Police and Criminal Evidence Act 1984 (Codes of Practice) (Codes B to E) (No. 2) Order 2003 (Hansard, 11 March 2003)

§ The Minister of State, Home Office (Lord Falconer of Thoroton)
rose to move, That the order laid before the House on 27th February be approved [12th Report from the Joint Committee].
The noble and learned Lord said: My Lords, I beg to move that the order, a copy of which was laid before the House on 27th February, be approved. The order has been seen by the Joint Committee on Statutory Instruments.
Noble Lords will be aware that a near identical order was considered by the House on 24th February. Obviously, they cannot be sure that it was completely identical because two or three pages were missed out, as the noble Lord, Lord Hodgson, pointed out. That order was revoked on 4th March in consequence of that defect in one of the codes of practice laid before the House. An administrative error meant that one of the codes, Code D, was incomplete. That has since been rectified, and fresh codes were laid before the House on 26th February.
The new order will, subject to the approval of the House and of another place, bring into effect, from 1st April 2003, revised codes of practice in connection 1301 with the exercise of police powers in relation to searches of premises and the seizure of property found on persons or premises, as in Code B; the detention, treatment and questioning of persons, as in Code C; the identification of persons, as in Code D; and tape recording interviews with suspects, as in Code E. The order has been made under Section 67 of the Police and Criminal Evidence Act 1984. It cannot have effect until it is approved by resolution of each House.
Since we debated the codes on 24th February, I have provided the noble Lords, Lord Hodgson and Lord Dholakia, with an explanatory paper for each code detailing the main changes, which I hope they found helpful. That was pursuant again to a sensible suggestion by the noble Lord, Lord Hodgson. 'The amended codes were welcomed by the House last month, and I hope they will be welcomed by the House today. I commend the order to the House.

§ Lord Hodgson of Astley Abbotts
My Lords, I am extremely grateful to the Minister for his further explanation and update of the position on the codes. I would like to take the opportunity to thank him for having responded to my request for explanatory notes to lay out the changes made, and for sending me a copy. which I have read carefully. They are extremely useful. I hope that the issuing of such notes will become practice in future.
I have read the two missing pages of Code D with care. Page 7, which was one of them, concerns identification parades, video identification and identification by group. It also refers to annexes A, B and C. I ask the Minister to turn to annex A. Paragraphs 15 and 16 on page 23 are concerned with image security and destruction. Paragraph 16 states: As appropriate, paragraph 33 or 31 applies to the destruction or retention of relevant sets of images". I may be missing something, but I cannot find paragraphs 33 or 31 anywhere in Code D. The code ends at paragraph 6.12, annex A at paragraph 18 and annex B at paragraph 28. Admittedly, annex C goes to paragraph 44, but paragraphs 33 and 31, which are on page 29, seem to have no relevance to image security or destruction in relation to group identification. Annex D ends at paragraph 7, annex E at paragraph 12 and annex F at paragraph 5.
If one reads the code again carefully, one realises that the relevant paragraphs appear not to be paragraphs 33 or 31, but paragraphs 3.30 and 3.31, which appear on page 10 and are concerned with: Destruction and retention of photographs and images taken or used in identification procedures". The Minister may have some simple explanation for that, in which case I have obviously been going up a blind alley, but I think that the error ought to be put right. I understand that we cannot amend statutory instruments, so the Government presumably need to withdraw. correct and represent the order.
1302 While the Minister is pondering on that, I want to make two further observations, both of which I raised in the earlier debate. The first concerns paragraph 4.3 of Code E. I am sorry that the Minister, for all his many kindnesses and courtesies to me, has not seen fit to make use of the hiatus that has occurred to clarify beyond peradventure the issue of clean and new tapes. Paragraph 4.3, which is on page 5 of Code E, reads: When the suspect is brought into the interview room the interviewer shall, without delay but in the suspect's sight, load the recorder with clean tapes and set it to record''. "Clean" is not the same as "new", nor the same as "unused". Indeed, use of the word "clean" could indicate tapes that had been used before and cleaned. In the earlier debate, I drew attention to the dangers of fragmentary retention on tapes that had been cleaned and reused. If we are to have another hiatus, could we not substitute "new" or "unused" in paragraph 4.3 for "clean", for the avoidance of doubt?
Secondly, I want to return to paragraph 6.1 of Code B, which concerns timing, stating: Searches made under warrant must be made within thin one calendar month of the date of the warrant's issue". During our earlier debate, I raised the question of whether the date of issue was the same as the date on which the warrant was signed. I recalled debates on the Animal Health Bill during which it appeared that some magistrates at least had begun to sign but not date warrants, so that they could be used later. The title of Code B begins: Code of Practice for searches of premises by police officers and the seizure of property". Those are very serious offences. The Minister was not able to respond to my point during the earlier debate, but I would welcome his reassurance that the dating and signing of warrants for such use and in such circumstances must be contemporaneous, and therefore the one-month clock allowed for in paragraph 6.1 must start ticking.
I look forward to hearing the Minister's response to those two points, but more importantly on whether he and his officials believe that Code D can properly be approved in its present somewhat imperfect form.

§ Lord Dholakia
My Lords, I am delighted that the eagle eye of the noble Lord, Lord Hodgson, has once again discovered some discrepancies. If he is right that we cannot amend the order at this stage, the obvious alternative is to start the exercise again. I should be grateful if the Minister would explain what will now happen.
I was rather puzzled by the relevant article in the House Magazine in which one always learns something new. There was considerable emphasis on how we "vacated" the order. Will we face the same situation today? Could we approve the order in its present defective form? If not, what is the alternative?
I do not want to repeat the two points I made last time. I thank the noble and learned Lord for having the courtesy to reply to me; I received his reply today. I am 1303 grateful for the information. I have nothing to add other than to say "Well done" to the noble Lord, Lord Hodgson. Let us see how the Minister responds.

§ Lord Falconer of Thoroton
My Lords, I express my profound gratitude to the noble Lord, Lord Hodgson. I wish that he was employed in the Home Office to deal with this sort of matter with—I say this quite genuinely—the alacrity and efficiency he displayed today. He raises a very important point. As one would expect, he is absolutely right to identify that in paragraph 16 on page 23 of the relevant code, the reference to paragraphs 33 and 31 is intended to be a reference to paragraphs 3.30 and 3.31. Does that 1304 require the further revocation of the order? Happily, it does not. It can be dealt with by placing an erratum slip in the printed copies that will be supplied by the Stationery Office. Happily, that approach coincides with common sense.
I turn to the other two points that were raised. The date of the warrant would be the date at the time of signature; that is the date at which the time would start running. "Clean" means clean; it will almost invariably mean "new". It is hard to imagine that it could mean anything other than new because if it was not new it would not be clean.