PACE under review: no excuse for failing to maintain the dignity of those held in custody
Originally posted as an article on Lexis Nexis on 20 February 2017. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.
SI 2017/103: Three revised codes of practice issued under the Police and Criminal Evidence Act 1984 (PACE 1984) are brought into force. The changes will bring the codes in line with changes in legislation, policy, operational policing practice and case law. These changes come into effect on 27 February 2017.
The order will bring into force three revised codes of practice (Codes C (detention), D (identification), and H (detention—terrorism)) under PACE 1984. The amendments are designed to, ‘bring the codes in line with changes in legislation, policy, operational policing practice and case law’ (para 2.1 of the explanatory memorandum to the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, D and H) Order 2017)).
The changes are:
‘[To] enable the use of live-link technology for interpreters and the use of electronic recording devices and records; update and extend the provisions and safeguards for the detention and care of juveniles at police stations before and after charge and the role of the appropriate adult for juvenile and mentally vulnerable suspects; and update procedures for obtaining eye-witness identification evidence and the provisions for taking and retaining fingerprints and DNA.’ (para 7.2 of the explanatory memorandum to the Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, D and H) Order 2017)
Some of these amendments have been long needed—it was as far back as 25 April 2013 when the Divisional Court in R (on the application of HC) v Secretary of State for the Home Department (Coram Children’s Legal Centre and The Howard League intervening)  EWHC 982 (Admin),  All ER (D) 26 (May) ruled that:
‘I conclude that it is inconsistent with the rights…enshrined in Article 8, for the Secretary of State to treat 17 year-olds as adults when in detention. To do so disregards the definition of a child in the UNCRC… and the preponderance of legislation affecting children and justice which include within their scope those who are under 18. The Secretary of State’s failure to amend Code C is in breach of her obligation under the Human Rights Act 1998, and unlawful’. (para ).
The amendments to the codes of practice are primarily codifying but the strengthening of safeguards for the detention and care of juveniles before and after charge is to be welcomed.
However, this welcome must be a cautious one as a lack of funding for the proper care of children in the criminal justice system remains. The availability of space in local authority accommodation and/or secure accommodation is scarce and the solution is outside the remit of the codes of practice.
Equally, the requirement that any girl under the age of 18 must be under the care of a woman while detained in a police station (reflecting section 31 of the Children and Young Persons Act 1933) is to be welcomed but the implementation may be challenging in the resultant staffing demands and consequential delays in custody.
The potential for an increase in the use of live-link interpreters is an area of real difficulty. While there is a clear benefit in the use of live-link interpretation as a tool to reduce cost and delay—both welcome developments in strained times—this must be balanced by the principle need to ensure fairness in proceedings.
The introductory remarks to the draft revision of Code C made direct reference to Article 2(6) of Directive 2010/64/EU which permits the use of, ‘communication technology, such as videoconferencing…unless the physical presence of the interpreter is required in order to safeguard the proceedings’.
Identifying vulnerability when advising a suspect is one of the more challenging aspects of police station advice—it is made all the more challenging where a language barrier exists that may have the effect of concealing underlying communication difficulties.
The physical disconnection that comes from communication over live-link may add to these difficulties and advisors and the police will need to be alive to the possibility that interpretation over live-link may not be sufficient to safeguard fairness of the proceedings.
The second area of potential tension is with the establishment of a procedure to remove appropriate adults from an interview.
Case management guidance recommends that, ‘The first choice for an appropriate adult should be a parent, carer or other responsible family member’ (Youth Justice Board’s ‘Manage bail and remands: section 3 case management guidance’, October 2014). Despite the fact that an appropriate adult may never have been present in a police station prior to the arrest of their family member, their role remains to:
The new procedure for the removal of an appropriate adult from an interview largely mirrors the well-established procedure for the removal of a solicitor; but, while a solicitor will be expected to know both the procedural safeguards and codes of practice, an appropriate adult will be in a very different position.
Before an appropriate adult is removed the solicitor will be afforded the opportunity to comment and this causes a potential difficulty where the appropriate adult is related to the suspect. While a solicitor should clearly remain objective the professional relationship between a solicitor and the suspect may be damaged if the suspect perceives his solicitor as being unsupportive. Ultimately, the solicitor’s decision to engage in this process must be determined by what they believe to be in the best interests for their client.
In addition to the revision of Code D practitioners should remain alive to the possibility of ‘Facebook identifications’ and Thomas PQBD’s (as he was then) observations in R v Alexander and McGill  EWCA Crim 2768,  1 Cr App Rep 334, that:
‘if…identifications occur in the way in which this identification occurred, namely by looking through Facebook, it is incumbent upon the police and the prosecutor to take steps to obtain, in as much detail as possible, evidence in relation to the initial identification. For example, it would be prudent to obtain the available images that were looked at and a statement in relation to what happened.’ (para ).
This is especially relevant where a bail determination is to be made and in light of the provisions of PACE Code C, para 16.7A and Note for Guidance 3ZA whereby:
‘The custody officer making the bail decision…is responsible for determining what, if any, documents or material are essential [to effectively challenge the lawfulness of arrest or detention] and make these available to the detainee or their solicitor’.
When in force, section 78 of the Policing and Crime Act 2017 will permit revisions to the codes of practice which are necessary in consequence of legislation (and where the Secretary of State has no discretion as to the nature of the revision) to occur without the need the for consultation.
While this can be expected to provide for a more frequent revision of the codes of practice it is likely that the next major change will fall outside of this scheme as the forthcoming changes to police bail will inevitably lead to the development of new practice and procedure which will necessitate a further review of the codes of practice.
For further information on the issues raised in this blog post, please contact a member of our criminal litigation team in confidence.
Matthew Hardcastle is an Senior Associate in the criminal litigation team with experience in cases involving general and white collar crime. He has significant experience of advising clients during interviews under caution both following an arrest and during a voluntary attendance. Matthew’s experience includes advising high profile individuals and advising in matters which attract significant media interest. He is the co-author of Blackstones Police Station Handbook.
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