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Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2005

2.48 pm

Lord Bassam of Brighton rose to move, That the draft order laid before the House on 9 November be approved [9th Report from the Joint Committee and 15th Report from the Merits Committee].

The noble Lord said: My Lords, the order has been seen and cleared by the Joint Committee on Statutory Instruments and the House of Lords Merits Committee on 22 November this year. The order, subject to the approval of this House and of another place, will bring revised codes of practice into effect from 1 January next year. Under Sections 60, 60A and 66 of the Police and Criminal Evidence Act 1984 my
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right honourable friend the Home Secretary has a duty to issue codes of practice to regulate the police in the exercise of their powers.

There are currently six codes, and the order proposed adding a seventh: that of a code of practice on arrest. The current versions of Codes A to F came into effect on 1 August 2004. Since then, legislative change arising from the Serious Organised Crime and Police Act 2005 and the Drugs Act 2005 have affected police powers and procedures, and parts of the current codes require review. We are also introducing a new Code G on arrest.

Before I set out the detail of the proposed changes it may be helpful if I provide some information on the public consultation process and on the future more fundamental review of the codes themselves. The consultation ran from 31 August to 7 October. A full public consultation exercise was carried out in view of the introduction of the proposed new code of practice on arrest. Forty-six respondents replied to the consultation exercise, including the Law Society, Justice, ACPO, CPS, the Independent Police Complaints Commission and a number of other organisations and individuals. Some respondents raised similar points to those made in response to the public consultation paper on police powers issued in August 2004, and subsequently enacted in the Serious Organised Crime and Police Act 2005 (SOCAP). A summary of the responses has been placed on the Home Office website indicating those measures accepted and those subject to further consideration. The Home Office website provides a register of changes to which all suggested changes are added, irrespective of their level of merit. The aim of the register is to enable stakeholders and practitioners to submit suggestions for change, and provides an open forum in which all suggestions and their progress are publicly available.

That brings me on to the second area and that is the more fundamental review of the PACE codes themselves and the process of introducing change. The noble Baroness, Lady Anelay, rightly stated during debate on the 2004 revision of the codes that the more frequent update of the codes was welcomed, but we have to consider that regular updating brings with it the additional burden of training on the police and, of course, on other agencies.

Work will be starting in February next year to look at how we can improve the form and content of the codes. This will include the potential incorporation of statutory guidance which can be subject to amendment administratively to take faster, more effective account of best practice and lessons learnt. This work will be carried out in consultation with stakeholders and practitioners from the police, the legal profession, the voluntary sector, charities and academics.

The advice of the Home Affairs Select Committee will be sought on proposed changes and parliamentary approval sought where required. The aim is to reduce bureaucracy and improve the implementation process through effective training arrangements, communications and implementation timescales.
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On the proposed amendments, Code A deals with stop and search and the requirement introduced in all force areas from 1 April this year to record encounters. Code A makes it explicit that a person's religion is not a reasonable ground for suspicion and not sufficient reason to stop and search a person. This is an important clarification and has been agreed in conjunction with the Stop and Search Action Team and the independent Community Panel. Both are working on guidance to help ensure that all stop and search powers are exercised in a non-discriminatory way, proportionately and in a way that is intelligence led.

Recording encounters has drawn much criticism in terms of bureaucracy and time taken by officers to complete the relevant paperwork. Technology, thankfully, is moving on and forces are looking at more effective ways in which to ensure the right level of accountability. In that context it is welcome to note that the Police Federation has commented favourably and that it recognises that the recording of encounters is a legitimate policing tool that assists the police in gathering intelligence, and that it is a necessary and important means of ensuring officer accountability.

It is worth noting that a recent study on good practice from the London School of Economics showed that 75 per cent of all stops took less than five minutes to record. These are all positive moves and a change proposed to Code A continues in that direction by allowing a police officer to give a receipt for a stop when operational requirements prevent him printing out a full copy at that time. This will, of course, leave unaffected the individual's right to follow up the matter if he wishes to do so.

Code A currently requires an officer to provide a record of an encounter when such an encounter has taken place. It also requires an officer to provide a record when the criteria for an encounter have not been met but the person requests a copy. In such instances the officer notes on the form that the criteria have not been met. We are proposing to remove the requirement to produce a record in such circumstances and minimise the ability of those who may wish to deliberately waste an officer's time by asking for a record when an encounter has not taken place in accordance with Code A.

Code B deals with the entry and search of premises and the seizure of property. The Serious Organised Crime and Police Act introduces fundamental change to the warrant process by enabling the issue of the multiple-use warrant. Section 8 of PACE now provides for the issue of "specific premises warrants" for one or more sets of premises specified in the application; and an "all premises warrant" for any premises occupied or controlled by the person specified in the application.

Safeguards in the Act and Code B require that: every application to the court must demonstrate that the exercise of the warrant is justified and necessary; every use of the warrant must be individually recorded by the officer in charge of the search for scrutiny on return of the warrant to the court; and second or subsequent
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entry to premises specified on the warrant must be authorised in writing prior to use by an inspector not involved in the investigation. In the case of an all premises warrant where entry is sought to premises not specified on the warrant, prior written authorisation must be given by an inspector not involved in the investigation directly.

The need for prior authorisation of an inspector not involved in the investigation complements the existing safeguards requiring all warrants to be returned to the court, suitably endorsed by the officer with the details of the search and any items seized. Both are significant protections to preventing the warrants being used to carry out "fishing expeditions".

Concern was raised during debate in another place about the lifetime of the warrant. That has been extended from one month to three months. The extended period is appropriate, but we will provide in guidance that a warrant should be returned to the court at the earliest stage possible following completion of its operational use and not retained for three months as a matter of course.

Code C deals with police detention. The Drugs Act 2005 extends powers to test for the presence of Class A drugs where it is believed that the misuse of drugs caused or contributed to an offence. Exercise of the new provisions requires authorisation from the Secretary of State to test on arrest, on charge, and whether the testing applies to 14 to 17 year-olds. Code C reflects these changes and sets out the safeguards requiring consent and, in the case of a 14 to 17 year-old, the need for an appropriate adult to be present.

Drug swallowers and packers present a significant health risk in the custody suite and existing powers to identify whether a person meets this criterion has been strengthened. A new power to take ultrasounds or X-rays of those suspected of swallowing drugs is introduced, and a court can take into account the withholding by a suspect of consent to a procedure. Persons who have been charged under Section 5(2) of the Misuse of Drugs Act 1971 (possession of a controlled drug) may be detained for up to 196 hours (8 days) on the authority of a magistrate where the recovery of swallowed drugs is sought. The safeguards in PACE will apply during any period of detention.

Code C also makes explicit that an appropriate adult is not subject to legal privilege. This simply echoes guidance issued jointly by the Home Office and the National Appropriate Adult Network in 2003. However, it is clear that we need to follow this up with more detailed and practical guidance which excludes the routine request for statements from an appropriate adult by the police but which sets out the criteria in which an appropriate adult may on an exceptional basis inform the police of information which has come to their attention as a result of their role. The appropriate adult is there to serve the interests of the vulnerable suspect, but also to serve the wider interests of the community. We will be working with the national association of appropriate adults, the Law Society, Children's Charities Coalition, ACPO and
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others to consider how best we can ensure that the interest of the suspect, the appropriate adult and the investigation itself are best served.

Code D deals with the identification of suspects. The proposed changes reflect the measures aimed at raising the ability of the police to identify suspects and minimising the ability of offenders to raise identity as an issue. Section 116 of the Serious Organised Crime and Police Act 2005 enables police, community support officers and accredited persons to photograph persons on the street where they have been arrested, detained or given a fixed penalty notice. That will assist officers with fine enforcements and avoid the offender disputing their presence at the scene when a fixed penalty notice was issued. It will also prevent suspects either reported for summons or issued with street bail similarly claiming that they were not the person the officer had dealt with on a particular occasion on the street.

The code puts moving and still images on the same footing and removes an existing anomaly in the code to allow for an unusual physical feature during a video identification procedure to be concealed or physically replicated on other images. Video identifications can be carried out far quicker than physical parades. This can increase the ability of the witness to identify the suspect and minimise potential stress to him, as well as reducing delays in the investigative process. At the same time, the changes to Code D will ensure that the procedure is a robust test of the witness's recollection.

Section 119 of SOCAP amends Section 65 of PACE to extend the definition of both intimate and non-intimate samples. The amendment allows swabs to be taken with consent from specific intimate parts of the male suspects and female victims.

PACE, as amended by Section 118 of SOCAP, allows the police to take an impression of a person's footwear with or without consent. An impression may be taken without consent only where a person has been arrested for, charged with or informed that he or she will be reported for a recordable offence and where he or she has not previously had an impression taken during the course of the investigation. Footwear impressions do not of course confirm a person's identity but they do show that a person was wearing specific footwear at the scene of the incident. That is why Code D does not provide the same criteria for footwear as it does for fingerprints or DNA samples.

Code D, like the other codes, focuses on the suspect. However, we have amended this code to take account of vulnerable witnesses involved in identification procedures and require that a pre-trial support person accompanies them.

I turn to Code E, which deals with the aural recording of interviews with suspects. Technology has moved on since the introduction of this code and it has been amended to allow the use of audio recording rather than the limited requirement to tape-record. However, the same safeguards remain in place.
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Code F deals with the audio and visual recording of police interviews with suspects. No changes are proposed and the code remains as guidance which should be followed when audio and visual recordings are carried out simultaneously.

Finally, I turn to Code G. As I said earlier, this is a new code on arrest. The Serious Organised Crime and Police Act introduced the power of arrest for any offence and placed an additional level of accountability on a police officer by requiring that he or she must show why arrest is necessary. The code makes it clear at the outset that the use of the power of arrest must be fully justified and that the officer should consider whether the necessary objectives can be met by other, less intrusive means.

The introduction of the test of necessity means that each arrest will have to be justified and it removes the concept of using this significant interference with a person's liberty simply because statute says that you have a power of arrest. The code sets out the criteria of necessity and makes it clear that the criteria are exhaustive. The circumstances in which those criteria are applied are an operational matter for the individual officer. The officer must have that discretion in order best to meet operational needs. The same discretion currently applies in relation to the powers of arrest under Sections 24 and 25 of PACE but—and it is an important "but"—the SOCAP arrest provisions now require the officer to consider, and indeed to justify, his decision to effect an arrest. That justification will be required when the officer brings a suspect before the custody officer and during consideration by senior officers, the prosecutor, the courts and, if applicable, the Independent Police Complaints Commission.

Code G and the new power under PACE simplify a complex myriad of powers of arrest, as described in the Home Office/Cabinet Office review conducted in 2002. We have carefully followed the recommendation of that review to simplify and rationalise arrest powers, and Parliament has approved that change. Code G provides an important new development and, as with the existing and new provisions of all the PACE codes of practice, the contents will be subject to continuous monitoring and review.

I apologise for the length of this statement on the codes but they are extremely important and their revisions have taken a considerable amount of time. In some parts, they cover new and significant departures. I beg to move.

Moved, That the draft order laid before the House on 9 November be approved [9th Report from the Joint Committee and 15th Report from the Merits Committee].—(Lord Bassam of Brighton.)

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