Update: the revised PACE codes C and H came into effect on 10 July 2012. Code G came into effect on 12 November 2012.
Following the commitment given by the Minister of State for Policing and Criminal Justice in taking the last PACE Code revision through the House of Commons, this consultation seeks opinions on PACE codes C, G and H and on a new code for recording interviews in terrorism cases.
Under consideration are draft revised versions of these codes issued under the Police and Criminal Evidence Act 1984 (PACE) which concern detention and arrest and a new code of practice issued under Schedule 8 of the Terrorism Act 2000 and section 25 of the Counter-Terrorism Act 2008 for the video-recording with sound of interviews in terrorism cases.
The word documents below are draft documents for consultation. We are consulting on PACE codes C, G and H as well as a new terrorism code for recording interviews under Schedule 8 of the Terrorism Act. Proposed changes to the PACE codes are viewed in brown and green as tracked changes. When viewing the document on screen you can set the view to see (Original) which will not be identical to the current code, but you will be able to view a clean document that includes all the proposed changes.
Each draft has a covering note outlining the background to the contents and in the case of the PACE codes (C, G and H) a table to indicate the changes is also provided. The new terrorism code for recording interviews refers to separate publications relating to Schedule 7 to the Terrorism Act.
Main changes to the codes
Codes C (detention) and H (detention of terrorist suspects)
Most of the changes to codes C and H mirror one another. The additions include:
- emphasising that the Equality Act 2010 makes it unlawful to discriminate against a person based on the ‘protected characteristics’ (such as sex, age, race, religion or sexual orientation)
- setting out the procedures to be followed when searching transgendered individuals
- revising arrangements concerning the notification required when a foreign national is detained
- allowing custody officers to direct other custody staff to provide specified information to, and obtain specified information from, the detainee during the initial booking-in process
There are also several minor amendments which ensure that codes C and H are consistent with each other and with the other recently amended Codes.
Particular changes to Code H
- New provisions about when a High Court judge may extend or further extend a warrant of further detention of a person beyond 14 days from the time of their arrest for detention of a suspect beyond a period of 14 days from the time of their arrest (or if they were detained under Schedule 7 of the Terrorism Act 2000, from the time their examination began). These provisions are subject to enactment of the Detention of Terrorist Suspects (Temporary Extension) Bill.
- The arrangements for post-charge questioning where, under section 22 of the Counter-Terrorism Act 2008, a judge of the Crown Court has authorised the questioning of a person about a terrorism offence or an offence which appears to the judge to have a terrorist connection for which they have been charged. Commencement of post-charge questioning was one of the recommendations arising from the review of counter-terrorism and security powers and is also being examined as part of wider work on the UK’s ability and capacity to successfully prosecute terrorist suspects.
The changes place additional emphasis on the consideration by a police officer of the two key elements of lawful arrest, whereby an arresting officer must have reasonable grounds to:
- suspect that an offence has been committed and that the person has committed it
- believe that arrest is necessary for one or more of the reasons specified in section 24 of PACE
These changes complement new clause 27 as proposed by the government to the Legal Aid, Sentencing and Punishment of Offenders Bill at report stage in the House of Commons.
The changes are driven by the coalition commitment to protect householders and others from unnecessary arrest when they use force in the belief that they are acting in self-defence. The amended Code G sets out that, in order to establish grounds to suspect a person of committing an offence, officers should consider facts and information which tend to indicate the person’s innocence as well as their guilt. It also sets out that, if an offence involves the use of force and a person claims to have been acting in self-defence, an officer contemplating an arrest must take account of the circumstances under which the law allows the use of reasonable force.
This consideration would also apply to the power given to school staff by Section 93 of the Education and Inspections Act 2006 to use reasonable force to prevent their pupils from committing offences, causing personal injury or damaging property and to maintain good order and discipline. This change reflects concerns raised by one of the teaching unions and the coalition commitment that ‘we will give heads and teachers the powers they need to ensure discipline in the classroom and promote good behaviour.’
Other changes arise from the need to clarify and expand support for each of the statutory reasons for arrest in section 24(5) PACE, with particular regard to the need to arrest to interview, arrests for ‘continuing offences’ and emphasising that arrests may not be made solely to obtain biometric data.
Video-recording code in terrorism cases
Section 22 of the Counter Terrorism Act 2008 requires that the relevant PACE Code (see Code H changes above) includes provisions about post-charge questioning and section 25 requires the issue of a (non-PACE) code of practice on the video-recording with sound of such questioning before the enabling statutory provisions can be commenced.
In order to reflect best practice and ensure consistency in terrorism cases, a further code issued under the Terrorism Act 2000 will extend the requirement for visual recording with sound to all interviews of persons detained under section 41 of, or Schedule 7 to, that act. When in place, it will supersede the current audio-recording codes applicable to those cases.
A new combined draft code sets out the requirements for video-recording with sound and the relevant procedures to be followed according to whether the person concerned is detained under section 41 or Schedule 7 or subject to post-charge questioning and whether they are in England and Wales or Scotland. As these are linked to the detention and post-charge questioning amendments in Code H, consultation on this new code is being carried out alongside the PACE codes.
These drafts are being circulated for consultation in accordance with section 67(4) of PACE. All responses should be sent to the police powers team to arrive no later than 24 January 2012.
Summary of consultation
The consultation closed on 24 January 2012. In general, the majority of the responses either supported the draft codes as circulated or made constructive suggestions which were accepted, in some cases, following further discussions with the respondents themselves. The responses requesting changes or re-consideration are summarised in the table, which is available to download below.
Code G (Arrest) generated the greatest number of comments from the police. These expressed significant reservations about the operational impact of what the new proposals appeared to require of officers making a decision to arrest. The police also raised particular concerns about the new safeguards in Code C (Detention) which are repeated in Code H (Detention-terrorism) that apply when a suspect wants to change their mind about wanting to speak to a solicitor and what Inspectors were required to do. After further detailed consideration of both, changes were made to the relevant provisions to address these concerns.
The revised PACE Codes C, G and H and the new video interview recording Code for terrorism cases, which are currently awaiting Parliamentary approval before they can come into force, are available at www.official-documents.gov.uk.
The summary of responses is available to download above.