Police and Criminal Evidence Act 1984 (Codes of Practice) Order 2008

– in the House of Lords at 7:43 pm on 23rd January 2008.

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Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, the order before the House this evening proposes amendment with effect from 1 February 2008 to Codes of Practice A to E issued under the Police and Criminal Evidence Act 1984. The Police and Criminal Evidence Act 1984 requires that, before the codes are laid before Parliament, the Government must first consult the Association of Chief Police Officers, the Association of Police Authorities, the Bar Council, the Law Society and the Institute of Legal Executives. That process was completed in September and October of last year and the summary of responses was subsequently published on the Home Office website. Additionally, we took advice in advance from the Home Affairs Select Committee on both the method of consultation and the process to be followed before this House.

In addition to the codes, I have also laid the register of changes before Parliament to assist the House in identifying the changes that are proposed. The register not only shows what the changes are but who proposed each change and why. I hope that noble Lords have found that information helpful. Noble Lords will have recognised that most of the changes reflect changes in legislation since the last version of the PACE codes was published in January 2006 or make minor typographical corrections. Accordingly, I do not intend to speak on each and every amendment. Instead, if noble Lords will permit, I will address only a number of specific areas.

First, I shall deal with the implementation of the recommendations of the review of the noble Lord, Lord Carter. The changes in Code C will take forward a recommendation from the noble Lord's review on legal aid procurement through the expansion of Criminal Defence Service Direct—CDS Direct. CDS Direct is a telephone advice service providing advice to detainees at police stations who are arrested for relatively straightforward offences such as drink-driving, disorderly behaviour or minor assaults.

As my colleague the Minister for Security, Counter-terrorism, Crime and Policing indicated during consideration of this order in another place, the Legal Services Commission has been running a CDS Direct pilot since October 2005. The focus of the pilot has been to offer telephone advice in suitable cases and to those who would otherwise have been referred to a duty solicitor. The pilot has produced impressive results. CDS Direct answered 97 per cent of requests for legal advice within half an hour and generated net savings to the legal aid budget of £4 million per year.

The changes proposed to the Notes for Guidance 6B1 and 6B2 in PACE Code C do not extend the range of offences that are considered suitable for telephone advice; they simply extend the service to include cases where the suspect asks for advice from a specific solicitor. The decision to include these types of cases follows from the outcome of the public consultation exercise carried out last year by CDS Direct on expanding the service to cases where a detainee would request his or her own solicitor. This is anticipated to achieve a rise in the net savings to the legal aid budget of a further £2 million to £6 million per year. Importantly, it will mean that detainees are able to achieve access to legal advice at the earliest opportunity and that the time they spend in police custody may subsequently be reduced.

It is vital that the quality of legal advice is not compromised. That is why the minimum quality standard that CDS Direct providers have to achieve continues to be higher than that needed by firms of solicitors.The benefits from these changes are, therefore, for both the detainee and the criminal justice system. To manage the process effectively, the expansion of CDS Direct to own-solicitor cases will be in two phases. The first will be in Greater Manchester, West Yorkshire and the West Midlands from 1 February and the second will be throughout the rest of England and Wales from 21 April. That will allow any problems to be identified and resolved quickly, without compromising the quality of service for legal aid clients.

I wish to assure the House that the CDS Direct service will continue to apply only in relation to appropriate cases. For example, a solicitor will still be called to attend the police station where the police are going to carry out an interview or identification parade or in cases where the suspect is eligible for assistance from an appropriate adult, is unable to communicate over the phone or alleges serious maltreatment by the police.

The expansion of CDS Direct is vital to supporting the wider legal aid reform programme, the aim of which is to ensure that legal aid services are procured in a way that provides value for money for the taxpayer while maintaining a steady income for lawyers and a quality service for defendants. The government reforms to legal aid, such as the introduction of fixed fees, which the expansion of CDS Direct supports, will give legal aid lawyers a tangible stake in the efficient operation of the justice system at the police station and at court and will enable the Government to purchase services in a more efficient manner. I am aware that the Law Society was initially unhappy with the wording used by the police in relation to the use of one's own solicitor. This has now been rephrased and the new wording agreed with the Law Society and ACPO.

The changes to Code E form part of our ongoing work with the police to reduce bureaucracy and increase efficiency. They will enable Lancashire Constabulary to pilot the recording of interviews directly on to a secure digital network. At present, forces must record interviews either on tapes or on other removable media that then need to be sealed and stored securely. That has a considerable impact on police resources in terms of management and storage of large amounts of data. The pilot will enable us to work with the police, the National Policing Improvement Agency and other stakeholders from across the criminal justice system to assess the impact of using secure digital network technology both on the efficiency and the effectiveness of the police and on the delivery of justice.

Taken together, I trust that the House will support these proposed amendments to the PACE codes, which aim to improve the delivery of efficient and effective justice during the investigative process. I commend the order to the House and I beg to move.

Moved, That the draft order laid before the House on 17 December 2007 be approved. 6th Report from the Statutory Instruments Committee.—(Lord West of Spithead.)

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs

My Lords, I thank the Minister for his clear exposition of the order. While I recognise that some of these changes are extremely sensible, none the less they raise one or two questions, which I should like to put to him. Paragraph 2.3 of the Explanatory Memorandum states that the changes are rather minor and that they,

"reflect other minor legislative changes and make other minor corrections to the previous Codes of Practice".

You could be slightly misled by that into thinking that all the changes to the code are rather minor. However, it is fair to say that the proposed revisions to the code of practice are in many respects—the Minister outlined them just now—not minor at all, notably those to Code C, where significant changes are made, in particular to the right of representation in a police station for less serious offences, as the Minister pointed out.

The Minister mentioned the Law Society, by which I have been briefed, as, I am sure, have other noble Lords. He said that some changes had been made as a result of that body's representations, but they are certainly not apparent in the order. I am sure that the Law Society has drawn its concerns to the Government's attention.

Changes to the way in which representation may be accessed in a police station for those charged with some more minor offences, particularly for those who seek publicly funded representation, mean that that will now have to be carried out through telephone advice from CDS Direct. Despite what the Minister said, this removes at a stroke the right of a defendant to ask for his own solicitor, or another from the same firm, to be called. This right was previously enshrined in the PACE code. The changes now being made to remove this provision came about as a result of recommendations in the report of the noble Lord, Lord Carter of Coles—as the Minister said—to try to achieve greater economies in the legal aid system.

Furthermore, it will be for the Defence Solicitor Call Centre—the telephone advice system—to determine whether legal advice should be limited to telephone advice or whether a duty solicitor should attend the police station. Therefore, it will not be in the hands of the person who is being detained to make a choice. Only if the person detained actually says that they will pay for legal advice—therefore, it will not be publicly funded—will the police be able to contact his named solicitor directly. This then means that the officers are fully aware of the relationship between the detainee and his solicitor and possibly of the fees being negotiated in order for him to give his advice. Neither I nor the Law Society considers that a very satisfactory situation.

Another concern raised relates to the appropriateness of telephone advice for someone from an ethnic minority. The Minister said that a duty solicitor could be sent for for people who find using telephones difficult. However, some people, not only those with a disability, but those from ethnic minorities with certain cultural difficulties, particularly those who cannot speak English very well, may not have sufficient understanding to give and receive clear instructions over the telephone. Who will decide whether interpretation is necessary or whether a person from an ethnic minority or someone with a disability such as blindness or deafness has insufficient understanding?

I wish to ask the Minister the following specific questions. Have the Government considered the points raised by the Law Society? If so, how do they justify the restriction of a telephone-only service where someone may justify publicly funded advice but have their own solicitor? Does the Minister see the difficulty that, where a detainee has his or her own solicitor, the only way in which they can have access to him or his firm is by telling the police that they are going to pay for it? Surely that is not a matter where the police should have any involvement, although that is what is being brought about by the limitation to the telephone-only system. Can the Minister tell us how the difficulty of appropriate ethnic minority representation is to be handled?

The last matter under Code C—this point was not raised by the Law Society—to which I refer is the inclusion of provisions for both a caution and a warning to be given in Welsh. I know that this will apply in Wales but does the order presume that the caution or warning will have to be given first in English and then in Welsh, or will it just be given in Welsh, in which case other people present might not understand what has been said?

Finally, provision is made under Code E for interviews to be undertaken by a digital recording system, as the Minister said. He explained that a pilot would take place in the Lancashire Constabulary, east division. How long will it last? Will the end date of the pilot be put into the code? At the moment the pilot is open-ended. Presumably, before this measure is rolled out, not only will discussions take place with other interested parties but the code will have to be amended. As I say, at the moment the pilot is limited to the Lancashire Constabulary. I hope that the Minister will comment on that.

The more important point that arises from these interviews, on which the Minister touched, is the whole question of how the integrity of the interview is to be guaranteed, as under this system there are no tapes that can be sealed. In fact, all references to sealed tapes are taken out under the changes to the code. Discussions will take place while the pilot is conducted, but how will the integrity of the recording be guaranteed? In particular, there is a need to ensure that there can be no suggestion of subsequent manipulation of the interview that has been given. Has consideration been given to producing a simultaneous CD or DVD that could physically be sealed in the presence of the detainee, thereby giving that reassurance? I understand that after the introduction of the PACE system—that is, of recorded interviews being sealed in the presence of the detainee and his solicitor, if present—disputes in court over what was said at interview fell to virtually nil. It would be clearly counter to good justice if there were a return to such interview recordings being considered unreliable because they could be perceived as having been tampered with.

I apologise for detaining the House on a number of questions, but I think that they need an answer. I hope that the Minister will be able to supply the answers tonight.

Photo of Baroness Miller of Chilthorne Domer Baroness Miller of Chilthorne Domer Spokesperson in the Lords, Home Affairs 8:00 pm, 23rd January 2008

My Lords, these changes to the code address some important principles. One of the more cheering aspects was that, the other day, the other place fully debated this order, unlike the Criminal Justice and Immigration Bill. I have drawn on the Minister's reply there in some of my comments. I thank the noble Lord, Lord West, for giving us the benefit of his view on the changes and I hope that some of my questions, which follow on from Tony McNulty's comments, will be appropriate.

The suspect's access to legal advice and their choice of solicitor in providing such advice is crucial. It seems that this code is now moving towards a two-tier justice system, which is a surprising thing for this Government to be aiming for; I would have thought that they were aiming to give more equal justice to all. If I interpret correctly what the Minister said, if you pay you can get your own solicitor if you want to, and if you do not pay you do not. That really is a two-tier system.

Are those things that are considered minor classified according to the tariff that they would incur should the case go to court and the person be found guilty? A minor assault might not be so minor when you look at the tariff for it. How was the issue of the minor matter decided, or will it be up to the judgment of the police in particular cases? That issue deeply concerns these Benches, because the police would arrest and detain a person, and the police would then make a judgment on whether the case was minor. The Minister mentioned cases of serious maltreatment, but again who will judge that? It will be the police, I presume, in the first instance, who will judge whether the suspect has been seriously maltreated by the police. That is certainly not without its problems.

I gathered from the other place that the proposal on CDS Direct will be rolled out in two phases: Greater Manchester, West Yorkshire and the West Midlands in February and, if this order is passed, the rest of the country in April. That leaves only one month for evaluation, which seems extremely short. Is the Minister satisfied that one month to evaluate such fundamental changes is anything like enough?

In the first evaluation, in some 8 per cent of cases CDS Direct found, on providing initial telephone advice, that one of the exceptions requiring attendance of the suspect in person applied and it had to pass the case back to the duty solicitor. In 22 per cent of other cases, the matter had been misdirected. In other words, in nearly a third of cases the police had assessed the situation and got it wrong, which is pretty bad for the suspect and a waste of everyone's time at best—at worst, it threatens or actually affects adversely the suspect's rights. What sort of thing would constitute serious maltreatment? If, for example, someone was arrested who should be taking medication and they were denied that medication, would that constitute serious maltreatment? Where would a suspect be able to find any reference to what constituted serious maltreatment? How are they going to know whether something constitutes serious maltreatment and therefore be able to ask for their case to be dealt with in a way other than CDS Direct?

The Government have introduced NHS Direct, of which I am quite a fan, so I am willing to accept that the system may have some benefits. I hope that some of the fears that I have expressed will not be realised.

Lancashire is to pilot Code Echo, and I concur with the remarks made by the noble Baroness, Lady Hanham, about security. I agree that perhaps having a concurrently recorded CD that was sealed would be a satisfactory answer. The idea of having password access only is laughable when you realise what people can hack into and change digitally. If you have something that is not sealed in the presence of the suspect and is merely held in a password-access way, a digital alteration would be impossible to detect. If you get a clever hacker—we know that there are some very clever hackers out there—it is possible to think of some really quite serious situations arising. That is a cause for concern, and I hope that the Government will look further at that issue.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, as I have come to expect, some useful and pertinent points have been raised by the noble Baronesses, Lady Hanham and Lady Miller, and I think that I can address those. I reiterate that, overall, this will give the Government better value for money, and there are safeguards that cover the issues that were raised.

On the accusation that the system impinges on the right to seek advice from one's own solicitor, detainees can have their chosen solicitor under these circumstances. The principles of how this is achieved are set out clearly in Code Charlie. The Law Society, ACPO and the Legal Services Commission have agreed on the operational detail of how the service of a chosen solicitor where the detainee wishes to pay privately or receive advice pro bono—because that can be done—is secured through the DSCC. These operational details are contained in the guidance issued to custody officers and are consistent with the amendments to Code Charlie that we are considering at the moment.

Both noble Baronesses asked about the custody officer being required under the Police and Criminal Evidence Act 1984 to determine on arrival at a police station whether a person suffers in any way from any form of vulnerability. That also includes language and ability to speak English. CDS Direct has access to what is effectively a call centre—it is rather more than that—which does immediate translation and covers a huge number of languages. It has proved extremely effective.

Concern was expressed about the security of the digital network, recordings being sealed and keeping recordings. The purpose of the pilot, which is planned to last for six months, is to reduce and not to retain bureaucracy. It will trial a secure, tamper-proof system that will enable only authorised persons to access recordings. It provides automated audit, thereby increasing rather than reducing security and accountability. I admit that sometimes in performance these things have not been as good as one might hope. We will have to look at that extremely carefully to ensure that it delivers what we expect. With regard to the pilot itself, that aspect covers the issue of records being kept securely, which both noble Baronesses touched on.

The caution can be given just in Welsh. I thought that I might be asked about that and I actually have a bit of Welsh to answer it with, but I am wary of doing so because my pronunciation would be poor. Also, in Hansard, I would probably find that the person who gave it to me had stitched me up and I was saying something totally different. I dare not say it.

The noble Baroness, Lady Miller, raised the issue of serious maltreatment. That depends on the professional judgment of the CDS Direct adviser, who is legally skilled and competent. There is also a responsibility on the custody officer to ensure that that is covered. Regarding evaluation, we have been running a pilot scheme since 2005 and, as I mentioned, we have been getting good results. With regard to what is considered a minor matter, we are looking at non-imprisonable offences, such as drink-driving, although clearly not where someone has killed someone, and breach of warrants or bail. I hope that that covers most of the points that were raised. If it does not, I am happy to come back in writing or to talk outside the Chamber.

This represents extremely good value for money and is just the sort of thing that we need to do. It will give a better service to people, as they will be able to get a response very quickly. Often in these circumstances people are keen to get out of police custody, and this achieves that as well as giving them a good service. It is vital that we continue to do all that we can to improve the delivery of justice and I am glad that these points were raised today. As both noble Baronesses said, there are important points in this order; it is not something that should just go through on the nod.

It is essential that the PACE codes maintain their relevance and accuracy because they ensure that we have systems in place during investigative processes that are fair and robust and protect the individual's rights, and they provide the most efficient and effective delivery of justice. The codes do just that. I therefore commend the order to the House.

Photo of Baroness Hanham Baroness Hanham Shadow Minister, Home Affairs

My Lords, this is, I think, a very minor point. We were talking about the pilot being undertaken by the Lancashire east division. As I understand it, the code is limited to that division; there is nothing in it to say that after April, or whenever, it will be widened out. It looks to me as if the Minister would have to come back to this House to widen it out, because there will not be approval for it to be rolled out into the wider system. The Minister might want to look at that.

Photo of Lord West of Spithead Lord West of Spithead Parliamentary Under-Secretary (Security and Counter-terrorism), Home Office, Parliamentary Under-Secretary (Home Office) (Security and Counter-terrorism)

My Lords, I thank the noble Baroness. I thought that that would happen after six months, but that is a good point and I will look at it to ensure that there is not some slip there. We will make sure that that is resolved.

On Question, Motion agreed to.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

My Lords, I beg to move that the House do now adjourn during pleasure until 8.45 pm.

Moved accordingly, and, on Question, Motion agreed to.

[The Sitting was suspended from 8.13 to 8.45 pm.]