2012 Revised PACE Code H Terrorism Detention)

Codes of practice – Code H Code H in connection with the detention, treatment and questioning by police officers of persons under the Terrorism Act 2000 and the Counter-Terrorism Act 2008

DRAFT - Revised PACE Code H (Detention-terrorism)

2016

This draft for revising the Police and Criminal Evidence Act 1984 (PACE) Code of Practice C, is being circulated for statutory consultation in accordance with section 67(4) of PACE. It sets out proposals for revising the Code.

Responses to the Consultation should be sent to to arrive no later than Tuesday 17 May 2016.

The table on the next page briefly summarises all the changes (excluding minor grammar and typographical corrections) with links to the provisions and Notes for Guidance.

Click here to view this table.

For access to, and comparison with, the PDF version of Code H which came into force on 2 June 2014, click on the link below:

https://www.gov.uk/government/publications/pace-code-h-2014

Overview of changes:

The proposed revisions to Code H (Detention - Terrorism) mirror, as applicable, the proposed revisions in Code C (Detention) as follows:

1. Interpreters:

The main change is to enable interpretation services for suspects being interviewed to be provided by interpreters who are not physically present in the location where the interview is carried out by way of a ‘live-link’ electronic communication system. This ‘live-link interpretation’ is allowed for, but not required, by EU Directive 2010/64 in which Article 2(6) provides “Where appropriate, communication technology such as videoconferencing, telephone or the Internet may be used, unless the physical presence of the interpreter is required in order to safeguard the fairness of the proceedings.” The revisions therefore require the interpreter’s physical presence unless certain conditions are satisfied and allow ‘live-link interpretation’.

Background:

(a) The current position is that the Codes neither expressly permit or preclude the use of live-link audio-visual communications technology for interpreters.

(b) For many years police have used telephone interpreting services for the initial action when explaining an arrested person’s rights and entitlements and other matters on arrival at a police station and for other ‘routine’ non-evidential communication with the suspect.

(c) There are however, some key aspects of the provisions in the Codes that govern the conduct and recording of suspect interviews that actually imply that physical presence of the interpreter is required. In general terms, these require the interpreter to make a written record for the interviewer to present (there and then) to the suspect to check and sign, or have it read out (via the interpreter) to the suspect, who is then asked (via the interpreter), to check and sign the written record as correct or indicate inaccuracies.

(d) The changes are constrained by the approach in Article 2(6) and aim to ensure, as far as practicable, that the suspect is not, and does not feel, disadvantaged, by not having the interpreter physically present. This needs to be assessed on each occasion that the suspect requires the assistance of an interpreter to enable them to communicate effectively. Before an interview, the suspect’s solicitor (in any case where legal advice is requested) and the appropriate adult (for any juvenile or mentally vulnerable suspect) must be asked for their views. If there is doubt about the suspect’s ability to adequately cope with the live-link arrangements during the interview, the physical presence of the interpreter will be required unless an inspector authorises live-link interpretation. For completeness and consistency, a similar approach is applied to other more routine occasions when an interpreter is required which unlike interviews, do not directly involve evidence gathering and so that the potential impact is significantly less.

(e) The revisions set out the terms and conditions whereby the interpreter need not be physically present and include modifications of the current provisions referred to in (c).

2. ‘Definition of ‘juvenile’:

(a) For consistency as a consequence of the amendment to section 37(15) of PACE which raises the age threshold which defines ‘juvenile’ for the proposes of Code C from under 17 to under 18, the definition in H1.11 is amended.

(b) The amendment means that in Code H, the term ‘juvenile’ includes all 17 year olds. The various qualifications in the October 2013 revision that extended certain provisions of the Code applicable to 17 year olds have therefore been deleted. The statutory provisions identified in C1.5A will remain until such time that they are amended by Parliament.

3. Risk Assessment and identity of detainees:

Changes in H3.6 highlight the need to check all sources of relevant information in order to establish a detainee’s identity.

4. Other changes include:

(a) Electronic note books and records: Changes in H1.21 enable electronic ‘pocket books’, as well as records and forms to be used to make records required by the Codes.

(b) Appropriate adults: Changes in Note 1F clarify who would not be eligible to act as the appropriate adult.

(c) Detained girls under the age of 18: New C3.20A & Note 3G point out requirement under section 31 of the Children and Young Persons Act 1933 with link to College of Policing guidance.

(d) Minor typographical and grammatical corrections have been made and out of date references updated.

Click here for the Table of Contents of the revised Code H.

Click here to access the Notice of Rights and Entitlements to which Code H (paragraph 3.2) refers applicable from 2 June 2014.

22 March 2016

SUMMARY & EXPLANATION OF CHANGES TO CODE H

Click on underlined links to view relevant text of the Code.

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Document Review Tab settings: When viewing this document on screen with the “Display for Review” option set at <Final Showing Markup>, most of the formatting tracked changes have been accepted to reduce clutter, as a result, the layout of the text in <Original> view will not be identical to the current code but all the original text should be there.

For ease of reference, the grey highlighted text indicates changes other than deletions and this highlighted text is also shown when the “Display for Review” option is set at <Final>.

Key: AA = appropriate adult.

No. / Paragraph / Summary of changes, reason/purpose /
1. / Commencement / The revised Code will come into force as specified in the Order.
2. / H1.11, H1.11A & Note 1P / Updated to reflect amendment to definition of “juvenile” in Code C. Supported by Note 1P
3. / H1.13(a)(iii)/(b)(iii)
Note 1F / Reference to Note 1F added to extend the categories of individuals who, by virtue of their role, are not eligible to act as the AA at a time when they are performing that role. Applies to police support volunteers and detention or escort officers employed by a contractor & designated in accordance with s.39 Police Reform Act 2002.
4. / H1.21 / Extends references to pocket book to include electronic recording devices
5. / Note 1AA / Supports H1.0. Amended to reflect the Equality Act 2010 by referring to an exhaustive list of relevant protected characteristics.
6. / H2.5, H2.6 & H2.7 / Deletion of ‘Note’ pointing out that H1.11A which extends requirements about access to custody records to the appropriate adult for a 17 year-old detainee. It is not required following the revision of H1.11.
7. / H2.8 / Simplification.
8. / H3.2/Note 3A / Link to Notice of Rights and Entitlements updated.
9. / H3.4(b) / Consistent with C3.4(b).
10. / H3.4(b) / Simplification.
11. / H3.6 / Extends risk assessment action to include checking relevant records in addition to the PNC. Reflects current operational good practice
12. / H3.14(a) / Introduces reference to interpreter assistance being arranged as described by H13.1ZA to enable changes to support use of live-link interpretation as defined in H13.12 to facilitate communication with suspects who require an interpreter.
13. / H3.15, 3.16, 3.17, 3.18, 3.19, 3.20, 6.6, 8.9, Note 9B, 10.11A, 11.9, 11.11, Note 11C, 13.3, 13.6 & Annex A6. / Deletion of ‘Notes’ pointing out that H1.11A extends requirements and obligations applicable to 16 year-olds to17 year- old detainees.
Not required following the revision of H1.11.
14. / H3.21A & Note 3J / New paragraph to point out the requirement in s.31 of the Children and Young Persons Act 1933 concern female detainees under the age of 18. Supported by a new Note 3J with link to the College of Policing APP
15. / H3.24 & new sub heading (e) / New provisions to deal with claims that the information & access to be provided in this section has not been provided.
16. / H4.4 / Clarifies that a property record which is not made in the custody record is to be treated as part of the custody record.
17. / H6.6 / Points out that when juvenile or vulnerable detainee asks for legal advice, action should not be delayed to await the arrival of the appropriate adult. from 2nd sentence of Annex E Note E1.
18. / H8.1/Note 8E / Link to College of Policing Detention and Custody Authorised Professional Practice Taken from Note 8C in Code C
19. / H11.1 & Note 11ZA / New Note 11ZA taken from Code C 2014 added.
H13.12, H13.13 & Annex L
Note 13D / New sub heading (h) introduces new provisions and a new Annex L to define and enable live-link interpretation for terrorism interviews to which separate Code applies. Link to that code in new Note 13D. Code H13.13 makes chief officers responsible the security and integrity of the live-link arrangements in their police area.
21. / Annex E4 &
Note E1 / For completeness, references to the revised H6.6 added.
22. / Annex K 2 / Reference to live-link interpretation provisions added
23. / Annex L / New Annex which with H13.12 & H13.13, enables live-link interpretation as an exemption from the general rule in H13.1ZA that the interpreter must be physically present. Part 1 sets out the conditions for the exemption and Part 2 sets out consequential modifications to specified provisions of the Codes.

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(i)

DRAFT

POLICE & CRIMINAL EVIDENCE ACT 1984

CODE H

REVISED

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

Presented to Parliament pursuant to section 67(7B) of the

Police and Criminal Evidence Act 1984 (PACE)

DRAFT

POLICE & CRIMINAL EVIDENCE ACT 1984

CODE H

REVISED

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

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 00:00 on [DD-MM-YYYY], notwithstanding that their period of detention may have commenced before that time.

Codes of practice – Code H Code H in connection with the detention, treatment and questioning by police officers of persons under the Terrorism Act 2000 and the Counter-Terrorism Act 2008

Contents

1 General 6

Notes for Guidance 9

2 Custody records 12

Note for Guidance 13

3 Initial action 13

(a) Detained persons - normal procedure 13

(b) Detained persons - special groups 17

(d) Requirements for suspects to be informed of certain rights 18

Notes for Guidance 19

4 Detainee’s property 20

(a) Action 20

(b) Documentation 20

Notes for Guidance 20

5 Right not to be held incommunicado 21

(a) Action 21

(b) Documentation 22

Notes for Guidance 22

6 Right to legal advice 22

(a) Action 22

(b) Documentation 26

Notes for Guidance 26

7 Citizens of independent Commonwealth countries or foreign nationals 29

Note for Guidance 29

8 Conditions of detention 30

(a) Action 30

(b) Documentation 31

Notes for Guidance 31

9 Care and treatment of detained persons 31

(a) General 31

(b) Clinical treatment and attention 32

Notes for Guidance 34

10 Cautions 34

(a) When a caution must be given 34

(b) Terms of the cautions 34

(e) Documentation 36

Notes for Guidance 36

11 Interviews - general 37

(a) Action 37

(b) Interview records 38

(d) Vulnerable suspects - urgent interviews at police stations 39

Notes for Guidance 39

12 Interviews in police stations 40

(a) Action 40

(b) Documentation 41

Notes for Guidance 42

13 Interpreters 42

(a) General 42

(b) Interviewing suspects - foreign languages 43

(d) Additional rules for detained persons 44

(e) Translations of essential documents 44

(f) Decisions not to provide interpretation and translation. 44

(g) Documentation 44

(h) Live-link interpretation 45

(a) Audio and visual communication 45

(b) Audio and visual or audio without visual communication. 45