Can A Solicitor Fill The Gap? Case commentary on R v Metcalf [2026] EWCA Crim 412

Case Commentary: R v Metcalf [2026] EWCA Crim 412

Factual and Procedural History 

In this case the appellant, Lee Metcalf (the Appellant), was appealing his conviction on 31st March 2023 at Central Criminal Court for false imprisonment and rape. The conviction was for offences committed between the late evening of 30th November 2020 and the early morning of 1st December 2020. The Appellant was alleged to have taken the victim (aged 16 at the time), who he’d met via a mutual friend, to his hotel room. After having a drink and watching Netflix, the victim stated that she wanted to go home as she wanted to respect the 10:30pm curfew set by her parents. At this point the Appellant sexually assaulted her, threatened her with physical violence, and prevented her from leaving by taking the room keys and throwing her shoes out of the door. The victim was only later able to escape when a hotel employee came to the room to fix a sink broken by the Appellant, that was causing the bathroom to flood. 

Leave to appeal was granted because new expert advice became available from a consultant forensic psychiatrist (Dr Kumar), whose report diagnosed the Appellant with paranoid schizophrenia. The report stated that the Appellant had been suffering from this condition since at least 2019 but possibly even as early as 2016. This new evidence posed the following legal issues: 

1. Whether Doctor Kumar’s report should be admitted as fresh evidence under s.23 Criminal Appeal Act 1968;
2. Whether the Appellant was fit to be interviewed by police on 2 December 2020;
3. If the Appellant was fit to be interviewed, whether the absence of an appropriate adult (AA) at their interview meant it should have been excluded at trial;
4. Whether the Appellant should have had an intermediary at trial and whether the diagnosis should have been disclosed to the jury;
5. Whether, due to any of these issues the Appellant’s conviction was unsafe. 

If the appellant was fit to be interviewed, whether an AA should have been present, so that the interview should have been excluded at trial – issue three 

Whilst all of the issues that Lord Justice Dingemans considered in his judgement are worthy of discussion, this insight will focus in particular on issue number three. It suffices here to mention simply, that the Court of Appeal decided that Doctor Kumar’s evidence should be admitted as fresh evidence and the Appellant was fit to be interviewed. However, the Court determined that the Appellant was a vulnerable person per paragraph 1.13(d), Code C of the Police and Criminal Evidence Act 1984 (PACE) which provides that “vulnerable applies to any person who, because of a mental health condition or mental disorder (see Notes 1G and 1GB): (i) may have difficulty understanding or communicating effectively about the full implications for them of any procedures and processes connected with: their arrest and detention;… and the exercise of their rights and entitlements. (ii) does not appear to understand the significance of what they are told, of questions they are asked or of their replies: (iii) appears to be particularly prone to: becoming confused and unclear about their position; providing unreliable, misleading or incriminating information without knowing or wishing to do so; accepting or acting on suggestions from others without consciously knowing or wishing to do so; or readily agreeing to suggestions or proposals without any protest or question”. Paragraph 11.16 of Cade C of PACE further provides that a vulnerable person must not be interviewed by the police without an AA present unless in exceptional circumstances (none of which applied in this case). The Court concluded, on the basis of Dr Kumar’s evidence, that the Appellant was a vulnerable person because he was suffering from paranoid schizophrenia at the time of the interview and should, therefore, have had an AA present during his interview. 

However, the prosecution submitted that the Court could rely on the authority of R v Martin Lewis [1996] Crim LR 260 to conclude that the presence and active role of the Appellant’s solicitor in interview meant that the absence of an AA did not necessitate the exclusion of the interview at trial. In R v Martin Lewis the Court decided on a near identical situation stating that “the functions of such AA and a solicitor are very largely the same, namely to see that the accused fully understands hiss rights, full understands that he does not have to say anything unless he wishes to do so, to see that the interview is conducted correctly and that the police do not abuse their position, and that the accused is able to make himself clearly understood and clearly understands what is being put to him”. Given this overlap in function, the Court concluded that the presence of a solicitor was enough to render the interview as admissible.  

The Court of Appeal agreed with this view in R v Metcalf. They considered the role of Metcalf’s solicitor, Mr Flaxen, very carefully. In particular, they noted that Mr Flaxen was on good terms with the Appellant, gave him clear and expert legal advice before interview, and “intervened at all the right times to ensure that the appellant answered questions and communicated his case effectively”. Although the appellant tended to be overly familiar with interviewing officers and talk about irrelevant issues, Mr Flaxen “intervened appropriately throughout the interview, so that the appellant returned to the questions, and was able to ensure that the appellant’s case about what had occurred with the victim was fully and properly recorded”.  

The court also concluded that the appellant did not need an intermediary at trial and that his diagnosis was not relevant to any issues put before the jury. In light of their conclusions the Court of Appeal ultimately found the conviction to be safe and dismissed the appeal. 

Discussion 

This judgement makes clear that a solicitor acting competently can fulfil the protective function of an AA. This means that the prospect of an interview conducted without an AA being excluded by a Judge under section 78 PACE is greatly reduced where a solicitor is present. This places a greater responsibility on solicitors in interview with clients that they suspect are vulnerable and need the additional support afforded by an AA.  

Firstly, solicitors should make every effort to persuade officers to arrange for an AA where they have concerns. Solicitors should be especially alive to the possibility that their client may well be vulnerable even if the manifestation of their client’s psychiatric condition is not clear and obvious. In Metcalf, the Appellant was prone to derailment, speaking tangentially, confusion, and over-familiarity. Whilst these are not glaring signs of paranoid schizophrenia, the solicitor should be alerted when these and other subtle signs begin to present themselves and at least ask police the question as to whether their client would benefit from an AA being present. Solicitors would do well to begin screening their clients for vulnerability at the earliest stage possible, whether that be considering existing records in the case of an own client, when speaking to custody staff, or the client themselves when conducting an advice call, or if the possibility of speaking to a member of the client’s member of family arises. This process should be ongoing, and the solicitor should not hesitate to halt the process to facilitate the provision of an AA should that be necessary. 

Secondly, solicitors must remember that their role does not consist only of advising on procedure, law, and approach to interview but extends also to safeguarding their client’s welfare and ensuring the fairness of the interview. Suspects should also remember that being vulnerable and in need of an AA does not necessarily mean that they are not fit to be interviewed. Remember that when assessing fitness police must ask themselves how a suspect’s physical and 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. If they are satisfied that a suspect meets these criteria then anything said in interview is likely to be admissible in court. However, this does not change the fact that the most secure path to affording a vulnerable client protection during the interview process and guaranteeing the admissibility of any account given in interview is to have an AA present. 

Thirdly, where a solicitor suspects that an AA should be present, but the police refuse, the solicitor should insist that the interview not proceed. If needs be they should take their concerns all the way to the custody inspector and they should keep very good records of police reasoning for refusing an AA. The solicitor should not listen to any reasons that involve increased delays as a reason for refusal, and may suggest that if the bail clock is about to run out then their client can be bailed for interview at a future date and time when an AA can be organised in advance. This is unless an officer of superintendent rank or above decides that delaying an interview would lead to the consequences specified in PACE Code C 11.1(a)-(c) namely, that any delay would: 

(a) lead to: 

• interference with, or harm to, evidence connected with an offence; 

• interference with, or physical harm to, other people; or 

• serious loss of, or damage to, property; 

(b) lead to alerting other people suspected of committing an offence but not yet arrested for it; or 

(c) hinder the recovery of property obtained in consequence of the commission of an offence. 

And where the authorising officer is satisfied that the interview would not significantly harm the person’s physical or mental state. In this circumstance the solicitor should keep a record for the reasons for relying on this exception, particularly of the reasons why delay could lead to the consequences outlined in PACE Code C 11.1(a)-(c).