Consultation outcome

Government response to Home Office consultations on PACE Codes A, B, C, D, H and new PACE Code I

Updated 3 November 2023

1. Introduction

1.1. Section 66 of the Police and Criminal Evidence Act 1984 (‘PACE’) requires the Home Secretary to establish a number of Codes of Practice which govern the use of police powers, including the associated rights and safeguards for suspects and the public in England and Wales. These must, in particular, cover the following areas:

1.1.1 The exercise by police officers of statutory powers—

(a) to search a person without first arresting h/er;

(b) to search a vehicle without making an arrest; or

(c) to arrest a person.

1.1.2 The detention, treatment, questioning and identification of persons by police officers.

1.1.3 Searches of premises by police officers.

1.1.4 The seizure of property found by police officers on persons or premises.

1.2. Section 67(4) of PACE requires that where the Home Secretary wishes to issue or revise a Code of Practice, a statutory consultation must first be carried out. This consultation must include:

1.2.1. Persons who appear to represent the views of Police and Crime Commissioners;

1.2.2. the Mayor’s Office for Policing and Crime;

1.2.3. the Common Council of the City of London;

1.2.4. the National Police Chiefs’ Council;

1.2.5. the General Council of the Bar;

1.2.6. the Law Society of England and Wales

1.2.7. the Institute of Legal Executives; and

1.2.8. other persons as the Home Secretary thinks fit.

1.3. The Home Office ran two consultations on proposed revisions to, and issue of, PACE Codes of Practice from 16 July 2023 to 31 August 2023.

1.4. One consultation focused on changes required as a result of the National Security (NS) Act 2023 – hereon referred to as the ‘NS Act PACE Codes consultation’. This regarded changes to PACE Codes A, B, C, D, H and new Code I. The NS Act PACE Codes consultation focussed on revisions made to reflect the powers and measures created by that Act. The NS Act received Royal Assent on 11 July 2023 and contains a suite of new measures to protect the UK from threats from foreign powers.

1.5. The other consultation – referred to as ‘PACE Code A consultation’ from hereon – focussed on amendments to PACE Code A which are required due to the passing of the Public Order Act 2023 and commitments made by the Home Secretary to rescind the Best Use of Stop and Search Scheme (BUSSS). The PACE Code A consultation focussed on a revised version of PACE Code A that included paragraphs for the new powers in the Public Order Act, communication measures for the suspicionless search powers and some administrative changes that needed to take place in light of the Serious Violence Reduction Orders (SVRO) pilot and the 2021 census.

1.6. In accordance with section 67(4) of PACE, the statutory consultees and others were invited to comment on these consultations. Consultation is a critical element in the development of the PACE Codes of Practice. It helps to ensure that police continue to be able to exercise their powers effectively whilst at the same time ensuring that appropriate safeguards for suspects are in place. We are grateful to those who took the time to consider the proposals and to respond to the consultation.

1.7. This Government response to the consultations sets out the rationale for making the revisions to the Codes, provides a summary overview of the responses and outlines the Government’s proposed next steps.

2. NS Act PACE Codes Consultation

2.1 Rationale

2.1.1 Changes to Code A

Although PACE Code A does not apply to the majority of provisions within the NS Act 2023 given that the legislation does not include a statutory power of stop and search, changes to Code A are required to govern how searches of individuals subject to a State Threats Prevention and Investigation Measures notice should be carried out. These changes mirror the existing provisions in Code A for the equivalent terrorism measures (TPIMs).

The changes to PACE Code A also exempt an officer having to give their name in the case of enquiries linked to National Security. This mirrors the approach currently taken towards terrorism investigations in section 3.8 of this code. This is a crucial change to protect police officers from being obliged to reveal their identity to highly trained state actors who may seek to use such knowledge against them.

2.1.2 Changes to Code B

Section 23 and Schedule 2 to the NS Act 2023 replace section 9 of the Official Secrets Act 1911 to provide powers of search and seizure for the police where there is reasonable suspicion that a relevant act has been, or is about to be, committed. Relevant acts are defined as certain offences under the NS Act 2023 as well as certain serious threats or acts.

It is vital, in creating a suite of new offences, that the police have the powers to effectively investigate the harms this Act is seeking to address. In creating the search and seizure powers, we are ensuring they contain the same strong safeguards which apply to other modern search powers, including enhanced protections around the gathering of confidential material.

We have updated Code B to apply guidance to the exercise of the new search and seizure powers within the NS Act 2023. The revisions largely replicate those already contained in the Code for similar powers.

For example, our updates include edits to section 6 – which outlines general considerations for the police when searching premises – by applying the specific guidance for searches under PACE Schedule 1 and TACT 2000 Schedule 5 to search and seizure powers exercised under Schedule 2 of the NS Act 2023. This includes requiring an officer in charge to be appointed and ensuring a search is conducted with the least possible disruption to activities carried out on the premises.

The updated PACE Code B also reflects changes made by the NS Act 2023 to Schedule 5 to TACT 2000. Schedule 5 already allows a police officer of at least the rank of superintendent to give authorisation for an urgent premises search, which would otherwise require a search warrant issued by the court, where the case is one of great emergency and immediate action is necessary. The updated PACE Code B reflects amendments which require judicial authorisation through a warrant if the police wish to retain confidential journalistic material seized during an urgent premises search for the purposes of a terrorist investigation. This change to Schedule 5 ensures additional protection for sensitive journalistic material and is in line with equivalent provisions in the NS Act 2023.

2.1.3 Changes to PACE Codes C

The changes to PACE Code C make clear that the Code does not apply to a detained person if they are in custody as a result of being detained under section 27 of the NS Act 2023 or under Schedule 3 to the Counter-Terrorism and Border Security Act 2019 (CTBSA); Individuals detained under these powers are dealt with in their own separate Codes of Practice and therefore are not covered by PACE Code C (for the NS Act 2023 this will be new Code I).

2.1.4 Changes to PACE Code D

An amendment has been made to ensure that PACE Code D does not apply to the taking of photographs, fingerprints, skin impressions, body samples or impressions from people arrested under section 27 of the NS Act 2023. This is because the taking of such data is covered by paragraphs 10 to 14 of Schedule 6 to the NS Act and the new Code I.

The changes to PACE Code D also exempt an officer having to give their name in the case of enquiries linked to National Security. This mirrors the approach currently taken towards terrorism investigations in section 2.18 of this Code. This is a crucial change to protect police officers from being obliged to reveal their identity to highly trained state actors who may seek to use such knowledge against them.

2.1.5 Changes to PACE Code H

The changes to Code H implement recommendations made by the Independent Reviewer of Terrorism Legislation, which the Government accepted.

We are updating PACE Code H following amendments to section 41 of TACT 2000 made via the NS Act 2023. These amendments mean that any time an individual has spent in detention under a separate power (as listed in new section 41(3A) of TACT 2000 and, including the power of arrest under section 24 of the Police and Criminal Evidence Act 1984 and section 27 of the NS Act 2023) will be accounted for when calculating the maximum period of detention. This applies to detentions under section 41 TACT 2000, as well as where there is a warrant for further detention or extension of such a warrant under paragraphs 29 or 36 of Schedule 8 to TACT 2000

We are also updating PACE Code H to reflect further amendments to section 41 of TACT 2000 which make clear that any time when an individual is arrested in hospital under section 41 and is not being questioned for the purposes of obtaining relevant evidence will not be included in calculating any period of time in detention.

2.1.6 Creation of PACE Code I

Under section 27, NS Act 2023, a constable can arrest without a warrant anyone who they suspect is, or has been, involved in foreign power threat activity (section 33, NS Act 2023). The new PACE Code I will govern the detention, treatment and questioning of individuals arrested under that power. Schedule 6 NS Act 2023 contains provisions regarding treatment of individuals in detention and the rights of individuals. It includes the availability of longer detention periods to reflect the complex nature of state threats investigations and the taking and retention of biometric data which covers fingerprints, DNA samples and physical data.

New Code I is based closely on Code H and provides guidance for police on how suspects should be treated in custody, such as the rights that a suspect has and must be informed of upon arrest.

The Code contains various operational procedural matters such as how to arrange for an interpreter for the suspect, what information must be documented in the custody record, how to provide cautions and what to do with the detainee’s property upon arrest. We have taken this approach to the drafting of the code both because having reviewed the substance of Code H, we think its requirements are broadly appropriate (with necessary amendments) to the state threats context and to support the police in ensuring that where appropriate the processes they follow are consistent, reducing the opportunity for inconsistencies or errors in their application.

Mirroring the update to PACE Code H, PACE Code I also makes it clear that any time an individual has spent detained under a separate power will be accounted for when calculating the maximum period of detention.

2.2 Responses – summary

2.2.1 The consultation sought responses on how well the amendments to the Codes:

• Set out clearly the requirements for officers when using each power

• Are appropriate to cover investigations into state threats under the NSA 2023

• Are clear and accessible to those who will need to use them

2.2.2 We received written responses from two organisations – Counter-Terrorism Policing and West Midlands Policing. Overall, the responses acknowledged that the proposed changes to the PACE Codes were key to ensuring police officers have clear guidance on the powers and ensuring that the powers are used in a way that is fair and proportionate. Key themes that were raised in response to the consultation:

• Certain provisions included within Code H should also be replicated within Code I to ensure the proper functioning of the new Code.

• Engagement should be undertaken with local police forces to better understand the impact that revisions might have on operational policing.

• Code I would benefit from clarity regarding the role of local officers in the decisions around detention extension.

3. PACE Code A Consultation

3.1 Rationale

3.1.1 We introduced new stop and search powers (both suspicion led and suspicionless) by way of the Public Order Act 2023. The legislation provides the police with the power to search a person in a specific public locality, without reasonable suspicion, following an authorisation in specified circumstances, to ascertain if they are carrying a prohibited object which could support the commission of a protest-related offence and to detain them for the purpose of carrying out that search.

3.1.2 The Home Secretary has also made a commitment to rescind the Best Use of Stop and Search Scheme (BUSSS) while incorporating safeguards such as the data collection provision and the communication elements of the suspicionless powers within PACE Code A. Making these changes will streamline the guidance officers have to follow when using stop and search powers.

3.1.3 Additionally, some administrative changes to the code are required: firstly to reflect the updated ethnicity categories in the 2021 Census and, secondly to amend the start date of the SVRO pilot which began on 19 April 2023 rather than 19 January.

3.1.4 We have proposed amendments to Code A to allow these new Public Order powers to commence with appropriate safeguards following the passage of the Act. The revisions to the Code set out the operational considerations that should be made when conducting these searches as well as the general principles to be considered when conducting searches to ensure that they are proportionate and necessary. The draft of the Code also reflects the changes that the Home Secretary has agreed to following her commitment to rescind BUSSS. In particular:

• Communicating that a suspicionless power has been authorised for use where it is operationally beneficial to do so. This covers both the new Public Order suspicionless power and the s60 authorisation.

• Including data collection for all stop and search interactions within Code A for the Annual Data Requirement.

3.2 Responses – summary

3.2.1 The consultation sought responses on how well the amendments to the Codes:

• Set out clearly the requirements for officers when using each power

• Are appropriate to cover the new powers introduced in the Public Order Act 2023

• Are clear and accessible to those who will need to use them

3.2.2 We received written responses from 6 separate individuals and organisations. We also engaged directly with a number of stakeholders through the Home office led stop and search roundtable inviting them to provide comments on the draft revised code. Members of the working group include: Force leads across England and Wales, NPCC, College of Policing, and the Police Federation. We welcomed comments from the PACE Strategy Board which includes Liberty, NPCC, Police Federation, HMICFRS, College of Policing, Criminal Law Society and the IOPC. We also asked for comment from StopWatch and the Criminal Justice Alliance (CJA).

3.2.3 A number of responses acknowledged that the changes that we are proposing in the revised PACE Code will increase trust and confidence in regard to stop and search powers and will update the code to reflect the current position of ethnic categories. A number of themes were raised in response to the consultation:

• Communication of suspicionless powers – Whether these should be done verbally or in written form and if the language of the phrase “operationally beneficial” should be tightened.

• Language around protest powers needs to be more defined – Some respondents felt the phrase “due regard” was too vague and did not place an obligation on officers to properly consider a person’s right to freedom of expression or the principles of stop and search.

4. Outcome

4.1 The outcome of the NS Act PACE Codes consultation prompted some revisions to the initial proposals. In particular:

4.2 Counter-Terrorism Policing (CTP) made two suggested revisions to Codes H and I.

1. The revisions to Code H included introducing paragraph 1.15 to mirror provisions in the Police and Criminal Evidence Act 1984. This made it clear that the custody officer is responsible for ensuring that a detainee is treated in accordance with the Terrorism Act 2000 (TACT) and Code H.

CTP noted that identical wording should be included within paragraph 1.15 of Code I to place the responsibility of ensuring that the detainee is treated in accordance with the NS Act and Code I on the custody officer.

The Government has responded by adding identical wording into paragraph 1.15 of Code I.

2. Code H Note 14CA deals with a situation where, if a suspect is in police detention beyond 48 hours, the police may apply for a warrant for further detention under TACT outside of that 48-hour limit. Code H Note 14CA states that this application must take place as soon as possible or within [6/12/24] hours of the arrest under TACT.

CTP noted that this period should be specified and the equivalent of Code H Note 14CA should be replicated within section 13 of Code I.

The Government has responded by specifying the period of application for a warrant of further detention, both under Code H and I, to 12 hours. Note 14CA in Code H has been included at Note 13A in Code I.

4.3 PACE 1984, TACT 2000 and NS Act 2023 set out the circumstances in which a delay in access to legal advice can be authorised – these statutory circumstances are reflected in paragraphs 6.6 of Codes C and I, and paragraph 6.7 of Code H and each Code’s Annex B. The Codes also set out the circumstances in which a detainee who wants legal advice can be interviewed or continued to be interviewed without legal advice. Currently, Code C and H include that an interview could be authorised in a number of specific circumstances or if awaiting the arrival of a legal representative would cause unreasonable delay to the process of investigation (see Code C 6.6(b)(i) and (ii) and Code H 6.7(b)(i) and (ii)). As a result of further review during the consultation period, the Government has amended these provisions to limit the possibility of interviewing without a legal adviser present to the statutory provisions which apply to delaying access to legal advice. This ensures the Codes are in line with recent case law and that suspects have the right to legal advice in all but the most compelling circumstances.

It is an important point to note that these amendments do not change existing police practice – that such interviews without a legal adviser present would only take place in exceptional circumstances. The amendments simply ensure the criteria to be applied is clear and consistent with the relevant statutory provisions.

4.4 There are minor changes being made to PACE Code A following the PACE Code A consultation. The wording in paragraph 2.44 has been changed to make clear that the search must take place near “the stop”, rather than near “the protest”. In addition, a statement has been included in guidance note 14A to confirm that authorising officers will be basing their decisions on intelligence they hold at the time of authorising suspicionless powers. The Government will work with the College of Policing and the NPCC to make sure that guidance on these new changes is clear and user friendly. This approach will allow for operational flexibility in making decisions on using stop and search powers on the frontline of policing.

4.5 The new Code I and revised Codes A, B, C, D & H will be laid before Parliament together with a draft statutory instrument which, subject to approval from both Houses of Parliament, would bring the Codes into operation. The current PACE Codes of Practice will remain unchanged and in force until the revised codes are made and brought into force following approval by both Houses of Parliament. Information for police, practitioners and the public about the Parliamentary process and copies of the revised codes and this response will be available online at: https://www.gov.uk/police-and-criminal-evidence- act-1984-pace-codes-of-practice.

5. Useful Links

National Security Act 2023 (legislation.gov.uk)

Police and Criminal Evidence Act 1984 (PACE) codes of practice - GOV.UK (www.gov.uk)

Police and Criminal Evidence Act 1984 (legislation.gov.uk)