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Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, E, F, and H) Order 2018

Volume 792: debated on Monday 25 June 2018

Motion to Approve

Moved by

My Lords, clearly I am not my noble friend Lady Williams, in whose name the Motion stands on our Order Paper. I will be taking forward this SI today.

This order will bring into effect four revised codes of practice issued under Sections 60, 60A and 66 of the Police and Criminal Evidence Act 1984, which I shall call PACE from now on. These are: Code C, which concerns the detention, treatment and questioning of persons detained under PACE; Code E, which concerns the audio recording of interviews with individuals suspected of committing offences; Code F, which concerns the visual recording with sound of interviews with individuals suspected of committing offences; and Code H, which concerns the detention, treatment and questioning of persons detained under terrorism provisions. I shall now briefly describe what the PACE codes are, how the revised codes came before us today and the changes they introduce.

For England and Wales, PACE sets out the core powers of the police to prevent, detect and investigate crime. The exercise of these powers is, however, subject to codes of practice, or PACE codes, which the Secretary of State is required to issue under Sections 60, 60A and 66 of PACE. The PACE codes do not create powers but put in place, among other things, important procedural safeguards for the public when the police exercise their powers. Together, PACE and the codes are designed to strike a balance between the need for police to have powers to tackle crime and the need for safeguards for suspects and members of the public.

Periodically, as a result of policy development, new legislation, case law or operational developments, and subject to parliamentary approval, revised PACE codes are issued. A statutory consultation on the draft codes took place last year. In addition to the bodies that the Secretary of State is required to consult, bodies such as the Crown Prosecution Service, Liberty, Justice, and the Youth Justice Board were invited to comment. The draft codes were also published on GOV.UK to enable the public at large to respond. This order was approved last week in the other place. Subject to it being approved by this House today, the four revised codes will come into force 21 days after the order is signed.

The main revisions to code C concern safeguards for vulnerable suspects, voluntary interviews—which are interviews with suspects who are not under arrest—and the use of live link technology introduced by the Policing and Crime Act 2017 to interview detained suspects and authorise extended detention before charge. There are revised safeguards for vulnerable suspects which introduce a new definition of “vulnerable”. It replaces references to persons being “mentally vulnerable” or having a “mental disorder”. Instead, the revisions describe a range of functional factors for assessing an individual’s ability to understand their position and exercise their rights and entitlements. If there is any reason to suspect that any may apply, the police must secure an appropriate adult for that person. The appropriate adult’s role is to help ensure that the suspect understands what is happening and why, and that they are able to exercise their rights and entitlements under PACE. There is a new requirement for the police to take proactive steps to identify and record any functional factors which indicate that an individual of any age may require help and support from an appropriate adult and to make that record available for police officers and others to take into account when they need to communicate with that individual. The requirement extends to juveniles to ensure that specific relevant factors are not overlooked simply by virtue of their age alone. An appropriate adult must always be called.

Other changes update the role description of the appropriate adult and who may or may not act in this capacity. These changes reflect established good practice and take into account the work of the Home Office-chaired working group on vulnerable people and the responses to the statutory consultation on the codes. These changes are mirrored in Code H.

For voluntary suspect interviews, the rights, entitlements and safeguards that apply and the procedure to be followed when arranging for a voluntary interview to take place are strengthened and extended. These changes take account of concerns that a suspect might not realise that a voluntary interview is just as serious and important as being interviewed after arrest. For example, this may be particularly applicable when the interview takes place in a person’s home rather than at a police station. The approach mirrors that which applies to detained suspects on arrival at a police station, with the interviewer standing in for the custody officer.

The new code provisions also reflect the amendments to PACE made by the Policing and Crime Act 2017. These allow a live link to be used when detention without charge is extended by a superintendent for up to 36 hours and by a magistrates’ court for up to 96 hours. The live link provisions also allow a detained suspect to be interviewed by an officer who is not present at the police station where the suspect is detained. These provisions will enable the police to take advantage of technological developments in cases where the live link does not adversely affect a suspect’s ability to communicate effectively and exercise their rights. Other amendments reflect changes introduced by the Policing and Crime Act 2017 and ensure that 17 year-olds are treated as juveniles for all purposes under PACE.

Revisions to Code E, which are mirrored as appropriate in Code F, introduce substantial changes to the audio and visual recording of suspect interviews. The new and revised provisions cover all interviews for all types of offence and for all suspects, whether or not arrested and irrespective of the outcome. They specify the types of devices which, if authorised by the chief officer, are to be used to audio record suspect interviews and mean that, whenever an authorised recording device is available and can be used, it must be used. A written interview record may be made only if such a device is not available or cannot be used and the interview cannot be delayed until an authorised device can be used. Again, these provisions will enable the police to take advantage of technological developments.

Code F mirrors the revisions in Code E by setting out the requirements and modifications that apply exclusively for the purposes of making a visual recording with sound if the police wish to, although visual recording is not mandatory. This avoids replication of the full Code E provisions that govern audio recorded interviews and makes it clear that a visual recording with sound comprises an audio recording made in accordance with Code E together with a simultaneous visual recording. The changes clarify and extend the circumstances under which police may make a visual recording. The device specification also extends the range of devices that may be used for recording suspect interviews to include body-worn video devices, as long as they comply with the revised operating specifications and manufacturers’ instructions and the interview is conducted in accordance with the code. Body-worn video is increasingly being deployed across forces and I know that this change will be particularly welcomed by the police.

Finally, minor typographical and grammatical corrections have also been made and out-of-date references updated.

The revisions strike the right balance between the need to safeguard the rights of suspects and supporting the operational flexibility of the police to investigate crime. They are being introduced to bring Codes C, H, E and F in line with current legislation and to support operational policing practice. The revised codes provide invaluable guidance to both the police and the public on how the police should use their powers fairly, efficiently and effectively. I therefore encourage all noble Lords to support the revised codes and commend the order to the House. I beg to move.

I thank the Minister for setting out the purpose and content of the draft statutory instrument that we are considering, which is applicable to England and Wales. We support its objectives. The revisions to the codes of practice are intended to reflect changes in the light of the Policing and Crime Act 2017 and current operational policing practice. The changes cover the audio and visual recording of interviews with suspects and the detention and questioning of persons by police officers, including under terrorism legislation. All four codes have been previously revised, two as recently as, I think, February last year. Has it really been necessary to revise Codes C and H twice in 16 months, when the revisions we are discussing relate in part to a 2017 Act? Surely, frequent revisions are time-consuming and hardly encourage an understanding of what the codes say at any one point in time by those who are expected to pay regard to them.

I want to raise the question of resources. No impact assessment has been prepared. Can the Minister confirm that none of the revised codes of practice will require any additional police resources to implement them, whether human or financial, in any police force or organisation, and that they will take up no more police time to implement than that already required for the existing applicable codes of practice?

The revision to Code C also reflects the provision in last year’s Policing and Crime Act to ensure that 17 year-olds are treated as children for all purposes under the Police and Criminal Evidence Act 1984. When this order was considered by the Commons, one of the issues raised was whether this change meant that children aged 17 could no longer be named in media reports when they are a victim, as applies to children up to the age of 16. I believe the Government said in the Commons that they would take this matter away to see what more could be done. What has so far happened in respect of this undertaking, albeit I accept that it was given only pretty recently?

Codes E and F introduce what the Explanatory Memorandum describes as,

“substantial changes to the approach to audio and visual recording of suspect interviews”.

The Explanatory Memorandum goes on to say:

“The new and revised provisions cover all interviews for all types of offence, for all suspects—whether or not arrested and irrespective of the case disposal outcome”.

How many extra audio and visual recordings per year is it estimated that this provision will lead to compared to the current figure? Does this have any additional resource implications, after taking into account any expected decrease in written interview records?

Finally, paragraph 8.4 of the Explanatory Memorandum refers to the outcome of the consultation, which,

“prompted a number of significant changes to the original proposals”.

Were any concerns or proposals in the 32 separate responses not reflected in those changes to the original proposals to which the Government refer in the Explanatory Memorandum and, if so, what did those concerns or proposals relate to?

My Lords, I too thank the Minister for explaining these measures but I want to take up the theme that the noble Lord, Lord Rosser, mentioned about resources. While we welcome the tightening of safeguards for children and vulnerable people, we are concerned that some of these measures are a worrying sign of the pressure the police are under. I shall come to that in a moment.

In the meantime, is the Minister aware of the difficulties in the police securing appropriate adults to attend police stations? This has arisen out of the centralisation of charging, meaning that appropriate adults are having to travel much longer distances than when they simply used to attend a local police station. Has any work been done to quantify the problems of centralised charging, set against a potential need for more appropriate adults to attend interviews as a result of the tightening of the guidelines in these codes of practice?

A worrying sign of the times is the fact that a superintendent could potentially authorise an extension of detention of up to 36 hours using a live link. This is an indication of the worrying reduction in the number of senior police officers. The noble Baroness will agree that this is a serious decision. Bearing in mind the rank of the officer required to authorise the detention, is it really appropriate that this be done via a live link rather than by the superintendent attending the police station in person? The lack of detectives in the police service has been in the news recently. There is a national shortage of detectives. Allowing a live link to be used so that a detective can question a suspect, even if the detective is not at the police station, seems a retrograde step. I speak from personal experience when I say that nothing beats being in the room with the suspect when you are trying to determine whether he or she is telling you the truth. Have any concerns been raised by police detectives about the extension of the use of a live link in the way suggested in this order?

Clearly, we welcome the fact that 17 year-olds are going to be treated as children for all purposes under PACE, but that goes back to what I was saying about the need for more appropriate adults and the difficulties that have been brought to my attention in securing appropriate adults.

It is very important that suspect interviews are recorded, except in exceptional circumstances, and therefore we support this order. However, recordings have to be made on suitably compliant authorised recording devices. Has any work been done on whether there will be additional cost to ensure that these suitably compliant authorised recording devices are available in every circumstance, in order to ensure that the interviews can be recorded? The noble Lord, Lord Rosser, also asked this question.

As the noble Lord, Lord Rosser, also said, the outcome of the consultation has prompted a number of significant changes to the original proposals. It is to the credit of the Government and the Home Office that the consultation has taken into account these concerns, such as not raising the level required to determine whether somebody is vulnerable to “belief” but keeping it to “any reason to suspect” the suspect is vulnerable. We welcome that approach. Overall, we agree with the changes to these codes of practice, but we are concerned that they may have some operational and financial impact on the police service that is not reflected in any of the surrounding literature the Home Office has provided in connection with these provisions.

My Lords, I thank the Minister for her careful and detailed introduction. She probably knows far more than I ever will at this stage about this subject; Chief Inspector Morse was a very impatient tutor, as his long-suffering sergeant always indicated. First, and briefly, the chief constable of North Wales, Mark Polin QPM, is retiring. He has led and leads a very dedicated team of officers. Mr Polin has been a fine professional in difficult times of austerity. He has led with shrewdness and good judgment, and he has served the far-flung communities of north Wales very well. It is a very demanding bilingual, mountainous and industrial area—not the easiest beat to operate in. He must be a fine public servant, because he has accepted the invitation of the Wales Assembly Government to take on the chairmanship of our National Health Service trust, which again means more difficult choices in an austerity climate.

The Explanatory Memorandum is helpful and quite detailed. At paragraph 7.2(b) it is good to read:

“These changes take account of concerns that suspects might not realise that a voluntary interview is just as serious and important as being interviewed after arrest. This applies particularly when the interview takes place in the suspect’s own home rather than at a police station … In particular, it requires the suspect to be informed of all the rights, entitlements and safeguards that will apply before they are asked to consent to the interview and to be given a notice to explain those matters”.

It is good to read those sentences in the Explanatory Memorandum. The Minister may answer here this question, or perhaps later: how many interviews have taken place in suspects’ homes for the latest year for which statistics are available?

Consultation is mentioned at paragraph 8, and I read at paragraph 8.2 a list of those who took part. It is a considerable list, and must be welcomed for its detail in the memorandum. Can the Minister give details about some of the consultees who I have not heard of: Revolving Doors, Just for Kids Law and the individual independent custody visitor, particularly the latter? What do these organisations and individuals do?

My Lords, the increased protection for those who are vulnerable, for 17 year-olds and for those who are suspects must obviously be welcome. I share the reservations expressed by the noble Lord, Lord Paddick, about frequent changes to the codes, but they are essential steps to protect those who find themselves engaged with the police. The only further matter that is welcome is the provision of audio-visual recording. In the event of a case going to trial, it will be of great advantage to a jury to see the way in which the suspect, as he would then have been—the defendant, as he will be at the trial—actually answered the questions. It will improve the jury’s opportunity to judge whether the denials made in the interview are genuine or, indeed, whether the confession is a true confession made voluntarily. I therefore welcome the proposals.

My Lords, the interest in your Lordships’ House in these codes of practice is far less intense now than it was in 1984, when they were born. I was the Minister in charge of the Bill at the time, and I carry away a clear memory of the two focuses of the House’s interest. One was on stop and search—what happened between the police and the public on the street—and the other was what happened in the police station and the bearing that that had on the result of a fair trial.

I therefore very much welcome the way in which this work has been carried forward, and not allowed to gather dust and become out of date. I also understand the concern of the noble Lord, Lord Paddick, about frequent amendment; on the other hand, I understand the need to bring things up to date without waiting for the next change to come in.

What we have now is immensely detailed, and the complication of what police officers are required to absorb is considerable. The original codes of practice, including stop and search, occupied 97 pages. Today, just the part that we are dealing with takes 192 pages, and that does not cover stop and search.

My sympathy all down the way is with the policeman. I am astonished at the extent to which policemen on the street know their law, when it has taken us so long to make that law and we have found it so difficult to understand in its totality until it was on the statute book. These people have to make decisions on the spot, in a hurry, probably with fairly difficult circumstances surrounding them, and get it right.

That is not covered by the order: in here is what happens in the police station, when the public are most open to suspect what is going on because they cannot see, and the suspect, who may well be innocent, feels most threatened because he can see no sign of help. The extension of the criterion of vulnerability is extremely welcome. The extension of the means of getting evidence of how things went in the police station, not only for barristers or solicitors to ensure that their clients were protected but also for juries to make up their minds, is extremely welcome.

As, in a sense, the godfather of all this, I welcome its coming of age.

My Lords, first, I apologise to the Minister for having missed the first two minutes of her speech.

I generally welcome the essential principles of the order. I have one point that is tangential, not central, to the present provisions and gives me a little worry. That is the one to which the Minister referred in passing towards the end of her speech, which is the use of body-worn cameras and videos. This is becoming increasingly the norm, and some of the material may be adduced later in evidence. Will she respond to me now or later in writing as to her level of satisfaction about the protection given to the masses of data that will necessarily be accumulated as the use of body-worn cameras becomes the norm? Presumably the evidence, or at least the recordings, will be retained for some period, and there have been incidents where there has been leakage of such information—not in its normal use through due process but outside that. Can she say a word about her level of satisfaction about the protection given to that data? If she feels that that is tangential to tonight’s debate, will she write to me on it?

My Lords, I thank all noble Lords who have taken part in this debate and for the support that I have heard from around the House. I also give a very warm welcome to the noble Lord, Lord Rosser, who is back in his place on the Front Bench. Noble Lords have asked me a range of questions, and I will do my very best to answer them, but if there are any that I do not answer, I will write to noble Lords and place a copy in the Library for the House’s information.

It is in the interests of justice and operational necessity that PACE codes of practice are kept under review and brought up to date. As the noble and learned Lord, Lord Judge, and my noble friend Lord Elton said, it is a necessity that we take account of relevant changes and developments in policing practice and the law to ensure that key safeguards for suspects and citizens are preserved.

I want to move quickly on to the questions asked by noble Lords. The noble Lord, Lord Rosser, asked about 17 year-olds and what the Government have done to make sure that their names are not in the press. As the noble Lord rightly suggested, this matter has recently been considered and is still under review by the Government. As soon as I have anything further to add, we will undertake to make sure that it is known. The noble Lord also asked whether it was necessary to change the code so frequently. The noble and learned Lord, Lord Judge, referred to that, and also to the reason why. The answer is, of course, yes. As I said in my opening remarks, we need to update codes as and when there are legislative changes or changes in case law, and invariably when there are changes in police practice or, indeed, when new technology is available. When changes are made we try to make them all in one SI. It is not always possible to do it in the previous SI.

The noble Lord, Lord Paddick, asked about safeguards and how we ensure that suspects are not unfairly disadvantaged when a live link is used to authorise extending their detention, or indeed if they are young or vulnerable. A live link cannot be used unless its use has been considered and authorised by an appropriate custody officer and the suspect consents to its use and has had legal advice on the use of a live link. When the person is young or vulnerable, the custody officer and the superintendent should have regard to the detainee’s ability to understand the purpose of the authorisation or court hearing. It will not happen if that authorisation has not been given. The noble Lord, Lord Rosser, and another noble Lord asked whether the Government did not include in the updated codes of practice measures that individuals recommended in the consultation. Of course, all sorts of things come up during consultations but none arose here that was within the scope of the codes. I have already referred to the two areas that were changed as a direct result of the consultation and the Home Office working group.

The noble Lord, Lord Paddick, also raised the issue of finding an appropriate adult. Having worked in the police force, he has vast experience, and I take on board the point he raised. The Government are aware of the problems and keen to work towards resolving them. We will shortly be introducing a voluntary national framework to address this issue. There will be more work and closer partnerships between PCCs, police forces and other authorities to find solutions to this issue. The noble Lord also asked how forces will afford to implement the changes. The noble Lord, Lord Rosser, also raised the issue of finance and resources. The NPCC and police have not raised any issues concerning affordability in relation to these codes and, if anything, the provisions enable forces to use technology to ensure that there is greater efficiency and savings. The changes do not mandate live link or body-worn video.

The noble Lord, Lord Jones, asked about the number of voluntary interviews in people’s homes. I am sorry but I do not have that data and, as I understand it, the Government do not routinely collect it. I am therefore unable to answer that question, although it is a good point. As more people are interviewed, potentially in the home should they wish it, perhaps forces themselves will routinely start to collect it. The noble Lord, Lord Paddick, also talked about the safeguards for suspects using live link. I raised that issue myself. If you are there face to face, you will be able to see someone’s body language and what they are saying, so will the police officer concerned or, indeed, the suspect be disadvantaged if it is not? As I said and want to make absolutely clear, before the interview the suspect’s solicitor and an appropriate adult must be asked for their views. If there is any doubt that the suspect can adequately cope with the live link arrangement, it cannot be used unless it has been authorised by an inspector. The onus is on the interviewer to ensure that the interview is conducted in accordance with the codes. If it is not, it may not be admissible in court, so it is very important that authority is sought and given and that due process is appropriately followed.

The noble Lord, Lord Reid, asked an important question. I do not have the answer but, if I may, I will write to him and place a copy in the Library so that all noble Lords can see the answer. I will endeavour to do that. I think that that was all the questions that were asked. I thank my noble friend Lord Elton for his kind comments. I am glad that it is not 96 or so pages of codes. Just looking at the codes as they stand, one might think they pose a bit of a challenge. I conclude by saying, as I did in my opening remarks, that the balance is absolutely right between the codes and safety and security for vulnerable people on the one hand and aiding and supporting the police on the other. I thank all noble Lords for their constructive consideration of the very important issues before us today.

Motion agreed.