Draft for consultation on the revision ofPACE Code H
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The table starting on the next page provides a summary explanation of the changes with a hyperlink to the draft for each change(Clickhere to view).
Many of the changes to Code H are mirrored(with modifications as necessary) in the draft revised version of PACE Code C and vice versa in order to ensure consistency.
Other changes are specific to Code H and reflect changes to terrorism legislation, powers and procedures. Particular terrorism specific changes are in section 14 which deals with detention and section 15 which covers questioning after charge.
27 October2011
Responses to the Consultation:
All responses should be sent to to arrive no later than 24 January 2012. Details of the consultation will also be published in the Police Powers section of the Home Office website at
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SUMMARY & EXPLANATION OF THE CHANGES TO CODE H
(Click on underlined links to view relevant text of the Code. From the top line menu, right click on <View>, select <Toolbars> & tick ‘Web’ to display and use the — and — Back & Forward arrows)
No. / Paragraph / Summary of changes, reason/purpose1 / Commencement / The revised Code will come into force as specified in the affirmative Order.
2 / H1.0 / Addition: General reminder to police regarding discrimination which refers to the protected characteristics to which the Equality Act 2010 applies.
3 / H1.1, H1.2H1.4Note 1N / Clarify & distinguishes scope of Code H from that of Code C and the Terrorism Act (TA) Code of Practice for Examining Officers. New Note 1N distinguishes the power of arrest and subsequent detention under s.41 TA 2000 which is not subject to Codes C and G from the arrest and detention powers under section 24 and Part IV and of PACE which are subject to Codes G & C. H1.1(b) is subject to the post-charge questioning provisions of the Counter-Terrorism Act 2008 being commenced.
4 / H1.3 / Defines the meaning of ‘offence’ for the purposes of Code H to reflect the scope of the power of arrest & subsequent detention under section 41 of the TA 2000.
5 / H1.6 / Clarifies the position regarding bail under the TA 2000. Supported by new Note 1N
6 / H1.13 / Changes to reflect statutory definition in section 65(7) of the Crime & Disorder Act 1998 & section 63B(10) of PACE/Code C17.7 (Drug testing)
7 / H1.15Note 1J / Changes to reflects the repeal of the staff custody officer provisions in sections 120/121 Serious Organised Crime & Police Act 2005
8 / H1.17(c)Annex I / New sub para (c) with reference a to new Annex Iwhich revisesthe gender & searching provisions currently in Code A Annex F and is replicated in Code C as Annex L.
9 / H1.19 / A new general definition for directly employed & contracted civilian police staff to avoid the need to amend the Code when the Police & Social Responsibility Bill is enacted.
10 / H2.1H2.2 / Extends requirement for person to whom Code H applies to be brought before the custody officer and for custody record to be opened to include persons questioned after charge as authorised under s.22 of the Counter-Terrorism Act 2008.
11 / H2.3A / New paragraph: Reflects amendment to the stop/search recording requirements in s.3 PACE made by s.1 Crime & Security Act 2010 and which apply to terrorism and non-terrorism stop & search powers.
12 / H2.7 / Extends entitlement to inspect the original custody record to include persons questioned after charge as authorised under s.22 of the Counter-Terrorism Act2008
13 / H3.1 / Ensures that rights & entitlements extend to same persons to whom H2.1 applies. See above)
14 / H3.4 / Changes the reference for making a written record of unsolicited comments to new paragraph 11.8A.
15 / H3.5H3.6 / Amendment allows custody officer to direct other custody staff to provide specified information to, and obtain specified information from, the detainee during the initial ‘booking in’ process.
16 / H3.8A / New paragraph: Distinguishes the assessment upon which the response is based from the response which is set out in the custody record and is made available to the detainee. Includes caveat that information should not be withheld if it would put a person at risk.
17 / H3.9Note 3F / For consistency, reference changed to ‘appropriate’ healthcare professional (as defined by Note 9A). Reference to operational guidance in the public domain added in Note 3F to reflect corresponding changes in Note 3E in Code C.
18 / H3.12(b) & (c) / Changes gender reference
19 / H3.13 / Style
20 / H4.1Annex I / Reference to Annex I (same sex searches) added
21 / H5.1 / Ensures that section 5 confined to persons to whom Code H applies.
22 / H5.4Note 5C / Reference to section 7 added to Note 5C concerning visits.
23 / H6.1,Note 6B, Note 6C / Notes for Guidance amended/deleted to reflect changes to the arrangements for obtaining legal advice described in detail in Note 6B.
24 / H6.4 / Clarifies the references in Code H to the requirement to remind suspects of about their right to legal advice and corrects the two corresponding references in Code D.
25 / H6.6 / Grammar
26 / H6.7(d) / Amends action required when a suspect changes their mind about wanting legal advice. Adds a requirement for the inspector to enquire into the solicitor’s expected time of arrival & inform the suspect & remind them that they retain the right to legal advice.
27 / H6.8 / Extended to include the provisions in Code C6.7 which apply equally to Code H
28 / H6.12 / Substitutes Solicitors Regulatory Authority for Law Society to reflect the separation of the Law Society’sregulatory functions from its representational functions.
29 / H7Annex F / Changes made to take account of changes to the arrangements for compulsory notification of arrest to be implemented by the FCO and UKBA replicated from Code C.
30 / H8.1Note 8E / Adds reference to new Note8Eto draw attention to current operational guidance in the public domain.
31 / H9.2Note 8E / For consistency, ‘appropriate healthcare professional’ (as defined by Note 9A) replaces reference to ‘police surgeon’ to reflect current terminology and practice.
32 / H9.10 / Replaces reference to ‘police surgeon’ to reflect current terminology and practice.
33 / H9.12 / Amendment allows custody officer to delegate the distribution of Schedule 4/5 drugs to other staff.
34 / Not used
35 / H11.8 / Updated to reflect new Codes of Practice issued under the TA 2000 and the Counter-Terrorism Act 2008 which respectively require video recording of interviews and post-charge questioning without exception.
36 / H11.8A / New para. Requiresa written record to be made of unsolicited comments which reflects Code C11.13. Referred to in H3.4 above. (see item14)
37 / H13.1Note 13A / Deletions and new Note 13A take account of the changes being implemented through the MoJ Interpreters Project Board.
38 / H13.3H13.7 / Paragraphs deleted to accord with H11.8 (see item35) which makes no exception from the requirement to video record interviews.
39 / H14 / Main heading and sub headings (a) & (b) amended to clarify application of section 14 applies to extensions and reviews of detention under the Terrorism Act 2000
40 / H14.3, Note 14C14.4 / Amended provisions to clarify the extension and review of detention under the TA 2000.
41 / H14.5H14.6 to 14.10Annex J / Amended heading with revised provisions which introduce a new Annex J to deal with detention beyond 14 days.
42 / H15 / Section title extended to refer to post-charge questioning.
43 / H15.1 & new subheading (a) / Clarification to point out that Code H does not apply to the charging process.
44 / New sub heading (b), H15.2 to 15.13 & Notes 15A to 15E / New sub-heading and provisions in Code H about to satisfy the requirement ins.22(7) of the Counter-Terrorism Act 2008 that the PACE Codes must make provisions about post-charge questioning.
45 / H16.1 / Clarification
46 / Annex A2 / Amended to clarify the exclusion of intimate drug searches from the scope of Code H on the basis that the terrorism powers would not be exercised to deal with Class A drug dealing. Provisions of Code C Annex K (X-ray & ultra sound scans for Class A drugs not included in Code H for the same reason.
47 / Annex C1(b) / Clarification regarding post-charge questioning.
48 / Annex C2 / Welsh version added to reflect corresponding provisions of Code C
49 / Annex E5 / Refers to ‘appropriate’ healthcare professional for consistency in terminology
50 / Annex E9 / For consistency with Code C16.6 to which this summary in Annex E of Code H relates and aims to reflect.
51 / Annex F / See H7 above – item29
52 / AnnexI Gender and Search / New Annex Iwith Notes (replicated from Code C Annex L) gives guidance regarding searches by officers of same sex.
Note I1gives examples of powers,
NotesI2, I3I4 provide definitions.
NoteI5 outlines the responsibility of chief officers to provide corresponding operational guidance for transsexual officers & staff under their direction and control.
NoteI6 will provide a reference to more detailed guidance which is outside the scope of the Code.
Notes for Guidance
Note 1J / Deleted, see H1.15 above – item 7
Note 1K / Grammar
Note 1N / See H1.6 above – item 5
Note5C / Reference to Annex F replaced to accord with changes to section 7 above – item29
Note 6B / Amended, see H6.1 above –item23
Note 6C / Amended, see H6.1 above – item 23
Note 8E / New, see H8.1 above – item30
Note10E / Updates reference to Customs Officers
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DRAFT
POLICE & CRIMINAL EVIDENCE ACT 1984
CODE H
CODE OF PRACTICE IN CONNECTION WITH:
THE DETENTION, TREATMENT AND QUESTIONING BY POLICE OFFICERS OF PERSONS IN POLICE DETENTION UNDER SECTION 41 OF, AND SCHEDULE 8 TO, THE TERRORISM ACT 2000
THE TREATMENT AND QUESTIONING BY POLICE OFFICERS OF DETAINED PERSONS IN RESPECT OF WHOM AN AUTHORISATION TO QUESTION AFTER CHARGE HAS BEEN GIVEN UNDER SECTION 22 OF THE COUNTER-TERRORISM ACT 2008
Laid before Parliament under section 67(7B)of the
Police and Criminal Evidence Act 1984 (PACE)
POLICE & CRIMINAL EVIDENCE ACT 1984
CODE H
CODE OF PRACTICE IN CONNECTION WITH:
THE DETENTION, TREATMENT AND QUESTIONING BY POLICE OFFICERS OF PERSONS IN POLICE DETENTION UNDER SECTION 41 OF, AND SCHEDULE 8 TO, THE TERRORISM ACT 2000
THE TREATMENT AND QUESTIONING BY POLICE OFFICERS OF DETAINED PERSONS IN RESPECT OF WHOM AN AUTHORISATION TO QUESTION AFTER CHARGE HAS BEEN GIVEN UNDER SECTION 22 OF THE COUNTER-TERRORISM ACT 2008
Commencement - Transitional Arrangements
This Code applies to:
- people in police detention after midnight on [dd mm yyyy], following their arrest undersection 41 of the Terrorism Act 2000, after midnight ,even though notwithstanding that they may have been arrested before that time; and
- persons in respect of whom an authorisation under section 22 of the Counter-Terrorism Act 2008 has been given after midnight on [dd mm yyyy].
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Codes of practice – Code H in connection with the detention, treatment and questioning by police officers and of persons under section 41 of, and schedule 8 to, the Terrorism Act 2000 and the Counter-Terrorism Act 2008
1General
1.0The powers and procedures in this code must be used fairly, responsibly, with respect for the people to whom they apply and without unlawful discrimination. The Equality Act 2010 makes it unlawful for police officers to discriminate against, harass or victimise any person on the grounds of the ‘protected characteristics’ of age, disability, gender reassignment, race, religion or belief, sex and sexual orientation, marriage and civil partnership, pregnancy and maternity when using their powers. When police forces are carrying out their functions, they also have a duty to have regard to the need to eliminate unlawful discrimination, harassment and victimisation and to take steps to foster good relations.
1.1This Code of Practice applies to, and only to, persons arrested under section 41 of the Terrorism Act 2000 (TACT) and detained in police custody under those provisions and Schedule 8 of the Act. References to detention under this provision that were previously included in PACE Code C - Code for the Detention, Treatment, and Questioning of Persons by Police Officers, no longer apply.
to:
(a)persons in police detention after being arrested under section 41 of the Terrorism Act 2000 (TACT) and detained under section 41 of, or Schedule 8 to that Act and not charged, and
(b)detained persons in respect of whom an authorisation has been given under section 22 of the Counter-Terrorism Act 2008 (post-charge questioning of terrorist suspects) to interview them in which case, section 15 of this Code will apply.
1.2The Code ceases to apply at any point that a detainee is:
(a)charged with an offence
(b)released without charge,or
(c)transferred to a prison see section 14.5
The provisions in PACE Code C apply when a person:
(a)is in custody otherwise than as a result of being arrested section 41 of TACT or detained for examination under Schedule 7 to TACT (see paragraph 1.4);
(b)is charged with an offence, or
(c)being questioned about any offence after being charged with that offence without an authorisation being given under section 22 of the Counter-Terrorism Act 2008.
See Note 1N.
1.3In this Code rReferences to an offence and to a person’s involvement or suspected involvement an offence where the person has not been charged with an offence,in this Code include being concerned, or suspected of being concerned, in the commission, preparation or instigation of acts of terrorism.
1.4The Code of Practice issued under paragraph 6 of Schedule 14 to TACT applies to person detained for examination under Schedule 7 to TACT. See Note 1N This Code’s provisions do not apply to detention of individuals under any other terrorism legislation. This Code does not apply to people:
(i)detained under section 5(1) of the Prevention of Terrorism Act 2005.
(ii)detained for examination under the TACT Schedule 7 and to whom the Code of Practice issued under that Act, Schedule 14, paragraph 6 applies;
(iii)detained for searches under stop and search powers.
The provisions for the detention, treatment and questioning by police officers of persons other than those in police detention following arrest under section 41 of TACT, are set out in Code C issued under section 66(1) of the Police & Criminal Evidence Act (PACE)1984 (PACE Code C).
1.5All persons in custody must be dealt with expeditiously, and released as soon as the need for detention no longer applies.
1.6There is no provision for bail underTACTbefore or after prior to charge. See Note 1N
1.7An officer must perform the assigned duties in this Code as soon as practicable. An officer will not be in breach of this Code if delay is justifiable and reasonable steps are taken to prevent unnecessary delay. The custody record shall show when a delay has occurred and the reason. See Note 1H.
1.8This Code of Practice must be readily available at all police stations for consultation by:
- police officers
- police staff
- detained persons
- members of the public.
1.9The provisions of this Code:
- include the Annexes
do not include the Notes for Guidance.
1.10If an officer has any suspicion, or is told in good faith, that a person of any age may be mentally disordered or otherwise mentally vulnerable, in the absence of clear evidence to dispel that suspicion, the person shall be treated as such for the purposes of this Code. See Note 1G
1.11For the purposes of this Code, a juvenile is any person under the age of 17. If anyone appears to be under 17, and there is no clear evidence that they are 17 or over, they shall be treated as a juvenile for the purposes of this Code.
1.12If a person appears to be blind, seriously visually impaired, deaf, unable to read or speak or has difficulty orally because of a speech impediment, they shall be treated as such for the purposes of this Code in the absence of clear evidence to the contrary.
1.13'The appropriate adult' means, in the case of a:
(a)juvenile:
(i)the parent, guardian or, if the juvenile is in the care of a local authority or voluntary organisation care, or is otherwise being looked after under the Children Act 1989, a person representing that authority or organisation;
(ii)a social worker of a local authority social services department;
(iii)failing these, some other responsible adult aged 18 or over who is not a police officer or employed by the police.
(b)person who is mentally disordered or mentally vulnerable: See Note 1D
(i)a relative, guardian or other person responsible for their care or custody;
(ii)someone experienced in dealing with mentally disordered or mentally vulnerable people but who is not a police officer or employed by the police;
(iii)failing these, some other responsible adult aged 18 or over who is not a police officer or employed by the police.
1.14If this Code requires a person be given certain information, they do not have to be given it if at the time they are incapable of understanding what is said, are violent or may become violent or in urgent need of medical attention, but they must be given it as soon as practicable.
1.15References to a custody officer include any :-
police officer who for the time being, is; or
designated staff custody officer acting in the exercise or performance of the powers and duties conferred or imposed on them by their designation,
performing the functions of a custody officer. See Note 1J.
1.16When this Code requires the prior authority or agreement of an officer of at least inspector or superintendent rank, that authority may be given by a sergeant or chief inspector authorised by section 107 of PACE to perform the functions of the higher rank under TACT.
1.17In this Code:
(a)‘designated person’ means a person other than a police officer, designated under the Police Reform Act 2002, Part 4 who has specified powers and duties of police officers conferred or imposed on them;
(b)reference to a police officer includes a designated person acting in the exercise or performance of the powers and duties conferred or imposed on them by their designation.
(c)where a search or other procedure to which this code applies may only be carried out or observed by a person of the same sex as the detainee, the gender of the detainee and other parties present should be established and recorded in line with Annex I of this Code.
1.18Designated persons are entitled to use reasonable force as follows:-
(a)when exercising a power conferred on them which allows a police officer exercising that power to use reasonable force, a designated person has the same entitlement to use force; and
(b)at other times when carrying out duties conferred or imposed on them that also entitle them to use reasonable force, for example:
- when at a police station carrying out the duty to keep detainees for whom they are responsible under control and to assist any other police officer or designated person to keep any detainee under control and to prevent their escape.
- when securing, or assisting any other police officer or designated person in securing, the detention of a person at a police station.
- when escorting, or assisting any other police officer or designated person in escorting, a detainee within a police station.
- for the purpose of saving life or limb; or
- preventing serious damage to property.
1.19Nothing in this Code prevents the custody officer, or other officer given custody of the detainee, from allowing police staff who are not designated persons to carry out individual procedures or tasks at the police station if the law allows. However, the officer remains responsible for making sure the procedures and tasks are carried out correctly in accordance with the Codes of Practice. Any such person must be: