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Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B and D) Order 2011

Volume 724: debated on Tuesday 25 January 2011

Considered in Grand Committee

Moved By Baroness Neville-Jones

That the Grand Committee do consider the draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B and D) Order 2011.

Relevant documents: 9th Report from the Joint Committee on Statutory Instruments and 14th Report from the Merits Committee.

My Lords, the order 2011 obviously relates to the codes of practice that are in operation under the 1984 Act. Under Section 66 of that Act, my right honourable friend the Home Secretary has a duty to issue codes of practice to regulate the police in the exercise of their powers. The proposed revisions to Codes A, B and D will keep the codes of practice in line with legislative change and are, obviously, part of the Government’s programme to modernise the police and to reduce bureaucracy in policing. I will explain some of those changes.

On 20 September, under Section 67 of the 1984 Act, my right honourable friend prepared and published drafts of the three codes of practice for statutory consultation. Representations on the content were taken from a number of independent organisations, such as Liberty and StopWatch, as well as from professional bodies such as the Bar Council, the Law Society, the Association of Chief Police Officers and the Police Federation.

I am aware that the Merits Committee has raised a question about the length of the consultation period, but I stress that the process extended well beyond the normal four weeks. Individual discussions were held with concerned parties following their responses so, although the formal process may have ended at that point, discussion continued on the responses. Indeed, individual forces are conducting their own consultations on how the changes will affect the communities that they serve and on how the changes should be implemented. In particular, the Metropolitan Police is beginning an engagement programme shortly on exactly that issue.

I shall deal with the PACE Code of Practice A first and with Code B and Code C subsequently, given that Code A is the most substantial and will, I suspect, be the code that we focus on. Many of the proposed changes to Code of Practice A follow from the need to reverse the increase in paperwork that hampers police operations and leads to encounters with the public that are unnecessarily prolonged and bureaucratic in character. For stop and account, draft Code A removes the national requirement to complete a form recording each encounter. That potentially frees up many hundreds of thousands of hours of police time, both on the street and in the back office, and will allow officers to increase the quality—and shorten the duration—of those encounters, which should be no more than brief.

It is understandable that some worries have been uttered about that change, particularly in light of the origin of the current national recording requirement. Your Lordships will recall that the Stephen Lawrence inquiry report of 1999 raised awareness of the impact that the police have on the people whom they encounter, particularly in black and minority-ethnic communities. However, since recording was implemented in 2005, we have seen little evidence of widespread disproportionate use of stop and account in relation to black and ethnic-minority communities and a vast increase in police bureaucracy. When examined at a local level, many forces show little evidence of any form of disproportionate use of stop and search as a tactic in dealing with BME communities and consultation with community groups has not really raised concern about the use of stop and account. That is why we propose to remove the national requirement for recording stop and account and leave the decision on whether to continue to record the ethnicity of the person stopped to be decided locally, according to perceptions of local need.

By that, we mean that there will be some communities in which the question of ethnicity is sensitive, so the local police force will judge whether, in the light of that, it is right to continue to record, but the force will not be obliged to do so. In communities where ethnicity is not particularly an issue, we see no need to continue that burden. As the House will know, we take the view that individual police forces know their own communities better than Whitehall and are best placed to analyse their own statistics and understand how they might use the tactic and what its impact on ethnic-minority groups might be.

On the other hand, given the intrusive nature of stop and search, we think it right to continue to have a national requirement governing the minimum level of recording of stop-and-search encounters. Therefore, we are making a distinction between stop and account and stop and search. The proposed changes to Code A do not diminish the importance of recording these encounters or the monitoring of the use of the powers. In accordance with Section 1 of the Crime and Security Act 2010, we are reducing the number of pieces of data to be completed on a stop-and-search record from 12 to seven. We are reducing the quantum of information, but we are not saying that no record needs to be made. We believe that leaving out some of the pieces of information currently demanded, and having others recorded automatically by the new technology, will save many hundreds of thousands of hours of police time.

Key information about each encounter, including the self-defined ethnicity of the person stopped, will still be recorded. Mobile technology is being encouraged and minor amendments have been made to the language of Code A to encourage its further use. The sorts of things that we envisage are airwave radios and BlackBerrys, which could enable the police to reduce the amount of effort and time that they put into each encounter. The outcome of a stop and search will be recorded as part of the custody record for those detained as a result of a stop and search. That means that we will not have, as at present, two sets of records, as everything will be incorporated in the custody record.

Code A also details the changes in the use of Section 44 of the Terrorism Act 2000 stop-and-search powers, which I set out to the House on 8 July last year when I repeated a Statement made by the Home Secretary. The inappropriate use of this power has ceased in the light of the judgment of the European Court of Human Rights in the Gillan and Quinton case. Clearly, more will be said about this in your Lordships' House tomorrow, when we look at Section 44 along with other elements in the counterterrorism review. I very much regret that, due to a hazard of timing, it will not be possible to have a more detailed discussion of those items today, but I have no doubt that there will be further opportunities to take up any issues that remain outstanding.

Comments have also been made concerning the draft guidance that was put in place on the Section 60 stop-and-search powers following the Gillan and Quinton judgment about Section 44. In the light of responses from those concerned, the Home Office amended the September draft of Code A—the draft that we put out for consultation—to make it clear that there is no ethnic profiling or unlawful discrimination in the use of this power. All authorisations under this power must be supported by clear intelligence. Recording of race or any other protected characteristic under the Equality Act 2010 may on occasion be relevant but that must never be the sole reason for stopping someone under Section 60. This is how we arrived at the outcome that we did in order to emphasise, among other things, that consultation does have effect in real life.

Others have suggested that Section 60 should be amended in line with the changes that we have made to Section 44 following the Gillan and Quinton judgment. We have not done this, as we consider that the Section 60 power can be distinguished readily from the provision in Section 44 that the ECHR declared incompatible with Article 8 of the ECHR. We do not think that the relevant section fell foul in the same way. Moreover, there is currently an application for judicial review of a Section 60 stop and search before the High Court, on which it would not be appropriate to try to predict the outcome or to take the debate on the issue further today.

However, Section 60 is used differently across England and Wales. Many police forces authorise the power for use on only one or two occasions a year, whereas others may never use it at all. As a national document, Code A should not restrict the use that forces make of the power based on how other forces operate but should simply cover national requirements and allow local practical application of the power to continue. As I say, this is an area where there is significant variation in use. We should not judge the use of a tool such as Section 60 purely on the basis of national statistics.

Here I want to make an important point. Figures are quoted in the press to the effect that black people are 26 times more likely to be stopped and searched under Section 60 than white people. We regard such statistics as potentially extremely misleading because of the distribution of the actual use of the power. Some 76 per cent of all the Section 60 stop and searches in 2008-09—before this Government came into office—were conducted by the Metropolitan Police in London. I suggest that that means that measuring the use of the power against the ethnic composition of the national population as a whole gives a false impression of what actually goes on. When we compare that 76 per cent with the cosmopolitan population of London—obviously, leaving the remaining 24 per cent for the rest of the country—the results are much less disproportionate.

I turn briefly to the other two codes. Code B governs the searching of premises and the seizure of property. The changes bring the code up to date with changes in legislation and the relevant judgments of the higher courts and are largely technical in nature. The proposed changes provide guidance on the powers to search the premises of individuals subject to control orders as well as on the police’s power under Section 18 of PACE to enter and search premises occupied or controlled by a person under arrest for an indictable offence.

The majority of the changes to Code D, on identification issues, reflect the amendments to the power of the police to take DNA and fingerprints for recordable offences that are made under Sections 2 to 7 of the Crime and Security Act 2010, which was passed early last year. The changes fill existing gaps in the ability of the police to take biometric material in connection with criminal investigations and ensure that the national DNA and fingerprint databases are populated primarily with the profiles of those who have been convicted of offences by the courts rather than with unconvicted people. The detail of how the Government will meet the commitment to adopt the protections of the Scottish model for DNA retention will be outlined in the freedom Bill that is to be introduced shortly. Clearly, that will require amendment to the code in due course, but what we have done is bring the code into line with the existing state of the law.

Code D also provides the police with necessary guidance on the use of mobile fingerprinting equipment, which is a fairly recent advance and is not intended to be used routinely or on a whim in investigations. The equipment must be used only when the police already suspect a person of committing a crime and only when they have a need to confirm a person’s identity, following the example set down in guidance designed to prevent abuse. If an officer is unable to confirm a person’s name or has reasonable grounds for doubting the name given, it would be right and proper to use the devices in those circumstances. An image of one or two fingerprints may be taken and checked against the existing fingerprint database. This reduces the need for arrests purely for the purpose of confirming identity, which will save valuable time and resources both for the police and those whose identity is in doubt. I want also to emphasise, because it really is important, that the fingerprints taken on those devices are automatically destroyed by the devices themselves, so there is no way in which, covertly or inadvertently, fingerprints taken under those circumstances, where they are not available for retention, could be retained. As soon as the search is concluded, the prints are explicitly excluded from the police’s wider powers to take and retain fingerprints on arrest.

Concerns have been raised about how we will ensure that these codes are interpreted and applied in a consistent manner across all forces in England and Wales. The codes need to balance the requirement for central guidance with the freedom for forces to operate specific processes and procedures in the way that meets local needs. We have been trying to strike such a balance, and the Home Office continues to work closely with a range of interest groups on these issues.

The revised codes of practice follow important principles, such as reducing bureaucracy and increasing efficiency as well as protecting the civil liberties of our population at large. I think that the House will agree that the landscape of policing is always evolving. It is important, therefore, that the codes of practice, which are a key source of guidance to the police, are kept up to date and that the public know the position. The changes are fully supported by the police and I hope that they will have a real impact on day to day policing. I commend the draft order and the attendant codes to the House.

Before the debate on the order commences, perhaps I may ask noble Lords please to be kind enough to turn off their phones. The rather curious noise is caused by having mobile phones still switched on.

My Lords, I thank the Minister for her explanation of the order, which brings into force changes to codes of practice under the Police and Criminal Evidence Act 1984 in order that the codes in question reflect changes in legislation and policy, including in the light of court judgments. As the Minister has said, the changes relate to stop and search, entering and searching premises, and seizing property and identification. The changes under stop and search remove the requirement to record stop and account, and leave it to police forces following consultation to decide whether they continue monitoring such encounters.

These changes also implement a lower level of information to be recorded for stop-and-search incidents. They make changes in the use for the stop-and-search powers under the Terrorism Act 2000 following a European Court of Human Rights judgment to require a greater degree of suspicion that the person stopped is a terrorist. They give further guidance on the use of the stop-and-search powers of persons and vehicles under Section 60 of the Criminal Justice and Public Order Act 1994. As the Minister has said, the changes on entering and searching premises, and seizing property, have been made in the light of the judgment in the case of Khan v Commissioner of Police of the Metropolis on the power of the police to enter and search premises.

Finally, the changes on identification take account of amendments to the powers to take fingerprints and samples for recordable offences. They allow fingerprints to be taken on the street using mobile fingerprint technology and they make new distinctions between visual identification taken from images, such as CCTV, and that from eyewitness recognition.

Paragraph 8 of the Explanatory Memorandum to the order refers to the outcome of a four-week consultation with statutory consultees. The Minister has indicated that in reality the consultation went on rather longer than that. But in addition to the statutory bodies, the Explanatory Memorandum states that while this was,

“not a public consultation … subject to 12 weeks’ duration … other relevant organisations, including groups (Liberty and Justice) who have a specific interest in human rights issues”,

were consulted.

Apparently, the main concerns from the consultation, according to the Explanatory Memorandum, were about stop and search and, in particular, whether the changes proposed,

“would allow officers to take into consideration a person’s ethnicity when stopping and searching under this power”,

which comes under Section 60 of the Criminal Justice and Public Order Act. The department says that it considered the responses and decided to amend its proposals, as set out in the Explanatory Memorandum.

We understand that the Government believe that their proposed changes in relation to stop and search, and stop and account, will reduce bureaucracy and free up to 800,000 hours of police time. Over the past few years, there have been huge efforts to cut police bureaucracy, including changes to the stop-and-account form. Those efforts were extended further by the Crime and Security Act early last year, which included the provisions for reducing the length of the stop-and-search form we are considering in this order.

The issue of the police stop-and-search powers is controversial because the figures show that a minority-ethnic person is more likely to be stopped than someone who is white. African-Caribbean people are already at least six times more likely to be stopped than white people under powers where an officer has reasonable suspicion to carry out a search. Stop and search is a power that is exercised frequently. One figure suggests that in 2009 there were 2 million instances of stop and account by police, and the figure for stop and search was 1 million.

Under Section 60 of the Public Order Act, officers do not require the same reasonable suspicion to stop someone, meaning that the police have maximum discretion. I understand that Section 60 enables the police to stop and search an individual when there are no grounds for suspicion of the particular individual in a designated area for a period of 24 hours. In 2008-09 just under 150,000 incidences of stop and search under Section 60 were used. I come to an issue raised by the Minister on the figures for these stops and searches, which show that a young black man is 26 times more likely than his white counterpart to be targeted, which leads to allegations of discrimination. However, as the Minister has already said, three-quarters of Section 60 stop and searches in 2008-09 were carried out in London, so the disproportionate use of these powers is probably not quite as stark as the “26 times more likely” figure would indicate.

The case of Stephen Lawrence led to measures aimed at tackling alleged police discrimination. That included a specific requirement for recording stops and searches by officers, which meant data becoming available to show whether or not there was overtargeting of minority-ethnic people by police. There have also been press reports that a national community panel set up to reduce the overtargeting of minority-ethnic people was abolished last summer. Will the Minister say whether that is true, and if so whether any alternative provision has been used to achieve the same objective? If the requirement to record stop and account is to go, will the Government replace that important source of information on fairness? While it would be possible for a police force to reinstitute stop and account if local concerns were expressed, it is not clear how police forces would take such soundings. What would constitute a valid local concern and what would happen if a police force decided not to respond to local concerns?

There will also be a reduction in the amount of information recorded on the stop-and-search form in the light of the amendments to Section 3 of the Police and Criminal Evidence Act made by the Crime and Security Act 2010. Among the information that will no longer be required is the name of the person who is being stopped and searched, whether anything was found as a result of the stop and search and whether any injury or damage arose as a result of the search. I assume that the Government have no issues with these provisions that arise from the Crime and Security Act 2010.

As the Minister commented, the Merits Committee has drawn the special attention of the House to this order on the ground that it gives rise to issues of public policy likely to be of interest to the House. The Committee said that while changes had been made to the initial proposals, commentators remained dubious about how the rules would be applied in practice. Unlike the Minister, whose Explanatory Memorandum tells us little about the nature of the concerns expressed under the consultation process and the extent to which the Government’s changes to their proposals addressed the concerns raised, the Merits Committee contacted certain interest groups on individual rights for comments on the final versions of the codes. In response, Liberty, as set out in the Merits Committee report, expressed support for the changes that had been made by the Government to their proposals in the light of its representations, but went on to say that the Section 60 power was still too broad and open to abuse and that scrapping the stop-and-account form would make the monitoring of equal treatment in policing harder. Liberty went on to say:

“This will see a direct reversal of a recommendation of”,


“Inquiry into the death of Stephen Lawrence just over a decade ago”,


“ignore recommendations of later inquiries, including Sir Ronnie Flanagan’s independent review of policing in 2008, that this record be maintained, even in the context of rolling back centralised bureaucracy”.

Justice commented that there should be a clearer reminder that there is no police power to compel a person to account for themselves or to detain them to ask them to do so. It went on to say:

“We are concerned that the absence of a recording requirement may mean that disproportionate use of ‘stop and account’ against particular groups … may go unmonitored and unaddressed”.

Stressing that Section 60 powers should not be used routinely but only at a time of particular risk of offences being committed, Justice argued that reducing the items of information recorded would do little to reduce overall bureaucracy and that a reduction in the number of such stops would be a more effective way of saving costs.

The Equality and Human Rights Commission said that a black person was six times more likely and an Asian person twice as likely to be stopped as a white person. Furthermore, it said that certain police forces were also found to have stopped far more black and Asian youths than the ethnic profile in their area warranted. The commission also expressed concern that the reduction in data collection would weaken observers’ ability to hold police forces to account.

I do not think it is unreasonable to say that the Merits Committee was less than impressed with the Home Office’s handling of its proposals and the order, because it felt that more effort could have been made to make it clear to the public exactly what changes were being proposed and how the Government would check whether they were having the intended effect. The committee felt that the organisations it had contacted were sympathetic to making policing less bureaucratic but it remained concerned that the correct balance with an individual’s rights should be achieved. Despite the amendments made in response to the concerns, the organisations all expressed continuing concerns about the variability in the ways in which the legislation is interpreted by police forces across the country.

I know that the Minister has already commented but can she comment further than she has already on the concerns referred to in the Merits Committee report? Can she also comment on how the Home Office will seek to ensure consistency in how the changes are applied and implemented, and how it will monitor whether the changes in the codes—in particular, Code A, which is about stop and search—achieve the effect intended?

There are concerns about carrying out stop and account without recording any information about the encounter, despite the changes that have taken place in policing in recent years, not least through the development and expansion of community policing. Associated with the major reduction in crime that has taken place since 1997, as measured by the British Crime Survey, there has been an increase in confidence in the police at local level, with half of people now saying that the police and local councils are dealing with the anti-social behaviour and crime issues that matter in their area.

We intend to support the measures in this order, including those that we initiated, which also reduced paperwork for the police relating to stop and search under Section 1 of the Crime and Security Act 2010. However, as I know the Minister will recognise, there is of course always a need to take care to ensure that the desire to reduce paperwork is properly balanced with the need to ensure that important and useful information is not discarded or lost.

I am not going to speak for very long; I merely want to ask one question about local accountability. Does local accountability refer to the whole of a police force or does it mean that different things can happen in different places? For example, if the police superintendent in Slough decides that he needs to record things because there is a large—not just ethnic—population from other countries, and the police superintendent in Whitney, which is a long way away but still in the same police area, decides that there is no need to record them, does “local” mean that discretion goes down that far? If not, how far within a police force does it go?

As someone who was involved in one of the many attempts to reduce police bureaucracy, I have spent time speaking to an assistant chief constable about stop and search, and was quite horrified by what has to happen when someone is approached under stop and search or stop and account. There is a constant complaint about police bureaucracy. It actually happens and it eats up a huge amount of resources. I should like to see those resources expended on real police work rather than bureaucracy.

I read the report of the Stephen Lawrence inquiry very carefully, and it exposed irresponsible and very badly organised policing. I do not believe that it showed that stop and search or stop and account needed to be recorded in every case as thoroughly as it is now. Generally speaking, I support these changes, but I would like to know that discretion really is going to move down to the meaningful local level.

My Lords, I thank both noble Lords for their helpful and thoughtful contributions. I am grateful to the noble Lord opposite for expressing the willingness of the Opposition to support these orders. Let me take the points that have been made and allay any anxieties that there may be.

The point made by the noble Lord, Lord Rosser, at the end of his speech about the need to ensure that there is no unnecessary bureaucracy but that valuable information is not lost is extremely pertinent and quite right. What we are trying to do in modifying—it is no more than that—some practices is to try to strike that balance. I shall spend a little more time on stop and account than on stop and search, but I should say on the latter that everyone agrees that stop and search is a much more intrusive activity on the part of the police, so it is really important that, when it takes place, it is fully and properly recorded. For that reason, we have no intention of changing practice on stop and search.

On stop and account, it is certainly the case that not all those who were consulted were as convinced as the Government are that change would be desirable. However, let me say straightaway that, if it is demonstrated that the changes are not helpful, it will be right and proper to think again, and consultation is still going on. One effect of instituting more local obligations on the part of the police will be to ensure that questions will be raised about whether such measures are accepted—which seems to me to be the criterion that we should look at—and whether they give the local population confidence that their security is being protected and that justice is being served. With the police and crime commissioners that we will have in due course, the vehicle for both the obligation and the means for local accountability will be much more clearly stated.

On the question whether discretion will extend to the local level, it is in the logic of giving the obligation to local police forces—in the first instance, to the police and crime commissioner working with the chief constable—to decide exactly how, given local circumstances and the distribution of the local population, recording should take place. The whole point of our proposal is that recording need not be uniform to be helpful in serving the interests of protecting the public and of justice and in gaining the confidence of the local population. That is why we take the view that uniformity and efficiency are not necessarily quite the same thing, given the need to ensure that the systems are not only efficient but acceptable and just.

I should also say that stop and account, unlike stop and search, should be a brief matter in which the policeman simply says, “Why are you here?”. It should not develop into an encounter that is remembered on both sides. That is partly why we think that stop and account should be restored to the normal relationship between an individual and a policeman. If, say, a crowd is building up, the policemen present will want to retain the confidence of the people on the ground. Reducing the bureaucracy associated with stop and account is justified both by the nature of the encounter and because it will help such encounters to be seen as less intrusive for individuals than they might otherwise be. As I said, if it is demonstrated that these changes are not helpful, I have absolutely no doubt that that will be thrown up in the consultation process and that it will be right to respond. Clearly, codes of practice are never the last word.

The arrangements with communities will deliver the necessary monitoring. I was asked whether we would do anything as regards the NPIA-run stop-and-search panel, which has been abolished because it was not inciting any great engagement—community members were not turning up and it did not seem to be very useful. The NPIA is looking at whether a replacement should be instituted. Perhaps noble Lords will not be surprised to hear that we regard the local consultation as an important part of what would replace something that was run by the NPIA and certainly would contribute to it. That issue is still being looked at.

I hope that I have already explained that our approach to consistency is that it should relate to local conditions and not to numerical equivalents at a national level. Having said that, we take seriously the need to ensure that the outcome serves the public interest.

I am wondering whether I was asked about any points that I have not covered.

I asked the Minister whether she had any further comments to make, in addition to those in her opening speech, on the concerns that are expressed in the Merits Committee report both by the Merits Committee and on behalf of the organisations that it had contacted directly, which, while welcoming the changes that the Government have made to their original proposals, were clearly still unhappy with the situation.

Since consistency of application seems to be an issue, perhaps I may come back to the point that the Minister made about that. I appreciate that the Minister has said that there will not be national consistency across the board as forces will have to reflect what may be happening in different areas. Does she think that that is the cause of inconsistencies at the moment, as opposed to police forces taking different approaches and perhaps very different interpretations, which may not be based on what local communities think?

I think that we all have learnt. I would not try to claim that there was never any disproportionality, for instance, in the way in which different ethnic groups have been stopped and searched. The way to regulate the proper use of these powers is with the involvement of the local community, which will be extremely aware of whether the local police are using their powers disproportionately or improperly. That is why we believe that that kind of consultation will have a much more direct and helpful effect on the police using their powers in a proportionate and proper way than waiting to collect a lot of national statistics and then deciding that it looks as if there is something wrong.

I suppose that we are offering a different and, I hope, more practical approach to ensuring that the use of powers is regulated in a proper manner, but I believe that our approach will be effective. Of course, clearly the forces will have to record what they are doing overall and we will get to know over time whether the variation represents satisfaction in local areas.

The Merits Committee was concerned about the relative shortness of the time allowed for consultation. I hope that I have explained that the reality was that the time was rather longer. The committee also remarked on the fact that not all the groups supported all the proposals that we have decided to make. Liberty feels that the powers under Section 60 remain too broad. As I said, a case before the courts at the moment is an element in the situation. Perhaps I should also remind noble Lords that the Section 60 power can be used for only very short periods; it is not in the Section 40 category.

Justice’s concerns were also mentioned. I think that Justice is worried about the absence of statistics—I am afraid that I cannot read the note—but, if there is a problem, we will need to look at that and make sure that absence of information does not lead to improper outcomes. We are clearly embarking down a slightly different road and I assure the House that, precisely because we are doing that, we will watch the outcome carefully. I hope that the House will feel sufficiently reassured that the changes that we are making are intended to have a favourable outcome and that we will monitor their use in a way that will ensure that that is the outcome.

Motion agreed.