Taking of statements

Taking of statements

When taking a statement or conducting an interview with a person suspected or known to be a mentally incapacitated person, there needs to be, as far as possible, at least one appropriate adult present.

An appropriate adult is a person who is an independent third party from the police whose purpose is there to support the mentally incapacitated person. In particular, they have the following roles:

1. Providing emotional support and assistance to the mentally incapacitated person;
2. Informing the police regarding welfare matters related to the mentally incapacitated person, as well as any medication or medical needs;
3. Helping the mentally incapacitated person understand their rights;
4. Acting as a witness to observe whether the interview or investigative procedure is being conducted fairly;
5. Facilitating communication between police and the person assisting/under police enquiry, including informing the police of any communication needs (although the appropriate adult should not be providing answers on behalf of the mentally incapacitated person).

In relation to (5), there is a question as to the extent to which the appropriate adult can facilitate communication without affecting their ability to support the mentally incapacitated person. This issue was raised in the case of R v Jefferson, Skerritt, Readman and Keogh (1993), for example, where the father occasionally ‘robustly’ joined in the questioning of his son while acting as his appropriate adult. The court in that case decided against excluding the confession evidence because the court felt the father’s actions had not impeded his ability to perform a protective role. 

An appropriate adult can include any of the following persons:

1. Relatives or guardians of the mentally incapacitated person, or some other person responsible for their care or custody;
2. Persons who are experienced in handling persons with special needs (including mentally incapacitated persons), such as social workers (but not including police officers or anyone employed by the Hong Kong Police Force - the key is that they must be independent of the police);
3. In case persons in either category 1 or 2 above cannot be arranged, any other responsible adult (such as a friend or neighbor of the mentally incapacitated person) (again, not including police officers or anyone employed by the Hong Kong Police Force). 

Police officers are responsible for explaining the purpose and procedures of the interview or investigative procedure to the mentally incapacitated person and their appropriate adult. When the former has finished giving their statement, the appropriate adult will be asked to read the statement, and if they are satisfied that it is an accurate record of the questions asked and the answers given, they will be asked to sign on it. The Police will then provide a copy of the statement to the mentally incapacitated person.

If locating an appropriate adult would cause a delay in interviewing the suspected mentally incapacitated person, and an officer at the rank of Superintendent of Police or above considers that such delay may pose an immediate risk of harm to persons or serious damage to property, an interview with the mentally incapacitated may be authorized in the absence of an appropriate adult. Once the immediate risk has been averted, however, any such interview should be discontinued.

The absence of an appropriate adult can have an effect on the reliability of the confession. In particular, there are three conditions that, if met, suggest that the jury should approach the evidence of the confession with special caution before convicting the mentally incapacitated person on it. The three conditions are:

1. The case against the person depends wholly/substantially on that confession;
2. The person is a mentally handicapped person; and
3. No independent person (in other words, an appropriate adult) was present when the person made it, that is, someone other than the police officer(s). (See further Specimen Direction C in Chapter 113 (Defendant’s Confession)).

As can be seen from (2) above, however, this only applies where the person is mentally handicapped, and therefore does not cover mental incapacity due to other conditions.

Where the mentally incapacitated person is a victim or witness in a criminal proceeding, the Police will, where necessary, take statements by way of video-recorded interviews and seek the assistance of clinical psychologists from the Hong Kong Police Force or the Social Welfare Department in order to reduce any potential stress and harm on them.