Police and Criminal Evidence Act 1984 (Codes of Practice) Order 1988

HL Deb 28 July 1988 vol 500 cc443-53

7.7 p.m.

The Minister of State, Home Office (Earl Ferrers) rose to move, That the order laid before the House on 13th July be approved [33rd Report from the Joint Committee].

The noble Earl said: My Lords, I beg to move that the Police and Criminal Evidence Act 1984 (Codes of Practice) Order 1988, a copy of which was laid before this House on 13th July, be approved. The Order has been seen by the Joint Committee on Statutory Instruments.

We are debating today a code of practice which will govern the procedures by which police officers tape record interviews with suspects in police stations. My right honourable friend the Home Secretary is required by the Police and Criminal Evidence Act to issue this code, which will be the fifth and final code to be issued under the Act.

The four existing codes came into force on 1st January 1986. They deal with the stopping and searching of persons; the searching of premises and the seizure of property; the detention, treatment and questioning of persons; and the identification of people. These existing codes are not affected by the code which we are debating today and which will provide additional safeguards for the rights of suspects.

The purpose of tape recording is that, in the event of a dispute about what was said in an interview at a police station, there should be recourse to an accurate and reliable record. I feel confident that your Lordships will join me in welcoming tape recording as an important development in our criminal justice system.

I should like first to say something about the purpose and the effect of the code. The effect of the order which we are now debating will be, subject of course to approval by this House and in another place, to bring the code of practice into operation in the sense that it will then be available for use. But the tape recording of interviews itself, which will be in accordance with the code, will not be mandatory until a further order to this effect is made (under Section 60(1)(b) of the Police and Criminal Evidence Act in relation to a particular defined area.

It is our intention to make these orders under Section 60(1)(b) requiring tape recording to be carried out in accordance with the code only when tape recording is being carried out satisfactorily on a voluntary basis in the area concerned.

Once an order has been made requiring the tape recording of interviews in respect of specified offences at police stations, the provisions of this code of practice will be binding on all police officers who conduct such interviews in the area in question. Failure to follow the provisions of the code may constitute a disciplinary offence.

An abuse of the code could also become a matter for consideration by the courts. Section 67 of the Act specifically declares the provisions of the new and existing codes admissible in evidence in any criminal or civil proceedings. If the code has been breached during an investigation in a way which reflects upon the reliability of the evidence which has been obtained, then the court is obliged to consider that fact. That is an important further sanction.

Perhaps I may now explain how we arrived at the code of practice on tape recording. The Royal Commission on Criminal Procedure recommended the gradual introduction of tape recording to be used in indictable cases for the making and reading back of a summary at the end of the interview. The Royal Commission's recommendations were based on the correct assumption that producing transcripts of the whole of each interview would be prohibitively expensive. The Government wished to go further, and we proposed a scheme in which the whole of the interview would be tape recorded.

In order to avoid the difficulties which were foreseen by the Royal Commission, we proposed that, subsequent to the interview, the police officer should provide a written summary which would, in most cases, meet the needs of the defence and prosecution. Where there was disagreement on the summary, the tape could be played in court. By these means the need to produce a transcript could be avoided in the great majority of cases.

These procedures were tested in field trials in six areas over a period of two years. The field trials were overseen by a national steering committee, chaired by the Home Office and with a wide membership, which included representatives from all parts of the criminal justice system. The national steering committee drew up procedural guidance for the field trials which formed the basis for the present code of practice.

The field trials went well. They suggested that tape recording offered a number of benefits. For example, suspects were brought to police stations more quickly; interviews were shorter, more natural and more effective; there was an increase in the number of admissions and confessions; there were fewer challenges to police evidence in court. The Government therefore decided that tape recording should become standard practice in police stations in England and Wales. They decided on a five-year programme, with completion in 1991.

Phasing is important for two reasons. It gives those affected throughout the ctriminal justice system time to adapt. And it enables the costs to be spread. A first draft of a code of practice was published for consultation in September 1986. Subsequent consultations have taken longer than we had hoped. But discussions have centred on procedural matters, notably the purpose and content of the written record produced by the police officers. There has throughout been full agreement on the desirability of tape recording.

As I said earlier, the procedures set out in the code require the taping of the whole of the interview. The written record which the police officer produces subsequently is in effect the cornerstone of the system. If it is to be relied upon by the prosecution and the defence in the majority of cases, it must be produced to a high standard. Detailed information about the content and the preparation of the record of interview will be set out in a circular to police forces which will accompany the code.

I must also pay tribute to the Association of Chief Police Officers, which has arranged for the production of a training video which is now being widely distributed. The arrangements to provide reassurance to suspects that the tape has not been tampered with are simple and, we believe, effective. They involve the production of two tapes with one being sealed immediately in the presence of the suspect. This seal cannot be broken except, normally, on the order of the court. This procedure naturally favours the use of a twin-deck tape recorder although the code has been drafted in a way which does not rule out the use of single-deck machines.

These essentially simple procedures are set out in the code of practice. But any of your Lordships who may be familiar with the procedural guidance which are not dealt with in the code. This is for the simple reason that they will be outside the code.

I can assure your Lordships that these comparatively detailed, but nevertheless essential, matters will be fully covered in the Home Office circular which will go out with the code. This circular has also been the subject of consultation and will be widely distributed.

Before concluding, there are one or two further points which I should like to make. There is no requirement in the code for the taping of interviews with a person who is being questioned in respect of terrorist offences or in respect of offences under Section 1 of the Official Secrets Act. The field trials of tape recording did not extend to terrorist interviews and, in the absence of any practical experience, we believe that it would be unwise to introduce tape recording on a general basis for thee cases. There is a real fear that these suspects, if taped, would be unlikely to talk during police interviews, but there is also the risk that taping could compromise intelligence and put lives in danger.

We intend therefore, in England and Wales, to conduct trials of tape recording of interviews with terrorist suspects. When these trials have been assessed we shall be in a better position to see whether a sensible and effective code of practice can be devised for these cases.

When I laid the draft code before the House on 13th June, I undertook that we would take account of any further representations which might be received by 11th July. As a result, we have made a change to one of the guidance notes, which are not part of the code itself. This is a largely technical matter concerning the procedures to be followed if a tape should break. I announced this amendment to the House on 14th July and an amended guidance note has been placed in the Library.

We are encouraged by the good progress which is being made and by the commitment which is being shown by those involved, not least the police themselves. I commend the code to the House and ask the House to approve it.

Moved, That the draft order laid before the House on 13th July be approved [33rd Report from the Joint Committee.] —(Earl Ferrers. )

7.17 p.m.

Lord Mishcon

My Lords, your Lordships will be indebted to the Minister for the very clear way in which he has explained the provisions of the order. I believe that this is an occasion when the House should congratulate the Government on the progress which at long last is being made to ensure that there is a general tape recording of statements being made by an accused.

It was also good to hear that the date by which all this will be mandatory throughout the kingdom is 1991. In fact it will be some 20 years since this very procedure, or rather experiments in regard to it, were recommended by the Criminal Law Revision Committee whose report appeared in 1972. However, I repeat that it is a good thing, as many of us in all parts of your Lordships' House have been recommending the mandatory provision of tape recording over a very long period.

I can remember some turgid speeches which I made on the subject and I can remember other speeches much more notable than mine when we were going through the provisions of the Police and Criminal Evidence Act 1984. I also remember that the noble Earl, Lord Caithness, was dealing with the matter at the time and dealt very sympathetically with the approaches which were made for the expedition of this procedure; we are glad to see him in his seat tonight even though his responsibilities are now somewhat different.

It is right to point out, as did the noble Earl, that the codes of practice will not be mandatory and will not have a statutory form in that way until a further order is placed before the House under Section 60(1)(b) of the Police and Criminal Evidence Act 1984. I hope that the Minister can give some firm indication of when he hopes to present that order to Parliament.

Having given a general blessing to this order from these Benches, I now concentrate on a few matters where I have some apprehensions. I turn immediately to that part of the code to which the Minister referred as being an exception to the general rule where tape recording was required. I quote from paragraph 3.2.a of the code of practice. A tape recording is not required in respect of: an interview with a person arrested under Section 12(I)(a) of the Prevention of Terrorism (Temporary Provisions) Act 1984 or an interview with a person being questioned in respect of an offence where there arc reasonable grounds for suspecting that it is connected to terrorism or was committed in furtherance of the objectives of an organisation engaged in terrorism. This sub-paragraph—I am now paraphrasing—applies only where the terrorism is connected with the affairs of Northern Ireland or is terrorism of any other description; but the exception to that is where terrorism relates to matters connected solely with the affairs of the United Kingdom or any part of the United Kingdom other than Northern Ireland.

When the Prevention of Terrorism (Temporary Provisions) Act comes before this House and another place, questions are always asked about one of the offences in that Act. That offence, which is definitely connected with terrorism, is that where a person has knowledge of matters connected with threatened terrorism, or terrorism generally, and fails to reveal that knowledge a criminal offence has been committed. Often have speeches been made in your Lordships' House, from these and from other Benches, that this offence should not be in the Act. Indeed, various reports have been compiled, as your Lordships will remember, by eminent Members of this House, which advocate that that offence, which is of a dubious nature and where there have been very few prosecutions, should no longer be an offence.

The delicacy of an inquiry as to whether somebody actually knew about an act of terrorism will be obvious to your Lordships. If ever I could think of a case where a recording would be necessary I should have thought it was that one. Yet we are told by the Government —unless I have made an error and if I have I know that the noble Earl will be good enough, in gentle language, to point that out to me—that it will mean that the dubious offence is one of the exceptions to the rule.

Having dealt with the particular, I now deal with the general. One of the main factors which has stopped proceedings in the past from being successful in the few cases—but there have been cases —where the accused has been acquitted and one of the factors which is prevalent after a case has been heard is where a confession has been extorted from the accused in connection with a terrorist offence by means which are grossly improper. I should have thought that without any doubt at all it is absolutely wrong to make an exception not for terrorism generally but for terrorism in Northern Ireland.

First, we are driving another wedge between Northern Ireland and the rest of the United Kingdom in addition to those which already exist in the laws of justice and of criminal procedure. I should have thought that was a grave mistake. Secondly, the Government's reason for doing this is totally wrong. I cannot see the justification for dealing with this matter of terrorism in Northern Ireland and tape recording differently from any other criminal case; nor can I see the justice of saying that this does not apply to terrorism in other parts of the United Kingdom but only in regard to Northern Ireland.

Would not a suspect in regard to terrorism in England, Wales or Scotland be subject, as the Minister mentioned, to the same inhibitions in talking frankly and freely about terrorist acts? Is the IRA, hideous though that organisation is, more terrible than terrorists in the United Kingdom, whether inspired by Libya or any other country which appears to take an interest in causing damage to civilian life and property in this country? Is it not possible to ensure that the summary, which the noble Earl said will be the normal procedure after the tape recording has been made, of necessity leaves out matters which have nothing to do with the probative evidence in regard to a criminal act of terrorism but which have made useful disclosures to the police in areas of terrorism about which they may not otherwise have known?

I repeat, I cannot see any justification whatever, only harm, for that exclusion. Furthermore, I can see that once again there will be allegations about torture, confessions wrongly obtained, and so on, in terrorist cases in Northern Ireland which will lead, as they do, to hatred and contempt for our authorities who do not deserve it. We believe that such cases, if they do occur, are extremely rare and are to be abhorred, but why walk into that accusation when a tape recording would show the mood of the whole interview and exactly what had occurred?

I move to another matter under the code. Paragraphs 3.3 states: The custody officer may authorise the interviewing officer not to tape record the interview: (b) where it is clear from the outset that no prosecution will ensue". The custody officer is not a trained lawyer. One hopes that he is a person of some experience. He does not necessarily have a very high rank in the police force. It may be his genuine view that no prosecution will ensue and as a result of that there will be no tape recording. Are we to understand that, if the custody officer has decided from the outset that no prosecution will ensue, and if the interview throws up matters which a subsequent prosecuting authority believes should lead to a prosecution, such a prosecution will automatically be barred because the accused, even after a tape recording becomes mandatory, was robbed of the opportunity of having the tape recording because it was decided at the outset of the interview that no prosecution would ensue? I repeat my question, is the accused free from prosecution if that decision is made by the custody officer?

My last point relates to the summary. The notes for guidance use these very proper words: The record shall, therefore, comprise a balanced account of the Interview including points in mitigation and/or defence made by the suspect". I appreciate as well as any of your Lordships that it will be open to the defence to hear the whole of the recording and possibly to see a transcript. The defence will decide whether the summary is a fair one. Most of your Lordships may be more fortunate than I in recollecting précis exercises at school and the success or otherwise of your efforts. It was one of the most difficult things to teach. Other matters of grammar and composition were looked upon as being very much easier than the art of being able to make a proper précis.

I merely hope that the status and the capabilities of the officers who will be dealing with this matter—namely, the officers who prepare the précis—will be of the ability required to deal with this very sensitive matter. I ask the Minister whether steps are already being taken in police colleges throughout the United Kingdom to ensure that as from now précis writing is part of the course in which police officers will be trained.

If it is found that time after time the defence complain that they have not been presented with a correct or fair summary and they therefore demand that a transcript of the whole of the recording be produced in court, that is bound to lead to an excess of both expenditure and time.

Having made these qualifications, I repeat that the Government are to be congratulated on getting a move on with this exercise which was suggested in 1971 by the committee to which I referred. Otherwise, from my point of view, I welcome the code that we are asked to approve tonight.

7.35 p.m.

Lord Harris of Greenwich

My Lords, like the noble Lord, Lord Mishcon, I thank the noble Earl for having explained the contents of this order. Like the noble Lord, I support it, and my support for it is slightly more unreserved. There are a number of issues arising from it that we should discuss this evening. First, I take up the point which the noble Lord, Lord Mishcon, dealt with at the end of his speech. I do not believe that either the present Government or their predecessor can be accused of having moved with undue haste to introduce the tape recording of interviews with suspected persons.

To some extent I believe that the delays were perfectly understandable and, to some degree, inevitable. At first there was undoubtedly scepticism in the police service about it and that was shared by some lawyers. There was doubt about whether tape recording would be of as much benefit to our criminal justice system as the proponents suggested. Well over 10 years ago—indeed, I believe it was 13 years ago—there was a Home Office committee presided over by Mr. Wilfred Hyde which studied the issues involved and produced a most valuable report. Since then there has been a number of significant developments, not least the Police and Criminal Evidence Act. As a result of these developments I believe it is fair to say that the suspicion that existed that tapes could easily be tampered with—a belief which was inevitable following upon some of the disclosures in the Watergate case—has been put at rest.

It is right to say that the pilot projects to which the noble Earl referred undoubtedly went well. As a result of these developments a number of sceptics became enthusiasts for taping. I have little doubt that the introduction of tape recording throughout England and Wales will prove to be of immense benefit to our criminal justice system. It should certainly shorten many trials, guarantee high standards of conduct by police officers involved in interviewing suspects and lessen the likelihood of dishonest defendants being able to persuade juries that the statement they made to the police was either invented by the police or made as the result of harassment.

That being so, how can the Government justify delaying the introduction of tape recording throughout England and Wales until 1991? If he will forgive me for saying so, the noble Earl passed over that matter rather speedily in his speech this evening. I believe that some explanation is called for. It seems very surprising that we have to wait up to five years before we can be sure that taping will be extended to every area of the United Kingdom. I am well aware that in this period (a point touched upon by the noble Lord, Lord Mishcon) a major training exercise will be involved in the police service. However, that cannot constitute a reason for a delay for five years.

I fear that the explanation is likely to be the second reason given by the noble Earl in his speech; that is, that the Government are not prepared to make the resources available in order to introduce the scheme earlier. I believe that is a great misfortune. It will impose an entirely unjustifiable burden on our courts, which as we all know are under the heaviest pressure at the moment.

I very much hope that, as a result of the criticisms made in another place last night and in this House this evening, the Government will think again about this. Certainly there is no great body of support in the police service for a delay of this character; and of that I can assure the noble Earl. I am quite sure that he will confirm that that is so.

I would now like to ask the noble Earl a question of which I gave him a few minutes' notice; that is, whether the Government are now preparing to move towards the next step, which is video-recorded interviews. As the noble Earl will be aware, these are now commonplace in many areas of the United States. A number of heads of American police departments have told me that they represent a major improvement on tape-recorded interviews. Quite apart from any other consideration, it gives the opportunity of dealing with any suggestion that there has been some subtle form of harassment during the interview, because one is able clearly to study the features of those concerned.

I am told that the introduction of video-recorded interviews in the United States has led to a significant increase in the number of guilty pleas in the courts, and thus to a reduction of the pressure on their court system. Again, I hope that the noble Earl will be able to tell us whether the Home Office is studying this at the moment, and whether it will be indicating its general attitude towards it.

Lastly, I should like to come to the question—which is a difficult one—dealt with by the noble Lord, Lord Mishcon. That is the issue raised in paragraph 3.2 of the code: the exclusion for the present of interviews with people arrested under the Prevention of Terrorism (Temporary Provisions) Act. I can understand the concern of entirely reasonable people that cases relating to Northern Ireland are to be excluded in this fashion.

However, I must make it clear that on the basis of my own experience I believe that the Government are right to move with considerable caution.

If a suspected terrorist sees that his interview is being tape recorded, he may become so fearful that the content of the tape will fall into the hands of his colleagues that he may decline to give any further information. On many occasions material of this kind is vital. It can give police information about the IRA that will save lives, and in other cases it will pinpoint other suspects and provide extremely important criminal intelligence information.

If tape recordings were to be required in all such cases, there is a risk that some of that information could end up by being leaked to the IRA. I do not consider that it is right for us to take such a risk, and accordingly I consider that for the moment it is right to exclude Northern Ireland cases from the provisions of the order.

Having made those various points, I think I have said enough to indicate our wholehearted support for the general approach set out in the order we are debating this evening. It represents, as I have indicated, a major improvement in our system of criminal justice for the defendant and the police alike. Our major concern is that the Government will speed up the introduction of this system throughout the country well before 1991. I hope that the noble Earl will deal directly with this point when he replies to the debate.

7.45 p.m.

Earl Ferrers

My Lords, I am grateful for the remarks that both the noble Lord, Lord Mishcon, and the noble Lord, Lord Harris of Greenwich, have made. This is quite an innovation. The whole principle of tape recording is new. It covers sensitive ground, and I can understand why the noble Lord, Lord Mishcon, is possibly a little hesitant in his welcome, though he said that he welcomed it on the whole.

The noble Lord, Lord Harris of Greenwich, asked why we are slow in doing this. I think the basic answer is that we want to proceed carefully and cautiously. As I explained, we set up a trial, and we wanted to see how it worked out. The trials went on for a period of about two years. Now that we think we have got it right, it is proposed to introduce it. When the noble Lord, Lord Harris of Greenwich, says that this has taken a great deal of time, he will remember that some £9 million is being spent on it.

It is a considerable physical upheaval in various police stations. It is not all that easy to do that kind of thing overnight. If one thinks of the Metropolitan Police area alone, an enormous number of stations will have to be modified and altered. Although the noble Lord, Lord Harris, would like to see this done quicker—I can understand his impatience, if I may use that word without any discourtesy—I think it would be unreasonable to expect that we would be able to do it immediately.

We propose to make orders—the noble Lord, Lord Mishcon, asked specifically about this—under Section 60(1)(b) when the tape recording is operating satisfactorily on a voluntary basis throughout a force area. We are likely to make orders in respect of a number of forces at a time. The first of these orders is likely to be laid during the next Session.

The noble Lord, Lord Mishcon, questioned the assumption of the code of interviews with terrorist suspects. He took the view that these recorded interviews should be done before terrorist suspects, and he thought it was wrong for those to be excluded. The noble Lord, Lord Harris, referred to that too. If I may say so, I think that the noble Lord, Lord Harris, put his finger on the point. If a suspect believes that there is the slightest chance of a tape falling into the wrong hands, he will be loath to speak. There is a real fear that the suspects would be unlikely to talk during these interviews, and there is a real fear that the taping could compromise intelligence and put lives in danger.

I know that the noble Lord, Lord Mishcon, takes a different view. I hope he will respect our view and the fact that if we feel lives and intelligence are likely to be put at risk we are right, so far, not to include those sorts of interviews for those sorts of people. We shall of course consider what to do as more knowledge and experience become available, but at the moment we feel that, for those reasons of acute sensitivity that the noble Lord will understand, it would be better not to use this system for terrorism in Northern Ireland.

The noble Lord, Lord Mishcon, also asked specifically about the exemption under paragraph 3.2 of the code. This applies to an interview with a person being questioned in respect of an offence where there are reasonable grounds for suspecting that it is connected with terrorism. This could include an offence under Section 11 of the Prevention of Terrorism (Temporary Provisions) Act, which deals with withholding information about acts of terrorism connected with the affairs of Northern Ireland. I hope that the noble Lord will understand the reasons we take the view that we have.

The noble Lord, Lord Mishcon, also referred back to his schooldays. That was a touching recollection with which I had much sympathy, because I found the art of making a precis extremely difficult as well. I can assure the noble Lord that the police are fully seized of the need for training in the preparation of the written records of interviews. Most training will be given in police forces, and force training itself will be assisted by the orders produced by the Association of Chief Police Officers. The noble Lord is correct that if the precis is done wrong, then of course the whole validity of the exercise gets endangered. However, great trouble will be taken to ensure that so far as possible all precis are reasonable.

The noble Lord, Lord Mishcon, also asked what would happen if a person had not been interviewed using a tape and it was then decided to prosecute. In other words, what happens if there is no taping? Does that mean no prosecution? I do not think that this is likely to occur very often, but in the unlikely event that it is decided to prosecute a person, we believe that the proper course would be to carry out a further interview, which would be fully recorded.

The noble Lord, Lord Harris of Greenwich, referred specifically to the next step forward, which would be the video recording of interviews. If this were to take place, police forces would have to prepare special interview rooms. There are no plans at the moment to introduce video recordings in evidence. The Government are considering the possibility of introducing video recordings of evidence given by children in sex abuse cases. A working party has been set up under the chairmanship of Judge Pigot to consider the implications of that. The use of video recordings in all cases would be exceedingly expensive. At the moment it is not under consideration.

I am grateful for the welcome that the two noble Lords have given to this order. I think that it is an important step forward, and one which we will watch with interest to see how it proceeds. I am grateful for the encouragement that we have been given. I beg to move.

On Question, Motion agreed to.