Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code E) Order 2015

Lord Bates Excerpts

Monday 7th December 2015 Grand Committee

Moved by

[Lord Bates]

That the Grand Committee do consider the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code E) Order 2015.

Relevant documents: 9th Report from the Joint Committee on Statutory Instruments

[The Minister of State, Home Office (Lord Bates) (Con)]

My Lords, this statutory instrument brings into effect a revised Code of Practice E, issued under the Police and Criminal Evidence Act 1984, or PACE. It is laid under Section 67(7) of PACE and governs the procedures for recording interviews under caution of individuals suspected of committing an indictable offence.

Police work is a difficult balancing act. Its main purpose is to prevent, detect and investigate crime; however, the powers needed for this—for example, to stop and search and arrest—require appropriate safeguards to protect the citizen. The Police and Criminal Evidence Act 1984 and its codes of practice are designed to strike this difficult balance between the need for police to have powers to tackle crime on the one hand with the need for safeguards for suspects and members of the public on the other. It is to maintain this balance that these changes are being proposed.

Code E has been revised explicitly to exempt the audio recording of voluntary interviews under caution that are conducted outside a custody suite, referred to as “on the street” interviews, for four specific offence types: possession for personal use of cannabis or khat, low-level theft, and low-level criminal damage. These revisions support the Government’s commitment to put in place necessary protections for members of the public while ensuring that the police have flexibility to deal with low-level offending proportionately on the spot by way of an out-of-court disposal, rather than in a police station in the police custody context. I make it clear to noble Lords that the Government intend to maintain the critical safeguard of a written record and the revised code strictly prescribes the circumstances in which this exemption applies.

PACE Code E was previously revised in October 2013. Those revisions substantially extended the requirement on the police to audio record interviews for indictable offences so that it also applied to suspects who attended the interview voluntarily, as opposed to being under arrest, and to interviews that took place outside a police station. Prior to 2013, the requirement to audio record interviews under caution was confined only to interviews for indictable offences where the suspect had been arrested and which took place at police stations.

The 2013 extension of Code E was done to complement and support substantial revisions in 2012 to other PACE codes, namely Code C, which concerns the detention of individuals in police custody, and Code G, which concerns arrest. Combined, the purpose of these revisions was to promote the wider use of voluntary interviews, particularly for less serious offences, but to ensure that the same safeguards, including the right to free legal advice, applied. However, as a result of the 2013 revisions to Code E, whereby all interviews under caution taking place at a location can be audio recorded, the Government were made aware of situations where the use of out-of-court disposals to dispose of low-level offending swiftly was being undermined. Noble Lords will appreciate that there are certain types of low-level offending that are entirely appropriate to deal with outside of the police station and in the context of an out-of-court disposal.

I will focus on voluntary interviews for four particular offence types: possession of cannabis or khat for personal use; low-level theft; and low-level criminal damage. Given that these are regarded as high-volume, low-level offences, it is right that the police have the ability to deal with them swiftly and the Government do what they can to maintain this. However, the requirement to audio record these voluntary interviews impeded that ability. Combined, there were almost 130,000 of these four offences disposed of by the police by way of an out-of-court disposal between April 2014 and March 2015. The 2013 change of Code E meant that the police had to record on-the-street interviews in every instance. Given the lack of portable audio recording equipment, the recording requirement meant that forces often had to bring suspects into the police stations to comply with this requirement.

These offences are less serious in nature and are common in the sense that the police deal with many of them on a daily basis. While there has been an indictable offence committed under criminal law, the police do not necessarily need to detain the suspect and bring them to the police station. Instead, they can and should deal with these offences quickly and non-bureaucratically on the spot when appropriate to do so.

The offences of drug possession for personal use are dealt with by a cannabis or khat warning for first-time possession offences only. Those of low-value retail theft and criminal damage can be dealt with by a community resolution. These are usually used in instances where the victim does not want the police to take more formal action. They are also often used in cases of young offenders to help them face up to the impact of their behaviour. The Government believe that it is entirely appropriate for such offences to be dealt with in this way, which is the reason for the proposed revision before the Committee. In seeking to exempt voluntary interviews for the offences I have outlined, the Government seek to address an unforeseen consequence of the changes made in 2013.

I point out to the Committee that the police, in their response to the statutory consultation on these revisions, requested a broader exemption that removed the requirement for audio recording of voluntary interviews elsewhere than at a police station for a much wider range of offences. However, in the absence of a firm evidence base, the Government have made it clear that this request would not be supported.

As I have already said, safeguards are central to PACE. It is for this reason that the revision to PACE Code E relates to voluntary interviews for a limited and specified range of offences. Furthermore, the revised code makes it clear that officers are required to make a written record of the interview and to ask the person whether they want to exercise their right to free legal advice before they are questioned. Given the nature of the offences, this approach is considered proportionate and appropriate. Additionally, the circumstances in which the exemption can be used will be limited. For example, where the individual involved is vulnerable and in need of an appropriate adult, the exemption will not apply.

Committee members should be aware that the Government are currently working with the police to identify whether there are other low-level, high-volume indictable offences that it would be appropriate to dispose of on the street and which would thereby require a further exemption to the audio recording requirement. Furthermore, the Government are working with the College of Policing and police forces to examine the possibility of using portable audio recording technology for evidence-gathering, which would include the recording of interviews on the street. This may mean that the need for a written record of an interview under caution can be removed in all cases where offences are disposed of on the street.

For now, the proposed revisions are the right way to strike a balance between the need to safeguard the rights of suspects while supporting the operational flexibility of the police to deal with low-level offending proportionately and swiftly, away from the custody setting. I therefore urge noble Lords to support the revision to PACE Code E and commend the order to the Committee.

--- Later in debate ---

[Lord Bates]

On the previous orders we considered in Grand Committee today there was some question about whether the person with the relevant expertise was present, but the noble Lord, Lord Paddick, is here and, with 30 years’ service under his belt, his expertise is beyond doubt. As he was talking, I could see the smile on his face. I recall our exchanges on the Psychoactive Substances Bill. I know that in London he pioneered a low-level police response to low-level crime. However, there were high volumes.

The pilot to which the noble Lord, Lord Kennedy, referred was in relation to body-worn cameras. It is still taking place. As I mentioned in my introductory remarks, that important pilot could revolutionise a lot of community policing. We are talking about 113,000 offences. When I have been out on patrol with the police, situations where there is a need to intervene but where there is no recording equipment require the police officer and others to go back to the custody suite for that process to be undertaken, so there will be a significant saving of police time to focus on serious crimes while not letting up on these points.

The noble Viscount, Lord Simon, went to the heart of it with two succinct questions, to which I shall try to respond. As a distinguished Member of your Lordships’ House, he will have spotted that I am taking a little extra time to make sure that we have the responses, and inspiration has now arrived. The police background check is recorded on the police national computer. If an individual has offended before, there will not be an on-street disclosure. The short answer is that the police national computer will be accessed in the location of the individual who is stopped and that would show whether the individual had been stopped before and whether it was a first offence. If either of those circumstances was not the case, further action of a more formal nature would need to be taken.

On theft and dishonesty, it is important to note that legal advice remains for someone who is accused of theft. Accordingly, a person can obtain advice from a lawyer regarding further information. Some people would regard drug offences as equally serious but both offences are deemed low-level.

The noble Lord, Lord Kennedy, asked why there are only four offences. These four offences cover the highest volume of indictable offences disposed of on the street. Other offences were low-level violence and arson, and we believe they should be dealt with in the custody suite.

The revision of the code was the subject of a formal consultation, as your Lordships would expect, and we got quite a lot of feedback. Quite a vigorous discussion took place. Although the revised code that was produced does not accede to all the representations that were made by the police, as I alluded to, it reaches a point where both parties recognise that this is a significant step forward while we wait and see what happens with further trials that are taking place, particularly with body- worn cameras.

With those answers and reassurances, I commend the regulations to the Committee.

Motion agreed.