PACE update: Changes to Code E

1 February 2016

The Police and Criminal Evidence Act 1984 (‘PACE’) is accompanied by a number of Codes of Practice which provide guidance on the detention and treatment of suspects. Code E is the Code of Practice governing the audio recording of interviews with suspects.

The basic principle is that interviews of suspects detained in relation to indictable offences must be audio recorded. Since October 2013 this principle applies to interviews which take place at a location other than a police station, and also includes interviews of suspects who attend as volunteers, rather than under arrest.

However, the drive towards increased use of out of court disposals for specified low level offences has led to changes being proposed in relation to four specific indictable offences. These are:

  • Possession of cannabis
  • Possession of khat
  • Retail theft
  • Criminal damage

As of 2 February 2016 it will not be necessary to audio record interviews where the suspect has been detained on suspicion of committing one of the four offences listed above.

In each case certain conditions must be satisfied in order for the exemption to the requirement to audio record an interview to apply. If a person is arrested and/or interviewed at a police station it will still be necessary to audio record the interview. However, if a person is not arrested and is interviewed elsewhere, no audio recording is required if the suspect:

  • Appears to be aged 18 or over;
  • Does not require and appropriate adult;
  • Appears to be able to appreciate the significance of questions and their answers;
  • Does not appear to be unable to understand what is happening because of the effects of alcohol, drugs or illness;
  • Does not require an interpreter.

It will also be necessary to establish that the alleged offence did not result in injury to any person, did not involve any realistic threat of injury to any person and did not cause any substantial financial or material loss to the private property of any individual.

In relation to cannabis and khat, the quantity of the substance found must be consistent with personal use by the suspect and there must not be grounds to suspect an intention to supply it to others.

For offences of retail theft, the value of the property stolen must not exceed £100 (inclusive of VAT), must be recovered in a condition fit for resale, and the suspect must not be an employee of the company to whom the property belongs.

The value of any suspected criminal damage must not exceed £300 and the person suspected of damaging the property must not be employed by the person to whom the property belongs.

The changes are intended to facilitate the out of court disposal of four of the most common types of indictable offences allowing the police to allocate resources to tackling more serious crime. However, there is a risk that in encouraging officers to proceed on this basis could create situations where exculpatory statements are not captured either by audio recording or by note taking which potentially prejudices a suspect’s defence should the matter proceed to court.  There is also significant pressure on the police officer to make the correct judgement call in respect of the suspect’s age, understanding and command of English. An incorrect assessment by an officer could lead to unjust outcomes, for example someone could end up accepting a caution for an indictable offence without fully understanding the potential implications.

The drive to increase efficiency and reduce pressures on courts for low level offending is understandable, but it must not be at the expense of justice and individual rights.

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