Draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, D and H) Order 2016

Carolyn Harris Excerpts

Wednesday 18th January 2017 General Committees

[Carolyn Harris (Swansea East) (Lab)]

It is pleasure to serve under your excellent chairmanship, Mr Nuttall.

The order brings into force proposed revisions to the codes of practice that govern how the police should treat potential suspects, the public and their property prior to any conviction. The relevant legislation is the Police and Criminal Evidence Act 1984, which states that the code must cover how the police exercise their powers not just of arrest, but of search prior to arrest, and how suspects are treated throughout their contact with the police, including during detention, treatment, questioning and identification.

Obviously, the important issues under discussion relate to an individual’s liberty. On the one hand, we must ensure that potential suspects are treated fairly under the law, and at all times respect the principle that a member of the public is innocent until proven guilty. At the same time, however, we have to ensure that police officers have confidence that they can go about their duties without being accused of acting improperly, including in a discriminatory way.

Many organisations made representations to the Government’s consultation—representations that have been taken into account and incorporated into a revised programme. The Opposition thank all those organisations that gave their time and expertise to get those proposals right. We support the Government’s approach, but we still have concerns about how the changes to the codes will affect the rights and freedoms of suspects. I have a number of questions that I hope the Minister will be able to answer.

Our concerns fall into four broad areas: the use of remote live-link communications to provide translation services; the provision for appropriate adults to be removed during questioning; the replacement of pocket books with electronic recording devices; and the deletion of parts of the code relating to the process of conducting witness identifications. Before turning to those concerns, I want to place on record our support for the changes to the codes that arise from the change to primary legislation to raise the definition of “juvenile” by one year, from 17 to 18. We wholeheartedly support that move, which provides additional protections for those on the verge of adulthood who find themselves in the criminal justice system.

On remote translation services, the proposed change would enable police to use live-link electronic communication systems to provide interpretation services for suspects. That means that the interpreter would not need to travel to the police station. The aim of the proposal is to enable more efficient questioning—there are similar measures in the Policing and Crime Bill, which is in its final stages—but we have questions about how it will be implemented in practice.

Will the Minister write to me, if necessary, to set out how she intends to review whether the expected efficiency gains have indeed occurred, and what mechanisms are being put in place to ensure that non-English-speaking suspects are satisfied with the new arrangements? What evidence will the Department use to assess whether the new arrangements deprive suspects of their rights? Will the suspect or their solicitor be allowed to say that they would prefer a translator to be present? Are there any circumstances in which the suspect’s vulnerability, in the opinion of the police, would make the physical presence of an interpreter more appropriate? Those safeguards need to be a matter of public record.

A change to code C permits an appropriate adult to be removed from an interview if they prevent proper questioning from taking place. In this context, “appropriate adult” means one who is there to support a vulnerable individual in police custody, be they a juvenile or an adult who is considered vulnerable due to impaired ability to comprehend what is happening, for whatever reason. I accept that there needs to be a mechanism whereby an adult who would otherwise be permitted to attend questioning can be removed if they obstruct the process. There is also a precedent for that approach elsewhere in the code. I would be grateful, however, if the Minister could explain in more detail the safeguards that are in place to ensure that the person being questioned is fully supported in such circumstances. The Government’s response to the consultation cites a new safeguard that requires

“having an inspector to inquire into the circumstances before a particular adult can be excluded”,

and states that the appropriate adult should have an opportunity to modify their behaviour. That is welcome, but it seems weak without detail on the face of the code of the criteria that should be used to determine whether the appropriate adult should be excluded; otherwise, in the words of Liberty in its response to the initial consultation:

“At the very least, there is a real risk of over-hasty exclusions of appropriate adults leading to interviews in the absence of the required support for the suspect.”

Liberty proposed, in response to the original consultation, that before the appropriate adult could be excluded, the suspect’s solicitor should be present and have an opportunity to explain the matter to the suspect and, if needed, the adult in question, before a final decision was made about the exclusion. What is the code to determine the grounds that an officer may use to exclude an adult? What are the best practice guidelines in that regard, and will the Minister publish them? Particularly given that there are widespread concerns over a shortage of appropriate adults available to support vulnerable suspects, what measures are being put in place to ensure that they will always be replaced by another appropriate adult?

A proposed change to code C allows electronic recording devices to replace the age-old police pocket books in providing a time-specific record of events. Although I understand the need for police to adopt more modern technology, I am interested in the Minister’s view on what provisions would be in place to ensure that these electronic records cannot be tampered with, either from inside or outside the force.

There are changes to code D that alter the way in which witness identification procedures are undertaken. The Minister’s Department states that the purpose of doing so is to take account of significant changes and developments in case law and police practice, and to address operational concerns raised by the police. In practice, these changes include the deletion of old annexes A and E, which detail the principles applicable to video identification, and the showing of photographs to eye witnesses. Little evidence was offered to show that those deletions were necessary, and I ask the Minister to clarify the reasons for the change, and how she expects the procedures to change as a result of the proposals before us.

We will support the Government today, but I would appreciate receiving answers to my questions.