HL Deb 23 February 1995 vol 561 cc1274-83

4.57 p.m.

Baroness Blatch rose to move, That the draft order laid before the House on 30th January be approved [8th Report from the Joint Committee].

The noble Baroness said: My Lords, my right honourable friend the Home Secretary, in accordance with Section 67(7) of the Police and Criminal Evidence Act 1984 may, from time to time, revise the whole or any part of a code of practice issued under that Act.

The codes of practice regulate police procedures in the investigation of crime and also the rights and safeguards of suspects. Therefore they represent an important part of the criminal process. Breaches of the codes may lead to evidence being rendered inadmissible in court, and may be grounds for disciplinary proceedings against police officers.

If the codes are to be effective they must reflect developments in law and policy. Since their inception, it has been Parliament's intention to keep them under review. They have been revised once before in 1991.

The present revision is prompted by the need to take account of recommendations made by the Royal Commission on Criminal Justice which reported in July 1993; by provisions of the Criminal Justice and Public Order Act 1994; and difficulties and anomalies in the codes which have been identified since they were last revised.

Under Section 67 of the Police and Criminal Evidence Act 1984, before any code is amended, the Home Secretary must publish a draft and consider comments made upon it. A consultation draft was published last August and sent to some 800 organisations and individuals in the legal professions, the police, the social services, voluntary groups and local authorities. Three months were allowed for comments to be submitted. We received comments and suggestions from about 60 organisations. I understand that there is no organisation which has not had a suggestion included in the final text. This has been a genuine exercise in professional and public consultation and there is no doubt that the draft is better for it. Despite that, we have discovered one or two small mistakes and I would draw your Lordships' attention to the short corrigendum which has been circulated with the codes.

The codes are now well known to the police and the legal profession. Our approach, therefore, in amending them has been to leave the present paragraph numbering undisturbed wherever possible. That is why some paragraph numbers are sub-numbered. Paragraphs which have been changed are sidelined. I shall explain to your Lordships the most significant areas of change.

Code A deals with stop and search. It has been amended to cover the new provisions in the Criminal Justice and Public Order Act 1994 which allow stops and searches in anticipation of violence and stops and searches to prevent acts of terrorism. These are covered in Sections 60 and 81 respectively. Neither power requires reasonable suspicion before being exercised, and in that respect they are different from the existing stop and search power under Section 1 of PACE. The code has been amended to reflect this.

The revised code includes guidance to the effect that the period of authorisation and the locality in which searches may take place should be the minimum for the purposes of averting violence or preventing acts of terrorism. The officer authorising use of the powers must give his authorisation in writing at the time or as soon as practicable afterwards. The authorisation must specify the locality where powers may be exercised and the period of time for which they are to remain in force.

As with all searches, an officer who has carried out the search under these new powers must make a written record of the search using the national search record form. Among other details this requires noting the ethnic origin of the person searched.

Code B deals with search of premises and seizure of property. The changes to this code are minimal, and are mostly concerned with clarifying the present law. I would draw your Lordships' attention to the new paragraph at 1.3B on page 12. This is intended to clarify the powers of trading standards officers (who are also affected by the codes) to enter premises—such as a shop—without informing the owner, when making routine inspections. This is necessary following a decision in the courts in a case involving Dudley Council which questioned the power of trading standards officers to operate in this way on the basis of the existing code.

Code C deals with the questioning of suspects and their treatment in police custody. It has been extensively amended to reflect a number of changes proposed by the Royal Commission and stemming from legislation. First, come appropriate adults. These are the people who must be brought in to represent the interests of juveniles or mentally disordered suspects. Their role is described in paragraph 1.7 on page 21 and in Annex E on page 55. The Royal Commission recommended that their role should be clarified. We have had a working party, including outside interests, sitting since last summer, and a number of provisions strengthening the role of appropriate adults have been included in Code C as well as in other codes.

The right of access to legal advice is an essential part of a fair criminal justice process. It is dealt with in section 6 of the code at page 29 onwards. Following recommendations of the Royal Commission this section has been strengthened to ensure that no suspect can be unaware of his continuing right to free legal advice while in a police station. This is not a change of policy, but the requirements to inform a suspect and to record that the information has been given to him have been elaborated.

Next I would mention a matter which has already been discussed at length in this House: the new caution to be administered following the provisions on inferences from silence in the Criminal Justice and Public Order Act 1994. The new form of words is set out at paragraph 10.4 of Code C on page 37. It now reads: You do not have to say anything. But it may harm your defence if you do not mention when questioned something which you later rely on in court. Anything you do say may be given in evidence".

These words follow extensive consultation with the police, the judiciary and others over the past few months. We believe that they strike the right balance between legal accuracy and brevity. We believe that the caution will be easy for the police to remember and easy for suspects to understand. The caution is repeated again at paragraph 16.2 on page 46 when a person is charged. The wording is very slightly different to reflect the fact that once charged a person cannot be questioned further.

The 1994 Act also provides for inferences to be drawn from the failure of the accused to account for incriminating objects, substances or marks found on his person, or his presence at a particular place, and he must be warned of the consequences of not providing an explanation when asked to do so. Paragraph 10.5B on page 38 of the codes sets out what a police officer must explain to the suspect in order to satisfy the requirements of the law. The exact wording will vary according to the circumstances, and a standard caution would accordingly not be appropriate here.

I will now turn to a very different matter. Annex A of Code C on page 49 contains a much more detailed provision on strip searches specifying the safeguards which must be applied. This has been an area of confusion and controversy in the past, and I will explain a little more what we have done.

At present a strip search is defined as any search which involves the removal of more than outer clothing. This is too simplistic. The revised Annex A therefore refines this to distinguish between an ordinary strip search such as one involving the removal of a pullover or shirt and one which involves the exposure of intimate parts of the body. For the latter we have introduced further safeguards, including the need for an appropriate adult to be present when juveniles or mentally disordered offenders are subject to a search of this kind. The provision on intimate searches has not been changed except to reflect the fact that following the Criminal Justice and Public Order Act 1994 a search of the mouth is no longer an intimate search. Otherwise they will continue normally to be carried out by a registered medical practitioner or registered nurse.

I shall now turn to Code D which deals with identification. We have accepted the Royal Commission's proposal that the police should keep a record of the first description of a suspect given to them by a witness. This is set out at paragraph 2.0 on page 62. This is an important safeguard to ensure that witnesses are not "coached" towards a particular description. We have extended the principle to ensure that a suspect's solicitor is made aware when the police have published photographs or films of a wanted suspect in the local media, and given the opportunity to view the material.

We have also made changes to identification procedures to reduce the scope for abuse by suspects in response to concern expressed to us by witnesses and the police. In recent years some suspects have taken advantage of their right to demand an identification parade by altering their appearance when the parade takes place. Examples from recent cases have been of suspects who have dyed their hair, grown beards, shaved off moustaches, or altered the length of their hair. The result is that the identification parade has to be cancelled and re-set for another date so that new participants can be found. That is expensive and wasteful. But more importantly, it delays the investigation and alienates witnesses. Witnesses often have to take time off work to attend a parade and may not be prepared to participate further. All delays assist the defence, since the memories of witnesses fade with every delay.

We have therefore given the police a new power at paragraph 4.2(iv) on page 67 to take a photograph of a suspect in police detention if he is suspected of involvement in a criminal offence and there is identification evidence in relation to that offence. A photograph may also be taken of him when he attends the parade. The suspect will be told that if he should significantly alter his appearance between the taking of the photograph and any attempt to hold an identification procedure, this change of appearance may be given in evidence if the case comes to trial.

The code also includes new guidance on the group identification procedure in a new annex on page 79. Group identification is where a suspect is placed in a crowd of people in a public place and is often requested by a suspect in preference to an identification parade. The absence of past guidance has meant that difficulties have arisen both in the carrying out of the procedure and the evidential status of the identification made as a result of the process. We hope that the new annex will overcome this.

Changes have also been made to Section D on page 70 onwards which deals with identification by body samples. These changes result from the 1994 Act which amended PACE to allow for the more widespread taking of samples for DNA profiling purposes.

This brings me finally to Code E which regulates the tape recording of interviews. Only one change of substance has been made, and that is to remove four paragraphs in Section 5 which set down the procedures which the police had to adopt to make a written record of an interview. We considered this both excessively prescriptive and unnecessary.

At present these paragraphs require that the interviewing officer himself must prepare a written summary of the interview. This rules out, for example, the use of civilian tape transcripts. The Audit Commission and independent consultants engaged by the Home Office have suggested that considerable savings could be made by more flexible approaches. We plan to undertake pilot studies to consider alternative approaches and the proposed change will allow the studies to be undertaken. It will be a requirement for all written summaries to be prepared in accordance with national guidelines that have been approved by the Secretary of State. This will ensure a standard framework of quality and consistency between forces, but also flexibility in adopting more cost-effective approaches.

I have described the main changes that are being made to the codes. We believe they ensure that the codes continue to be relevant to the changing legal and operational background in which the police must operate. They also continue to provide strong legal safeguards for citizens against arbitrary or oppressive use of police powers. If approved by Parliament the revised codes will come into force on 10th April 1995. They will be published in the same format as before—a small paperback book. Copies will be given to every police officer and will be available for the use of suspects in all police stations. I commend the order to your Lordships.

Moved, That the draft order laid before the House on 30th January be approved [8th Report from the Joint Committee].—(Baroness Blatch.)

5.15 p.m.

Lord McIntosh of Haringey

My Lords, I thank the Minister for having introduced the order. I thank her particularly for the detail in which she explained it. That may sound unusual in the sense that very often we want shorter ministerial speeches. When I contrast the Minister's speech today with the very much shorter and more scrappy introduction which the order received in the Committee on Statutory Instruments in another place only two days ago, we have seen an introduction today which shows respect for the House. I am grateful to the Minister for having treated us seriously.

As the Minister rightly said, the order reflects the changes which were brought about primarily in the Criminal Justice and Public Order Act 1994. I have to take it for granted that the order accurately reflects the provisions of the Act. I have to accept that because of the degree of consultation which has taken place and because I know that those who are much more expert in this subject have gone through the new codes very carefully and, so far as I am aware, have not found discrepancies between them and the Act. I am simply not capable of carrying out the concordance which would be necessary between a 91-page series of codes of practice and a very complex piece of legislation.

Having said that, the House will not forget that in the course of consideration of the Criminal Justice and Public Order Bill we opposed very many parts of it. Many of the fears which we had about the effect of the Act on the relationship between police and public under the codes are now brought to fruition by the publication of the order and the new codes. However, I do not believe that it would be for the benefit of the House if we were to repeat all the objections that we had to the Bill at that time. For one thing, it would take many hours, and for another we accept that having secured the approval of Parliament for the Act it is proper for the Government to give effect to it in the codes of practice.

I have only one particular point to make about the codes themselves; it concerns the caution. I listened carefully to the Minister as she read it—not only to the words, which are printed on pages 37, 46 and 87 of the codes, but also to her tone of voice and the way in which she read it. None of that can appear in Hansard, but I ask the House to consider very carefully whether this is a comprehensible series of words and sentences: You do not have to say anything". That is fair enough. The caution goes on, But it may harm your defence". Will everyone understand "harm your defence" and that a defence is your argument of what you say happened and what you are going to put forward? Will everyone understand that "harm" is something which can do damage to your argument? The caution continuesIf you do not mention when questioned something which you later rely on in court". In normal speech we do not include a phrase such as "when questioned" in the middle of a sentence without any punctuation and when it is out of the normal order of everyday speech. I suggest that that sentence is not in demotic English and will not be readily understood by a very large number of people who will hear it read to them. The next part of the caution is all right, namely, Anything you do say may be given in evidence". I realise that at 37 words the caution is an improvement on the 80 or so words which, we understand, the Home Secretary drafted himself as an earlier version, although we have not returned to the 17 words which were the caution before the abolition of the protection of the right of silence provisions in the Criminal Justice Act.

I beg the Government to look again at the wording of the caution and to undertake serious research. It is possible to undertake research into how people—not necessarily those with university degrees or PhDs—actually understand the wording. Oddly enough, the version which states, If you do not mention now", is easier to understand than the version which states, you do not mention when questioned". On the basis that this is an accurate reflection of the changes required by the Criminal Justice and Public Order Act and that our objections to it are recorded and need not be repeated, I have very few further things to say about the order.

I wish, however, to refer to monitoring and particularly the monitoring of the new stop and search powers. Who is to carry out the monitoring of these powers? Is it to be the responsibility of the police authority or Her Majesty's Inspectorate of Constabulary and, if neither of those, who? Stop and search powers have been a matter of great controversy over a period of years. We have gone back to a time before the abolition of the "sus" laws. The implementation of the powers could be extremely dangerous. Unless the exercise of those powers, which we so strongly deplored when the Bill came before us, is properly monitored, there is a serious risk of miscarriage of justice and the misuse of police powers.

What about breaches of the codes? How are they to be dealt with? Is it simply a matter of disciplinary procedures within the police force or are breaches of the codes to be drawn to the attention of the courts? How is the general public to know about breaches of the codes which have been identified?

Finally there is the implementation of the codes. I see that they are due to be implemented on 10th April this year. I do not object to every attempt by the Government to secure early implementation, but that is a very short period in which to train every police officer in the land in these new and extremely complicated powers. I know that it has been made easier by the retention of the same paragraph numbers, but there are 91 pages. Will the Minister tell us what training is planned, and whether she is convinced and fully satisfied that the period between now and 10th April is adequate for the training so that when the new codes come into force they will be up and running from the first day?

With those few remarks, I repeat that we do not intend to oppose the order.

Lord Harris of Greenwich

My Lords, I propose to raise just three questions on this issue. I want to come first to the question of the mentally ill. An increasing number of people are being arrested by the police because of the failure to deal with the mentally ill in the community. Care in the community in many parts of this country is a poor joke. As a result, the police experience more and more problems in that area. That being so, the question of the "appropriate adult" procedure is a matter of considerable importance.

As the Minister will be aware, there was a recommendation on that issue by the Royal Commission. The Government have set up a working party consisting of representatives of the police and some of the mental health organisations. I welcome that, but will the Minister say when the report will be available. I assume that it will be published in its entirety. Perhaps she could help us with that matter.

There is then the issue of the transcription of tape recordings of interviews made within a police station. When the arrangements were introduced, it was assumed by many in the police service that that responsibility would be taken on by the CPS. In fact, that has not proved to be the case. Thousands upon thousands of police hours are spent dealing with the transcription problem. It is not a sensible way of using scarce police resources. Again, there is a working party looking at the question of whether clerical staff rather than police officers can be used. That is an entirely sensible idea. When will we have the results of that working party? The problem needs to be tackled with considerable urgency. The misapplication of resources causes serious concern in the police service, and I very much hope that the Minister will be able to deal with that point.

Thirdly, there is the highly sensitive issue of the stop-and-search powers referred to by the noble Lord, Lord McIntosh. I understand that a research project is to be conducted in that area, and I welcome that. I should be interested to know who will be conducting that research. Will it be done internally by the police research group, within the Home Office, or by someone outside? When will we know the results of that research? Again, will the report be published in its entirety?

Those are important issues, and I should be grateful for the Minister's assistance in finding out what are the answers.

Baroness Blatch

My Lords, I am grateful to both noble Lords for the way in which they have responded to the order. I respect the point made by the noble Lord, Lord McIntosh, that the purpose of today is to ensure that the order is accurate and consistent with the changes and the new Act. The noble Lord rightly makes the point that the Opposition did not agree with the Act in the first place, but that is not the purpose of today.

Perhaps I may refer to some of the points raised. First, the noble Lord, Lord McIntosh, mentioned breaches of the code. My understanding is that under PACE breaches could be cited in disciplinary proceedings and could even lead to evidence being ruled inadmissible in the courts. I have a feeling that the noble Lord's question went further than that and that he was asking how such breaches would be dealt with. I wonder whether the noble Lord would allow me to write to him, particularly on the practical issues of how breaches will be identified and dealt with.

Lord McIntosh of Haringey

My Lords, I thank the Minister for that, but I had a further point. How is the public to know about the extent and nature of breaches of the code once they have been identified? If the Minister could include that in her letter, it would be even more helpful.

Baroness Blatch

My Lords, I was right in detecting that there was rather more in the noble Lord's question than I had responded to. I shall certainly write to him on that point. I understand what the noble Lord said about the wording of the caution. In fact, I spent some time querying the very point that the noble Lord queried. All I can say is that the wording was the result of extensive consultation, especially with the senior judiciary. I hope that the noble Lord will accept that the words have to balance simplicity, to enable people to understand them, and a rather complex provision. The words of the caution will be monitored, and I shall be able to report back at some later stage on just how well the caution is being understood. If it is not, it may be something to which we will have to return.

A point was made on the stop-and-search provisions. When I presented the order to the House I said that there is a requirement in Code A that the ethnic origin of those who are stopped should be recorded. Statistics will be published, and they will be monitored carefully to address any potential problems of racial bias in the use of that power.

A Home Office circular will be issued to chief police officers at an early date—well in advance of the proposed implementation date—outlining the changes which have been made. It will provide also for revised standard forms—for example, a notice to detained persons, national search records and so forth—and they are being produced in consultation with the ACPO. An important point about training was made by the noble Lord, Lord McIntosh. Training requirements of police officers are a matter for individual chief officers. Individual forces have been undertaking training since the codes were laid, and a series of articles by ACPO on the new provisions is, I understand, to be published in the Police Review.

The subject of the mentally ill was mentioned. I referred to that in my opening. The introduction of the provision for an adult to be present will be important. The noble Lord, Lord Harris, asked a number of questions. I am sure that I shall not refer to them all, but I shall write to him, especially with regard to the report. We have accepted the recommendation of the Royal Commission on Criminal Justice and have set up a working group, as the noble Lord knows. It consists of representatives from government, the police, MENCAP, MIND and NACRO to look at the whole area. It is expected that the group will issue its findings later this year. That is a matter for the group itself, but I shall keep the noble Lord informed about it.

Lord Harris of Greenwich

My Lords, is it right that the report will be published in its entirety?

Baroness Blatch

My Lords, we shall publish its findings. I shall look at Hansard tomorrow to see whether there are any detailed points to which I have not referred. I commend the order to the House.

On Question, Motion agreed to.