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Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007

Volume 688: debated on Wednesday 24 January 2007

rose to move, That the Grand Committee do report to the House that it has considered the Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007.

The noble Lord said: As the title suggests, the purpose of the order is to further amend and update the Police and Criminal Evidence (Northern Ireland) Order 1989, commonly known as PACE, which introduced the now well-established statutory framework for the exercise of police powers in Northern Ireland. This framework is, of course, closely modelled on the one that was first introduced in England and Wales in 1984.

It is now well over a decade since the last major review of PACE in Northern Ireland. In that decade, society has changed radically and that is reflected in the areas of policing and criminality. A joint Home Office/Cabinet Office review of PACE took place in 2002 and there was a further Home Office review in 2004. These produced a range of proposals aimed at modernising police powers. Many of those proposals have now been enacted in England and Wales via the Criminal Justice Act 2003 and the Serious Organised Crime and Police Act 2005. As a result, the PACE regime in Northern Ireland is now very out of step with England and Wales in a number of areas, and the order before the Committee today simply aims to address that.

Making amendments to the PACE (Northern Ireland) Order 1989 will provide the Police Service of Northern Ireland with a PACE regime very similar to the one that is available to their colleagues in England and Wales and it will enable them to combat crime more efficiently and effectively in the 21st century.

Several of the changes in the order are of a purely technical nature and, with your Lordships’ leave, I shall concentrate my remarks on the amendments of substance. Part II deals with police powers to stop and search, and I shall highlight two of those. The first relates to fireworks. Most people enjoy fireworks responsibly but, in the wrong hands, they can cause not only annoyance and misery but serious injury and death. A small and dangerous mindless minority use them to intimidate and terrorise those around them. The police in England and Wales have the power to stop and search a person or vehicle and to seize fireworks if they have reasonable suspicion that possession is illegal under the terms of existing fireworks legislation. Although Northern Ireland already has a strict fireworks licensing regime, I believe that this power should also be provided to police to deal with those who are intent on deliberately breaching the law.

The other change in relation to search powers will require police constables, prior to commencing a search of a person or vehicle, to provide their name in addition to their police number and police station. The same requirement will apply to the completion of a record of a search. This is important in Northern Ireland as the police service moves towards greater transparency in its contact with the public.

Noble Lords should note that, as in England and Wales, officers will not be obliged to supply their name in the case of inquiries linked to the investigation of terrorism or where they reasonably believe that, by doing so, they may be endangered.

Part III of the order deals with police powers of entry, search and seizure. In this modern age, criminal evidence and the proceeds of crime can be moved very quickly between locations in an effort to thwart police investigations. Therefore, it is important that we reduce the current bureaucracy associated with search warrants to reflect changes in working procedures and patterns of criminal activity. I should add that the bureaucracy was put there by this House in the first place. It is not the police’s fault; they have to work under the legislation.

At present, a constable is required to apply in person for a warrant which can be used to search a single premises on one occasion only and within one month of the date of issue. Applying repeatedly for warrants for different premises owned by the same person can cause delays and impede investigations. By broadening the scope of search warrants and the way in which they are applied for and executed, the effectiveness and efficiency of the existing warrant structure will be substantially improved. This draft order will allow for a warrant to be issued covering one or more specified premises; it is not a fishing expedition. A new warrant will also be introduced authorising a search of any premises occupied or controlled by an individual, whether or not all addresses are known to the police at the time of the application. In addition, warrants may authorise access on more than one occasion and will be valid for three months as opposed to one month.

In widening the range and scope of search warrants, I am fully aware of the need to ensure that there are stringent safeguards and protection for those whose premises are being searched. Under the new arrangements, there will be a greater requirement on police officers to satisfy a lay magistrate by providing specific information and justification when making application for a warrant. Also, no premises may be entered or searched more than once without the written authority of an officer of at least the rank of inspector.

Some important changes in the area of arrest are set out in Part IV of the draft order. The right to liberty is a key principle of the Human Rights Act 1998 and the power of arrest represents a very obvious interference with that basic right. Arrest is, however, a crucial weapon in the police armoury for tackling crime, and PACE has done much to regulate the power of arrest by establishing a systematic structure based on the principles of seriousness and necessity. As well as a statutory power of arrest for “arrestable” and “serious arrestable” offences, a police officer in Northern Ireland has a general power of arrest, if considered necessary, for all offences, and the criteria justifying such an arrest are set out in Article 27 of the PACE order as it currently stands.

However, much has changed in terms of crime and criminality and the nature of offending in the 18 years or so since PACE was first introduced, and the current arrangements are far from straightforward. Indeed, they were described by Association of Chief Police Officers at the time of the Home Office review of PACE as a “myriad of complex laws” and there is, undoubtedly, a need for greater clarity.

In line with the changes made in England and Wales in the Serious Organised Crime and Police Act 2005, Article 15 of the draft order will abolish the categories of “arrestable” and “serious arrestable” offences and replace them with a power of arrest for all offences, but, crucially, one that is based on the concept of necessity. Seriousness will remain a key consideration when a constable decides to make an arrest, but will now be one of a number of “necessary” factors to be taken into account. The officer must consider the necessity for an arrest in order to decide whether to effect one; and necessity requires the officer to set out the reasons why a person is being arrested and not dealt with by another means.

In addition, a new accompanying PACE code of practice, dealing solely with arrest, will shortly be laid before the House. Based on a similar code introduced in England and Wales, the new code will regulate the exercise of the new arrest provisions. The new arrest powers have been in operation for over a year in England and Wales where they have bedded in well. We are confident that they will have a similar beneficial impact in Northern Ireland.

Part V of the draft order makes a series of changes to the detention provisions aimed at reducing bureaucracy and making current procedures and processes more efficient and effective. In particular, new provisions will be introduced to allow police to review a person’s detention by telephone or video-conferencing facilities. I have also decided to remove the unnecessary and cumbersome provision that requires a person who is released on police bail to return to a police station no later than 28 days after being released.

The importance of identification data in the investigation of crime cannot be underestimated and, as forensic science and technology advance at an unprecedented rate, it is vital that the police are provided with the necessary tools as they investigate crime and seek to bring criminals to account for their deeds.

Part VI of the draft order deals with the questioning and treatment of persons by police, which have been amended on a number of occasions in recent times in line with England and Wales, but the draft order before the Committee makes a number of further changes in this area, again in line with England and Wales. For example, police will be able to take footwear impressions, photograph persons elsewhere other than a police station and take fingerprints without consent in order to confirm a person’s identity.

As part of the drive towards greater operational efficiency and the reduction of bureaucracy, authorisation levels have been reduced from superintendent to inspector in a range of duties. These include carrying out an intimate search, the taking of intimate and non-intimate samples, delaying a suspect’s right to have someone informed of their arrest and delaying access to legal advice.

I should also draw noble Lords’ attention to a new power that will allow police to carry out a speculative search of fingerprint/DNA databases from samples taken from deceased persons or body parts. That will be particularly valuable in the identification of victims of natural disasters such as the tsunamis in Asia and the hurricane in New Orleans.

We were most grateful to those who responded to the consultation process on the draft order. After full consideration of all the points raised, we have decided to make a small number of changes to the published draft to reflect concerns expressed by a number of respondents. The main change relates to how 17 year-olds should be dealt with under PACE. That age group has been treated as adults since the inception of PACE. However, various international conventions define children as anyone under the age of 18. Indeed, just over a year ago, the criminal justice system in Northern Ireland was changed to reflect this, but no corresponding change was made to PACE. Although England and Wales continue to regard 17 year-olds as adults under PACE, this aspect is currently being considered by the Home Office. We have therefore decided to amend the definition of a child to include those aged 17. However, that important change presents the police and criminal justice agencies with some operational difficulties, and it will not be possible to commence it until those are fully considered and addressed. We have asked our officials to take that forward with some urgency.

I believe the amendments contained in the order will greatly enhance the police and criminal evidence regime in Northern Ireland. In conjunction with radically revised, updated and expanded codes of practice, they will give police in Northern Ireland broadly the same range of powers as those already available to their colleagues in England and Wales and provide them with a much more modern, effective and efficient range of provisions in the fight against crime. But, in keeping with the spirit of PACE, they strike a fair and, we believe, proportionate balance between police powers and the rights of the individual. I therefore commend the order.

Moved, That the Grand Committee do report to the House that it has considered the Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007.—(Lord Rooker.)

Again, I thank the noble Lord for laying out the order before us with such clarity. It took him 13 minutes and it was extremely well done, but my point, which I make every time, is that this is a classic situation of a Statutory Instrument for Northern Ireland that ought to be debated as a Bill. It has huge effects on the criminal justice system in Northern Ireland and PACE affairs. I suspect it will have a direct impact on almost every human being in the province one way or another. It will have a major impact on the PSNI. I am very sorry that we have to deal with this legislation in that way.

The comfort, however, having had discussions with officials this morning, or yesterday morning, is that I am as confident as I can be that this is very much a copy—a blueprint—of legislation that is now operating in the remainder of the United Kingdom, which has, I assume, been debated in full in both Houses. I ask the Minister to give me an assurance that there is nothing in this legislation today that has not been debated in relation to legislation standing in the remainder of the UK. I understand that to be so, and if it is only detail we do not have to worry about it.

I was interested that the Minister mentioned the business about 17 year-olds, because that was one item going through with officials that hit me right in the face and made me think how ridiculous Europe was. We have, in moving legislation in this Chamber, to reduce the age of consent and the age at which marriage, buggery, fornication, smoking, drinking and practically everything else you can think of is permissible down to the age of 16—and we are talking about bringing the age for voting down again. Yet here we are, discussing the criminal justice system, and we are going to call live, strong, adult people of 17 children. Somehow that does not make sense. But I understand that that is a European instruction and has to be, and if that is the way it is we cannot argue.

Having made those comments, I support this legislation in principle. It is high time that the PACE legislation was upgraded and updated for Northern Ireland, and I hope that perhaps in two or three years we will do it again because it is vitally important that we keep moving forward and stay in line with the rest of the United Kingdom and—I suppose—Europe.

I, too, thank the Minister for introducing the order. We understand that it simply brings Northern Ireland PACE codes into line with changes that have already been made for England and Wales. The Minister admitted to a certain sense of déjà vu, which I also felt, on seeing some of the arrangements in the order. We both worked on Bills that I shall outline in a moment, so he will not be surprised at some of my concerns—and I have more concerns than the noble Lord, Lord Glentoran, expressed.

Liberal Democrats had a number of concerns when provisions were debated during the passage of the Criminal Justice Act 2003, the Criminal Justice and Police Act 2001, the Police Reform Act 2002 and, in particular, the Serious Organised Crime and Police Act 2005. This Act, although I am sure that the noble Lord, Lord Glentoran, will remember, was pushed through Parliament in the days before dissolution, just before the May 2005 general election, and did not receive adequate scrutiny. It was a very large Act.

We have a number of concerns relating to the order. The first relates to the arrest provisions contained in Article 15. While we do not object in principle to the simplification of the criteria for arrest, we are concerned that this article grants too much discretion to individual officers. I have made that point before and I make it here again. That will lead to large numbers of unnecessary arrests. We are concerned at the use of the phrase that talks about being “about to” commit an offence. Preventive detention otherwise than for the purpose of initiating criminal prosecution is not permitted by Article 5 of the European convention. The police and others have powers to use reasonable force in the prevention of crime. We are concerned about the general power of arrest. These conditions are drafted very broadly and it would be very easy for an officer to justify an arrest under one or both of them; since officers often have to make rapid decisions about whether to arrest, it would be natural for relatively inexperienced officers in particular to err on the side of caution, which could lead to further overcrowding of custody units and suites and increased use of police time and resources in dealing with people arrested for minor offences.

In addition, we are concerned that there is considerable scope for abuse of these provisions and that they may be applied arbitrarily or in a discriminatory fashion against certain sectors of the community such as, for example, ethnic minorities. Article 5 of the convention does not permit arbitrary procedures for arrest. Can the Minister assure us that the provisions will, at the very least, be monitored and reviewed by the Government?

We are also concerned that giving officers the power to arrest for a minor offence could lead to a higher number of arrests of children and young people. It would be very useful to have a system to analyse the effect of this provision on young people.

We very much welcome the provisions in Article 18 of the order, which amend the current definition of an arrested juvenile under PACE from a person under the age of 17 years to a person under the age of 18 years. That will rectify the disparity between the extension of the youth justice system to 17 year-olds under the Justice (Northern Ireland) Act 2002 and their continued treatment as adults under PACE. This was in contravention of domestic law under the Criminal Justice (Children) (Northern Ireland) Order 1998, the Justice (Northern Ireland) Act 2002 and international standards, such as the UN Convention on the Rights of the Child and the United Nations Standard Minimum Rules for the Administration of Juvenile Justice, or Beijing rules, which define children as anyone up to the age of 18 years. It is right that 17 year-olds are afforded the same safeguards and protections as juveniles. We are pleased that the Government have recognised that, although I am disappointed that it will not come into force until some time in the future.

The Minister will not be surprised to hear my concerns about the provisions of Articles 32 and 33 which lower the authorisation level from a superintendent to an inspector for the taking of intimate and non-intimate samples without consent. I remember being very concerned about these when we debated the Bill on the Floor of the House. I never won my battle on that issue, but I seek the Minister’s reassurance that inspectors will be given appropriate and adequate training in this respect.

Finally, the provisions in Articles 31 and 36 on photographing suspects and taking their footprints are also problematic. Under the present PACE codes, additional safeguards should be in place when the young or vulnerable are required to undergo any intrusive act at the request of a constable. If young or vulnerable people are taken to a police station for those activities to be undertaken, the requirement is usually that an appropriate adult is with them. Those protections appear to go out of the window under the new provisions. I would be grateful for the Minister’s reassurance.

The Minister will no doubt be glad to hear that I do not intend to comment on the detail of the order. I just want to unburden myself of some general observations.

I am delighted that the legislation is bringing Northern Ireland into line with the provisions currently available in England and Wales. That is highly desirable as a general principle. Northern Ireland is a small place; we are not going to generate an awful lot of litigation or experience on any procedures that are operating there in and of itself. Furthermore, most of the media that people consume in Northern Ireland are national media, so their knowledge, expectations and experience in terms of dealing with authorities, particularly on a matter as important as policing, are largely conditioned by national sources of information. They are not likely to be aware of local divergences. For that general consideration, it is most unwise to have any significant variation in the law, particularly where authorities such as the police and others are interacting with ordinary people, unless there are good, compelling reasons for there to be a variation. As a general point, that applies particularly in criminal law but also in a number of other areas. It is highly desirable that the law is kept in step, particularly when we are dealing with a legal system that is fundamentally the same as that in England and Wales.

That leads to observations that I have made many times before and are on record, if anyone cares to look at them. It is a disgrace that the law in Northern Ireland is not kept up to date. Mind you, those who have carriage of this issue in Northern Ireland probably think that they have done a really good job, in that there is a gap of only two and five years between the passing of the English legislation and them managing to stagger forward with their own Northern Ireland equivalent, which is exactly the same and could have been copied in the course of a day or two by anyone familiar with the legislation. But they probably are pleased that they have managed to achieve this. I do not believe that they have any cause for congratulation; in fact, the delays in this are quite inexcusable.

The noble Lord, Lord Glentoran, said that this should have been debated as a Bill. Yes, the Bills in which it should have been debated were the equivalent pieces of legislation for England and Wales. It would not have been difficult to have introduced into those Bills amendments for Northern Ireland at the same time. If that had been reported in the media at the time, when people in Northern Ireland saw commentary in the press they would have known that it applied to them, too. There is no sensible reason for the jealous way in which people in Belfast protect the integrity of the Northern Ireland statute book, as it is called. I know that it is their rice bowl, but they do not serve the public interest in doing so.

Perhaps I may say on a personal level—although one is always speaking for the Government—that I agree very much with the thrust of the point made by the noble Lord, Lord Trimble. I found it difficult to understand in the year that I was a direct rule Minister, in terms of legislation, why we could not make additions to England and Wales Bills—not UK-wide Bills, due to the Scottish legal system. There are many arguments as to why you should follow one route or another—I freely admit that—and the Secretary of State has tried on some occasions to try to get Northern Ireland material added into England and Wales Bills. It does not always go down well with the usual channels, because of the size of the Bill. They do not like big Bills, which may take some time. There is also the point relating to those in Belfast who want to protect the integrity of Northern Ireland’s statute book. I fully understand that.

That is a pity, because, in many ways, the operation of the police has changed. I remember PACE being introduced when I was a constituency Member of Parliament. I got the message that it was the way that the police went about their job; there was a big change and a lot of training was carried out. By and large, you would expect the same country to have the same set of rules, so that you would know where you stood and what the powers were. To that extent, I apologise on behalf of the Government for the delay in updating. I certainly apologise to the noble Lord, Lord Glentoran, and others for bringing this legislation forward in this way. We much regret that and there has to be better way of legislating for Northern Ireland and we have made a commitment in terms of devolution that I repeat now—although this would not be a matter for the Assembly—we wish to find another way of legislating in Westminster. We have to do that and it is not fair to people who represent opinion in Northern Ireland, as noble Lords do here, or Members of the other place.

In answer to the question asked on this order by the noble Lord, Lord Glentoran, it is only on the issue of the 17 year-old that Northern Ireland is now ahead of England and Wales, although as the noble Baroness said, it will not come into force straight away. The chances are that it will come into force in Northern Ireland before England and Wales. That is the only divergence, it is basically a matter of bringing the laws up to date.

The Police Service of Northern Ireland has already undertaken extensive training programmes to bring officers up to date with the new powers and the revised codes of practice. Training is currently being undertaken across the police service at district command level and the police service is very confident that officers will be ready to exercise the new powers operationally on 1 March 2007.

I say to the noble Baroness that, where there are changes—for example, from superintendent to inspector levels—those will have to be checked and monitored and proper training will have to be effected. There is a good reason for that. As I said, it mirrors what has happened in England and Wales. I fully accept that such a move could be treated with a degree of healthy scepticism but it is important to look at how it works in practice.

The police are not free agents. The noble Baroness referred to the articles on powers of arrest and, although she did not express it in this way, from the way she spoke, anyone would think that the police will be arresting people willy-nilly. That is not the case. Their actions are incredibly circumscribed and, of course, they will operate under the codes of practice, so challenges can be made.

However, I fully accept that there has to be adequate training. I am assured that that is taking place and that there will be adequate monitoring and a review of these changed powers. Ultimately, this House and the other place can be certain that the legislation will be operated in the way that Parliament intended, and I think that it will be subject to review by the Select Committees in the other place.

As I said, this is a modest change. I referred to the major changes and to the fact that many are minor technical changes, but they will improve the situation in Northern Ireland. The proof of the pudding will be in the eating. The legislation will be monitored and we will be able to assess the practicalities and fairness of the new scheme.

I shall try not to take more than 30 seconds of the Minister’s time, but I missed something in his admirable summing up of the enormous care that is taken by police officers and others on the ground. Can he confirm that continual training might be needed in the special case of Northern Ireland, perhaps on a six-monthly basis? The Police Service of Northern Ireland is very flexible in its outlook and training, but will any minor glitches or problems be corrected fairly quickly? That is of particular importance in Northern Ireland—perhaps more so than elsewhere in the United Kingdom. I was very grateful for the Minister’s kind words and clarity in his winding up but that one small thing came to mind. I seem to remember in Northern Ireland a reference to the mouse that roared, and I am that mouse, asking a simple question. I should be grateful if the Minister could confirm that point for me, either straight away or in writing.

If I have not answered the noble Lord’s question, I shall be more than happy to drop him a note. For historical reasons that people in this Room know far better than I do, the Police Service of Northern Ireland has gone through changes in processes and working practices which, by force of circumstance, are far different from those on the mainland. It has been incredibly professional in dealing with those changes. However, I repeat that the police service across Northern Ireland has undergone extensive training in relation to this programme. That is currently being carried out at district command level so that the new powers in this legislation can be operated in conformity with the codes of practice. I am given to understand that the highest level in the police service is confident that officers will be ready and fully trained. Training does not stop with the introduction of the legislation, but they are confident at the highest level that the officers will be ready to exercise the new powers operationally when they are introduced on 1 March. I know from my own personal experience that training is constant in Northern Ireland, and it will not stop. If I can give the noble Lord any further information, having taken advice, I will write to him.

That is a very good question. I should imagine it is costing an absolute bomb—these things always do—but I do not have a figure. Nothing comes free. This is not done to save money, I am fairly certain of that. I will be happy to check to see whether the cost can be codified, compared with what happened in England and Wales. The notes say that,

“The measures in the Order are not expected to impose any material cost to business, the public or the Exchequer”,

so my saying it would cost a bomb is obviously inoperable.

On Question, Motion agreed to.