Detention time limits
16. Our concerns relate to Clause 5, which will increase
the time limit for detaining suspects before any charge
is brought. Under PACE, a suspect can only be detained without
charge if there is insufficient evidence to charge and it is necessary
to secure or preserve evidence or to obtain evidence by questioning
the suspect.[18]
At present, the upper limit on detention before charge for non-serious
"arrestable offences" is 24 hours, beyond which
time the suspect must either be charged or released (possibly
on bail).[19]
This contrasts with the position for "serious arrestable
offences", where the initial upper limit is 36 hours, with
provision to apply to the magistrates' court for further extensions.
The absolute upper limit, for serious arrestable offences, is
96 hours.[20]
17. In effect, Clause 5 will extend the detention
time limit up to a maximum of 36 hours for any arrestable
offence, rather than only for the most serious offences as at
present. It will not, however, allow for any further extensions
for non-serious arrestable offences by a magistrates' court; those
provisions will continue to apply only to serious arrestable
offences.
18. Clause 5 is justified in the Government's report
on the recent review of PACE as follows:
"The police, in particular ACPO, argue that
the initial detention period of twenty-four hours can provide
insufficient time in which to conclude the investigative process
and charge a detained person because of delays elsewhere in the
custody process. For example, obtaining the services of an Appropriate
Adult, police surgeon or interpreter or where a suspect is initially
unfit for interview because of alcohol or drugs intoxification.
Delays linked to the provision of legal advice can also put pressure
on the custody clock".[21]
19. The Home Office told us that "it is not
a major change in principle, but just extending the range of offences".[22]
The Minister said:
"...why extend in relation to arrestable
as opposed to very serious offences from 24 hours to 36 hours?
The answer is: it helps the police in the sense that it does not
require certain protections to be gone through until 36 hours.
We do not believe that that significantly erodes people's civil
rights. The balance between the ability to investigate against
the defendant's civil rights is not, we think, put in the wrong
place".[23]
20. We accept that the current time limit may cause
difficulties in some non-serious cases. However, we are not convinced
that the problem is a general one. We were told by one criminal
law practitioner that, in many cases, there is no need to go beyond
the initial time period because "much of the work involved
in the investigation stage is done before the defendant is actually
detained".[24]
This appears to be borne out by the official figures on the operation
of PACE. During 2001/02, nine of ten of those detained were released
within 36 hours. Unfortunately the figures do not show
how many were released within 24 hours.[25]
21. We therefore question the need for an extension
in non-serious cases. There are other—more appropriate—provisions
in the Bill, which are designed to assist the police in conducting
their investigations before charge. We have already mentioned
Clause 3, which will allow the police to bail suspects on the
street, without having to take them back to the station. In effect,
this will delay the start of the detention clock and "allow
the detention and interview process to be planned in advance".[26]
Clause 23 and Schedule 2 will also give the police powers to impose
conditions on bail before any charges are brought. Ian Blair,
the Deputy Commissioner for the Metropolitan Police, suggested
to us that this measure would stop the situation of detaining
a suspect for the maximum time period and then charging at the
point that the time limit expires.[27]
(We return to question of bail conditions before charge in paragraphs
41 to 58 below).
22. The issue of extending the detention time limits
is not new. It was considered, about a decade ago, by the Runciman
Royal Commission on Criminal Justice. The Commission concluded
that no change was necessary, largely because the average detention
time was well below 24 hours:
"We noted the results of studies...suggesting
that the average detention time was approximately 5 hours. A minority
of suspects were held for longer periods: 11% for longer than
12 hours and 1% for more than 24 hours. However, [one study] reports
that half [of the] sample were detained for less than 3 hours
and three-quarters were released before the first review at 6
hours from arrival at the station".[28]
23. We do not think that the Home Office has made
out a convincing case for extending the detention time limit to
36 hours for non-serious arrestable offences. In our view, there
are alternative—and more appropriate—measures in the
Bill (such as conditional bail) which will help to alleviate any
problems with the existing time constraints. For these reasons,
we recommend that Clause 5 be deleted from the Bill.
FUTURE REVISION OF THE PACE CODES
OF PRACTICE
24. The PACE Codes of Practice contain important
procedural guidelines on such matters as stop and search, searching
of premises and the detention, treatment, questioning and identification
of suspects by police officers. As the Government states, in its
report on the PACE review:
"The Codes of Practice, which are used by
the police on a day-to-day basis, interpret the provisions of
the Act, in somewhat simpler language and set out how PACE principles
should be translated into operational policing. The codes are
relied upon by the police to govern their investigations and by
defence solicitors to ensure that the individual is afforded his/her
rights".[29]
25. The PACE Act[30]
allows the Home Secretary to revise the Codes from time to time
but if he does so, he must publish a draft of the revised Code;
he must consider any representations that are put to him
about the draft and he may modify it accordingly. We understand
that, at present, a revised Code will only have effect
(save temporarily) when it has been approved by Parliament by
affirmative resolution.[31]
(The same procedure applies to the first issue of a Code).
26. Clause 7 of the Bill will alter the procedures
for establishing and revising the Codes quite fundamentally. The
Home Secretary will no longer be obliged to publish a Code or
revised Code, but must instead consult police authorities and
chief officers (ie the Association of Chief Police Officers) and
"such other persons he thinks fit". The Minister said:
"That would plainly embrace a wide range
of people, such as lawyers...people representing victims...[and]
people representing courts...".[32]
27. What is more worrying is the fact that there
will no longer be any requirement for Parliament to approve the
code—either by affirmative or negative resolution—before
it can take effect. The Home Secretary will simply be required
to "lay a code, or any revision of a code, before Parliament"
(Clause 7(1)).
28. When we asked the Minister about the purpose
of these changes, he said that it was necessary:
"Because many of the changes that take place
in relation to the Codes are of a procedural, administrative convenience
level which, on any reasonable view, do not significantly change
what the substance of the Code is. One can see improvements that
can be made from time to time where having to go through the sorts
of procedure that currently exist would be disproportionate to
the sort of change that is being made".[33]
29. We accept that there is a case for simplifying
the procedures to make minor administrative revisions to the Code.
However, we are concerned that—as presently drafted—the
Bill will also allow the Home Secretary to make substantive
changes to the codes without the need for approval by Parliament
using the affirmative resolution procedure (as currently required).
30. We strongly recommend that Clause 7 of the
Bill be amended to preserve the existing procedures—which
include Parliamentary approval by affirmative resolution—in
the following circumstances: first, where a Code is being established
for the first time and secondly, where revisions of substantial
importance or significance are made to the Codes.
13 The Royal Commission on Criminal Procedure (Cmnd
8092, 1981) was established in 1977 following the wrongful convictions
in the Confait case. It was chaired by Sir Cyril Philips. Back
14
Home Office/Cabinet Office, PACE Review: Report of the Joint
Home Office/Cabinet Office Review of the Police and Criminal Evidence
Act 1984, November 2002, para 5. Back
15
Ibid. Back
16
Ibid, p 5. Back
17
As to Clause 6, the PACE Review (p 25) states that "this
would allow for the use of sealable property bags and have the
potential to save resources without compromising protections". Back
18
Police and Criminal Evidence Act 1984, ss 34(1), 37(1)-(3). Back
19
Ibid, s 41. Back
20
Ibid, ss 42-43. Back
21
Home Office/Cabinet Office, PACE Review (2002), p 25, para
36. Back
22
Q 304, Ian Chisholm. Back
23
Q 308. Back
24
Q 169, Rodney Warren. Back
25
Home Office, Arrests for Notifiable Offences and the Operation
of Certain Police Powers under PACE, 2001-02, para 30. Back
26
Home Office/Cabinet Office, PACE Review (2002), p 22 para
27. Back
27
Q 10. Back
28
Report of the Royal Commission on Criminal Justice, Cm 2263, July
1993, pp 29-30, para 20. Back
29
Home Office/Cabinet Office, PACE Review (2002), para 4. Back
30
Police and Criminal Evidence Act 1984. Back
31
Ibid, ss 66, 67. Back
32
Q 309. Back
33
Q 312. Back
