HL Deb 09 December 1985 vol 469 cc10-9

3.2 p.m.

Lord Glenarthur rose to move, That the order laid before the House on 30th October be approved. [2nd Report from the Joint Committee.]

The noble Lord said: My Lords, this order has been considered by the Joint Committee on Statutory Instruments, who in their second report stated that the special attention of the House did not require to be drawn to it.

My right honourable friend the Home Secretary is required by Section 67 of the Police and Criminal Evidence Act to lay before Parliament for its approval codes of practice governing the exercise by the police of their powers of stop and search, the search of premises and the seizure of property, and the detention, treatment, questioning, and identification of persons by the police. Your Lordships will be well aware that the codes before us today are the results of a long period of consultation. Some of them appeared originally more than three years ago, and they have been the subject of considerable discussion and amendment. They were published last January as a consultative document and we have received comments and proposals from a wide range of groups and organisations, including those representing the police, the legal profession, civil liberties interests and community groups.

We have paid close attention to these and have taken them into account wherever possible when preparing the final draft, which is now before your Lordships. It is, of course, inevitable that comments from different groups were occasionally in conflict with one another; but we have aimed as far as possible to reconcile these different approaches and to ensure that the codes of practice, like the Act from which they stem, are a balanced package which gives the police the powers they need in dealing with crime, but which also provides workable and effective safeguards for the citizen who comes into contact with the police. If the codes are approved they will come into effect on 1st January.

The codes of practice for the exercise by police officers of statutory powers to stop and search applies both to existing police powers of stop and search and to the new power which is contained in the Police and Criminal Evidence Act. It sets out the standard to be satisfied before the necessary reasonable grounds for suspicion can be said to exist which justify the use of the search power. It provides for how searches are to be conducted, and it establishes the action to be taken after a search has been carried out.

Stop and search powers play an important role in helping the police detect crime and prevent further offences. We fully recognise the sensitivities involved in the use of power like this. Used inappropriately or without a proper attempt to minimise the embarrassment that we all recognise is associated with being searched in public it could lead to damage to relations between the police and the community and could lead to tension with particular groups. The Act itself provides safeguards designed to ensure that such powers are used accountably and only in the circumstances intended by Parliament. The code completes this task by specifying in greater detail what police officers may do and how they should go about the task. I believe this code will enable them to make good use of this important power without the damaging consequences which critics have prophesied.

The second of the codes is concerned with the searching of premises and the seizure of property by the police. Clearly in a free society the searching of one's home by the police is not a matter which any of us can view lightly. However well prepared searches are, occasionally mistakes will occur with the homes of innocent people being subjected to search. It is vital, therefore, that the code should spell out the steps which must be taken to ensure searches are properly planned and prepared for, and that they are conducted with the greatest possible sensitivity to the feelings of those who are the subject of a search—while at the same time enabling the police to pursue the investigation of crime effectively and thoroughly. The Act and the code together are designed to ensure the police have the powers they need in this area, coupled with the necessary procedures and safeguards to ensure their reasonable operation in practice.

The code builds on the safeguards contained in the Act by providing detailed procedures for the police in respect of all types of search. It details how property may be seized, the time and manner in which searches should be carried out and the action which the police must take to record what has taken place. I believe the code will play an important part in ensuring that this vital police power is exercised with a minimum of unnecessary embarrassment to those searched, and in a way which avoids the threat to police/community relations which can derive from the insentitive use of such powers.

The code of practice for the detention, treatment and questioning of persons by police officers is the longest of the codes, and perhaps the most significant of all. It will replace the Judges' Rules, which have served the country well over many years in setting out the guiding principles which should direct any investigation. The code builds on those principles, but does so in more precise and detailed terms that will make clear to all concerned just what is expected of them, and when. By adopting the device of a code of practice binding on the police through the discipline code and explicit in the procedures it lays down, we believe this will mark a new era in public confidence in the questioning of suspects by the police.

Central to the scheme in the Act and the code of practice are the traditional safeguards: a person attending a police station voluntarily has the right to leave when he wishes; a person at a police station under arrest has the right to have someone informed of his whereabouts; and there should be a right to consult a solicitor. The Act has inevitably had to take account of the fact that there will be circumstances when the last two of these rights cannot be granted straightaway: your Lordships debated this long and hard during the passage of the legislation. But the principle remains and the exercise of the rights may only be delayed, not prevented. The suspect's right to silence is protected in the code by the requirement on the police to caution. And it ensures that suspects will be held in reasonable conditions and not be disadvantaged through inadequate rest or sustenance or the neglect of their health.

A major concern of the code of practice is with the position of those who, for whatever reason, are especially vulnerable in the context of police questioning—most obviously because of their youth or mental state. It was a case involving just such groups, the Confait case, which led most immediately to the calls for reform of the law and procedure in this area. Central to the scheme of the code is the requirement that the police must only question those who are likely to be specially vulnerable in the presence of a responsible adult who can safeguard the suspect's interests.

Deaf people are a further category who may be particularly at risk during questioning. The code deals at some length with their needs. Additional guidance to safeguard the rights of deaf persons is being included in the Home Office circular of guidance to police forces and others on the Act and the codes. Those whose native language is not English will have the right to an interpreter, and the notice which the police are required to give to all detained persons, setting out their rights, is being translated into the languages of the main ethnic minority communities.

The final code before your Lordships today deals with the identification of persons by police officers. The code is principally concerned with the procedures for holding identification parades and group identifications, confrontation of suspects by witnesses, street identification and the use of photographs, fingerprints and body samples. Additionally, it deals with the taking of fingerprints, photographs and body samples, and the circumstances in which these might later be destroyed. Once again, there are special arrangements for the protection of those who may be particularly vulnerable.

The law on police powers and procedures has undergone a major process of review and reform, beginning with the Royal Commission on Criminal Procedure in 1978 and ending with the Police and Criminal Evidence Act and the codes issued under it, which we are now debating. The Royal Commission felt that the Judges' Rules, which it regarded as vague and unspecific, should be replaced by explicit and workable instructions, subject to Parliamentary approval but sufficiently flexible to be able to reflect changing needs and circumstances. It has been our aim to frame the codes in clear and straightforward language which is readily understandable by police and public alike. Their provisions will be binding on the police and breach of them will constitute a disciplinary offence. And the codes will be admissible in evidence in criminal and disciplinary proceedings.

I believe the codes represent standards of good professional policing and that this is how they will come to be seen by the police. They have placed a major training task on the police which is now nearing completion and which has provided the opportunity for a fundamental re-examination by all officers of the aims and purposes of policing. So far as recruits are concerned, the training task should be greatly eased in future. There has of course been concern in the service at the burden that will fall on them in learning and operating new procedures and keeping records. We understand the natural apprehension that officers may feel at an apparently major change in the way they will be expected to carry out their work, but as officers become familiar with the new provisions they find that the codes are not as difficult as they feared and that they can make them work effectively. This has been the lesson of those police forces which have carried out trial runs, and I am sure it will be the general experience of the police after 1st January.

The codes of practice have been designed as a workable, practical scheme. They are not intended to represent an inflexible, unchangeable procedure, and we shall keep their operation under close review to ensure it works as Parliament has intended. Should the need arise, we shall be ready to propose any changes that we are satisfied are necessary.

We are coming to the end of one of the most closely debated and keenly scutinised processes in recent parliamentary history, and the time is coming to make the new provisions work. Our achievement, I believe, is to give the police the powers they need to investigate crime effectively, and to ensure proper safeguards for the rights of suspects. The benefit will be, I am sure, a coherent and practical structure which will enable the police to act with greater confidence, and will strengthen the public's confidence in the way the police carry out their duties. This has always been the foundation of effective policing in this country, and I believe the codes of practice will strengthen that process. I commend them to your Lordships. I beg to move.

Moved, That the order laid before the House on 30th October be approved. [2nd Report from the Joint Committee.]—(Lord Glenarthur).

3.15 p.m.

Lord Elwyn-Jones

My Lords, we return this afternoon to ground over which we disputed long and eloquently during, not what I will call "that long, hot summer" but during those months when we might well have been engaged in other activities. We are grateful to the Minister for covering again some of the ground in his introductory observations today. This debate is of considerable importance because it really provides the House with the only opportunity that it will have of examining these important codes of practice which come into force on 1st Janaury 1986. They are themselves of importance. The codes supersede some existing provisions, including, as the noble Lord has said, the Judges' Rules, which I thought he dismissed a little harshly although we have all had our battles with them. I can see some of the judicial and legal faces around me who have engaged in these battles over the years, and I do not think anyone will greatly regret the passing of those rules and their substitution by more precise and clear alternatives.

The codes also include new material. As the foreword states, the purpose of the code is to provide clear and workable guidelines for the police, balanced by strengthened safeguards for the public. They are put forward, as is claimed in the document, as a major statement of the rights of individuals and the powers of the police. Both, of course, are very important considerations to the public in the struggle against increasing crime, on the one hand, and maintaining the liberties of the subject, on the other.

The codes therefore call for careful scrutiny on the part of Parliament. The House has no power to amend them, but it is important to take advantage of the opportunity in this debate to identify any faults or omissions which are already identifiable in the codes. They are not Acts of Parliament, and have at least the advantage that they can be kept under periodic review, we hope, by the Home Office, and there is not a reliance on the Police Complaints Board or other procedures of that kind, so that they can be amended in the light of experience. We were glad to hear from the Minister that that is to be the approach of the Government to this matter.

The review procedure, which will be available for the future, may well become important, not only from the point of view of the liberties of the subject, which are very much involved in this matter, but also from the point of view of the police, because they will need to be kept informed of any necessary adaption of the codes in the light of judicial pronouncements or interpretation. For instance, a breach of the code could well lead to the exclusion of evidence under Section 78 of the Police and Criminal Evidence Act because: the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it". During our long debates on the Act a frequent theme was the question of the authority of the codes, as contrasted with the authority of the Act itself. Anxiety was expressed on all sides of the House during our debates that the codes would not have the weight accorded to statute law. One learned academic at Brunel University has indeed suggested that reliance on codes of practice as opposed to statute law is, 'representative of a modem and unhealthy trend towards rules of indeterminate status. Much that is in the codes should be [and could be] contained in the Act [itself]". It is the case that breach of the provisions of the code and abuse of police powers by the police can be punished by disciplinary proceedings—obviously of importance from the point of view of the police and of the public. What I think the codes do not make clear is what remedies will be available to the individual citizen who may suffer from breach of the codes.

There is still also unhappiness about the disparity between the authority of statute law and the codes of practice and concerning the relative value of the codes of practice themselves and the notes for guidance which accompany the codes. For instance, Note 1A in the first code, Code A, dealing with the exercise by police officers of statutory powers of stop and search, states: It is important that powers of stop and search are used responsibly and sparingly and only where reasonable grounds for suspicion genuinely exist. Over use of the powers is as likely to be harmful to police effort in the long term as misuse; both can lead to mistrust of the police among sections of the community. It is also particularly important to ensure that any person searched is treated courteously and considerately if police action is not to be resented". The provision that powers should be used "responsibly and sparingly" is a crucial safeguard if we are to improve community relations, the relations between the police and the public. But I ask why that should not be a part of the code so that it has the backing of the police disciplinary proceedings which are available for breaches of the code. We are, frankly, not wholly satisfied with this three-tier system of police powers. Why, on the one hand, have the notes for guidance been separated out from the codes of practice when often the codes themselves are so vague as to be little more than advisory guidance notes?

One may take, for example, from Code A, at page 15, the provision: Every reasonable effort must be made to reduce to the minimum the embarrassment that a person being searched may experience". But why, on the other hand, do the codes fail to draw clearly the distinction between what in the codes has the backing of statute law and what is simply a code of practice with only the backing of the police disciplinary procedure? Would the noble Lord perhaps think it helpful if in each of the codes those which are parts of primary legislation, such as 2.4 of Code A, should hereafter and in a future version of the code be labelled as such?

I welcome the statement that has been made in another place by the Minister responsible that the codes of practice must be made readily available at all police stations for the police themselves, of course, for the public and for any detained person who wishes to see them. I am glad to see an assurance that these codes are to be produced in Welsh, as well; otherwise great difficulty would arise in Llanelly, to say nothing of Llanfairpwll … and the rest of it. That assurance we have already received, and it is very welcome indeed.

We also welcome the commitment made by the Minister, to which I do not think the noble Lord referred, in the debate in another place, that the Government will take up the suggestion that a shortened leaflet setting out individual rights should be made available in the police station as well as the text of the codes of practice. The codes, well prepared, as I readily agree they are, will often be too complex for an individual who is not accustomed to legal technicalities and who is likely to be frightened and nervous at being within the confines of a police station. Perhaps the noble Lord can tell us whether or not that assurance by his colleague in another place will be fulfilled.

I am not proposing to endeavour to burden your Lordships with a detailed examination of the codes, but it is good to learn that noble Lords and noble and learned Lords who are to follow in the debate may well be disposed to pick up many of the important points that arise.

Code A, as we have been told, relates to the exercise by police officers of statutory powers of stop and search. A useful feature of the code is that it applies not only to powers to stop and search under the 1984 Act, but to all statutory powers to stop and search. The use of reasonable force, which is established by the Act, is very important in stop-and-search operations where the person may well be isolated and where neither record nor witnesses are going to be available to support his case if he has been injured or his property has been damaged.

Paragraph 3.2 stresses that force may be used only as a last resort. Anxiety has been expressed that the stop-and-search procedure could be used to compile a record on people who are stopped and searched but who have not committed any crime. According to the Suffolk police computer system, a person stopped and searched three times within the county is then starred as a suspected person on the computer record, even though no offence has been, is thought to be, or is found to have been, committed by him. We cannot think that this is a satisfactory arrangement, for the purpose of the police making a written record was to protect the liberties of the subject and not to endanger them. I ask whether such records, in respect of the innocent citizen who has not been faulted by the stop and search, should not be destroyed after the relevant period.

As to Code B, regarding the search of premises, this is obviously an immensely sensitive field, as the incident which sparked off the Tottenham riots indicated. Paragraphs 4.1 and 4.2, on page 27 of the document, are unobjectionable, but I ask whether they are not qualified by paragraph 4.3: It is unnecessary to seek consent [to search premises] … where in the circumstances this would cause disproportionate inconvenience to the person concerned". That seems to be far too wide a reserve position.

Code C covers some of the most sensitive ground of the Act, which caused us a great deal of concern; namely, the detention, treatment and questioning of persons by police officers. Note 3D at the bottom of page 41—I am not sure that all noble Lords have a copy of this document and so I shall cite it briefly—provides: The right to consult the codes of practice under paragraph 3.1 above does not entitle the person concerned to delay unreasonably necessary investigative or administrative action while he does so. I cannot think that the creation of administrative difficulties ought to stand in the way of full opportunity to consult the code of practice. There are important provisions regarding the rights and protection of persons attending a police station voluntarily, to which careful attention will have to be given.

In regard to that code I have a small but perhaps not insignificant point to make regarding the definition of "solicitor" at paragraph 6.9. It is said that the suspect may receive the help and advice of a solicitor, but these days there exist law centres where, I am happy to say, members of the Bar are also engaged and employed and they, too, should have the right to take up the request for legal advice by a suspect held in police custody. I hope that that will be borne in mind in any future version of the code.

There are provisions in Code D regarding photographs and samples which are to be destroyed in certain circumstances. It is said that that will happen when someone is cleared, but the meaning of the word "cleared" is certainly obscure in the terms of the code.

There are a number of other important matters which could be raised, and, indeed, will be raised. I hope that we will be watchful of the way these important powers which have been given to the police—vital as no doubt most of them are in the battle against crime—are employed. Eternal vigilance in the exercise of executive power is obviously an important part of our democratic way of life.

3.30 p.m.

Lord Wigoder

My Lords, I know that my colleagues on the Alliance Benches will want to welcome these codes of practice as being, taking an overall view, fair and sensible and seeking to hold a proper balance between the rights of the police to carry out their duties efficiently in the interests of society and the rights of the individual not to be oppressed or harassed when those powers are being exercised.

Taking a general view of these four codes, I think that they are expressed in terms which reflect the spirit of the debates in your Lordships' House on the Police and Criminal Evidence Act. Indeed, the very fact that there was in the other place no Division the other day when these codes were introduced perhaps speaks volumes for their general acceptability. In those circumstances, I would not want this afternoon to make many detailed comments.

Code A, which deals with powers of stop and search, is clearly of crucial importance, not merely in that it is expressed in precise terms but, even more, in that it becomes clear when one reads it that it is the exercise of those powers with common sense—which cannot be legislated about—that the police have a very real contribution to make. It is important, I think, that they should be exercised in that way in order to prevent the exercise of those powers drifting into a situation in which the suspected person legislation eventually gave rise to so much ethnic disharmony.

Code B deals with the searching of premises, seizure of property, the obtaining of warrants, and so forth. I would want to make only one comment: it is not directly relevant as to a code of practice for police officers but it is really more about the desirability of having a code of practice for magistrates. I really want to underline, if I may, the point that was made in another place: how very important it is that magistrates, whether they are justices of the peace or stipendiary magistrates, do regard the issue of a search warrant as a very, very serious step indeed, do examine properly the information that is placed before them and do not deal with it as a matter of pure routine.

On Code C dealing with the detention, treatment and questioning of persons by police officers, I must confess I do not feel precisely the same regret as the noble Lord, Lord Glenarthur, at the disappearance of the Judges' Rules. They have given rise to an enormous amount of trouble in this country and I think perhaps they can now happily be bade farewell to. All I would venture to say about this part of the code is this. I would strongly believe—and I think very desirably so—that before very long most interrogations will be tape recorded. Therefore when we come to deal with the code of practice as it relates to the recording of interviews on tape the really important issues will arise under that heading.

On the fourth code, dealing with the identification of persons by police officers, I hope that I shall be forgiven for making two perhaps rather detailed observations in the hope that they might be considered by the Home Office either as a possibility for guidance to police officers in due course or even for subsequent amendment of the code.

On identification parades—and one must recognise that they have been the cause of a great deal of unhappiness in some of the major cases where injustice has arisen—it always seemed to me, in the days when I used to defend people who were by definition always entirely innocent, that the really vulnerable point of an identification parade was one which existed in the past and which will still exist under this code of practice. That is that at some stage in the parade very often a police officer who has been on the parade and has seen everything that has happened then leaves the parade in order to bring on to the parade the next witness. Very often that witness is also in fact a police officer. Nobody knows what words are exchanged between the police officer going off the parade and the next witness.

It would be quite improper for any police officer on a parade to make any helpful observations to the next witness, and I say at once that I have no sort of evidence that anything of that kind has ever happened. It would be equally improper of any defending counsel, in the absence of any such evidence, to suggest that anything improper happened at that stage. But it is certainly not beyond the wit of ingenious defence counsel, without making any such allegation, to sow the seeds of doubt in the minds of the jury. It seems to me that is an important weakness in the present system and one which in fact without very much difficulty could be obviated.

It could be obviated either by making sure that the suspect always changes places on the line before the next witness is brought on or by giving the defendant's legal representative the opportunity of going out with the police officer and accompanying him when he brings the next witness on to the parade. Perhaps most simply, and in most cases without any difficulty at all, it could be done by avoiding that system altogether and having a method by which the officer who is conducting the parade can communicate directly with the room in which the witnesses are waiting in order to call the next witness on to the parade. I should have thought that in the present state of our scientific technology that would not be very difficult to arrange and it is perhaps a matter which could properly be considered.

The other observation I would want to make about this section of the code is this. It may be there is room for some comment somewhere about the undesirability of a police officer making any observation to a witness after he has identified the suspect either on an identification parade or when picking out photographs. I have in mind a particular illustration not very long ago, when I happened to see a woman pick somebody's pocket in a foreign country. I went in due course to the police station and there I was shown a large volume of photographs of various ladies. With a great deal of hesitation I picked one picture out and said that I thought that might just possibly be her. To that the police officer, through an interpreter, said to me, "That's an extraordinary thing, sir: you have picked out the most experienced pickpocket that we have in this town."

My doubt about the identification almost disappeared at once, and I am bound to say that if the woman had ever been arrested and I had had to go to court, I would not have expressed much hesitation about the accuracy of my identification. That is, in a sense, a piece of anecdotal evidence, but it is very tempting for police officers who have seen the suspect picked out, either on a parade or out of a series of photographs, to make some comment to the witness which will, in fact, strengthen that witness's identification almost unwittingly.

The final comment I would make is a general one and it is this. These four codes of practice occupy 97 pages. Every young police officer, as he goes on the beat, will be expected to know intimately the contents of each of those pages. It indicates two things. The first is that very careful training will be necessary to ensure that all the members of the police force fully understand both the letter and the spirit of these four codes. Secondly, it indicates that we ought all to recognise that if, in conditions of great provocation or great emergency, there are times when a young police officer departs momentarily from the wording of these codes, it is quite right that it should be mentioned and that it should be dealt with. But it should not be commented on in terms of public outrage, as though it indicates the wicked ways of the police at large. We must recognise the very real difficulties that the police will have in putting these codes of practice into effect, and we must all give them every possible support that we can.

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