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

Chris Bryant Excerpts

Wednesday 18th January 2017 General Committees

[The Parliamentary Under-Secretary of State for the Home Department (Sarah Newton)]

I beg to move,

That the Committee has considered the draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, D and H) Order 2016.

It is a pleasure to serve under your chairmanship this afternoon, Mr Nuttall. I hope not to detain the Committee for too long, but I will go into some explanation of the order because, in preparation for the debate, I had to do quite a bit of homework to understand what the codes are about, which I thought Members would also find useful.

The order, which was laid before the House on 22 November 2016, will bring into effect three revised codes of practice issued under section 66 of the Police and Criminal Evidence Act 1984. These are code C, which concerns the detention, treatment and questioning of persons detained under PACE; code H, which concerns the detention, treatment and questioning of persons detained under terrorism provisions; and code D, which concerns the identification of suspects by witnesses and biometric data such as fingerprints, DNA and photographs.

I will briefly describe the PACE codes and how the changes have come before us. For England and Wales, the statutory provisions of PACE set out the core framework of police powers to detect and investigate crime. They also require the Home Secretary to issue codes of practice. The eight accompanying codes of practice —codes of practice A to F—do not create powers but provide rules and procedures for the police to follow when exercising their powers. PACE and the codes establish important safeguards for individuals that are designed to strike the right balance between the need for the police to have powers to tackle crime and the need for safeguards for suspects and other members of the public.

To maintain that balance, we regularly update the codes as we change primary legislation. The three codes before us today were published in draft format in March 2016 for statutory consultation in accordance with section 67 of PACE. The consultation, which was also open to the public, ran for eight weeks, and the bodies that the Secretary of State is required to consult in accordance with section 67(4) of PACE were invited to comment. Others invited to comment included the Crown Prosecution Service, Liberty, Justice, and the Youth Justice Board. The drafts, together with the invitation to the public at large to respond, were also published on gov.uk. A total of 18 responses were received, which is normal for this type of consultation.

In accordance with section 67 of PACE, the revised codes were laid before the House and the other place, together with the draft order and explanatory memorandum.

[Chris Bryant (Rhondda) (Lab)]

As the Minister will know, one restriction on police interviewing applies once somebody has been charged. When several people are involved in a criminal act, such as an act of terrorism, it is sometimes difficult to get to interview all the people who might have been involved before the police want to charge somebody. The European arrest warrant has been particularly useful in that it gives us the ability to bring people back swiftly to the United Kingdom to be interviewed before other members of the group are charged. Is she confident that we will be able to remain under the terms of the European arrest warrant, or that the PACE requirements will be flexible enough to meet the possible longer times that may arise in such cases?

[Sarah Newton]

The hon. Gentleman makes a very significant point about the importance of the European arrest warrant, which has provided all the benefits he ably describes. I am confident that we will maintain the same level of arrangements we have had with our colleagues in Europe. Keeping citizens safe is absolutely the first priority of the Government. The former Home Secretary, now Prime Minister, made huge strides in closer relationships with our colleagues in Europe, keeping citizens here and in Europe safe. As she outlined yesterday, although we are leaving the European Union, we are not leaving Europe. We are determined to work very closely with our colleagues in Europe to ensure that we can share information and data, so that we can continue to provide effective ways in which to enable our law enforcement officers to bear down on terrorists.

--- Later in debate ---

[Sarah Newton]

Thank you, Mr Nuttall. If this Committee does not sit for long, the right hon. Member for Wolverhampton South East will have the opportunity to go to the Chamber, where this very matter is being debated this afternoon. I am sure his points will be very well handled by the Minister for Policing and the Fire Service.

The subject of the order—the three codes, which will hopefully be approved by the Commons and another place this afternoon—will come into force 21 days after the date the order is signed.

The main revision to PACE code C is expressly to permit the use of live-link communications technology for interpreters. The changes enable interpretation services to be provided by interpreters based at remote locations, and allow access to be shared by forces throughout England and Wales, which will avoid interpreters having to travel to individual police stations and improve the availability of interpreters of all languages. By reducing delays to the investigation, the measure will enable a more streamlined and cost-effective approach to the administration of justice.

The revisions include safeguards for suspects to ensure, as far as practicable, that the fairness of proceedings is not prejudiced by the interpreter not being physically present with the suspect. The provisions therefore require the interpreter’s physical presence unless specified conditions are satisfied and allow live-link interpretation.

[Chris Bryant]

How do the Government expect to be able to meet those requirements in terms of timeliness and physical attendance for interpretation purposes when all police forces in the country are concentrating their interrogation suites and cells in small areas rather than spreading them across rural areas? That has happened in my patch in the past couple of years, meaning that the journey to the suite is at least an hour.

[Sarah Newton]

Representing as I do a rural area with a dispersed population, I recognise that there are fewer suites where people can be interviewed than there were. However, I believe there is a sufficient supply of centres where people have timely access to justice. All those decisions have been much debated and well scrutinised in the House.

Revisions to code C reflect the amendment to PACE made by the Criminal Justice and Courts Act 2015, which defines a “juvenile” for the purposes of detention under PACE as someone aged 18 rather than under the age of 17. That resulted from a Government review of the way in which 17-year-olds were treated under PACE. The review concluded that the age at which a person should be treated as an adult under PACE should be raised from 17 to 18. That accords with the age-related jurisdiction of youth courts and other legislation applicable to children.

There are also new provisions supporting section 38(6) of PACE, which requires juveniles who are not released on bail after being charged to be moved to local authority accommodation pending their appearance at court. Under the revisions, the certificate given to the court in accordance with section 38(7) must show why the juvenile was kept at a police station, and their case is required to be monitored and supervised by someone of the rank of inspector or above. Separate measures in the Policing and Crime Bill will ensure that outstanding provisions of PACE that continue to treat 17-year-olds as adults are amended.

New provisions in code C permit an appropriate adult to be removed from an interview if they prevent proper questioning. When a suspect who is a juvenile or a vulnerable adult is interviewed, the code requires an independent adult, known as the appropriate adult, to be called to help. Their job is to help the suspect understand—and exercise—their rights as a suspect and the safeguards provided by the codes, which include their right to legal advice, the meaning of the caution, and when adverse inferences can be drawn if the suspect chooses not to answer questions. These new provisions are necessary to ensure consistency with provisions that have been in code H since 2006, and they are modelled on code C, paragraph 6.9, which concerns the removal of a solicitor from an interview if they prevent proper questioning.

Before an appropriate adult can be removed, an additional safeguard in both codes requires the inspector or superintendent called on to determine whether the appropriate adult should be excluded to remind them about their role and advise them of the concerns about their behaviour. If that advice is accepted, the appropriate adult can remain. The changes to code C are, where applicable, mirrored in code H for persons detained under terrorism provisions. This ensures consistency in provisions that are common to both codes.

In code D, eyewitness and witness identification procedures are updated to take account of significant changes and developments in case law and police practice, and to address operational concerns raised by the police. Revised video identification provisions clarify and confirm the identification officer’s discretion to use historical images of the suspect; regulate the presence of solicitors at witness viewings; and direct others, such as police officers and police civilian staff, to implement any arrangements for identification procedures. The investigating officer’s responsibility concerning the viewing of closed circuit television and similar images by a witness other than an eyewitness is also clarified. Other revisions to code D reflect amendments that the Anti-social Behaviour, Crime and Policing Act 2014 made to PACE concerning the retention of fingerprints, DNA profiles and samples.

There are revisions to all three codes to highlight the need to check all sources of relevant information in order to establish a detainee’s identity; enable officers to use electronic pocket books and other devices to make records required by the codes; clarify those who are not eligible to act as the appropriate adult for children under 18 and vulnerable adults; and highlight the requirement under section 31 of the Children and Young Persons Act 1933 to separate children from adult detainees in police stations and other places of detention by including a link to College of Policing guidance on this matter. Also, minor typographical and grammatical corrections have been made.

The revisions strike a balance between the need to safeguard the rights of suspects and the need to support the operational flexibility of the police to investigate crime. They are being introduced to bring codes C, D and H in line with current legislation, and to support operational policing practice. The revised codes provide invaluable guidance to both the police and the public on how the police should use their powers to ensure that they act fairly, efficiently and effectively.