Official Report (Hansard)

Session: 2012/2013

Date: 20 September 2012

Committee for Justice

The Police and Criminal Evidence (Northern Ireland) Order 1989 (Codes of Practice) (Revisions of Codes C, E, F, and H) Order 2012

The Chairperson: I welcome David Hughes, head of policing policy and strategy division in the Department; Coleen Doak, from the policing policy and strategy division in the Department; Chief Superintendent Alan McCrum, district commander from the PSNI; and Yvonne Cooke, the PSNI’s head of custody, healthcare and reducing offending.  You are all very welcome.  The session will be recorded for the Hansard report and published in due course.  I invite you to give us a brief presentation, and then members will ask questions.

Mr David Hughes (Department of Justice): Thank you very much for the opportunity to come back to the Committee with the draft order.  As you have set out, the Committee has raised concerns on two of the issues in particular, but also on some issues previously.  I will set out the content of the order, which will effect changes to codes C, E, F and H.  The revisions cover four areas, as has already been set out:  to allow for the introduction of secure digital recording of interviews; to facilitate changes to healthcare provision in police custody; to respond to the introduction of post-charge questioning of terrorist suspects; and, fourthly, to ensure that the guidance correctly reflects the law as it relates to the period of detention of terrorist suspects.  After the 12-week consultation period, the Committee considered those revisions in May and, at that point, it received a summary of responses.  The Minister is satisfied with the code revisions and intends to have the codes laid in the Assembly and brought into effect under the negative resolution procedure by draft statutory rule, which is before the Committee today.

At the outset, the intention behind the Police and Criminal Evidence Act (PACE) codes is to provide protections to detained individuals, the police and those involved in the wider criminal justice system.  They are used day to day by the police and others to interpret the provisions of the PACE order to set out how the PACE provisions should be translated operationally into policing.  Therefore, they are relied upon by the public — particularly those detained by the police — to ensure that they have available to them information about their rights.  They are used by the police to govern investigations and other activity.  They are used by defence lawyers to ensure that individuals are afforded their rights, as well as by the judiciary and other accountability and investigative bodies in the criminal justice system.

I understand that the Committee is content with the proposed revisions to codes E and F, which are about keeping abreast of technological developments by allowing for digital recording.  Your letter in June advised that there were some issues with the other revisions.  I will briefly summarise what those revisions intend to achieve.  The PSNI would like to improve the provision of healthcare in police custody suites, enabling a more flexible and appropriate level of care than at present to be provided.  To achieve that, PACE codes C and H need to be revised to enable the deployment of other appropriate healthcare professionals.  Whether a healthcare professional is the appropriate one depends on the circumstances and the duties that are sought at the time, of course.  That term would encompass the current forensic medical officers, but would also include other healthcare professionals, for example psychiatric nurses, to augment the current service.

It is worth underlining that revisions to the code do not remove the responsibility from the police to ensure that a detained person receives appropriate healthcare as early as possible if that person appears to be suffering from physical illness, mental disorder, is injured or otherwise appears to need medical attention.  It is clear that individual needs are becoming increasingly complex, with a significant number of detained persons presenting with addiction and psychiatric issues or being assessed as being at risk due to their emotional state.  By widening the resources available to address such issues, the PSNI will enhance services provided by forensic medical officers, whose services will still, of course, be required.  Therefore, the proposed changes are intended to offer a better service to detained persons at the same time as delivering a more effective and efficient service for the public at large.

I also note the relevance of healthcare provision to the wider efforts by the police and others to reduce offending.  Of the means to reduce offending, one of the most powerful is to understand and to tackle factors that influence an individual's engagement in criminal behaviour, which the police believe can be achieved only in partnership with others.  Work will be done to explore that with, for example, the Department of Health, to establish what support services might be provided to individuals leaving custody who may have mental health issues, drug or alcohol dependency, be displaying suicidal tendencies, and so on.  It is worth noting that such an approach is consistent with the general strategic direction of travel in healthcare provision for those in police custody in other jurisdictions.  Other drivers for change that we noted previously include the recommendations flowing from the Criminal Justice Inspection report 'Not a Marginal Issue' and from the Bamford review.

The Committee will wish to be aware of the Policing Board's response to the consultation.  The response that was received in September was not available in May, and the board has provided some general comments on the proposed amendments to the codes.  The board highlighted that, in line with the current policing plan, the PSNI is committed to this review of custody provision, including healthcare, as one of its initiatives for continuous improvement.  It notes the assertion that proposed amendments to code C do not diminish police responsibility to provide adequate healthcare to detained persons.  The board further comments that it would welcome the review resulting in a cost saving while improving healthcare provision.  I should also note that the board drew attention to the views of the independent reviewer of terrorism legislation, David Anderson QC, in respect of the specific demands of terrorist suspects for healthcare.  The board looked at whether the code's definition of "appropriate healthcare professional" offers the assurance that the relevant healthcare professional is sufficiently experienced or independent.  In response to that, we would note that the revision of the code in no way detracts from the operational responsibility of the PSNI for ensuring the proper healthcare provision, including for terrorist suspects. 

Code H provides detailed guidance on the exercise of police powers and the detention, treatment and questioning of persons held in police custody under terrorism legislation.  To reiterate the point that was made to the Committee previously, the Department of Justice is not responsible for policy on the matter of counterterrorism and cannot comment on the formulation or implementation of that policy.  However, we are responsible for ensuring that the codes of practice that are issued to the police are up to date and provide the necessary safeguards for those involved.  Although the code revisions cannot reflect or influence the UK Government's terrorism policy, it is necessary to outline the background to inform the connection between that and the revisions that are before the Committee again today.  First, in respect of the detention of terrorist suspects, the current text of PACE code H provides guidance to the police in respect of detention for 14 days and beyond.  The text dates from the period when 28-day detention was an option, and the code was not revised following the repeal of the legislation that allowed for 28-day detention and the reversion to a maximum 14-day detention.  With that repeal, the UK Government also put in place contingency arrangements for the introduction of a Bill under emergency procedures at Westminster to enable, in exceptional circumstances, a 28-day limit to be reinstated at short notice should the need arise.  Therefore, the revisions to PACE code H would be required to reflect the reversion to a maximum 14-day detention period and the new contingency measure.  They would ensure that the operational guidance for dealing with detention without charge beyond 14 days is cast within the correct statutory provision.  It is worth noting that the PSNI has never had the need to detain any suspect beyond 14 days before charge.

It is also worth noting the views of the Policing Board on that aspect of the revisions.  The board has advised that it appreciates that some of the proposed amendments to code H relate to legislative change at Westminster.  It also raised a query around bail, and noted that paragraph 52 refers to the fact that there is no power to detain a person solely for the purposes of post-charge questioning.  The board suggested that the Department may wish to consider an explicit reference to bail.  In response to that, it is worth noting that rather than making isolated code revisions about bail at this stage, the Department feels that that point needs to be taken on board for future consideration, given that bail is a complex area and was not included as part of the consultation for these revisions.

The fourth driver behind the proposed revisions is the UK Government's decision to introduce post-charge questioning in terrorism cases.  That policy flowed from a recommendation by the parliamentary Joint Committee on Human Rights aimed at reducing the need for extensive pre-charge detention of terrorist suspects.  The Joint Committee was critical of lengthy periods of detention without charge to which some terrorist suspects were subject, and the introduction of post-charge questioning was considered to be a remedial measure to encourage the police to lay charges at the earliest opportunity.  The PSNI has indicated that it would value having that provision at its disposal, particularly as the number of arrests and charges that the terrorist investigation unit has undertaken increases.  The use of post-charge questioning would reduce the need for lengthy pre-charge detention, where, for example, a terrorist investigation involves multiple arrests or the seizure of numerous items that necessitate a lengthy examination process.  The provision that allows for post-charge questioning in that UK legislation is heavily proscribed in relation to the circumstances in which it may be used.  It would be subject to judicial approval, and the suspect would be entitled to the full range of safeguards provided under PACE code H and would have the opportunity to respond or otherwise.  Should the amendments to code H in respect of post-charge questioning not be made, the police would be left without guidance as to how that provision might be exercised properly.  As an excepted matter, commencement of the post-charge questioning provisions in Northern Ireland falls to the Secretary of State.  There are separate and equivalent provisions in the act for England and Wales and Scotland, and the code H revisions would provide guidance in line with the introduction of post-charge questioning under the Counter-Terrorism Act 2008. 

Those are the points that I want to make by way of opening remarks.  I am happy to take questions.

The Chairperson: Thank you.  To try to progress this, we will go through each of the codes rather than going to people and potentially talking about all four.  Do members have any questions on codes E and F, which relate to digital recording?

Mr McCartney: Will the recordings be made available to defence lawyers?

Mr Hughes: I am afraid that I do not know the detail.  It would not entail a change from how recordings are treated at present.

Mr McCartney: I think that, at present, summaries are sometimes provided.  Will that be extended now so that they get the full recording?

Mr Hughes: I am sorry; I am not informed on that.

The Chairperson: By that, Mr McCartney, do you mean that if it is still in line with current custom and practice, you have no issue with the digital element?  My reading of these is that it is just to allow digital recording to take place.

Mr Hughes: Yes; it is just to change the text of the code.  Instead of saying "videotape" or "audiotape", it says "digital recording".  It is just a change in phraseology.

Mr McCartney: OK.  If that is the case, I will rest it at that.  A wider concern is whether the codes will allow for full rather than partial transcripts.

Mr Hughes: That becomes a different issue, but it has been noted.

The Chairperson: Does any member have any other view on recordings?  If we are clear that what this means is that digital recording is now allowed but the release of that will still be the same as current custom and practice, are members content that these codes can be brought forward again to the Committee for proper approval?

Members indicated assent.

The Chairperson: We will go to the health professional-related one, which is code C.  Do members have any questions on the change from "forensic medical officers" to the term "healthcare professionals"?

Mr McCartney: Again, these are small points.  Throughout the text, except for a couple of exceptions, the term "forensic medical officer" is replaced by "appropriate healthcare professional".  Who makes the decision in the station about what an appropriate healthcare professional is for a given situation?

Ms Yvonne Cooke (Police Service of Northern Ireland): There is clear guidance from the Association of Chief Police Officers (ACPO) on when a forensic medical officer should be used, when a nurse could be used or when a paramedic could be used.  As for the decisions to be taken in custody suites, the officers concerned would have relevant information on which of the professionals could be used in each instance.  It would also be risk-assessed.  We have been looking at some of the services and forces that have already started to use other appropriate healthcare professionals, and we will look at the instances in which they have used each of the different types and what the service provision has been.  It will not be up to the decision of a custody officer.  There is clear guidance, and a risk assessment will be done.

Mr McCartney: Is that included in PACE, or is it in another regulation?

Ms Cooke: It is in the ACPO guidance on custody.

Mr McCartney: Therefore, there will be a reference to follow the guidance?

Ms Cooke: Basically, you have to; yes.

Mr McCartney: It was not clear from the reading.  In respect of a person being ready for questioning, are there clear guidelines about the person responsible, not just an appropriate healthcare —

Ms Cooke: There are.  Basically, it would state that a forensic medical officer would be the first port of call for interview.  A nurse can be used in some instances if they have an appropriate level of training.  However, in most cases in the forces and services that have adopted this, it has been the forensic medical officer.

The Chairperson: Does the change improve the healthcare that can be provided in the system?

Ms Cooke: Yes.

Chief Superintendent Alan McCrum (Police Service of Northern Ireland): I contend that it would.  This is about complementing the existing forensic medical officer regime to have a more bespoke approach to manage the complex needs of people who come in to police custody.  There is a range of complex needs, from mental health to right across the whole addiction spectrum.  It is our contention that the proposed change would complement and enhance what we provide to support those who come into police custody.

The Chairperson: With that clarification, are members content that the issue of forensic medical officers being changed to healthcare professionals can be brought back to the Committee for formal approval?

Members indicated assent.

The Chairperson: The easy one is the last one.  It is code H.  Do members have any comments on the 14-day to 28-day detention?

Mr McCartney: In broad terms, we have said before that we are opposed to 28-day detention, so we will not be approving the changes to that code.

Mr A Maginness: We are opposed to it as well, but what difference does it make if we do not approve the changes to code H?  The time periods are decided in statute, and if we were not to approve code H, that would not remove that capacity from the police.

Mr Hughes: That is right.  The code is drafted as if there were 28-day detention, so the changes to the code would simply be to reflect the fact that there is not 28-day detention but a maximum of 14-day detention.  However, there may be an occasion on which the UK Government could introduce 28-day detention again through their legislation.  If the changes were not made to the code, it is not that there would be no guidance to the police but that it would not refer to the most up-to-date statutory framework.  In practice, the code contains guidance to the police on what to do if someone is detained for 28 days, because it has not been changed since there was 28-day detention.  Not making the change just makes the code look slightly out of date but does not change —

Mr A Maginness: There is no substantive difference.

Mr Hughes: No.  If the Westminster Parliament were to decide to reintroduce 28-day detention, it would still do so.

Mr A Maginness: What difference is there in the code about a maximum of 14 days' detention?  Is there any real difference?

Mr Hughes: Coleen can stop me if I am getting this wrong, but I think that I am right in saying that, in the way in which the code is cast, it provides guidance for detention up to 14 days and then on what one does if detention extends beyond 14 days.  In effect, it gives the guidance to the police on what should be done up to 14 days and what should be done after 14 days.  Therefore, it works for the current scenario where it is only possible up to 14 days.

Mr A Maginness: On the issue of extending to 28 days, it really makes no difference what we do with code H.

Mr Hughes: In practical terms, probably not really.  In these circumstances, however, it is always better to have the codes properly reflect the statute as it exists, rather than their being out of date.  I can foresee the risk attached to a code of practice that, although perfectly practicable, may not be precisely up to date in its references.

Mr Dickson: The question that I was going to ask has essentially been explained.  If there is concern about increasing it, we do not need to exercise that concern, because we can simply leave it alone and accept it from an administrative perspective.  It might be appropriate to change it in some future legal challenge, but the reality is that it is not that broken and does not need fixed.

Mr Hughes: That fairly encapsulates it.  As you said, there will always be the risk of legal challenge where something is not absolutely perfect.

The Chairperson: For my own clarity, is it the case that the police cannot hold someone for 28 days even though the PACE code regulates that?

Mr Hughes: The PACE code gives guidance if that were to happen.  That has not been changed since the days when there was 28-day detention.

The Chairperson: The primary legislation was changed at Westminster.  Therefore, the police could not do that, even though the guidance is there.

Mr Dickson: Arguably, there is an alternative to this.  You could simply take out the guidance on what you do in 28 days, because the law allows for only 14 days.  Should the law be changed to 28 days — heaven help us if that were to happen — further guidance could be provided at that time.  We should actually be improving the code by taking out the reference to what happens after 14 days.

Mr Hughes: The risk there is the speed with which the code can be changed to put something back in that gives guidance on what to do if there is 28-day detention.  That is likely to be far slower than the speed at which Westminster can put in place emergency legislation restoring 28-day detention.

The Chairperson: And this place might not let you do that once you have changed it.

Mr Hughes: And we would put all that before the Committee.

The Chairperson: That is fine.

On the statutory rule, there is agreement on all areas, bar the provision on 14-day to 28-day detention.  Can the Department bring forward the statutory rule on the areas on which there is agreement?

Mr Hughes: Our reading of the statutory rule is that the order effectively puts in place the revised codes.  Therefore, what we will need to do is bring forward the codes as revised.  However, the text of the order does not need to be changed, because all it says is that codes C, E, F and H are being revised.  Its explanatory note might need to be updated, but the order covers whatever revisions happen to be in the code that is brought to the Assembly.

The Chairperson: That is fine.  You can bring it forward based on the discussion that you have had around the table.

Mr Elliott: Effectively, we are not implementing code H, as suggested by the Department?

The Chairperson: The Department will bring forward the codes as revised.  There is obviously not going to be agreement on code H, which is to do with 14-day to 28-day detention.  Therefore, the Department needs to revise the explanatory note so that members are not put in a position in which they need to vote against everything.

Mr Hughes: Before I go, can I check the position on post-charge questioning, which is the fourth part.  Is everyone content that we need to extract the reference to 28 days?

Mr McCartney: That is related to post-charge questioning as well.

Mr Wells: Can I just get a wee clarification on Tom's line?  Some of us are perfectly content with the suggestion of 28-day detention.  There is no problem at all with that.  I am old enough to remember a time when we certainly needed that.  Are you going to bring back two rules, one including code H and one with a separate code H, or are you going to drop code H completely?

Mr Hughes: I understood that the matter at issue is that there will not be agreement on changing code H around the issue of 14-day to 28-day detention.  Therefore, on the basis that there is not agreement around that, let us go with what there is agreement on; namely, the other changes around healthcare, audio and visual recording, and post-charge questioning.

The Chairperson: That is my position.  Let me be clear:  bring forward what we have agreed on.  I am quite happy to vote through the other one on a separate, related item, if that is what you want to do in order to bring that forward.  You will get that.  I do not want to hold back the other aspects, on which there is agreement.  Therefore, take forward the issues where there is agreement.  If you want to pursue the issue around 14 to 28 days, bring it to us again and see where the cards fall.  That is not a problem for the Department, is it?

Mr Hughes: No.  May I just check one thing?

The Chairperson: You have things in the bag so do not blow it.

Mr Hughes: I am not.  The bit that has not been mentioned is post-charge questioning, which is the fourth part.

Mr McCartney: Our opposition to code H includes post-charge questioning.

Mr Hughes: That is the clarity that I need.  I also want to make clear that code H needs to be changed to reflect the healthcare provision.  Therefore, that is why the order, which says that we will bring forward provisions for codes C, E, F, and H, will stand exactly as that, because the reference to code H in that refers to the healthcare provision for those detained under code H.

Am I right in thinking that there is disagreement among the Committee not just on the reduction from 28-day to 14-day detention but on post-charge questioning?  The Department is very keen to ensure that the codes are updated to reflect the change in the law on post-charge questioning.

The Chairperson: You have indicated that you are opposed to that aspect of it?

Mr McCartney: Yes.

The Chairperson: Bring forward the code, changing the aspects, and bring the 28-day issue forward again, but I want you to decouple the issue.  I cannot be any clearer than that, David.

Mr Hughes: That is enormously helpful.  That is the clarity that we need.  We will go away and make sure that we keep this moving forward.

Mr Dickson: This is a bit of a conundrum, because although people in this room may be opposed to 28-day detention, we do not have 28-day detention.  Nevertheless, the code provides for good practice.  It is weird that, even though you may be opposed to 28-day detention — you will have to take that up with the UK Parliament — you would not wish, if it were imposed on us, to ensure that the best code of practice was in place?  I do not understand that.  It is not a case of tipping a wink to say, "Well, if it is 28 days, we will have it."  I cannot understand why you are denying best practice even in a worst-case scenario.  That is effectively what you are doing.

Mr McCartney: With respect, I am opposed to hanging someone upside down, but I do not say, "If you do it, here is the way that you should do it."

Mr Dickson: No, it is not.

Mr McCartney: That is the way in which I view it.  If you approve a code of practice for people to be held for 28 days, people could accuse you of approving 28-day detention.

Mr Dickson: That is your view.  My view is that this is a code of practice and that we should be providing for best practice.  What is the difference between 14 days and 28 days in the context of how people are treated?

Mr McCartney: I am also opposed to 14-day detentions.

Mr Dickson: We know that you are opposed to any detentions, but that is another story.

Mr McCartney: No.  It is wrong to say that.  The European Court says that five days is sufficient for any suspect to be questioned, and, indeed, the law proves that most people who end up in court make admissions within the first 48 hours.  Sometimes holding people for longer can lead to miscarriages of justice, and that has been the trend in many countries, not just here but elsewhere.

The Chairperson: We can have the wider debate on the 14, 28 or five days, but it is clear how to take the PACE codes forward.

Mr Elliott: I still believe in Stewart's line that we should approve all this.  I do not have an issue with it, and we are simply not in control of the 14-day or 28-day detention.  However, we could at least have good practice, and I prefer that we press to approve all of it.

The Chairperson: I have no problem approving the 28-day rule either, but I would rather the Department bring forward the issues that we all agree on and we then focus on the number of days, whether it be five, 14 or 28, and have a discussion and a vote.  You can take it forward on that basis.  Thank you.

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