Update: PACE

Codes of practice

My warning last year about the likelihood of further changes to the Codes of Practice ((2006) 150 SJ 359, 24.03.06) has proved prescient. The coming into force of ss 23 to 25, 37(5) and the last part of Sched 3 of the Terrorism Act 2000 on 17 July 2006 resulted in the introduction of new Code H by way of the Police and Criminal Evidence Act (PACE) 1984 (Code of Practice C and Code of Practice H) Order 2006 (SI no 1938). Code H deals with the detention, treatment and questioning by police officers of persons arrested pursuant to s 41 and Sched 8 of the Terrorism Act 2000. All reference to s 41 arrests has been removed from Code C. New Code H and revised Code C came into force on 25 July 2006, applying to any person in custody after midnight on 24 July, even though they may have been arrested before that time.

New Code H

The provisions of Code H look and feel like those in Code C, but there are some important differences. Firstly, at 1L, it states that, if a person is moved from a police station to receive medical treatment, or for any other reason, the period of detention is still calculated from the time of arrest without any deduction for the duration of any such treatment. This could be said to be a small counterbalance to the extended powers of detention permitted by this legislation. 

Looking at 3.4, it states: 'The custody officer shall record that the person was arrested under s 41 of the Terrorism Act and the reason(s) for the arrest on the custody record.' Reference is made to Guidance Note 3G, which advises the user that arrests under s 41 can only be made where an officer has reasonable grounds to suspect that the individual concerned is a 'terrorist'. As opposed to the power of arrest under the PACE, this does not have to be linked to a specific offence. There may also be circumstances where an arrest under the Terrorism Act is made on the grounds of sensitive information that cannot be disclosed. In such circumstances, the grounds for arrest may be given in terms of the interpretation of a 'terrorist' set out in ss 40(1)(a) or 40(1)(b) of the Terrorism Act.

Apart from those provisions in part 8 that mirror Code C, Code H contains extra provisions detailing conditions of detention. Part 8.6 sets down the meal regime that should be offered to detainees, including a requirement that the food provided is varied and meets any dietary needs or religious beliefs held by the detained person. Meals can be supplied to the detainee by friends and family at their own expense and at the discretion of the custody officer. Note 8A states that 'in deciding whether to allow meals to be supplied by family or friends, the custody officer is entitled to take account of the risk of items being concealed in any food or package and the officer's duties and responsibilities under food handling legislation. If an officer needs to examine food or other items supplied by family and friends before deciding whether they can be given to the detainee, he should inform the person who has brought the item to the police station of this and the reasons for doing so'.

Part 8.7, when read in conjunction with note 8C, makes it clear that there should be a daily exercise period for detainees, either outdoors or, where available, indoor exercise, except where such exercise would cause delay to the detained person's release or charge, would hamper the investigation or where it is declined by the detained person.

Part 8.8 states that provision should be made for detainees to practise religious observance where it is practical to do so, and requires that 'consideration' be given to providing a prayer room, suitable food or clothing and prayer facilities, such as uncontaminated religious books. Note 8D advises that the police should consult with representatives of the main religious communities to ensure that such provisions are adequate and that religious items are stored and handled appropriately.

Part 8.10 notes that police stations should keep a 'reasonable supply' of reading matter available for detained persons, including but not limited to, the main religious texts. Detained persons should be told about the reading matter, and any reasonable requests should be dealt with as soon as practicable unless it would either: (i) interfere with the investigation; or (ii) prevent or delay a police officer from carrying out his statutory or code-based duties. If such a request is refused on the grounds of (i) or (ii) above, this should be noted in the custody record and met as soon as possible after those grounds cease to apply.

Part 9.1 requires that detained persons who are held for more than 96 hours must be visited by a healthcare professional at least once every 24 hours. 

Paragraph 14 contains guidance for those conducting reviews and extensions of detention applications. Note 14B states that continued detention may be authorised if it is necessary: to obtain relevant evidence whether by questioning the detained person or otherwise; to preserve relevant evidence; while awaiting the result of an examination or analysis of relevant evidence; for the examination or analysis of anything with a view to obtaining relevant evidence; pending a decision to apply to the Secretary of State for a deportation notice to be served on the detainee, the making of any such application, or the consideration of any such application by the Secretary of State; pending a decision to charge the detained person with an offence.

Part 14.2 prohibits officers when reviewing a person's detention from asking that person specific questions about their involvement in any offence, or about any comments they may make when and if they make representations or comments in response to a decision to keep them in detention or extend the maximum period. Such questions could amount to a further 'interview'.

Parts 14.3 and 14.4 lay out the warrant application procedure. A warrant of further detention beyond 48 hours can only be made by a police officer of at least superintendent rank, or a Crown Prosecutor. The detained person and their representative must be informed of their rights in respect of the application that include: the right to a written or oral notice of the warrant; the right to make oral or written representations to the judicial authority about the application; the right to be present and legally represented at the hearing of the application, unless specifically excluded by the judicial authority and their right to free legal advice. Applications for warrants to extend detention beyond the initial 48-hour period may be made for periods of seven days at a time up to a maximum period of 28 days from the time of arrest.

Applications for an extension period or periods of less than seven days can also be made. If the application would take the total period of detention up to 14 days or less, it can be made to a designated district judge (magistrates' courts). Any application that would extend the period beyond 14 days has to be made to the High Court. If an application has been made for a warrant that would take detention beyond 14 days, and the High Court instead issues a warrant for a period of time which would not take detention beyond 14 days, further applications for extension of detention must also be made to the High Court.

Note 14G requires that a notice must be given to the detained person if a warrant is sought for further detention or extension of an existing warrant. This must be provided before the judicial hearing of the application and must include notification that the application for a warrant has been made; the times of the making and the hearing of the application and the grounds on which further detention is sought.

As 1.6 states, there is no provision for police bail prior to charge under the Terrorism Act, so 14.5 states that when a warrant authorising detention beyond 14 days is issued after an application to a judge of the High Court, the detained person is to be moved to prison as soon as practicable, unless they ask to stay and can be accommodated at the police station, or there are reasonable grounds to believe that a transfer would 'significantly hinder the investigation, delay the charge or release of the detainee or otherwise prevent the investigation from being conducted diligently and expeditiously'. These grounds must be put before the judicial authority as part of the warrant extension application. Part 14.6 states that if these grounds stop applying, the detained person should be moved to a prison as soon as possible. Before any transfer, the detained person's legal representative should be informed of both the transfer and the precise destination, and steps should be taken to ensure all family and friends who had been informed of the initial detention are informed of the transfer.

Part 1.2 of the Code states that on transfer to prison, Code H ceases to apply to the detainee, which is noted at 14.8. This provision makes it clear that Code H will apply once more if the detained person is transferred back to police detention; in fact, because the police have the responsibility for any transfer, Code H will apply as soon as the detained person is put in the van at prison. A detained person should only be kept at the police station as long as is necessary for the investigation to be carried out. 

Parts 14.7 to 14.10 set out some other practical considerations, and 14.11 to 14.15 set out the documentary requirements of such applications. It is to be hoped that the provisions of Code H will be seldom used.

Just when you thought it was safe to go to the police station, along comes another amendment to the Codes, by way of the PACE 1984 (Revisions to Code A) Order 2006 (SI no 2165), which has permitted a six-month pilot scheme involving the use of mobile data technology to be operated by officers working from the West Ham, Wembley and Hammersmith offices of the British Transport Police. An electronic record of a stop or stop and search can be provided in place of a full record, provided that the full record be made available later. The results of this pilot should prove most interesting. 

Case law

The new arrest provisions of PACE as amended by the Serious Organised Crime and Police Act 2005 came under the passing scrutiny of Underhill J in C v The Chief Constable of 'A' Police and 'A' Magistrates' Court [2006] EWHC 2352 (Admin). This was an application for a judicial review of, among other things, the lawfulness of the applicant's arrest as part of the well-known 'Operation Ore' in early 2006. The Court observed that it may be arguable that the test of 'necessity' as set out in s 24(5) of PACE had strengthened the test of reasonableness most latterly set out in Al Fayad v Commissioner of Metropolitan Police [2004] EWCA Civ 1579 by Lord Justice Auld. The nature of any court review into the grounds for an arrest will still involve a 'detailed and fact-sensitive enquiry into the decision-making process of the constable making the arrest'. In this particular, case, the judge did not feel he had adequate information to conduct such an investigation and to make a ruling on this issue. The application was refused for this and for other reasons.

Conclusion

The avalanche of legislative change continues. Practitioners do not need powers of clairvoyance to expect future additions and amendments to the Codes of Practice. Making sure that the Codes are properly complied with is becoming an ever-greater challenge for police and legal representatives alike.