Draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code H) Order 2023

Kevin Brennan Excerpts

Tuesday 31st January 2023 General Committees

[The Minister for Security (Tom Tugendhat)]

I beg to move,

That the Committee has considered the draft Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code H) Order 2023.

It is a pleasure to work under your chairmanship, Mr Bone.

Following the horrific terrorist attack at Fishmongers’ Hall in November 2019, the then Home Secretary commissioned the Independent Reviewer of Terrorism Legislation, Jonathan Hall KC, to review the multi-agency public protection arrangements—commonly referred to as MAPPA—used to supervise terrorist and terrorist-risk offenders on licence in the community. The Police, Crime, Sentencing and Courts Act 2022, which I will subsequently refer to as the 2022 Act, established three new powers for counter-terrorism policing: a personal search power, a premises search power, and a power of urgent arrest. Those powers were established in response to recommendations made by Mr Hall KC following his review of MAPPA.

The order relates to the new power of urgent arrest, which has been inserted into the Terrorism Act 2000 - new section 43B of that Act - by the 2022 Act. The new arrest power came into force on 28 June last year. The Government have also taken this opportunity to make a small number of updates to the code to reflect changes previously made by primary legislation, including ensuring relevant terminology within the code is up to date.

As was set out by the Government during the passage of the 2022 Act, the new power of urgent arrest applies across the UK. The power enables the police to arrest without warrant a terrorist or terrorism-connected offender who has been released on licence and is suspected to have breached their licence conditions when it is considered necessary, for purposes connected with protecting members of the public from a terrorism risk, to detain the offender until a recall decision is made.

Section 66 of the Police and Criminal Evidence Act1984—normally referred to as PACE—requires the Secretary of State to issue codes of practice in connection with the exercise by police officers of statutory powers to arrest a person and the detention, treatment, questioning and identification of persons by police officers. We have prepared a revised PACE code H, which relates to the detention and treatment of people arrested under the Terrorism Act 2000 and applies across England and Wales. The order seeks Parliament’s approval to bring the revised code of practice into force. The primary update to PACE code H is the incorporation of the new urgent arrest power provided for by section 43B of the Terrorism Act 2000.

A terrorist offender who is detained under new section 43B must, unless recalled to prison or otherwise detained under any other power, be released if a decision is made not to revoke their licence and accordingly the offender is not recalled to prison. A terrorist offender must also be released from police detention if a recall decision has not been made by the end of the relevant period, which in relation to terrorist offenders who have been released on licence under the law of England and Wales is six hours beginning with the time of the arrest.

The Government have updated PACE code H to reflect that new arrest power, including ensuring that there is clarity for the police on the length of time for which the terrorist offender on licence can be detained and their rights upon first being detained, including to have one named person informed of their whereabouts and their right to consult and communicate privately with a solicitor. The revised PACE code H also reflects that there is no requirement to caution a terrorist offender on licence who is arrested under section 43B as they will not have been arrested on suspicion of committing a criminal offence and so will not be questioned or interviewed by the police under caution while being detained under this power.

The Government plan to collect data from police forces on the use of that targeted power, as we routinely do for other police arrest powers, and to make this data publicly available through future statistical publications. The Government have also updated PACE code H to reflect other changes already made to primary legislation by the Counter-Terrorism and Border Security Act 2019—I will subsequently refer to it as the 2019 Act. That Act amended provisions in schedule 8 to the Terrorism Act 2000 to specify on the face of the legislation that on first being detained a detainee must be informed of their rights to inform a named person of their detention and consult a solicitor. The 2019 Act replaced provisions in schedule 8 that would enable a senior officer, in certain exceptional circumstances, to direct that the detainee has to consult their solicitor in the sight and hearing of another officer with one whereby a senior officer can, in those exceptional circumstances, require the detainee to consult a different solicitor of the detainee’s choosing.

[Kevin Brennan (Cardiff West) (Lab)]

I am extremely grateful to the Minister for giving way. We are considering a very interesting provision of the Act. Can he explain to the Committee what are those certain exceptional circumstances that would mean that a senior officer could, rather than say that a detainee had to consult in sight and hearing of another officer, direct that the detainee had to consult a different solicitor. [Interruption.]

[The Chair]

Order. I am sorry to interrupt the hon. Gentleman, but it really is unacceptable for officials to pass notes to the Minister directly. That is out of order. Sorry, Mr Brennan, do continue.

[Kevin Brennan]

Thank you very much, Mr Bone. I appreciate your ensuring that we conduct our proceedings in good order. Could the Minister explain what are those exceptional circumstances in which the provision under which a senior officer would require a detainee to consult a different solicitor might be invoked?