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Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code H) Order 2023

Volume 827: debated on Tuesday 31 January 2023

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code H) Order 2023.

My Lords, this order was laid before this House on 12 December. Following the horrific terrorist attack at Fishmongers’ Hall in November 2019, the then Home Secretary commissioned the Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, to review the Multi Agency Public Protection Arrangements, commonly referred to as MAPPA, used to supervise terrorist and terrorist-risk offenders on licence in the community. The Police, Crime, Sentencing and Courts Act 2022, hereafter referred to as the 2022 Act, established three new powers for counterterrorism policing: a personal search power, a premises search power and a power of urgent arrest. These powers were established in response to recommendations made by Mr Hall KC following his review of MAPPA.

This order relates to the new power of urgent arrest, which was inserted into the Terrorism Act 2000 as new Section 43B of that Act by the 2022 Act. The new arrest power came into force on 28 June last year. The Government have also taken this opportunity to make a small number of updates to the code to reflect changes previously made by primary legislation, including ensuring that relevant terminology within the code is up to date.

As set out by the Government during the passage of the 2022 Act, the new power of urgent arrest applies across the UK. The power enables the police to arrest without warrant a terrorist or terrorism-connected offender who has been released on licence and is suspected to have breached their licence conditions when it is considered necessary, for purposes connected with protecting members of the public from a terrorism risk, to detain the offender until a recall decision is made.

Section 66 of the Police and Criminal Evidence Act 1984, commonly referred to as PACE, requires the Secretary of State to issue codes of practice in connection with the exercise by police officers of statutory powers to arrest a person and the detention, treatment, questioning and identification of persons by police officers. We have prepared a revised PACE Code H, which relates to the detention and treatment of people arrested under the Terrorism Act 2000; it applies across England and Wales. This order seeks Parliament’s approval to bring the revised code of practice into force.

The primary update to PACE Code H is the incorporation of the new urgent arrest power provided for by Section 43B of the Terrorism Act 2000. A terrorist offender who is detained under new Section 43B must, unless recalled to prison or otherwise detained under any other power, be released if a decision is made not to revoke their licence and accordingly the offender is not recalled to prison. A terrorist offender must also be released from police detention if a recall decision has not been made by the end of the relevant period, which in relation to terrorist offenders who have been released on licence under the law of England and Wales is six hours, beginning with the time of the arrest.

The Government have updated PACE Code H to reflect this new arrest power, including by ensuring that there is clarity for the police on the length of time for which the terrorist offender on licence can be detained, and their rights upon first being detained, such as their right to have one named person informed of their whereabouts and their right to consult and communicate privately with a solicitor. The revised PACE Code H also reflects that there is no requirement to caution a terrorist offender on licence who is arrested under Section 43B, as they will not have been arrested on suspicion of committing a criminal offence and so will not be questioned or interviewed by the police under caution while being detained under this power. The Government plan to collect data from police forces on the use of this targeted power, as we routinely do for other police arrest powers, and make this data publicly available through future statistical publications.

The Government have also updated PACE Code H to reflect other changes already made to primary legislation by the Counter-Terrorism and Border Security Act 2019, hereafter referred to as the 2019 Act. The 2019 Act amended provisions in Schedule 8 to the Terrorism Act 2000 to specify in the legislation that, on first being detained, a detainee must be informed of their rights to inform a named person of their detention and consult a solicitor. The 2019 Act replaced provisions in Schedule 8 that would enable a senior officer, in certain exceptional circumstances, to direct that the detainee has to consult their solicitor in the sight and hearing of another officer with one whereby a senior officer can, in these exceptional circumstances, require the detainee to consult a different solicitor of the detainee’s choosing.

The 2019 Act also amended Section 41 of, and Schedule 7 to, the Terrorism Act 2000 to give effect to a recommendation made by a former Independent Reviewer of Terrorism Legislation that the detention clock should be suspended in the case of detainees who are admitted to hospital. Finally, the 2019 Act created powers to stop, question, search and detain a person at UK ports and the Northern Ireland border area for the purpose of determining whether the person appears to be someone who is, or has been, engaged in hostile state activity.

When revising PACE Code H, the Government have also made other minor, non-discretionary updates to ensure that terminology contained within it is up to date and reflects wider legislative changes. The revised code makes a clarification to refer to retained EU law to reflect the effect of the European Union (Withdrawal) Act 2018, updates the wording regarding offences having a terrorist connection to reflect changes made by the Sentencing Act 2020, and updates a reference to the relevant department to the Foreign, Commonwealth and Development Office.

In the course of revising the code, we have engaged key stakeholders, including Counter Terrorism Policing, the National Police Chiefs’ Council, the College of Policing and the Independent Reviewer of Terrorism Legislation, all of whom are supportive of the approach being taken.

While powers such as the Section 43B urgent arrest power in the Terrorism Act 2000 apply UK-wide, our revised PACE Code H applies in England and Wales. We have liaised with the Scottish Government and the Northern Ireland Executive on our proposed revisions, and they intend to update their respective equivalent guidelines and code of practice correspondingly in due course.

The revised code promotes the fundamental principles to be observed by the police and helps preserve the effectiveness of, and public confidence in, the use of arrest powers under the Terrorism Act 2000. I very much hope that noble Lords will support these revisions to PACE Code H.

My Lords, I want to ask several questions of the Minister, not least because the recommendations to upgrade Code H are in fact non-discretionary—the policy for a code of practice. In other words, the Secretary of State has to transfer these into the code of practice without any subsequent amendment.

I have two questions, the first of which is about process. Code H says:

“This Code of Practice applies to, and only to … persons in police detention after being arrested”.

The word “after” is important, because the first of the powers transferred into the Terrorism Act 2000 in Section 43B relates to the fact that constables “may arrest without warrant”—so this is before the arrest has taken place. There are four bullet points at paragraph 7.5 of the Explanatory Memorandum on the 2019 Act changes. The last one, which the Minister mentioned in his opening speech, is about creating powers to stop, search and detain. Again, such powers are obviously prior to the arrest being made.

If the advice on the code of practice to police officers does not appear in this document, PACE Code H, where does it occur? It cannot occur in this document because these powers are prior to arrest. That is a technical question, but if it is not in Code H, where might it be? It may be in general advice to police officers somewhere else; perhaps the Minister can tell us. Two distinct powers given by the various Acts are prior to someone being arrested; then, of course, as the Minister says, after they are arrested the conditions within the relevant Acts are clearly transferred into Code H. Clearly, if there is no explanation of where they might have advice, that leaves a certain amount of unhelpful discretion to the police, who will want guidance on this very important matter.

My second question relates to Section 43B(1), inserted into the Terrorism Act 2000. I do not want to rehearse the debate that was had when the relevant Act was discussed in this House, but it says that

“a constable may arrest without warrant a terrorist offender who has been released on licence”,

and then gives two conditions—

“if the constable … has reasonable grounds for suspecting that the offender has breached a condition”


“reasonably considers that it is necessary … to detain the offender”

because of a public risk of terrorism. I understand why both conditions are there, but I do not understand what advice has been given to police officers and where that advice might be. First, you would have to understand or know that the person was a terrorist offender. Secondly, you would have to understand or know whether they had been released on licence. Thirdly, you would have to understand or know what the licence conditions were for that person to be released on licence.

I understand the reasons. We had the very tragic case that the Minister referred to, but if I were a police constable, knowing that I had these powers but with those conditions, I would want to see some advice in a code of practice as to how I would understand those three conditions prior to my being able to detain a person. I must have reasonable grounds for the offender having breached the conditions of their licence and I must understand the risk of terrorism. The latter is probably much easier to understand—it could well be by observation of the circumstance—but the former would require a police officer to understand and know that this person had a licence. Given that the advice cannot be in PACE Code H, because it is prior to arrest, where, if anywhere, is it? These are important questions relating to how a police officer can operate the code of practice inherent in the primary legislation that we are debating.

My Lords, we support this statutory instrument, which revises the PACE code of practice H to reflect the introduction of a new power of urgent arrest by the Police, Crime, Sentencing and Courts Act 2022. As the Minister outlined, this power enables the police to arrest without warrant and detain a previous terrorism or terrorism-connected offender who is suspected of presenting a further terrorism risk to the public. It also updates Code H to reflect changes made by the Counter-Terrorism and Border Security Act 2019.

As the noble Lord said, the horror of the attack at Fishmongers’ Hall in 2019 and a subsequent attack in Streatham is a reminder of the harm that terrorist-risk offenders are capable of. Following these attacks, the Government commissioned the Independent Reviewer of Terrorism Legislation, Jonathan Hall, to review MAPPA, which is used to supervise such terrorist and terrorist-risk offenders. The creation of the power of urgent arrest was recommended as part of this review.

We supported the introduction of this power during the passage of the PCSC Act and we support it now. We believe it is vital to have the right safeguards in place. With the introduction of such powers comes the possibility of unintended consequences or missed opportunities. I look forward to the Independent Reviewer of Terrorism Legislation considering the effect of the introduction of these powers, as well as the other new powers introduced to improve the management of terrorist offenders on licence, and the 2019 powers that Code H now includes.

I was just reflecting on my memory of the attack in Streatham, which is not that far from where I live. I have no inside information on it other than what I read, but I read in the papers various bits of speculation about the officers who were tracking that terrorist offender, who was out on licence; they observed a crime being committed and intervened, and the offender was killed. The speculation I read in the press was about how that process was managed and the huge resource-intensiveness of tracking such people when they are out on licence. Can the Minister say anything about whether this change to the codes of practice within Code H is partly a result of the large resource implications of tracking such offenders when they are out on licence? However, we support the changes.

My Lords, I thank both noble Lords for their contributions.

The noble Lord, Lord German, asked me, first, in essence, where is the guidance for the police pre arrest? Of course, the guidance is operational in nature, so it will be issued by Counter Terrorism Policing and the College of Policing, which will issue it internally. Any guidance for officers is of a highly tactical and operational nature and will therefore obviously have to sit within the police’s own guidance rather than a government-issued code of practice.

On how to determine whether an individual is on licence for a terrorist offence, this will be understood through close working by Counter Terrorism Policing and the Prison and Probation Service, which will include information-sharing and briefing about terrorist offenders on licence. If they breach their licence and are recalled, a warrant will be out for their arrest. Obviously, policemen can find out whether an offender is out on licence by checking their details on the police national computer, which will flag it.

In answer to the noble Lord, Lord Ponsonby, about potential operational constraints on the police because of potentially large numbers involved, obviously, I hope that there will not be a large number of people subject to these powers, but I am quite sure that if Counter Terrorism Policing and more routine and—shall we say, traditional?—policing come up against capacity issues, we will certainly hear about it and come back to debate this in further detail. I fear that I cannot supply any better detail than that at this point. However, I will have a dig and, if I can find anything, I shall come back to the noble Lord in writing, if that is acceptable.

Just before the Minister moves on, reflecting on the answer he just gave me about the internal guidance, is that guidance publicly available? If so, has it already been written and where can we find it?

I do not know whether it is publicly available; I am afraid I shall have to find that out as well and come back to the noble Lord. I should be somewhat surprised if it is, but you never know.

In closing, I reiterate that this order provides for the revised PACE Code H, which relates to the detention and treatment of people arrested under the Terrorism Act 2000 and applies across England and Wales, to be brought into force. This revised PACE Code H will govern the fundamental principles to be observed by the police when exercising the new urgent arrest power in Section 43B of the Terrorism Act 2000 and will help preserve the effectiveness of and public confidence in the use of police powers of arrest. The updated code will also reflect various changes made to primary legislation by the 2019 Act, as well as other minor updates to ensure that the terminology in PACE Code H is up to date with wider legislative changes. I can pre-empt writing a letter to the noble Lord, Lord German: I fear the guidance is for internal police use only, so it is not public. That said, I thank both noble Lords for their broad support for this SI and I commend it.

Motion agreed.