Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes A, B and D) Order 2011

Lord Rosser Excerpts

Tuesday 25th January 2011 Grand Committee

[The Deputy Chairman of Committees]

Before the debate on the order commences, perhaps I may ask noble Lords please to be kind enough to turn off their phones. The rather curious noise is caused by having mobile phones still switched on.

[Lord Rosser]

My Lords, I thank the Minister for her explanation of the order, which brings into force changes to codes of practice under the Police and Criminal Evidence Act 1984 in order that the codes in question reflect changes in legislation and policy, including in the light of court judgments. As the Minister has said, the changes relate to stop and search, entering and searching premises, and seizing property and identification. The changes under stop and search remove the requirement to record stop and account, and leave it to police forces following consultation to decide whether they continue monitoring such encounters.

These changes also implement a lower level of information to be recorded for stop-and-search incidents. They make changes in the use for the stop-and-search powers under the Terrorism Act 2000 following a European Court of Human Rights judgment to require a greater degree of suspicion that the person stopped is a terrorist. They give further guidance on the use of the stop-and-search powers of persons and vehicles under Section 60 of the Criminal Justice and Public Order Act 1994. As the Minister has said, the changes on entering and searching premises, and seizing property, have been made in the light of the judgment in the case of Khan v Commissioner of Police of the Metropolis on the power of the police to enter and search premises.

Finally, the changes on identification take account of amendments to the powers to take fingerprints and samples for recordable offences. They allow fingerprints to be taken on the street using mobile fingerprint technology and they make new distinctions between visual identification taken from images, such as CCTV, and that from eyewitness recognition.

Paragraph 8 of the Explanatory Memorandum to the order refers to the outcome of a four-week consultation with statutory consultees. The Minister has indicated that in reality the consultation went on rather longer than that. But in addition to the statutory bodies, the Explanatory Memorandum states that while this was,

“not a public consultation … subject to 12 weeks’ duration … other relevant organisations, including groups (Liberty and Justice) who have a specific interest in human rights issues”,

were consulted.

Apparently, the main concerns from the consultation, according to the Explanatory Memorandum, were about stop and search and, in particular, whether the changes proposed,

“would allow officers to take into consideration a person’s ethnicity when stopping and searching under this power”,

which comes under Section 60 of the Criminal Justice and Public Order Act. The department says that it considered the responses and decided to amend its proposals, as set out in the Explanatory Memorandum.

We understand that the Government believe that their proposed changes in relation to stop and search, and stop and account, will reduce bureaucracy and free up to 800,000 hours of police time. Over the past few years, there have been huge efforts to cut police bureaucracy, including changes to the stop-and-account form. Those efforts were extended further by the Crime and Security Act early last year, which included the provisions for reducing the length of the stop-and-search form we are considering in this order.

The issue of the police stop-and-search powers is controversial because the figures show that a minority-ethnic person is more likely to be stopped than someone who is white. African-Caribbean people are already at least six times more likely to be stopped than white people under powers where an officer has reasonable suspicion to carry out a search. Stop and search is a power that is exercised frequently. One figure suggests that in 2009 there were 2 million instances of stop and account by police, and the figure for stop and search was 1 million.

Under Section 60 of the Public Order Act, officers do not require the same reasonable suspicion to stop someone, meaning that the police have maximum discretion. I understand that Section 60 enables the police to stop and search an individual when there are no grounds for suspicion of the particular individual in a designated area for a period of 24 hours. In 2008-09 just under 150,000 incidences of stop and search under Section 60 were used. I come to an issue raised by the Minister on the figures for these stops and searches, which show that a young black man is 26 times more likely than his white counterpart to be targeted, which leads to allegations of discrimination. However, as the Minister has already said, three-quarters of Section 60 stop and searches in 2008-09 were carried out in London, so the disproportionate use of these powers is probably not quite as stark as the “26 times more likely” figure would indicate.

The case of Stephen Lawrence led to measures aimed at tackling alleged police discrimination. That included a specific requirement for recording stops and searches by officers, which meant data becoming available to show whether or not there was overtargeting of minority-ethnic people by police. There have also been press reports that a national community panel set up to reduce the overtargeting of minority-ethnic people was abolished last summer. Will the Minister say whether that is true, and if so whether any alternative provision has been used to achieve the same objective? If the requirement to record stop and account is to go, will the Government replace that important source of information on fairness? While it would be possible for a police force to reinstitute stop and account if local concerns were expressed, it is not clear how police forces would take such soundings. What would constitute a valid local concern and what would happen if a police force decided not to respond to local concerns?

There will also be a reduction in the amount of information recorded on the stop-and-search form in the light of the amendments to Section 3 of the Police and Criminal Evidence Act made by the Crime and Security Act 2010. Among the information that will no longer be required is the name of the person who is being stopped and searched, whether anything was found as a result of the stop and search and whether any injury or damage arose as a result of the search. I assume that the Government have no issues with these provisions that arise from the Crime and Security Act 2010.

As the Minister commented, the Merits Committee has drawn the special attention of the House to this order on the ground that it gives rise to issues of public policy likely to be of interest to the House. The Committee said that while changes had been made to the initial proposals, commentators remained dubious about how the rules would be applied in practice. Unlike the Minister, whose Explanatory Memorandum tells us little about the nature of the concerns expressed under the consultation process and the extent to which the Government’s changes to their proposals addressed the concerns raised, the Merits Committee contacted certain interest groups on individual rights for comments on the final versions of the codes. In response, Liberty, as set out in the Merits Committee report, expressed support for the changes that had been made by the Government to their proposals in the light of its representations, but went on to say that the Section 60 power was still too broad and open to abuse and that scrapping the stop-and-account form would make the monitoring of equal treatment in policing harder. Liberty went on to say:

“This will see a direct reversal of a recommendation of”,

the,

“Inquiry into the death of Stephen Lawrence just over a decade ago”,

and,

“ignore recommendations of later inquiries, including Sir Ronnie Flanagan’s independent review of policing in 2008, that this record be maintained, even in the context of rolling back centralised bureaucracy”.

Justice commented that there should be a clearer reminder that there is no police power to compel a person to account for themselves or to detain them to ask them to do so. It went on to say:

“We are concerned that the absence of a recording requirement may mean that disproportionate use of ‘stop and account’ against particular groups … may go unmonitored and unaddressed”.

Stressing that Section 60 powers should not be used routinely but only at a time of particular risk of offences being committed, Justice argued that reducing the items of information recorded would do little to reduce overall bureaucracy and that a reduction in the number of such stops would be a more effective way of saving costs.

--- Later in debate ---

[Baroness Neville-Jones]

My Lords, I thank both noble Lords for their helpful and thoughtful contributions. I am grateful to the noble Lord opposite for expressing the willingness of the Opposition to support these orders. Let me take the points that have been made and allay any anxieties that there may be.

The point made by the noble Lord, Lord Rosser, at the end of his speech about the need to ensure that there is no unnecessary bureaucracy but that valuable information is not lost is extremely pertinent and quite right. What we are trying to do in modifying—it is no more than that—some practices is to try to strike that balance. I shall spend a little more time on stop and account than on stop and search, but I should say on the latter that everyone agrees that stop and search is a much more intrusive activity on the part of the police, so it is really important that, when it takes place, it is fully and properly recorded. For that reason, we have no intention of changing practice on stop and search.

On stop and account, it is certainly the case that not all those who were consulted were as convinced as the Government are that change would be desirable. However, let me say straightaway that, if it is demonstrated that the changes are not helpful, it will be right and proper to think again, and consultation is still going on. One effect of instituting more local obligations on the part of the police will be to ensure that questions will be raised about whether such measures are accepted—which seems to me to be the criterion that we should look at—and whether they give the local population confidence that their security is being protected and that justice is being served. With the police and crime commissioners that we will have in due course, the vehicle for both the obligation and the means for local accountability will be much more clearly stated.

On the question whether discretion will extend to the local level, it is in the logic of giving the obligation to local police forces—in the first instance, to the police and crime commissioner working with the chief constable—to decide exactly how, given local circumstances and the distribution of the local population, recording should take place. The whole point of our proposal is that recording need not be uniform to be helpful in serving the interests of protecting the public and of justice and in gaining the confidence of the local population. That is why we take the view that uniformity and efficiency are not necessarily quite the same thing, given the need to ensure that the systems are not only efficient but acceptable and just.

I should also say that stop and account, unlike stop and search, should be a brief matter in which the policeman simply says, “Why are you here?”. It should not develop into an encounter that is remembered on both sides. That is partly why we think that stop and account should be restored to the normal relationship between an individual and a policeman. If, say, a crowd is building up, the policemen present will want to retain the confidence of the people on the ground. Reducing the bureaucracy associated with stop and account is justified both by the nature of the encounter and because it will help such encounters to be seen as less intrusive for individuals than they might otherwise be. As I said, if it is demonstrated that these changes are not helpful, I have absolutely no doubt that that will be thrown up in the consultation process and that it will be right to respond. Clearly, codes of practice are never the last word.

The arrangements with communities will deliver the necessary monitoring. I was asked whether we would do anything as regards the NPIA-run stop-and-search panel, which has been abolished because it was not inciting any great engagement—community members were not turning up and it did not seem to be very useful. The NPIA is looking at whether a replacement should be instituted. Perhaps noble Lords will not be surprised to hear that we regard the local consultation as an important part of what would replace something that was run by the NPIA and certainly would contribute to it. That issue is still being looked at.

I hope that I have already explained that our approach to consistency is that it should relate to local conditions and not to numerical equivalents at a national level. Having said that, we take seriously the need to ensure that the outcome serves the public interest.

I am wondering whether I was asked about any points that I have not covered.

[Lord Rosser]

I asked the Minister whether she had any further comments to make, in addition to those in her opening speech, on the concerns that are expressed in the Merits Committee report both by the Merits Committee and on behalf of the organisations that it had contacted directly, which, while welcoming the changes that the Government have made to their original proposals, were clearly still unhappy with the situation.

Since consistency of application seems to be an issue, perhaps I may come back to the point that the Minister made about that. I appreciate that the Minister has said that there will not be national consistency across the board as forces will have to reflect what may be happening in different areas. Does she think that that is the cause of inconsistencies at the moment, as opposed to police forces taking different approaches and perhaps very different interpretations, which may not be based on what local communities think?

[Baroness Neville-Jones]

I think that we all have learnt. I would not try to claim that there was never any disproportionality, for instance, in the way in which different ethnic groups have been stopped and searched. The way to regulate the proper use of these powers is with the involvement of the local community, which will be extremely aware of whether the local police are using their powers disproportionately or improperly. That is why we believe that that kind of consultation will have a much more direct and helpful effect on the police using their powers in a proportionate and proper way than waiting to collect a lot of national statistics and then deciding that it looks as if there is something wrong.

I suppose that we are offering a different and, I hope, more practical approach to ensuring that the use of powers is regulated in a proper manner, but I believe that our approach will be effective. Of course, clearly the forces will have to record what they are doing overall and we will get to know over time whether the variation represents satisfaction in local areas.

The Merits Committee was concerned about the relative shortness of the time allowed for consultation. I hope that I have explained that the reality was that the time was rather longer. The committee also remarked on the fact that not all the groups supported all the proposals that we have decided to make. Liberty feels that the powers under Section 60 remain too broad. As I said, a case before the courts at the moment is an element in the situation. Perhaps I should also remind noble Lords that the Section 60 power can be used for only very short periods; it is not in the Section 40 category.

Justice’s concerns were also mentioned. I think that Justice is worried about the absence of statistics—I am afraid that I cannot read the note—but, if there is a problem, we will need to look at that and make sure that absence of information does not lead to improper outcomes. We are clearly embarking down a slightly different road and I assure the House that, precisely because we are doing that, we will watch the outcome carefully. I hope that the House will feel sufficiently reassured that the changes that we are making are intended to have a favourable outcome and that we will monitor their use in a way that will ensure that that is the outcome.