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

Baroness Manzoor Excerpts

Monday 25th June 2018 Lords Chamber

Moved by

[Baroness Manzoor]

That the draft Order laid before the House on 21 May be approved.

[Baroness Manzoor (Con)]

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.

--- Later in debate ---

[Lord Reid of Cardowan (Lab)]

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?

[Baroness Manzoor]

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.