Select Committee on Home Affairs Second Report



12. The Police and Criminal Evidence Act 1984 (PACE) was passed following recommendations by the Philips Royal Commission on Criminal Procedure.[13] It continues to be an important piece of legislation, which governs police powers and the rights of defendants. "However, there has also been a recognition that PACE requires updating and reorganising to ensure that it reflects changes in society over the last twenty years".[14]

13. In March 2002, the Home Office commissioned a review of PACE and the PACE Codes of Practice.[15] The purpose of the review was (without compromising the rights of suspects) to:

    "identify possible changes to the rules that could:
  • Simplify police procedures
  • Reduce procedural or administrative burdens on the police
  • Save police resources
  • Speed up the process of justice".[16]


14. The Criminal Justice Bill will amend PACE in a number of ways, many of which we support.

15. We welcome the provisions for street bail (Clause 3), for the use of telephones for review of police detention (Clause 4) and repeal of the requirement to record detailed particulars of a detained person's property (Clause 6).[17] These appear to us to be sensible measures to reduce unnecessary police bureaucracy, without impinging on the rights of the accused.

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.


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:

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

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