Correspondence

Home Office circular 012 / 2013

Published 24 October 2013

The purpose of this circular is to highlight revisions to six of the codes of practice, issued under the Police and Criminal Evidence Act 1984. These revisions have all been subject to statutory consultation as required under section 67(4) of PACE. The revised codes were laid before Parliament on 21 October and will come into effect at 00:00 27 October 2013.

The codes which have been revised are A (stop and search), B (search of premises and seizure of property), C (detention of suspects), E (audio recording of interviews), F (visual recording of interviews) and H (detention of terrorism suspects). To access a revised version of the code, please click on the appropriate hyperlink. A summary of the main changes is set out below.

Code A

Most of the changes to Code A reflect changes to legislation concerning terrorism powers. Terrorism powers to stop and search are now governed by a new Code of Practice issued under the Terrorism Act 2000. This came into force on 10 July 2012 and the terrorism provisions have therefore been removed from Code A.

Code A is extended to include the powers to search persons without them being arrested introduced by the Terrorism Prevention and Investigation Measure Act 2011 (TPIMS). These are outside the scope of the terrorism stop and search Code and their inclusion in Code A ensures that the conduct and recording of such searches is subject to that code.

We have also deleted Annex F (gender and searching) which has been superseded by Annex L in Code C.

Code B

Most of the changes to Code B reflect changes to legislation concerning terrorism powers. In Code B, new provisions on the TPIMS powers to enter and search premises for the purposes of serving, monitoring and enforcing TPIMS notices replace the repealed Control Order provisions in the Prevention of Terrorism Act 2005.

The reference to a three calendar month period within which section 16(3) of PACE requires a search warrant to be exercised has been amended to acknowledge enactments which specify a shorter period. An example is Section 23 of the Misuse of Drugs Act 1971 where the period is one calendar month.

Code A and Code B

We have corrected the threshold for exercising the powers in sections 139B and 139AA of the Criminal Justice Act 1988 on school premises to search persons and to search for weapons which was reduced from reasonable belief to reasonable suspicion by section 48 of the Violent Crime Reduction Act 2006. We are also amending the summaries of the Equality Act 2010 for accuracy.

Code C and Code H

The main changes to Codes C and H mirror each other with regard to safeguards for 17 year old suspects and for suspects who do not speak and understand English. They are required in order to:

• comply with the High Court judgement concerning safeguards for 17 year olds- (see http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/c-v-sshd-and-met-police-judgment.pdf) and
• implement the EU Directive on the right to interpretation and translation in criminal proceedings (see EU Directive 2010/64/EU).

The changes to which the High Court judgement applies extend the requirement for an appropriate adult, with modifications, to 17 year olds. They do not and cannot amend any statutory provisions which relate to 16 year olds and the definition of juvenile for the purposes of PACE in section 37(15) remains. The revisions point this out with regard to:

• section 38 of PACE where the age limit for persons detained after charge to be transferred to local authority accommodation pending appearance at court remains at 16
• section 65 of PACE whereby 17 year olds can continue to give consent in their own right without the need for their parent or guardian to also give consent which applies to those ages 16 year and under

The changes required by the EU Directive apply to the investigation stage for which the Secretary of State of the Home Department is responsible. The main impact of these changes is the introduction of a right for a suspect to have a written translation of ‘essential documents’. These are defined in Code C as comprising authorisations of detention under PACE given by police and the court, details of offences charged and written interview records. Various orders which deal with implementation of other aspects of the Directive are listed in the transposition note published alongside the Criminal Procedure (Amendment) Rules 2013/2525.

Code E and Code F

The main changes to Codes E and F complement the 2012 revisions to Codes C and G and concern the conduct and recording of voluntary interviews of suspects who are not under arrest. For voluntary interviews of suspects not in police detention which need not take place at a police station, the changes provide for a sergeant to be responsible along similar lines to the arrangements in place for those in custody. The other changes to Codes E and F:

• insert the Equality Act summary which is included in other Codes;

• correct cross references to the code of practice for video recording interviews in terrorism cases which came into force on 10 July 2012;

• make amendments and new provisions for the security of master recordings to ensure consistency in Codes E and F and the corresponding terrorism interview recording provisions; and

• make consequential changes arising from Codes C and H concerning the treatment of 17 year olds and juveniles and interpreters.

The amendments to the codes are required in order to achieve consistency and to comply with domestic and EU legislation as well as the High Court ruling. This overall package of revision to the codes will strengthen, clarify and embed the safeguards available to the public where the police exercise their powers. A Government response to the two statutory consultation exercises has been published on the Home Office webpages of the Civil Service website.

Should you have any queries, please contact Andy Derwent or Brian Roberts on the contact details provided above.