PACE under review: no excuse for failing to maintain the dignity of those held in custody
The Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Codes C, E, F and H) Order 2018 changes will bring the codes in line with changes in legislation, policy, operational policing practice and case law. These changes to Codes C (detention), E (audio recording of interviews), F (visual recording of interviews) and H (detention – terrorism) come into effect on 31 July 2018. This blog sets out the key changes due to come into force.
The main revisions to Code C concern the safeguards for vulnerable suspects, voluntary interviews and amendments to PACE by the Policing and Crime Act 2017.
The new definition of ‘vulnerable’ replaces the reference to mentally vulnerable and now describes a range of functional factors which, if there is any reason to suspect any may apply, will require an appropriate adult to be called (see paragraph 1.13(d) of Code C). There is also a requirement for proactive steps to be taken to identify and record factors that indicate whether a suspect may require the assistance of an appropriate adult. These changes apply to both adult and juvenile suspect, although an appropriate adult must always be called for juvenile suspects by virtue of their age. The changes also update the description of an appropriate adult and the specifications for who can act as one. The update makes it explicit that an appropriate adult, who is not a parent or guardian in the case of a juvenile, or a relative, guardian or carer in the case of a vulnerable person, must be independent of the police.
The changes in relation to voluntary interviews take into account concerns that suspects might not realise that these interviews are just as serious and important as being interviewed after arrest. There will be a requirement to inform a suspect of all the rights, entitlements and safeguards that will apply before they are asked to consent to the interview and to be given a notice to explain those matters.
The amendments to the audio and visual recording of interviews apply to all interviews for all types of offences, and for all suspects – whether or not they are arrested and irrespective of the case disposal outcome. The only time an interview cannot be audio recorded is when the ‘relevant officer’ determines that a device is not available or cannot be used and that the interview should not be delayed until such a time that it can be audio recorded. Only in those circumstances can a written record of the interview be made.
The changes specify the types of devices that can be used to audio record interviews. Notably this specifically does not refer to Body Worn Video (“BWV”). It will be interesting to see how the provisions in Code E which permit street interviews for possession of cannabis; possession of khat; shoplifting; and criminal damage will be conducted. As the amendments to PACE do not list BWV as an approved device, presumably a written record will be made. However, given the requirement to inform a suspect of all of their rights and entitlements before they are asked to consent to a voluntary interview, it may be that street interviews will no longer be practicable for these offences.
Code F also clarifies that the police are under no obligation to make a visual recording.
The amendments to Code H mirror the changes in Code C in relation to vulnerable suspects.
Should you have any questions about the issues covered in this blog, please contact a member of our Criminal Law team.
Vivien Cochrane is a Senior Associate in the Criminal Litigation team. Her practice focuses on serious and complex crime and she has experience of representing clients across the full spectrum of criminal matters. She has a very good understanding of the strategies involved in advising clients from the outset of a criminal investigation and the tactics and complexities of representing clients at trial.
This blog was co-written by Carl Wheeler.
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