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

Baroness Neville-Jones Excerpts

Tuesday 25th January 2011 Grand Committee

Relevant documents: 9th Report from the Joint Committee on Statutory Instruments and 14th Report from the Merits Committee.

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, the order 2011 obviously relates to the codes of practice that are in operation under the 1984 Act. Under Section 66 of that Act, my right honourable friend the Home Secretary has a duty to issue codes of practice to regulate the police in the exercise of their powers. The proposed revisions to Codes A, B and D will keep the codes of practice in line with legislative change and are, obviously, part of the Government’s programme to modernise the police and to reduce bureaucracy in policing. I will explain some of those changes.

On 20 September, under Section 67 of the 1984 Act, my right honourable friend prepared and published drafts of the three codes of practice for statutory consultation. Representations on the content were taken from a number of independent organisations, such as Liberty and StopWatch, as well as from professional bodies such as the Bar Council, the Law Society, the Association of Chief Police Officers and the Police Federation.

I am aware that the Merits Committee has raised a question about the length of the consultation period, but I stress that the process extended well beyond the normal four weeks. Individual discussions were held with concerned parties following their responses so, although the formal process may have ended at that point, discussion continued on the responses. Indeed, individual forces are conducting their own consultations on how the changes will affect the communities that they serve and on how the changes should be implemented. In particular, the Metropolitan Police is beginning an engagement programme shortly on exactly that issue.

I shall deal with the PACE Code of Practice A first and with Code B and Code C subsequently, given that Code A is the most substantial and will, I suspect, be the code that we focus on. Many of the proposed changes to Code of Practice A follow from the need to reverse the increase in paperwork that hampers police operations and leads to encounters with the public that are unnecessarily prolonged and bureaucratic in character. For stop and account, draft Code A removes the national requirement to complete a form recording each encounter. That potentially frees up many hundreds of thousands of hours of police time, both on the street and in the back office, and will allow officers to increase the quality—and shorten the duration—of those encounters, which should be no more than brief.

It is understandable that some worries have been uttered about that change, particularly in light of the origin of the current national recording requirement. Your Lordships will recall that the Stephen Lawrence inquiry report of 1999 raised awareness of the impact that the police have on the people whom they encounter, particularly in black and minority-ethnic communities. However, since recording was implemented in 2005, we have seen little evidence of widespread disproportionate use of stop and account in relation to black and ethnic-minority communities and a vast increase in police bureaucracy. When examined at a local level, many forces show little evidence of any form of disproportionate use of stop and search as a tactic in dealing with BME communities and consultation with community groups has not really raised concern about the use of stop and account. That is why we propose to remove the national requirement for recording stop and account and leave the decision on whether to continue to record the ethnicity of the person stopped to be decided locally, according to perceptions of local need.

By that, we mean that there will be some communities in which the question of ethnicity is sensitive, so the local police force will judge whether, in the light of that, it is right to continue to record, but the force will not be obliged to do so. In communities where ethnicity is not particularly an issue, we see no need to continue that burden. As the House will know, we take the view that individual police forces know their own communities better than Whitehall and are best placed to analyse their own statistics and understand how they might use the tactic and what its impact on ethnic-minority groups might be.

On the other hand, given the intrusive nature of stop and search, we think it right to continue to have a national requirement governing the minimum level of recording of stop-and-search encounters. Therefore, we are making a distinction between stop and account and stop and search. The proposed changes to Code A do not diminish the importance of recording these encounters or the monitoring of the use of the powers. In accordance with Section 1 of the Crime and Security Act 2010, we are reducing the number of pieces of data to be completed on a stop-and-search record from 12 to seven. We are reducing the quantum of information, but we are not saying that no record needs to be made. We believe that leaving out some of the pieces of information currently demanded, and having others recorded automatically by the new technology, will save many hundreds of thousands of hours of police time.

Key information about each encounter, including the self-defined ethnicity of the person stopped, will still be recorded. Mobile technology is being encouraged and minor amendments have been made to the language of Code A to encourage its further use. The sorts of things that we envisage are airwave radios and BlackBerrys, which could enable the police to reduce the amount of effort and time that they put into each encounter. The outcome of a stop and search will be recorded as part of the custody record for those detained as a result of a stop and search. That means that we will not have, as at present, two sets of records, as everything will be incorporated in the custody record.

Code A also details the changes in the use of Section 44 of the Terrorism Act 2000 stop-and-search powers, which I set out to the House on 8 July last year when I repeated a Statement made by the Home Secretary. The inappropriate use of this power has ceased in the light of the judgment of the European Court of Human Rights in the Gillan and Quinton case. Clearly, more will be said about this in your Lordships' House tomorrow, when we look at Section 44 along with other elements in the counterterrorism review. I very much regret that, due to a hazard of timing, it will not be possible to have a more detailed discussion of those items today, but I have no doubt that there will be further opportunities to take up any issues that remain outstanding.

Comments have also been made concerning the draft guidance that was put in place on the Section 60 stop-and-search powers following the Gillan and Quinton judgment about Section 44. In the light of responses from those concerned, the Home Office amended the September draft of Code A—the draft that we put out for consultation—to make it clear that there is no ethnic profiling or unlawful discrimination in the use of this power. All authorisations under this power must be supported by clear intelligence. Recording of race or any other protected characteristic under the Equality Act 2010 may on occasion be relevant but that must never be the sole reason for stopping someone under Section 60. This is how we arrived at the outcome that we did in order to emphasise, among other things, that consultation does have effect in real life.

Others have suggested that Section 60 should be amended in line with the changes that we have made to Section 44 following the Gillan and Quinton judgment. We have not done this, as we consider that the Section 60 power can be distinguished readily from the provision in Section 44 that the ECHR declared incompatible with Article 8 of the ECHR. We do not think that the relevant section fell foul in the same way. Moreover, there is currently an application for judicial review of a Section 60 stop and search before the High Court, on which it would not be appropriate to try to predict the outcome or to take the debate on the issue further today.

However, Section 60 is used differently across England and Wales. Many police forces authorise the power for use on only one or two occasions a year, whereas others may never use it at all. As a national document, Code A should not restrict the use that forces make of the power based on how other forces operate but should simply cover national requirements and allow local practical application of the power to continue. As I say, this is an area where there is significant variation in use. We should not judge the use of a tool such as Section 60 purely on the basis of national statistics.

Here I want to make an important point. Figures are quoted in the press to the effect that black people are 26 times more likely to be stopped and searched under Section 60 than white people. We regard such statistics as potentially extremely misleading because of the distribution of the actual use of the power. Some 76 per cent of all the Section 60 stop and searches in 2008-09—before this Government came into office—were conducted by the Metropolitan Police in London. I suggest that that means that measuring the use of the power against the ethnic composition of the national population as a whole gives a false impression of what actually goes on. When we compare that 76 per cent with the cosmopolitan population of London—obviously, leaving the remaining 24 per cent for the rest of the country—the results are much less disproportionate.

I turn briefly to the other two codes. Code B governs the searching of premises and the seizure of property. The changes bring the code up to date with changes in legislation and the relevant judgments of the higher courts and are largely technical in nature. The proposed changes provide guidance on the powers to search the premises of individuals subject to control orders as well as on the police’s power under Section 18 of PACE to enter and search premises occupied or controlled by a person under arrest for an indictable offence.

The majority of the changes to Code D, on identification issues, reflect the amendments to the power of the police to take DNA and fingerprints for recordable offences that are made under Sections 2 to 7 of the Crime and Security Act 2010, which was passed early last year. The changes fill existing gaps in the ability of the police to take biometric material in connection with criminal investigations and ensure that the national DNA and fingerprint databases are populated primarily with the profiles of those who have been convicted of offences by the courts rather than with unconvicted people. The detail of how the Government will meet the commitment to adopt the protections of the Scottish model for DNA retention will be outlined in the freedom Bill that is to be introduced shortly. Clearly, that will require amendment to the code in due course, but what we have done is bring the code into line with the existing state of the law.

Code D also provides the police with necessary guidance on the use of mobile fingerprinting equipment, which is a fairly recent advance and is not intended to be used routinely or on a whim in investigations. The equipment must be used only when the police already suspect a person of committing a crime and only when they have a need to confirm a person’s identity, following the example set down in guidance designed to prevent abuse. If an officer is unable to confirm a person’s name or has reasonable grounds for doubting the name given, it would be right and proper to use the devices in those circumstances. An image of one or two fingerprints may be taken and checked against the existing fingerprint database. This reduces the need for arrests purely for the purpose of confirming identity, which will save valuable time and resources both for the police and those whose identity is in doubt. I want also to emphasise, because it really is important, that the fingerprints taken on those devices are automatically destroyed by the devices themselves, so there is no way in which, covertly or inadvertently, fingerprints taken under those circumstances, where they are not available for retention, could be retained. As soon as the search is concluded, the prints are explicitly excluded from the police’s wider powers to take and retain fingerprints on arrest.

Concerns have been raised about how we will ensure that these codes are interpreted and applied in a consistent manner across all forces in England and Wales. The codes need to balance the requirement for central guidance with the freedom for forces to operate specific processes and procedures in the way that meets local needs. We have been trying to strike such a balance, and the Home Office continues to work closely with a range of interest groups on these issues.

The revised codes of practice follow important principles, such as reducing bureaucracy and increasing efficiency as well as protecting the civil liberties of our population at large. I think that the House will agree that the landscape of policing is always evolving. It is important, therefore, that the codes of practice, which are a key source of guidance to the police, are kept up to date and that the public know the position. The changes are fully supported by the police and I hope that they will have a real impact on day to day policing. I commend the draft order and the attendant codes to the House.

[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.

--- Later in debate ---

[Lord Bradshaw]

I am not going to speak for very long; I merely want to ask one question about local accountability. Does local accountability refer to the whole of a police force or does it mean that different things can happen in different places? For example, if the police superintendent in Slough decides that he needs to record things because there is a large—not just ethnic—population from other countries, and the police superintendent in Whitney, which is a long way away but still in the same police area, decides that there is no need to record them, does “local” mean that discretion goes down that far? If not, how far within a police force does it go?

As someone who was involved in one of the many attempts to reduce police bureaucracy, I have spent time speaking to an assistant chief constable about stop and search, and was quite horrified by what has to happen when someone is approached under stop and search or stop and account. There is a constant complaint about police bureaucracy. It actually happens and it eats up a huge amount of resources. I should like to see those resources expended on real police work rather than bureaucracy.

I read the report of the Stephen Lawrence inquiry very carefully, and it exposed irresponsible and very badly organised policing. I do not believe that it showed that stop and search or stop and account needed to be recorded in every case as thoroughly as it is now. Generally speaking, I support these changes, but I would like to know that discretion really is going to move down to the meaningful local level.

[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.

Motion agreed.