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Draft Police and Criminal Evidence Act 1984 (codes of Practice) Order 2005


30th November 2005

The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 comes into force on 1 January 2006

The Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005 comes into force on 1 January 2006 and will introduce revised codes of practice under the Police and Criminal Evidence Act 1984 which reflect changes to primary legislation made by the Serious Organised Crime and Police Act 2005 and the Drugs Act 2005. Revised versions of the codes and a new code G relating to arrest are being issued, and they are being considered today. The revisions also contain other minor amendments to ensure that they reflect best policing practice.

PACE and its codes of practice are key elements of the framework of legislation providing the police with the powers they need to combat crime. PACE sets out to strike the right balance between the powers of the police and the rights and freedoms of the public. As the Minister rightly said, maintaining that balance is a key part of PACE. It is important to ensure that the balance is not disrupted by amendments to the codes of practice.

Hon. Members will appreciate, as the Minister acknowledged, that many of the issues have been debated in some detail in relation to SOCPA and the Drugs Act 2005. I am not planning a rerun of those debates today. However, the codes are lengthy and important, as was reflected in her comments, and I hope that hon. Members will bear with me while I outline the Opposition's position.

Certain provisions of the Drugs Act 2005 and SOCPA came into force in July and August. I was concerned that there should have been no delay in implementing changes to the codes of practice, which provide the police with the powers and guidelines required to enforce the legislation. Will the Minister reassure us that those parts of the Drugs Act and SOCPA that came into force earlier this year are unrelated to the changes to codes of practice and consequently that there has not been, and will not be, any period during which parts of those Acts reliant upon the new codes have been in force before the codes of practice have come into force?

Considering that we received copies of this order only last week, I also wish to raise some concerns about the consultation that has taken place. The explanatory memorandum states:

"In accordance with the provisions of Section 67(4) of the Police and Criminal Evidence Act 1984, the draft Codes of Practice have been through a period of public consultation . . . from 31 August to 7 October 2005."

That seems a relatively short consultation period and we are aware of at least one interested party, the Law Society, which believes that it did not have sufficient time to consider in detail the proposed revisions of all the codes.

Will the Minister please elaborate on the extent of the consultation? What were its results and which interested bodies were consulted? What parts of the codes were revised as a result of it? Until this week, or perhaps the very end of last week, the Home Office website stated that it would publish a formal response to the consultation by the end of October. We have not seen that response and nothing appeared on the website.

However, I looked at it again this morning and saw that a summary of responses-not a response; reference to that has now disappeared altogether from the website-to the public consultation has now miraculously appeared. I am not sure exactly when that summary was posted, but it cannot be good practice to publish a consultation exercise so soon before Parliament is due to debate the codes, which will affect so many people so directly. That was referred to earlier, perhaps indirectly, in the intervention made by the right hon. Member for Knowsley, North and Sefton, East (Mr. Howarth).

The explanatory memorandum states rather vaguely that

"no major areas of concern" resulted from the consultation,

"although a number of issues . . . were raised".

What were those minor areas of concern and how have the codes have been amended in the light of the responses? A register of changes has been created to record suggestions for the alteration of the codes, for future consideration. Have those suggestions been properly reviewed? If there are any relevant changes, why have they not been considered further already? When will the contents of the register of changes be assessed?

I should like briefly to address each of the seven codes in turn. As I said, I shall try not to revisit past debates, although concerns expressed during them often remain; I shall focus on practical issues arising from the codes. The changes to code A include the specific exclusion of religion as a reasonable ground for suspicion in stop-and-search, a new power under section 115 of SOCPA to stop and search for possession of a prohibited firework, and new provisions for officers recording those stopped and searched.

We welcome the new, specific exclusion of religion as a reasonable ground for suspicion in paragraph 2.2. However, how will that work in practice? For instance, when stopping and searching in tube stations recently, the police have predominantly been searching young, Muslim males. Does the combination of being young and/or male and/or Asian mean that being Muslim is only part of the relevant grounds for suspicion and therefore acceptable, or will current police practice require review in the new context?

We accept the new guidance in paragraphs 4.19, 4.20 and 4.21 on recording stop-and-search and other encounters with police and hope that those will enable police to stop and search fairly, but without being unduly burdened by bureaucracy. Stop-and-search practices are some of the most sensitive activities that police routinely carry out and how they are handled can have a profound effect on how individuals and communities perceive the police.

There is an important balance to be struck between serving the public's legitimate right to know and have recorded the circumstances of their encounters with the police, and ensuring that that right does not become the subject of abuse and that its application does not become so burdensome that it impedes the police in carrying out their work. Reform of work in this area is welcome, as long as it is guided by those principles and genuinely spreads good practice. I was pleased to hear the Minister say that the issue will be reviewed in due course.

The changes to code B include allowing search warrants to apply to more than one set of premises and to all premises connected to a specified individual, and increasing the life of a search warrant from one to three months and the rank of officer or court able to authorise searches. Measures to assist the police in their investigations are welcome, but we need to ensure that the code specifies procedures that protect the public from excessive intrusion by the police. We think it right and important that the code should stress that warrants for an unlimited number of premises searches and searches of unspecified premises should be limited to exceptional circumstances and that, in most cases, the police should be responsible for detailing the premises they wish to search and the full reasons for their significance to investigations.

The Minister stressed that there are safeguards. However, we would stress that the phrase "reasonably practicable" in paragraph 3.6 must not be a licence for shortcutting procedures. Similarly, the provision in paragraph 8.3 that a warrant shall be returned after three months, rather than after one month as is the case now, should be coupled with active review of whether it remains necessary to continue to search premises. The concerns of the hon. Member for Orkney and Shetland are fully justified in that regard. It must be the duty of those granting the warrants to guard against police gaining a warrant to search premises which has no reasonable chance of yielding evidence related to investigations.

On the changes to code C, I have one principal concern with note 1(e), which recognises that appropriate adults are not, strictly speaking, covered by legal professional privilege and, accordingly, legal advisors should sometimes consult and advise their clients in the absence of the appropriate adult. The Minister mentioned that. The problem with that is that appropriate adults are invariably important to the client and many would wish them to be present and involved. A young person, or a mentally vulnerable person, naturally does and should be able to rely on the support of an appropriate adult during that process, which for obvious reasons can be an especially stressful time for them.

Note 1(e) suggests to officers that there is nothing to prevent appropriate adults from being questioned at the police station or being called to give evidence. There may be circumstances when the police have to do just that-the Minister gave a few examples, which I accept-but it would be an exceptional step. Indeed, there must be doubt as to the admissibility of any material obtained from an appropriate adult who the state has itself provided as a support for a particularly vulnerable person.

The Minister spoke about exceptional circumstances, but questioning an appropriate adult in order that they reveal the content of privileged communications would, according to the Law Society, be unlawful. The hon. Member for Tooting (Mr. Khan) said that that was stated in the code, but I understand that the wording of 1(e) does not convey those concerns. Indeed, highlighting in the notes the fact that appropriate adults can be questioned may encourage police officers to use their ability to question appropriate adults as a back-door route to finding out what was said in the consultation with the legal advisor, or what views were expressed by the suspect or the adults about the legal advice given to the suspect.

Linking those observations to note 1(k), it could be suggested that the appropriate adults' primary duty is their civic duty to help the police, rather than provide a safeguard for the young, mentally disordered and vulnerable. Note 1(e) should stress that police should only question an appropriate adult, or call them to give evidence, in exceptional circumstances; it should not give the opposite impression, as it currently does. I should be grateful if the Minister would consider that point further.

Changes in code D relate largely to taking footwear impressions of suspects, photographing suspects and the conduct of identity parades. Footwear impressions are clearly a useful tool to police officers and, like fingerprinting and DNA sampling, must be subject to rigorous procedures to protect the public and ensure they are fully aware of the consequences of having the sample taken. As such, footwear samples may be more novel and the public may be less well acquainted with them than with fingerprinting, for example, and particular effort should be made by the police to explain them to the public.

The Minister spoke about replicating provisions for other forms of evidence, but that is not my reading of code D. In paragraph 1.3(a), concerning footwear impressions, why have the same three criteria detailed above it in 1.3 for fingerprints not been replicated for footwear, when the same fairly simple criteria would seem to apply equally and should be done consistently? I think that that is what the Minister was suggesting, in any event.

In paragraph 5(f), regarding the use of force in taking photographs of suspects, the code says that the level of force used should be "carefully considered", but it fails to offer any practical guidance to officers as to how they should judge the level of force. Perhaps the Minister will provide some useful and helpful examples or criteria.

The changes to code E allow for different modern technology to replace or augment tape recording as the means to record interviews with suspects. Changes to the code appear to be minimal in this section, merely replacing the more restrictive and probably outdated reliance on tapes, with the wider definition of audio. We agree that it is important that policing moves with the times and uses the most appropriate and reliable technology at its disposal, but the test must relate to what is reliable, both in the view of the police and the suspect, rather than merely what is most convenient or cost-effective. The integrity of the recording process must be paramount in considering new technologies and it is important that the system appears to be fair. Suspects must be able to have confidence that the recording will be faithful and not subject to interference and often it will be the simplest forms of technology-such as tapes-that most easily convey this to people not well versed in technology. Will the Minister reassure us that the choice of new recording devices will follow these principles?

The changes to code F amount to relatively minor alterations to the procedures for keeping a visual recording of an interview with a suspect. In paragraph 4.8, it is correct that the provision allowing that a brief note on a suspect's objections to being recording "should be noted" has been expanded to give greater guidance for officers on how to handle such situations. This new paragraph does not, however, offer any guidance or criteria to officers to help them make the more difficult decision of whether to continue recording despite the suspect's objections. In what circumstances would the Minister envisage it necessary for officers to continue recording and when should they stop? Note 4G warns that continuing to record could have future consequences in court; should officers not be guided more clearly on this issue, if it may affect the admissibility of evidence if and when it reaches court?

Code G deals with the powers of police to arrest those suspected of criminal activities and represents the greatest change to the codes we are presented with today. During consideration of the Serious Organised Crime and Police Bill, we debated at length the rationalised power whereby all offences are arrestable subject to the necessary criteria, about which my party expressed its concerns. I do not intend to go into that debate again today, but we are concerned about code G, principally because it does not provide police officers with any practical guidance in the exercise of their discretion as to when it is necessary to arrest if reasonable suspicion of the commission of an offence by a suspect exists. That is extremely important now that the criterion of seriousness has been removed; a person may be deprived of their liberty on suspicion of the most minor of offences.

The Minister sounded a little complacent on that point because it is new practice and it remains to be seen how it will work out. The concern is that removing the seriousness criterion and making the power of arrest completely discretionary could lead to disproportionate use, akin to that seen in relation to stop and search. The code currently fails to address this concern adequately.

It seems appropriate that the introduction should stress that the decision to arrest someone is an important one which should only be used where other, less intrusive means will not suffice, and which has consequences beyond the immediate loss of liberty. For example, it might be useful to include circumstances when arrest would not be appropriate, such as when it would be disproportionate or discriminatory. It may also be sensible to explain some of the consequences of unlawful arrests in more detail.

In paragraph 2.3, it is unclear what the single exception listed in the notes for guidance 1 is, and for what offence arrest is not possible. Whilst paragraph 2.7 correctly states that the statutory criteria are exhaustive, the circumstances that may satisfy those criteria remain a matter for the operational discretion of individual officers. In effect, that could give officers carte blanche to determine their own personal tests for necessity and the examples given later do not seem sufficient to allow officers to judge the accepted standard uniformly.

Why does the code not give examples that explicitly highlight the questions that officers should be asking before making a decision to arrest? Paragraph 2.9 (e)(i) refers to situations

"where there are grounds to believe . . . the person may steal or destroy evidence"

or may contact co-suspects or conspirators or may intimidate witnesses. The word "may" still provides a very low test. After all, any suspect may engage in these activities. We thought that a fairer test would be that the officer has "reasonable ground to believe" that those activities are likely to occur.

There are other instances where the necessity of an arrest may become devoid of meaning unless the codes give greater practical guidance. Paragraph 2.9 (e)(ii) refers to an arrest justified by an operational need to take fingerprints and other samples. The desire to compile a database of information must not in itself be used as a basis to justify the necessity of an arrest. It must be made clear that the samples are directly necessary to the actual investigation: for example, because a sample of material was located that may yield DNA.

Finally, I note that this part of the code concerns a significant change in the law and the practices of the police that will affect a great many people, and therefore we must be doubly careful to get the guidelines in the code as accurate and comprehensive as we can to help the police and to protect the public. Will the Minister explain when it is proposed to review the workings of these codes, and in particular code G? I think that she implied that there would be an annual review, but will she please confirm that? Will that consist of a full progress report-as we believe that it should-rather than ending up as another example of facts being put on the Home Office website a day before the next statutory instrument? Perhaps the issue would be a good one for the Home Affairs Committee to consider. I hope that the Minister can address my concerns, because they are important.



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