Consultation on the Review of the Police and Criminal Evidence Act 1984
Response from:
Criminal Law Solicitors’ Association
Suite 2 Level 6, New England House
New England Street, Brighton, BN1 4GH
DX 2740 Brighton
Email:
Tel: 01273 676725
The Criminal Law Solicitors' Association is the only national association entirely committed to professionals working in the field of criminal law. The CLSA represents criminal practitioners throughout England and Wales and membership of the Association is open to any solicitor - prosecution or defence - and to court clerks, qualified or trainee - involved with, or interested in, the practice of criminal law. The CLSA is responding to the consultation on behalf of its members.
PACE The Act
Maintain PACE and existing structure of framework powers.
Consider development of a single code separate from but aligned to the principles of PACE on powers of entry for non-police agencies.
The Criminal Law Solicitors’ Association (CLSA) strongly supports the existing structure of PACE. Senior members of the association recall with horror the pre-PACE position when access to legal advice was, despite the so called ‘judges rules’, at the discretion of the police. There is no need here to recite the names of the well known cases where appalling miscarriages of justice occurred to the shame of our criminal justice system. PACE has reduced dramatically these incidents. The failure of our courts on occasion to take a more robust view of breaches of PACE is not a failure of the Act or the Code, simply, with all due respect, the judicial oversight thereof and is beyond the scope of this response.
We do not wish to see the further potential dilution of PACE by an attempt to extend the act or codes to beyond the police environment. PACE is a specific act and code fulfilling a specific need and an attempt to stretch the same would cause excessive complication and risk judicial challenge by other agencies which may weaken the beneficial effect of PACE upon conduct of the police. Section 67(9) requiring other agencies to have regard to the principles of PACE should remain and be re-enforced until a separate code is drafted specifically regulating the activities of non police organisations but the guiding force for the separate code should be the tried and tested safeguards of PACE.
PACE Codes
PACE Codes to continue to be subject to the current consultation processes and Parliamentary consideration.
The Codes to be available electronically with appropriate search engines and navigational aids.
Material for the public, including detainees, to be made available in condensed and more accessible formats including the use of visual aids.
Support material for practitioners and stakeholders to be provided and complementary to national guidance.
Improved formatting and presentation of the Codes.
Annual review date for suggested updates to the Codes and engagement with the regional custody network on format and content proposals.
Engagement with the NPIA on Doctrine Development to complement the Codes.
We welcome continuing consultation and parliamentary consideration. Clearly this is right to ensure the codes are robust and yet flexible enough to cope with changing social conditions although some protections for the suspect are so fundamental to a free society that we would not anticipate substantial change for example in the fundamental human right to have access to legal advice.
We welcome with enthusiasm the proposal for the Codes to be available electronically withappropriate search engines and navigational aids. Appendix A contains many stimulating and exciting ideas. In particular a simplified guide for suspects containing additional clarification of the codes is a very welcome. The CLSA suggest a ‘frequently asked questions’ section be added to this dealing with such matters as ‘can I make a telephone call?’, ‘what type of medication is the custody nurse/doctor able to provide’, ‘how long will I be kept here?’, ‘If I have a solicitor will it cause delay and will it cost me anything?’, right to a change of clothes, clean bedding etc.
In many police station receptions there are now visual display screens. Subject to safety considerations, whilst waiting for (in the holding area) or whilst being booked in by the custody sergeant or whilst having finger printing etc carried out, we suggest a looped film or display setting out basic rights and entitlements such as the right to have someone notified, access to free legal advice, a commitment to proceed with due expedition etc.
As the police are to be supplied with the codes free of charge we assume that the electronic form will be accessible to all duty solicitors perhaps obtained through their specialist professional associations to ensure quality and verisimilitude.
We are, however, at a loss to understand why the Government would wish to limit suggested updates and engagement during the annual review process to the regional custody network on format and content proposals and to engagement with the NPIA on doctrine development. The Government we feel sure will understand that such imbalance is likely to distort the daily reality of police stations and give a highly misleading impression. A classic and recent example of the police not consulting with defence lawyers was the introduction by the police of a seriously misleading piece of written material which gave suspects the entirely wrong impression that they would have to pay privately for their own solicitor if they chose not to speak to CDS Direct. This was an embarrassing and expensive mistake that had to be corrected and would not have happened at all had there been defence engagement.
There should be engagement with the specialist professional associations at the earliest opportunity to ensure efficiency and fairness in the future operation of the codes. All we ask for is the right to be heard, not the right to dictate the future content of codes and that in the event of uncertainty there should be a more evidenced and researched based approach with the Pace Review Board making the final recommendation.
Stop, Stop and Search
Examine through pilot sites the ability to reduce the need to provide a record of the stop and recording only ethnicity information
Replace the requirement for a written record to be provided for stop and searches at the point of contact with a receipt provided that the person exercising the power is using mobile technology with direct input into a force computer system
The CLSA shares the concerns of many organisations as to the disproportionate use of Stop, Stop and Search.
Whilst the CLSA is not opposed in principle to reducing the burden of paperwork for Police Officers there are far more areas of Police documentation and duplication which could be addressed in order to reduce that burden rather than these proposals which would reduce one of the most important safeguards to the inappropriate use of the powers of Stop, Stop and Search.
The CLSA believes that the way forward is to use handheld mobile data technology to generate a comprehensive Stop, Stop and Search record which can be accessed by the member of the public concerned. The CLSA does not support the mere recording of ethnicity of persons stopped as this does little to address the issues of disproportionality highlighted by the Review.
The fact that few people expressed an interest in the paper record of a stop, stop search is no ground for reducing the comprehensive nature of the records which the police should keep. It is an unfortunate fact that over the last 25 years different training packages for Police Officers have sought to remedy the same issues which still appear to exist in the exercise of these powers. The CLSA has no confidence that the proposed pilots will demonstrate any improvement in practice other than a reduction in documentation.
Arrest
Amend PACE so that the police have the power to enter premises to arrest for summary offences previously deemed arrestable.
The CLSA understand the need for the reintroduction of the power lost when the necessity criteria for arrest provision in the Serious and Organised Crime Act 2005 came into force. However we feel that for summary offences the power to enter a person’s home should be restricted to imprisonable offences only not just to ‘recordable’ offences.
‘Recordable’ offences include not only offences which carry a sentence of imprisonment but non-imprisonable offences under the Vagrancy Act 1824 sections 3 and 4 (begging and persistent begging), the Street Offences Act 1959, section 1 (loitering or soliciting for purposes of prostitution), the Road Traffic Act 1988, section 25 (tampering with motor vehicles), the Criminal Justice and Public Order Act 1994, section 167 (touting for hire car services) and others listed in the National Police Records (Recordable Offences) Regulations 2000 as amended. The Association feels that entry to a person’s home without a warrant is disproportionate and excessive in the case of a non-imprisonable offence. Confining the power of entry to ‘imprisonable offences’ only, whether indictable either way or summary has the benefit of clarity and simplicity for those exercising the powers.
Remove the requirement for an officer to be in “immediate pursuit” in order to enter premises to arrest a person who is unlawfully at large
The CLSA has no objection to this sensible proposal.
Remove the requirement for officers to be in uniform when entering premises for the purpose of an arrest.
The CLSA believes care and caution are necessary when taking the serious step of entering someone’s home. The occupiers should be able to see at once that the person entering has lawful authority not least for the security and safety of the officer. Impressionable children can have a distorted view of police for all time if terrified by a traumatic entry or door step confrontation. The wearing of a uniform is a reliable indicator of authority to the occupiers and should not be lightly abandoned. If operational needs require the arrest to be in plain clothes we see no reason why a warrant could not be issued by a magistrate permitting this (day or night) upon explanation of the circumstances.
Clarify the status of voluntary interviews at the police station.
The Association is not sure about the purpose of this section of the consultation i.e. ‘The aim is to make clear that the requirement to caution and liability to arrest does not arise if the person concerned is not suspected of involvement in an offence’ Putting it bluntly, if the person is not suspected of involvement in the offence (by which we assume ‘involvement’ to mean someone having ‘committed’ the offence) why are they being subjected to a PACE interview at all rather than simply being asked preliminary questions as part of the investigation prior to possibly making a voluntarily witness statement . They could be told that the information obtained in this way may be used in evidence
If the person may be suspected of a criminal offence but attends as a volunteer then the caution should be given under CODE C 10. (1), and, as at present, in accordance with CODE C 10.(2), with the additional words that they are not under arrest and are free to leave at any time. There is no need for officers to complicate the matter at that stage by referring to the possibility of arrest should they choose not to remain.
If under PACE Section 29 (b) the officer decides that a volunteer who indicates unwillingness to remain and should, in the view of the officer, be ‘encouraged’ to do so then he can warn, at that stage that the volunteer’s status has changed and he or she is now under arrest. Clearly if the officer has pertinent questions to put to a suspect and the volunteer suspect ceases to ‘volunteer’ then under code G the necessity requirement criteria would appear to be satisfied ( See S24 (5) (e) and code G 2.9 (e) ‘ To allow the prompt and effective investigation of the offence or of the conduct of the person in question). If there are relevant questions to put and the volunteer is now “heading for the door” the officer could safely be considered to be acting reasonably under Code G 2.4 and S 24 (4) PACE.
The CLSA believes, however, that the codes should be amended to remind the officer that, especially with volunteers there is a presumption against ‘arrest’ unless the necessity test is satisfied under code G. One of our members has direct and recent experience of a police officer arresting a 14 year old girl, attending with her mother at police request, for a 3 month old school play ground slapping incident. She was then subjected to all the immediate indignities associated with arrest including separation from her mother and the risk of time spent in a cell despite representations to the officer and custody sergeant. Too many police officers arrest suspects because they simply feel they have power to do so or because that is the local police routine. In our view, it can rarely be necessary to arrest a volunteer, if for no other reason than they are a ‘volunteer’. Code G is frequently ignored and a presumption inserted in the code against this abuse of power will help to remind officers to bear Code G firmly in mind.
It may be that if some officers at present ‘jump the gun’ and inform the volunteer that they may arrest the volunteer and prevent them leaving without any such intention of actually arresting them then this may cause alarm and possibly trigger a request for legal advice. The answer to this is as we have set out above. Do not at first refer to the possibility of arrest until the officer decides on the necessity for this.
However, we then need to deal with the issue of legal advice for volunteers. If there is to be a formal interview under PACE because they are suspects then they are indeed at risk of potential prosecution from the outset. It follows that they are at risk of arrest in the meantime should they cease to be volunteers. In our view the suspect should be offered the right to seek legal advice immediately upon arrival at the police station because of this potential change in status, whether it that of an arrested person or to a defendant in the event of a charge. It is neither kind nor benign to lull a person into a false sense of security by treating them as a volunteer when what they say in interview without the benefit of legal advice could result in arrest or charge. Legal advice should be offered to anyone interviewed under PACE.
Accordingly, we propose the following amendment. Although not referred to in the consultation, PACE code C (c) 3.22 should be amended to remove the need for the person to ‘voluntarily ask’ about their entitlement to legal advice before being given the notice explaining the arrangements for the obtaining of legal advice. The volunteer should be told of his right to obtain legal advice upon arrival. The present code C (c) 3.22 places volunteers at a severe disadvantage even though the consequences may be exactly the same as for an arrested person i.e. a charge. A statutory code should not, in our view, take advantage of the lack of experience nor the apparent willingness to co-operate evidenced by their voluntary attendance of volunteers in their dealing with professional police officers. The reliance on inertia or a lack of understanding as C (c) 3.22 seems to promote, is in our view unsatisfactory and needs to be remedied to prevent potential injustice.
The caution should be given when there are any grounds to suspect, not simply reasonable grounds.
Expand the current necessity criteria to deal with so-called ‘ongoing offences’
The amended code would have to make it very clear that the investigative ‘necessity’ criteria for evidential purposes or identification purposes should have no bearing upon the routine taking and comparing fingerprints and DNA. It should also distinguish between volunteers and those arrested in either circumstance because that process for the former should continue to be a voluntary procedure. As the consultation implies there should always be other evidence requiring investigation before the necessity requirement is satisfied to avoid any suggestion of the routine collection of prints and DNA.
The CLSA are not at all sure how the additional ‘clarification’ in 17.15 is going to add very much to the existing code G where under paragraph 2.9 (c) the necessary arrest criteria refers to the prevention of (i) causing physical injury and under (iii) causing loss or damage to property. This could be interpreted as referring to ‘existing or future dangers’.
The impression this Association has through its members’ responses is that the police all too often arrest as a matter of routine as the bar set by Code G is too low (see, for instance, the experience of the 14 year old girl attending as a volunteer referred to above). The decision to arrest is rarely in our experience challenged by custody sergeants who tend to rubber stamp the arrest. This means that people are accepted in to custody who could quite easily be spared the ordeal and distress of incarceration by remaining as a volunteer. It is very costly to keep people in custody and where this can be avoided it should be avoided.