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TRANSCRIPT
Modernising Police Powers
Review of the Policeand Criminal Evidence Act(PACE) 1984
Consultation Paper
Home Office March 2007
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Contents
Foreword 2
Introduction 3
How to respond 4
Chapter 1: Criteria for change 5
Chapter 2: Reviewing PACE and the PACE Codes 6Next Steps 7
Chapter 3: Suggested areas for consideration 8On the street 8Entry, search and seizure 8At the police station 8Bail 9Use of non-designated police stations/other accommodation 10Biometric information and identification procedures 11Community support and scrutiny at the police station 12Questioning after charge 13Framework for all enforcement agencies 14
Annex A: Response template 15
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Foreword
The police service is the gateway to the Criminal Justice System (CJS) andthe main visible point of contact to the public in tackling crime anddisorder. The police service is the starting point for the investigation andevidence gathering process and works closely with the Crown ProsecutionService and other agencies in determining how best to achieve the most successful outcome to investigations.
What has struck me most vividly about this crucial stage of the CJS process are the procedural formalities thatofficers have to complete and fulfil often even before the investigation can get underway. Some of these areessential and the bedrock for the safeguards the system provides to the individual.
We are rightly proud of the safeguards and protections afforded to the individual when they encounter thecriminal justice system. These are essential in a democratic and mature society which protects the individualfrom arbitrary interference.
However, there are bureaucratic processes and over-complicated procedures in the application of thesesafeguards which do not serve the best interests of the police, or the criminal justice system or, importantly,those of the victim.
My aim is to re-focus the investigation and evidence gathering processes on serving the needs of victims andwitnesses and helping raise the efficiency and effectiveness of the police service in delivering the drive of thePolice Reform programme to have 21st century policing powers to meet the demands of 21st century crime.
That is why I am announcing this Review of police powers and procedures.
The Review will build on the extensive work carried out since the joint Home Office and Cabinet OfficeReview of PACE in 2002 and will scope the potential for further rationalisation of police powers. Thisdocument suggests how the Review can be taken forward. Importantly, it provides a significant opportunityfor you to help drive change both at the strategic and operational level of policing.
Your views are positively welcomed.
Tony McNulty MPMinister of State for Crime Reduction, Policing, Community Safety and Counter Terrorism
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Introduction
In his Foreword, Tony McNulty referred to the 2002Review of PACE and the amount of work undertakensince then in response to the Review’s findings.
As the Minister has said, our aim now is to buildon that work and move the reform and rationalisationprogramme on to the next stage. This will involveexamining how best PACE and the PACE Codes ofPractice serve the demands of a modern police servicetasked with tackling so-called low level anti-socialbehaviour through to highly sophisticated andorganised crime.
The introduction of PACE provided what, byany standard, has proved a fundamental changefor the better in the way in which a key part of thecriminal justice system is operated. It provides a coreframework of powers and safeguards around arrest,detention, investigation, identification andinterviewing of suspects.
But we need to keep PACE powers and proceduresunder close review to ensure that they fully reflectwhat is needed in a fast changing world, and thatevery opportunity is taken to simplify and rationalisewherever possible. For example, changes madeto PACE in the Serious Organised Crime andPolice Act 2005 simplified the complicated myriadof arrest powers into a single power of arrest; it alsointroduced the ability to apply for multiple entryand all premises warrants on a single application.Both represent changes which have cut through theprocesses and complexities and provide clear focus onreducing police and court bureaucracy and speedingup the investigative process.
This public consultation exercise is aimed at askingthose who use and work with PACE and the PACECodes for their ideas for change, what change wouldlook like and what barriers there are to success. TheReview is not just about searching out areas with thepotential for sweeping, radical change. It is aboutday-to-day operational improvements.
Some of you will be familiar with the Registerof Changes to the PACE Codes on the Home Officewebsite. That promotes suggestions on change at
its most detailed level. We are looking for you totell us and to discuss with us how we can achieveboth strategic and operational change.
We are acutely aware that change is sometimesperceived to be the only constant factor. Even whenthat change improves existing practices, it oftencomes with consequential considerations suchas training, implementation and familiarisation.Part of the Review process will be to factor in thetraining and implementation implications in termsof benefits, capacity and resources for all agenciesinvolved.
Our key aim is to maintain the framework approachto police powers. In doing so, we will look to providegreater clarity for partners, stakeholders and thepublic on the exercise of those powers; improvepolice efficiency and effectiveness; and focus on bestserving the needs of the victim and the interests ofthe criminal justice system.
Vic HoggDirectorPolicing Policy and Operations DirectorateHome Office
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How to respond
The paper is available on the PACE and PACE Codeswebpage and a link email address is provided there torespond.
Alternatively, you may wish to respond to the PACEReview by clicking on this link if you are reading thedocument electronically or e-mailing your response [email protected].
A template for proposals is provided at Annex A.This may provide useful support in considering whatyour suggestion would deliver but we also welcomecomments in text format.
If you wish to respond by post, you should addressyour comments to:
Alan BrownHome OfficePolice Leadership and Powers Unit4th Floor Peel2 Marsham StreetLondonSW1P 4DF
Responses to the Paper should be submittedby 31 May 2007.
You may find the following links useful:
PACE and PACE Codeshttp://police.homeoffice.gov.uk/operational-policing/powers-pace-codes/pace-code-intro/
PACE Codes Register of Changeshttp://police.homeoffice.gov.uk/news-and-publications/publication/operational-policing/Register_of_All_Changes_04_06
PACE Review 2002http://police.homeoffice.gov.uk/news-and-publications/publication/operational-policing/pacereview2002.pdf
Guidance on the Safer Detention & Handlingof Persons in Police Custodyhttp://police.homeoffice.gov.uk/operational-policing/powers-pace-codes/safer_detention/?version=1
Safer Detention Guidance Register of Changeshttp://police.homeoffice.gov.uk/news-and-publications/publication/operational-policing/SD_Register_of_Changes1.pdf
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Chapter 1:Criteria for change
1.1 The salient elements which should beconsidered in determining whether or not aproposed change will have beneficial impact areset out aside. The list is not exhaustive but wewould look for respondents to consider whetherone or more of the criteria are met.
1.2 A template is provided at Annex A incorporatingthe criteria. You can use the template or providecomments in the normal way.
1.3 Please do not feel restrained from submittingideas and suggestions if you are unsure of thepotential impact. If required, we will contactrespondents direct to talk through or obtainclarification on what is proposed.
1.4 At the same time, we recognise that you mayhave identified a process or procedure whichis either a barrier to success or which hasfeatures which inhibit success or cause undueor unnecessary use of capacity and resources.You may not have a solution but we very muchwelcome you raising such issues as part of theconsultation.
1.5 The criteria that should be applied are:
Improving police efficiency and effectivenessthrough:
� promoting strategic change for both policeand the way in which the police interact withthe Criminal Justice System;
� reducing bureaucracy;� removing duplication and replication;� identifying workforce modernisation
opportunities;� freeing up officers’ time for operational
activity on the street; and� improving communication and raising
community confidence.
Maintaining safeguards and enhancingaccountability by:
� raising public understanding and awareness;� ensuring powers are proportionate;� encompassing technology to improve
recording and monitoring processes;� raising levels of reporting and accountability;
and� protecting the balance between the rights of
the individual and the needs of the criminaljustice system.
Increasing Usability and Accessibility by:
� simplifying legislation and guidance;� providing consistency of approach on
procedures and processes;� customising publications/materials for
target groups; and� engaging and empowering stakeholders,
practitioners and training providers atdevelopment and implementation stages.
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Chapter 2:Reviewing PACE and the PACE Codes
2.1 There have been a series of changes to PACEin response to the 2002 Review of the Act.These changes have focused on achieving thefollowing outcomes:
� providing police and other relevant agencieswith appropriate and proportionate powersto tackle crime;
� removing barriers enabling more effectivetargeting of criminals;
� removing unnecessary bureaucracy� freeing up more time for police officers to
take up operational duties outside theconfines of the police station;
� removing areas of complexity and providingclearer, more accessible powers for bothpractitioners and public; and
� promoting the needs of victims andwitnesses.
2.2 However, the nature of the 2002 Review meantthat implementation of its recommendationsfocused on particular areas of the 1984 Actrather than undertaking a fundamental reviewof the legislation itself. Since PACE wasintroduced, there has been a plethora of changesand related legislation which has impacted onPACE. Consequently, PACE and the Codes havebecome unduly complex and cumbersome.
2.3 There is a need to consider how we can use thebenefit of these changes whilst ensuring thatPACE continues to provide the frameworkapproach setting out police powers to investigatecrime and the safeguards and protections forthe public.
2.4 Using the outcomes listed in paragraph 1.5above, we intend to examine how best thatcan be achieved. A potential option is thecodification (the process of collecting andrestating the law) of PACE. However, in ourview, the opportunity should be taken toconsider the benefits of a complete andfundamental review.
2.5 The Review should examine how we useprimary and secondary legislation, in this casethe Act itself and the PACE Codes of Practice.The PACE Codes continue to grow in sizeand complexity at a significant rate. Whateverthe reason for that, the fact is that thereare elements of replication, duplication andstraightforward bureaucracy. The format andcontent of the Codes is very much written in aformal, legalistic style. This is understandablegiven their legal status but the potential existsto rationalise the style, format and presentationof the Codes so that they better meet theoperational needs of the police, widerstakeholders and the public.
2.6 An independent review of the designand format of the Codes is already underway.The findings of the review will be publishedon the PACE Codes webpage in Spring 2007but initial indications from that review arethat the format and presentation of the Codesare considered outdated and too complex.Consideration should be given to the potentialfor statutory guidance to replace the Codes.This would provide greater flexibility to updateand review and the opportunity to consider thelanguage and format used to best suit the needsof practitioners and users.
2.7 A useful example is the Safer DetentionGuidance published by the National Centrefor Policing Excellence on 8 February 2006 onbehalf of the Home Office and the Associationof Chief Police Officers (ACPO). That providesdefinitive guidance to the police on custody andcustodial care matters and by its very nature,reflects much of the content of PACE Code C.The major difference is that it not only sets outwhat has to be done but, importantly, how itcan be achieved.
2.8 PACE is about the exercise of proportionatepowers and maintaining the balance betweenthe rights of the individual from arbitraryinterference and the ability of the police toinvestigate crime. We are not looking to
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Chapter 2:Reviewing PACE and the PACE Codes
dilute safeguards. Instead we are looking toexamine the ways in which these safeguards aredelivered and the processes which support theirapplication.
2.9 Importantly, the oversight and scrutiny ofthe exercise of PACE powers derives largelyfrom when PACE was enacted, and from theintroduction of the Codes in 1986 and majorchange in 1995 following the Report of theRoyal Commission on Criminal Procedure(Runciman 1993, CM2263). The Reviewshould examine whether the levels ofscrutiny and accountability are applicablefor this century, particularly in the light oftechnological advances, inspectorate processesand community oversight.
2.10 The PACE Codes have always applied to anypersons who are charged with the duty ofinvestigating offences or charging offenders.Since the introduction of PACE that landscapehas changed significantly. For example, thePolice Reform Act 2002 has enabled chiefpolice officers to designate civilian staff withpowers previously exercised exclusively bypolice officers. The Review should examinethe scope for introducing an enforcementframework applicable to police, police staffand other agencies.
Next Steps2.11 This public consultation exercise is aimed at
asking those who use and work with PACE andthe PACE Codes for their ideas for change, whatchange would look like and what barriers thereare to success.
2.12 We will examine responses in consultationwith departmental colleagues and policerepresentatives, including the National CustodyForum and the regional custody network, theNational Identification Forum and the Skillsand Knowledge Forum. We will also lookto see how best to engage with the NationalPolicing Improvement Agency.
2.13 Overseeing all this activity lies with the rangeof stakeholders and practitioners who use PACEon a regular and frequent basis. Whilst we donot wish to have an overly bureaucratic process,we do envisage the establishment of a PACEReview Board.
2.14 Membership of the PACE Review Board wouldconsist of representatives from the Judiciary andorganisations such as the Bar Council and theLaw Society; policing representatives;academics; training providers; representativesfrom the voluntary and community sector; andrepresentatives from government departments.The Board would be chaired independently ofGovernment.
2.15 The response to the consultation paper willhelp determine the exact scope and nature ofthe Board’s work. The consultation process willbe in addition to the normal course of bilateralengagement with individual stakeholders andother government departments. The outcomeof these contacts will determine how we moveforward with the Review process.
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Chapter 3:Suggested areas for consideration
On the streetPACE Part 1, Code A & Street Disposals3.1 We should look to provide processes for dealing
with the person on the street which minimisesboth the processes and procedures which anofficer needs to complete and the level ofcontact and inconvenience for the individual.
3.2 Recent changes to PACE around street bail,providing a single power of arrest and pilotingof electronic stop and search records all focus onimproving the use and effectiveness of policetime.
3.3 At the same time, we need to consider measureswhich can reduce the need to take a personinto custody but provide the police officer withsufficient confidence that the person has beenrightly identified and satisfied that they willcomply with the next stages of the processwhether that is attending the police station,attending court or paying a fixed penalty notice.
3.4 We also have to consider how we can raise theindividual’s understanding of what their rightsare, how they can be exercised and what to doif they are not satisfied.
3.5 Suggested approaches must provide a balancebetween these two distinct but not mutuallyexclusive interests in order to raise public accessand understanding.
3.6 The police have a range of powers on the street.We would welcome proposals about if, and how,these should be rationalised or whether there isa gap which requires some new approach. Thisincludes any need to strengthen enforcementpowers in the event of breaches.
Entry, search and seizurePACE Part II & Code B3.7 When a person has been arrested, PACE
provides a constable with powers to enter andsearch premises in pursuit of evidence relevantto the offences. That power is exercised at thediscretion of a constable. In situations where
arrest is not possible and entry is required, aconstable will make application to the court fora warrant.
3.8 Provisions in the Serious Organised Crime andPolice Act 2005 amended PACE to enable thecourt to issue multiple entry or all premiseswarrants. The aim was to reduce thebureaucracy faced by the police and the courtsin applications for and consideration of multipleindividual applications for warrants. It alsofocused on reducing operational delay duringthe investigative process when entry to premiseswas required to protect and secure evidence.
3.9 We are keen to explore ways in which wecan further rationalise the process of warrantapplication and execution from both a policeand court perspective. We are also keen thatany proposals in this area help raise the levelof accountability and maintain protectionsfor the individual.
3.10 We are also keen to consider the scope forthe provisions of the Criminal Procedure andInvestigations Act 1996 requiring all reasonablelines of inquiry to be pursued to be applied tosearch powers under PACE; and to examinewhether the special provisions to access undersections 9 – 14 of PACE require updating tomeet 21st challenges in tackling crime.
At the police stationPACE Part IV & Code C3.11 PACE quite rightly makes the police station a
place in which significant safeguards and rightsmust be made available to the detained person.Ensuring the detainee has access to these rightsis important for the protection of the individualbut, equally, it also provides a high degree ofintegrity and evidential status in respect of theinvestigative and interviewing processes.
3.12 But, as the Minister indicates in his Foreword,it is the procedural formalities which weneed to examine. We know that computerisedcustody records and other electronic processes
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Chapter 3:Suggested areas for consideration
help raise the levels and quality of reporting,monitoring and accountability. We need toexamine whether there are elements arounddetention and the custodial process whichhinder or present barriers to achievingsuccessful outcomes to investigations.
3.13 Recording what happens to a person at thepolice station enables effective monitoring andaccountability. But there may be scope to lookat existing processes. Particularly welcome aresuggestions which help reduce bureaucracy andenable arresting officers in particular to spendless time at the police station.
3.14 The PACE ‘detention clock’ and the reviewprocess have been subject to relatively littlechange since its introduction in the 1984Act. There has been some change aroundsuperintendent’s authorisation and remotereviewing of detention. We are keen to examineif there are ways in which we can effect furtherchange which results in reducing the burdenon officer time, improving recording of reviewsand, importantly, which can result in thedetained person spending less time in policedetention.
3.15 The person’s period in detention can result inhim or her being seen by several representatives– solicitor, healthcare professional, interpreter,appropriate adult and independent custodyvisitor. Whilst it is unlikely that every detaineewill experience the full range, access to andwaiting time for their attendance can have animpact on the handling of the investigation andthe level of officer and staff time. It can alsohave a more serious impact on the nature andmood of the detained person. Suggestions arewelcome from all stakeholders around moreintegrated working and ability to better planinvestigations in consultation with each of theagencies and collectively.
3.16 Healthcare provision – both mental and physical– is an area of growing interest and attention forthe police service. The professional intervention
of a healthcare professional and at what stagecan be a crucial factor affecting the welfare of thedetainee and the interests of the criminal justicesystem. We are working with health and otherstakeholders to identify how best professionalhealthcare can be delivered for those who comeinto police contact. However, as part of thisReview, we would like to examine the existingPACE provisions. In particular, whetherthe current legislative arrangements are bestsuited to enabling custody officers to makedecisions based on the best information; whetherhealthcare professionals are able to interveneat the most appropriate stages at the policestation; and any competing demands betweenthe investigative processes and the care andwelfare of the detainee.
Bail (Street Bail and Police Bail)3.17 The presumption at the police station is for bail
to be granted. From a policing perspective, bailis a key part of planning the investigation andmaking best use of the detention time allowedunder PACE and best use of officer time. It alsoenables best use to be made of custodyaccommodation.
3.18 Street bail (bail elsewhere than at a policestation) was introduced under the CriminalJustice Act 2003. Again, the key focus of itsintroduction was to enable officers to betterplan their investigation, to spend more time onoperational activity on the streets and to placeless pressure on the use of the custody suite.
3.19 We know that street bail has limited take upby forces. We also know that where it is inplace that it is working and is effective. But wewould welcome views on how we can encouragemore officers to make use of street bail. Aswith a fair proportion of street activity, concernlies around identification of the person; beingsatisfied that they will turn up at the requestedplace; confident that they will not commitfurther crime or return to the scene of theoffence or the vicinity of victims or witnesses.
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3.20 Possible options may revolve around beingable to take biometric information at the sceneand the ability to raise confidence in the use ofstreet bail . We would welcome views on thebenefits of these and other approaches and viewsof what safeguards should be in place and, inthe event of a breach, what action shouldbe possible.
3.21 Bail at the police station already has muchof these elements in place. However, it is anarea which may benefit from clarification. Thereare also concerns around the power to enterpremises to enforce bail, how to deal with ananticipated breach of bail and detention clockissues around failure to answer bail at aspecified police station.
3.22 There is the ability to provide consistency onhow we approach street and ‘station’ bail andwe are looking for proposals on how best thiscan be achieved.
Use of non-designated police stations/other accommodation3.23 PACE places considerable emphasis on the use of
designated police stations for the detention andquestioning of persons suspected of involvementin an offence. Non-designated police stations arenot required to have appointed custody officersto oversee the person’s detention. The functionsof the custody officer at these stations must beperformed by an officer (of any rank) who is notinvolved in the investigation, but if no suchofficer is available, the role may be carried outby the arresting officer on the condition thathe/she informs an inspector at a designatedpolice station of the situation as soon aspracticable.
3.24 Section 45A of PACE was introduced to utilisetechnology and raise oversight by a custodyofficer at non-designated police stations byenabling a custody officer in a designated policestation to use video-conferencing facilities tocarry out the functions in relation to a persondetained at a non-designated police station.
3.25 Section 45A remains subject to enablingregulations. We are aware of the advances intechnology which help promote the case tocommence these provisions. The option providesdistinct benefits for minimising risks associatedwith the transportation of suspects, the needs ofthe investigation and the ability for front-lineofficers to remain in their operational arearather than travelling substantial distancesto the nearest designated police station.
3.26 We would welcome as part of this consultationthat respondees help identify the criteria thatshould accompany potential roll-out of thisprovision. We would also welcome views on theappropriateness of rolling out this provision.
Short Term Holding Facility3.27 The vast majority of people arrested spend less
than 24 hours in police detention. In fact, theaverage time spent is normally between 2–4hours. Part of the necessity criteria for arrestunder section 24 of PACE is that a person failsor refuses to give a satisfactory name or address.
3.28 The absence on the street of giving identityor providing satisfactory evidence of identityoften means that people are taken to the policestation, go through the custody process andtake up both accommodation and officerand staff time to be charged or issued with apenalty notice when their identity is confirmed.Importantly, it takes police officers off the streetand away from front-line duties.
3.29 The problem is particularly acute in busy urbanareas. The volume of suspected offenders meansthat the efficiency of custody throughput isseverely impacted, often with people suspectedof low level but still important offences suchas shoplifting. A potential solution in dealingwith high volume offending is to enable thepolice to make use of short term holdingfacilities (STHF) located in shopping centresor town centres. The STHF would be underthe supervision of a custody officer and wouldconsist of a number of secure holding areas
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Chapter 3:Suggested areas for consideration
within the accommodation. These wouldprovide secure accommodation but wouldnot equate to the standard cell design.
3.30 The function of the STHF would be toconfirm the identity of the suspect and processthe person by reporting for summons/chargingby post, a penalty notice or other disposal.Persons detained would be subject to detentionup to a maximum period of 4 hours to enablefingerprinting, photographing and DNAsampling. The STHF would not be used incases where the arresting officer considers thatan investigation was required and authority totransfer a person from a STHF to a designatedpolice station would require the authority of anInspector. The aim would be to locate STHFs inbusy areas to allow quick access and processingof suspects to enable the officer to resumeoperational duties as quickly as possible.
Biometric information and identificationprocedures3.31 A range of powers and procedures are available
to enable the police to identify suspects for thepurposes of investigating, detecting andpreventing crime. These fall into two groups:first, taking, comparing and retainingfingerprints, DNA, footwear impressions andphotographs; and second, identification bywitnesses.
Biometric3.32 Fingerprints, samples, footwear impressions
and photographs (images) of an individual areused to confirm or disprove an individual’ssuspected involvement in a criminal offenceand to establish identity. The current thresholdsfor taking and using fingerprints etc. createa number of inconsistencies. For example,fingerprints, samples and footwear impressionsof a person arrested, reported, charged,summonsed or convicted for a non-recordableoffence cannot be taken without consent toconfirm or disprove their involvement in thatoffence or to create a record in a nationalsearchable database that they have been arrested,
reported, charged, summonsed or convicted.Furthermore, a person who refuses to give theirtrue name and address or whose identity isdoubted or cannot be verified cannot have thesesamples etc taken and checked to see if theyhave previously come to police notice.
3.33 The absence of the ability to take fingerprintsetc in relation to all offences may be consideredto undermine the value and purpose of havingthe ability to confirm or disprove identificationand, importantly, to make checks on asearchable database aimed at detecting existingand future offending and protecting the public.There have been notable successes particularlythrough the use of the DNA database inbringing offenders to justice.
3.34 Is there scope to populate identificationdatabases and remove unnecessary operationalconstraints on the extent to which police areable to use fingerprints etc. to prevent, detectand investigate crime?
3.35 There are benefits in simplifying the powers interms of the potential for increased detections,removing arbitrary and bureaucratic processesand sending out a strong preventative messageto offenders that, whatever level of offendingthey are involved in, they will be subject toidentification processes that can and will beused for searching of the database in relationto other offences. An additional benefit shouldarise in reducing the number of people takeninto police custody and the time that peoplespend in custody by raising the officer’sconfidence at the point of contact on the streetin being able to verify the suspect’sidentification.
3.36 Removing the existing thresholds to achievethe potential benefits outlined above mustbe considered in the context of currentcapacity to gather identification informationand accommodate these on databases. Buttechnological developments are moving rapidlywhich should enable more effective and efficient
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methods of gathering, retaining and makinguse of identification material.
3.37 Importantly, there are issues aroundproportionality and whether there are sufficientsafeguards to protect a person guilty of a so-called minor offence from being considered aspart of an investigation into a more seriousoffence as a result of the outcome of speculativesearches. There will be concerns that providinga uniform set of powers is disproportionate andan excessive approach to dealing particularlywith low level offending.
3.38 We very much welcome debate on thecontent of this section and the proportionatedevelopment and use of criminal records andhow best we meet the needs of victims andwitnesses; safeguard the interests of theindividual; and contribute effectively tocrime reduction and crime prevention.
Identification procedures3.39 Currently, PACE Code D stipulates that the
suspect must be given a reasonable opportunityto have a solicitor or friend present at the timeand place a victim or witness is asked to makea video identification. This is known to havean adverse affect on the ability of some victimsor witnesses to make a fair and accurateidentification. It also places an additionalburden on the police and demands on legaladvisers which, if the viewing by the victimor witness is itself videoed, adds little tothe safeguards.
3.40 For the identification officer, it createsparticular problems when a victim or witnessis unable to travel and the officer considersit appropriate to arrange the viewing at theperson’s home. Therefore we want to lookat ways in which we are able to remove orminimise any sense of fear or intimidation andencourage victims and witnesses to confidentlyparticipate in identification procedures.
3.41 We also want to examine how technology canbe used to protect the identity of victims andwitnesses and how best to use places other thanthe police station to carry out identificationprocedures. In all of this, we must ensure thatsufficient safeguards are in place which makesure that any new processes are subject toappropriate scrutiny and accountability. Morewidely, current identification procedures andprocesses are exclusively contained in PACECode D. Is there a need to consider provisionin primary legislation?
Community support and scrutiny at thepolice station3.42 Appropriate Adults (AA) and Independent
Custody Visitors (ICV) each have differingstatutory roles to fulfil at the police station.However, the common factor is that it isrepresentatives from the community whoundertake these tasks, usually on a voluntarybasis (although there are some paid-forappropriate adults).
3.43 Both groups provide important independentscrutiny of what happens to detainees whilstin police custody. They are recruited from thelocal community in which they live and thepolice station is based. That provides crucialcommunity oversight and engagement.
3.44 The work of ICVs and AAs is supported bytwo national organisations which receive coreHome Office funding. Last year, the HomeOffice commissioned a Review of the NationalAppropriate Adult Network (NAAN); andthe Home Office and the Association of PoliceAuthorities jointly commissioned a Reviewof the Independent Custody Visitors Association(ICVA).
3.45 There is scope from these reports and frominitial discussions with ICVA and NAAN toconsider ways in which focusing on the needs ofthe volunteer (and paid-for appropriate adult) interms of recruitment and retention, training andreporting mechanisms could help raise
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Chapter 3:Suggested areas for consideration
recognition of their contribution. This couldinclude the development and maintenance of aregional or national approach for ICVs and AAs.
3.46 We would also like to receive comments on theimpact of ICVs and AAs on the investigativeprocess; suggestions on how we raise theirinput; and improve the quality of contact withdetained persons.
Questioning after chargeQuestioning after the decision to refer to theprosecutor for a charging decision3.47 The threshold for the investigating officer
and the custody officer to refer a case to theprosecutor for a decision on charging is at thethreshold of there being a realistic prospect ofconviction. A detainee must not be interviewedabout an offence after they have been chargedwith, or informed that they may be prosecutedfor it, unless:
� the interview is necessary to prevent orminimise harm or loss to a person or thepublic;
� to clear up an ambiguity in a previousstatement or answer; or
� in the interests of justice for informationto be put to them which has come to lightabout the offence since they were chargedor informed they might be prosecuted.
3.48 The investigating officer and custody officercontinue to adopt the threshold of realisticprospect of conviction in determining whento charge or to refer the case to the prosecutorfor a decision on charging. However, with thestatutory charging process and the considerationby the prosecutor, there may be issues arisingfrom the investigation stage of the processwhich requires further examination or clarity.
3.49 The Director of Public Prosecution’s guidancemakes provision for charging where theevidence passes the Threshold Test; i.e. wherethere is at least reasonable suspicion that the
offender has committed the offence and furtherevidence is being obtained within a reasonabletime that will enable the case to pass the fullcode test. When that fresh or additionalevidence is available, it may be very importantthat the offender is interviewed about it to seewhether he has an explanation or any commentsto make. This may affect the selection of thefinal or additional charges if the offending ismore widespread than thought or the interest ofjustice requires additional charges.
3.50 It is important that all the relevant evidenceis available for consideration at the earliestpossible stage. That not only assists in ensuringthat the decision whether or not to chargeis based on all the circumstances but helpsminimise the potential for cases to proceed toprosecution when further relevant informationmay not become known until the court.
3.51 Therefore, we would like views on thequestioning of the detainee/suspect from thedecision to refer the case to the prosecutor fora charging decision up to the decision by theprosecutor to charge; and from following thedecision to charge up to the trial hearing.
3.52 It is acknowledged that the Royal Commissionon Criminal Procedure (Runciman, 1994)recommended that the caution to be givenin relation to questioning after charge orwhen a detainee is informed that they maybe prosecuted should be limited. The cautionin these circumstances is set out in PACECode C, paragraph 16.5 (a). It reads:
“You do not have to say anything, butanything you do say may be given inevidence.”
3.53 We would anticipate that questioning aftercharge would take place in a police station andthe person would remain entitled to the fullrange of safeguards under PACE. In thosecircumstances, we would welcome views on the
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appropriateness of the person being subject tothe full caution under PACE Code C (paragraph10.5(b)) which states:
“You do not have to say any anything.But it may harm your defence if you donot mention when questioned somethingwhich you later rely on in court. Anythingyou do say may be given in evidence.”
3.54 Additionally, the person would be subject tothe special warning procedure and required toaccount for any items in their possession. Thiswould result in the ability of the court to takeinto account any silences or no comment inresponse to those questions.
Framework of powers for allenforcement agencies3.55 PACE clearly has focus on the provision of
powers for police officers. Section 67(9) of theAct requires that any person other than a policeofficer who is charged with the dutyof investigating offences or charging offendersmust have regard to any relevant provisionsof the PACE Codes.
3.56 However, since the Act was introduced, wehave a range of new powers for police and forother agencies, and a range of new or differentagencies. The police themselves work differentlywith the use of Police Community SupportOfficers and civilian detention, escort andinvestigative staff.
3.57 The status of agencies or civilian staff andthe range of their powers are regulated byindividual statute or statutes. Codification ofall enforcement and investigative powers for allagencies into a single piece of legislation wouldbe a significant task. However, it would providea single source for identification of what thosepowers are and establish criteria applicable foreach agency across the full range of the powerswhich applied to them. Additionally, therewould be greater clarity and understanding for
the public on what they could expect and whatsafeguards and protections applied to them.
3.58 The Review will look to consider whether suchcodification is an effective way forward and usethe findings to establish whether the powersand procedures in place across the range ofagencies are proportionate, suitable and relevantto 21st century needs. Providing a consistentand understandable framework of investigativeand enforcement powers would provide bothconsistency of approach and recognition of thespecific role and responsibilities of individualagencies.
15
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17
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Furthermore, information provided in response tothis consultation, including personal information,may be published or disclosed in accordance with theaccess to information regimes (these are primarily theFreedom of Information Act 2000 (FOIA), the DataProtection Act 1998 (DPA) and the EnvironmentalInformation Regulations 2004).
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This consultation follows the Cabinet OfficeCode of Practice on Consultation – the criteriafor which are set below.
The six consultation criteria1. Consult widely throughout the process,
allowing a minimum of 12 weeks for writtenconsultation at least once during thedevelopment of the policy.
2. Be clear about what your proposals are, whomay be affected, what questions are being askedand the timescale for responses.
3. Ensure that your consultation is clear, conciseand widely accessible.
4. Give feedback regarding the responses receivedand how the consultation process influencedthe policy.
5. Monitor your department’s effectiveness atconsultation, including through the use of adesignated consultation co-ordinator.
6. Ensure your consultation follows betterregulation best practice, including carrying outa Regulatory Impact Assessment if appropriate.
The full code of practice is available at:www.cabinet-office.gov.uk/regulation/Consultation
Consultation CoordinatorIf you have any complaints or commentsspecifically about the consultation process only,you should contact the Home Office consultationcoordinator Christopher Brain by email at:[email protected]
Alternatively, you may wish to write to:Christopher BrainConsultation CoordinatorPerformance and Delivery UnitHome Office3rd Floor Seacole2 Marsham StreetLondonSW1P 4DF
Produced by COI on behalf of the Home Office, March 2007. Ref: 280261ISBN: 978-1-84726-201-1