AAs included], prevent offending by young people '. 79 In her study, volunteers would attempt to investigate and explore the suspect's (alleged) offending. 80 The problem with this, however, is that to address offending, an AA must presume guilt, thus taking him or her beyond the remit of the role and potentially placing the suspect in a difficult position if such presumptions lead the AA to encourage the suspect to confess. 81 Whilst Pierpoint's work is important when attempting to understand how volunteers interpreted their roles in respect of young suspects, she does not fully explore or critique the implications of each of the models she sets forth. Taking crime control, it is worth highlighting the disparities between how the safeguard operates for adults and children: whilst for both young and adult suspects the police are responsible for implementation, for young suspects the safeguard exists on a statutory basis, thus engendering greater compliance. 82 Within crime control, efficiency, standardisation and routinisation are prioritised above suspects' rights; the police are responsible for quality control; and safeguards are present to promote trust and confidence in the system without impeding the process. 83 For the AA safeguard for adults, implementation is left to the police and is routine and minimal; 84 remedial action must be sought through the courts (and few cases reach this stage); 85 and the courts tend to be largely forgiving of police malpractice. 86 This further highlights one of the two problems addressed in section 2E above-the imbalance for adults and children, and police responsibility for the implementation of the safeguard. Further, while the AA does have important welfare functions, this is arguably not the central purpose of the role; indeed, the welfare approach is complementary to the AA role, but is, in and of itself, insufficient when seeking to protect the rights and entitlements of the suspect or to (fully) safeguard the evidence. 87 Pierpoint also does not go far enough in exploring the due process elements of the role: within this model, limits are placed on state power, the 78 ibid. 79 ibid. 80 ibid. 81 ibid. Where the suspect has offended, the crime prevention function of the safeguard may prove useful in providing the suspect with assistance in addressing such offending, provided this is not done in a 'responsibilising' manner-see Dehaghani, '"Vulnerable by Law but Not by Nature"' (n 42) for a discussion of responsibilisation in the context of the AA safeguard and young suspects. For a discussion on responsibilisation more generally, see David Garland, The Culture of Control: Crime and Social Order in Contemporary Society (University of Chicago Press 2001). 82 Dehaghani, Vulnerability in Police Custody (n 9). 83 Pierpoint thus includes managerialism within her discussion. 84 Dehaghani, Vulnerability in Police Custody (n 9). 85 Jackson (n 10). 86 But see Pierpoint, 'Reconstructing' (n 70) 221. 87 The welfare aspect of the role may also be limited because AAs are not always present for the entire custody process.
individual is placed at the forefront of the process, scrutiny and challenge are welcomed, and those who breach the rules are penalised by an acquittal of the accused, even where the evidence is otherwise reliable. Further, findings of legal guilt are only permitted where the rules have been followed and opportunities for appeal are open so long as there is any finding of impropriety, however small. As in Pierpoint's research, the AA may facilitate due process; 88 however, the AA safeguard is not framed in a manner consistent with a purely due process model. Further, Pierpoint's research does not explore how the AA is conceptualised in law (as explored above) and how the AA's role could be reframed (to which this article now turns). In section 4, it is proposed that the safeguard could be reframed through human rights and equalities frameworks.

Reframing the AA Safeguard: Resolving the Problems through Human Rights Frameworks
As argued above, the AA safeguard can be subject to multiple-and often conflicting-conceptualisations, but is principally constructed and operationalised as an evidential safeguard. Further, the safeguard tries to achieve too much, and in doing so fails to address the needs of the suspect and enable effective participation. Such problems could, at least in part, be resolved through human rights frameworks, and in this section the arguments for-and limitations of-such an approach will be set forth. Before doing so, it is worth acknowledging the developments in respect of vulnerability at an EU level under the 'justice' pillar. Within such developments, there is an imbalance between how adult suspects are protected as compared with young suspects: whilst a Directive 89 -which sets out the goals that EU countries should achieve (but does not dictate how countries must achieve these goals)-has required procedural safeguards for young suspects, a Recommendation 90which is non-binding-has been used to address the vulnerability of adults. Indeed, there has been no consensus at an EU level regarding the definition of vulnerability in respect of adults, and for this reason the roadmap will not be examined in further detail. 91 88

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Oxford Journal of Legal Studies VOL. 42 A. Article 6 ECHR The requirement of effective participation is guaranteed through article 6 of the European Convention on Human Rights (ECHR), which recognisesthrough the broader right to a fair trial (a right that extends to pre-trial procedures 92 )-the principle of equality of arms. Article 6 requires that each party is 'given a reasonable opportunity to present his case under conditions that do not place him at a disadvantage vis-à-vis his opponent'. 93 The European Court of Human Rights (ECtHR) has previously recognised the 'particularly vulnerable position' 94 of the criminal suspect/defendant, also recognising a number of factors-chronic alcoholism, acute alcohol intoxication, a physical disability or medical condition, social disadvantage and/or mental disorder 95that could render a suspect vulnerable. Yet, the ECtHR did not propose how to address the vulnerability of the suspect, other than suggesting that a lawyer should be present. Whilst it should be acknowledged that all suspects may be 'vulnerable', 96 there are unique circumstances in which this vulnerability may be enhanced and there should be additional protection offered to the suspect beyond that which is offered to all suspects. 97 The right to a fair trial may thus inform the AA safeguard, but, given the lack of specific focus within article 6 on issues pertaining to vulnerability, the Convention alone is insufficient as an underpinning framework for the AA safeguard.
B. The Equality Act 2010 outlined above. Crucially, the approach towards 'disability' would have to be broader in application to successfully underpin the AA safeguard. 107 Thus far in this section, consideration has been given only to vulnerable adult suspects. Yet, it must also be acknowledged that young suspects also require the protection of an AA. 108 As argued in section 2, it would be idealand, indeed, sensible-to consider separate frameworks for children and adults. At present, one safeguard seeks to meet the often divergent needs of adult and young suspects, but across two different 'systems'-the adult criminal justice system and the youth justice system-with differing aims and objectives. 109 The existence of a statutory safeguard for young suspects but not adults reflects the disjointed nature of the AA safeguard across these two systems. 110 This also creates conflict and tension within, and obstacles to the facilitative nature of, the AA's role.
A separate safeguard for young suspects could thus be conceptualised through the United Nations Convention on the Rights of the Child (CRC). The CRC urges that the best interests of the child-anyone below the age of 18 111 -be prioritised in any decisions and actions that affect children. 112 Further, whilst the CRC, like the CRPD and Equality Act, does not comment on the adjustments to be made or the form they should take, it does require that any child who is accused of breaking the law is treated with dignity and respect, including having access to legal and any other appropriate assistance as well as to a fair trial, in a manner that accounts for their age. It can thus be argued that, in respect of young suspects, modifications are required to the criminal process, such as access to a specific safeguard. The CRC seeks 'to protect and nurture childhood' rather than 'encourage equality for children with adults', 113 thus