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Police and Criminal Evidence Act 1984 (Codes of Practice) (Codes B to E) Order 2003

8.10 p.m.

The Minister of State, Home Office (Lord Falconer of Thoroton) rose to move, That the draft order laid before the House on 30th January be approved [10th Report from the Joint Committee].

The noble and learned Lord said: My Lords, I beg to move that the Police and Criminal Evidence Act 1984 (Codes of Practice) (Codes B to E) Order 2003, a copy of which was laid before the House on 30th January, be approved. The order has been seen by the Joint Committee on Statutory Instruments.

The order, subject to the approval of the House and of another place, will bring into effect from 1st April, 2003, revised codes of practice for the exercise of police powers in relation to the following: searches of premises and the seizure of property found on persons or premises—Code B; the detention, treatment and questioning of persons—Code C; the identification of persons—Code D; and tape recording interviews with suspects—Code E. The order has been made under Section 67 of the Police and Criminal Evidence Act 1984, which I shall call "PACE" from now on. It cannot have effect until it is approved by a resolution of each House.

Under Section 66 of PACE, my 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 six codes of practice, Codes A to F. The current versions of Codes B to E came into force on 10th April, 1995. Since then, various legislative changes have affected police powers and procedures and rendered the current codes out of date.

PACE and the codes of practice are vital parts of the framework of legislation providing the police with the powers that they need to fight crime. The codes provide

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directions and guidelines on how PACE and associated legislation is to be applied. They also regulate other aspects of offence investigation such as interviewing, cautioning and identification procedures. The longer the codes remain out of date and do not reflect changed legislation or respond to failings in case law, the more confusion they may cause. The operational imperative for police and prosecutors is to have up-to-date codes of practice as soon as possible.

In accordance with the provisions of Section 67 of PACE, the draft codes of practice have been through a period of public consultation. That period ran from June to August last year. The changes proposed in the draft codes represented a partial review, primarily to take account of changes specifically required by new or changed legislation passed since the codes were last updated in 1995. The consultation was part of an overall review of PACE and the codes of practice, conducted jointly by the Home Office and the Cabinet Office, announced by my right honourable friend the Home Secretary in May, 2002.

The PACE review report was published in November 2002. The report made recommendations in relation to longer-term changes to the codes, and those recommendations have been included in the Criminal Justice Bill that the House will consider in due course. In the mean time, the report endorsed the strategy of pressing ahead with the present limited review of the codes in order to give to the police the up-to-date codes that they seek.

There were approximately 80 responses to the consultation exercise on the revised codes, many of them raising a range of issues. In our consideration of the comments received, the focus has been on comments relating to legislative changes. We have also taken on board suggestions for practical improvements or for revisions to the drafting in the interests of clarity. In general, we resisted requests for more detail or for additional guidance in the codes. The PACE review report identified a need for greater clarity in the codes, as part of the longer-term revision to which I referred. Much of the detailed guidance in the current codes will be moved into separate national standards. In the mean time, within the current codes framework, we have made changes to make the codes easier to read and more user friendly.

I hope that the proposed revisions are not contentious. Many changes will enable implementation of important legislative provisions in areas such as seizure powers and rank authorities for PACE decisions. Other changes allow for the introduction of a broader range of healthcare professionals in the custody suite. The new codes also enable more effective use of civilian support staff, including designated persons as provided for in the Police Reform Act 2002. Particular attention has been paid to the drafting of the new codes to ensure that they do not require any specified procedures or tasks to be carried out by a police officer or a designated person when there is no such legislative requirement. That will enable chief officers to make maximum use of suitably trained civilian staff in areas such as interviewing and identification procedures.

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Taken together, these changes will speed up decision-making processes and free up senior officers' time for other duties, enable the police to work more flexibly and make better use of resources, and free up police officer time to concentrate on front-line duties.

The modernisation of the codes at this time will bring police practice into line with current legislation, enable more effective and efficient use of police time and provide the police with the up-to-date codes that they are seeking. I commend the order to the House.

Moved, That the draft order laid before the House on 30th January be approved [10th Report from the Joint Committee].—(Lord Falconer of Thoroton.)

8.15 p.m.

Lord Hodgson of Astley Abbotts: My Lords, I am grateful to the Minister for his explanation of the four codes made under the Police and Criminal Evidence Act 1984. I appreciate his points about the need to keep them up to date. I am a banker, not a lawyer. Therefore, I come to the issue, first, unprejudiced but perhaps, secondly, ignorant.

It seems that the key principle behind the codes is whether they strike a fair balance. On the one hand, society is entitled to have codes which give the police adequate powers to ensure that those suspected of criminal offences, especially serious offences such as terrorism, are unable to skip away on technicalities. But on the other hand, society will want to see that the vulnerable are protected. Young people and foreigners whose command of English may be imperfect, and UK citizens who may be unsophisticated and lack the mental capacity to understand the full impact of what is being implied, can find the pressure imposed on them unfair and unreasonable.

There have been well-documented cases in the past where the police, reacting quite understandably to public pressure, have swept up people with Irish accents. No doubt, there is a similar danger today for people that are "Arab-looking".

There is an over-worked phrase, "the devil is in the detail". Perhaps in these codes, it is a fair issue to raise. I begin with a practical point: reading through the codes to establish whether the balance is being altered at all, it would be extraordinarily helpful to have the proposed changes highlighted by underlining, sidelining or by the use of a different case of text. There are 13 pages in Code B, 47 pages in Code C, 34 pages in Code D and eight pages in Code E. A total of 92 pages without any marking of the changes. It makes it hard for a layman to react with any reasoned, balanced judgment. I understand that the highlighting might make it harder for the Minister or his civil servants, but it would be most helpful to the House in its revising role.

In that connection, the Minister should be aware that all the copies of Code D that I have laid my hands upon do not contain pages 4 or 7. Therefore, Clauses 2.17, 2.19, and 3.4 to 3.12 inclusive remain a complete mystery. The omission should be rectified as soon as possible.

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As I understand it, the codes give powers envisaged by Parliament when it passed the Criminal Justice and Police Act 2001 and the Terrorism Act 2000. It would be helpful if the Minister could confirm that no other extension of powers under the provisions of other legislation is envisaged in the regulations.

I now turn to a couple of detailed points on the codes themselves. In Code B, Clause 2.11(a) and in Code C, Clause 1.13(a), the issue of "designated person" is raised. The Minister referred to this in his opening remarks, of which I took careful note. He seemed to envisage only civilian employees being designated persons. Would they include, for example, such people as special constables? Or are there any other types of people who could be included in that definition?

In Code B, Clause 6.1 states:

    "Searches made under warrant must be made within one calendar month of the date of the warrant's issue".

Is the date of issue the date on which it is signed? As I recall, during proceedings on the Animal Health Bill, it became clear that the practice had grown up of magistrates signing but not dating warrants—which seems to me to be a poor practice anyway. But what is the position under this provision of the code? It would seem wrong to have a signed but undated warrant hanging like an unseen Sword of Damocles over a suspect's head.

Finally on Code B in Clause 6.14, which relates to the carrying out of searches, there is a requirement for the officers to act with discretion and with the least possible disruption. But those good intentions are slightly undermined by the final paragraph in Clause 6.15 where the officer in charge of the search is able to carry out a search having reasonable grounds for believing that such a search is necessary. Presumably, such searches could be conducted into firms or companies with shared premises—front doors or facilities—with other innocent companies or individuals employed by a company. How will the issue of discretion and the least possible disruption apply in these cases? How will those innocent parties, other firms or individuals who have been affected, apply for compensation if their position or business is damaged?

I turn to Code C at Clauses 6.9 and 6.10 and to Explanatory Note 6D. This concerns the role of the solicitor and his possible removal from the interview on the grounds of obstruction. Explanatory Note 6D states that the solicitor may,

    "advise their client not to reply to particular questions".

What is meant by "particular"? Could a solicitor advise his client, for instance, to answer no questions? The situation could be envisaged of a person being detained at an entry port. The duty solicitor is summoned. The case against his client is not clear or not yet fully made. Can he, in such circumstances, advise his client to decline to answer any questions or will he be removed from the interviewing process on the ground that he is obstructing the police in their duties?

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Clause 9.12 in Code C refers to medical conditions, as mentioned by the Minister. A condition not covered is asthma, an increasingly prevalent illness for which an inhaler is needed. Would Clause 9.12 permit an individual access to an inhaler even though for many sufferers asthma could not rank eligibly alongside, for instance, a heart condition, epilepsy or diabetes in seriousness?

Finally on the codes, in Clause 4.3 of Code E reference is made to recording interviews using clean tapes. Does that mean new tapes? If so, why not say so? In my commercial experience, re-used tapes can occasionally continue to carry material. The clause states that the officer must,

    "load the recorder with clean tapes and set it to record".

Are the "clean" tapes new tapes? If they are reasonable tapes, from time to time material will have inadvertently been left on which might damage the integrity of the case for the police or the defence of the suspect.

Clause 4.8 of Code E and Explanatory Note 4D deals with the continuing of tape recorded interviews after objections by the suspect. In such circumstances, the suspect will presumably refuse to answer questions being put to him. He may be doing so on legal advice. If so, should not that fact be required to be recorded?

I want to make one or two general points in closing. I shall deal first with the meshing together of different codes. The major concern in the DTI regulations, with which I am more familiar, has been the fact that definitions and practices have varied slightly from one regulation to another. This is administratively inconvenient, complex and cumbersome to administer. It can also lead to a sense of grievance among people who feel that they should have qualified under one regulation but qualified under another.

I understand that the Proceeds of Crime Act 2002 contains provisions for carrying out searches and procedures for identifying suspects along the lines of the codes we are considering today. I understand that these are still at the consultation stage, which will not be completed until the end of March. I know that the Minister referred to the Criminal Justice Bill and the whole issue being revised yet again, but it is important that the Minister gives an assurance that these codes will mesh up and that we will not have either overlapping or underlapping definitions.

As I read the codes, there has been a general reduction in the rank of those required to carry out searches and so on from superintendent to inspector. Can the Minister confirm that and explain the thinking behind it?

A number of important issues arise within the codes in regard to relevant relationships—about which a number of concerns have been raised with me—including relationships between a suspect and parents, family, partner and fiancé. Will a search warrant for a premises, which could be someone's home or place of employment, include the seizure of computers not owned by and/or not used by the suspect; personal papers not belonging to the suspect; and work or business papers technically the property of the

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employer of the suspect? I do not expect the police would seek to impound material from a Member of your Lordships' House who has a wayward son or daughter, but one too often hears of single parents, female fiancées or partners being treated as though they and their possessions are covered by a warrant issued in respect of their male partners.

The provisions of the order seem to bring DNA testing a stage further into our law. It is clearly an important weapon in the fight against crime but, rather than this inch-by-inch approach, it would be helpful to know the Government's strategy and policy objectives on this subject. Is it their long-term intention, for example, to ask all those seeking to live in this country to provide a DNA sample, as I believe happens in America; or, perhaps a more comprehensive and draconian measure, to take a DNA sample from every child at birth?

This is an important order. We need to ensure that the police have the right support and the right powers, particularly in these turbulent times, but we need to maintain a balance in order to preserve our civil liberties. I look forward to hearing the Minister's reply to these points on the order, which, in principle, has our support.

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