1. The Law Reform Committee of the Bar Council and the Criminal Bar Association

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1 RESPONSE OF THE LAW REFORM COMMITTEE OF THE BAR COUNCIL AND THE CRIMINAL BAR ASSOCIATION TO THE CONSULTATION ON REVISIONS TO THE PACE 1984 CODE OF PRACTICE 1. The Law Reform Committee of the Bar Council and the Criminal Bar Association welcome the opportunity to respond to the Home Office consultation on revisions to the Police and Criminal Evidence Act 1984 Code of Practice C, H and G and to the new Code under Schedule 7 of the Terrorism Act 2000 and the Counter Terrorism Act 2008, relating to videoing of interviews. EXECUTIVE SUMMARY. 2. In broad terms we welcomed the thrust of many of the suggested changes. We have made public our opposition to post charge questioning in cases under the Terrorism Acts, during earlier consultations concerning this reform, prior to its passage into law. The reforms having been enacted, we do not repeat that opposition. Most of our representations are as to the detail of the proposed changes to the Codes. 1

2 3. We make one major proposal of significance. Experience of the deployment of videoed interviews in the court room environment, makes it clear that when videoed it is not just what people say when interviewed which is led in evidence, but the way they behave in response to the questioning. The existing caution does not refer to behaviour at all. Indeed its concluding words are Anything you do say may be given in evidence. With the advent of video recording of interviews this may be misleading, for it is not just what is said which may be given in evidence, but also the behaviour of the interviewee in response to the questioning. We therefore propose an amendment to the codes in the case of interviews the subject of video recording, so that after the words of the caution the following additional words are added. This interview is being video recorded. This means that your appearance and your behaviour during this interview may also be shown in evidence. 2

3 PACE CODE OF PRACTICE: CODE C CODE C regulates the detention treatment and questioning of persons by police. By para. 1.10, it includes in its scope those in custody at police stations in England and Wales, whether or not they have been arrested, and those removed to a police station as a place of safety under the MHA 1983, sections 135 and 136. A significant proportion of each group will be vulnerable. The provisions regulate the conditions of detention and treatment of detained persons whilst in custody, and the fair and proper management of the investigation of criminal cases through arrest and questioning and other investigatory techniques available at the police station eg searching, and the taking of samples. The Code thus defines the minimum entitlements of detainees, and hence the obligations of those who have custody of them; and the procedures in which the compliance of detainees can be required (and if necessary enforced). As with the other Codes, it is required that a detainee should have access to the provisions of Code C, so that it has a real role as a manual for those who are detained, as well as for those detaining them. Many of the amendments are uncontroversial, and many to be welcomed, for example the amendments underlining the need for compliance with the provisions of the Equality Act SPECIFIC COMMENTS AND SUGGESTIONS RESPECTING THE PROPOSED AMENDMENTS Current proposed amendment: 3

4 3.8A The content of any risk assessment and any analysis of the level of risk relating to the person's detention is not required to be shown or provided to the detainee or any person acting on behalf of the detainee. But information should not be withheld from any person acting on the detainee s behalf, for example, an appropriate adult, solicitor or interpreter, if to do so might put that person at risk. Our proposed amendment: 3.8.A The content of any risk assessment and any analysis of the level of risk relating to the person's detention is not required to be shown or provided to the detainee or any person acting on behalf of the detainee, if there are reasonable grounds for withholding information. But information should not be withheld from any person acting on the detainee s behalf, for example, an appropriate adult, solicitor or interpreter, if to do so might put that person at risk. Commentary: A risk assessment may disclose some particular risk to a legal advisor as a result of a known propensity of a detained person, and plainly in this situation sharing the information is essential to managing the risk. However, such an assessment may also reveal an area of vulnerability in a detained person which may not be immediately apparent from the contents of the custody record itself. It would be sensible if there was a presumption in favour of disclosing such potentially pertinent information to a person acting on behalf of the detainee. Current proposed amendment: 5.4 If The the detainee agrees, they may receive visits from friends, family or others likely to take an interest in their welfare, at the custody officer s discretion. See Note 5B Our proposed amendment 4

5 5.4 If The the detainee agrees, they may receive visits from friends, family or others likely to take an interest in their welfare, or in whose welfare they have an interest, at the custody officer s discretion. Commentary: sometimes there may be exceptional pressure upon a detained person because of their responsibility for another or others. Examples might be a breastfeeding woman who is detained, or a detainee who has responsibility for the care of another person who is highly dependent upon them. Occasionally an opportunity to be with or to speak to another person to explain the situation may be an important way to reduce pressure on a detained person from matters which may otherwise distract them or distort their decision making whilst in custody eg where a detainee faces interviews. After 10.5 and renumber 10.5A After the caution is administered, in an interview which is to be video recorded with sound, the following additional words should be added; This interview is being video recorded. This means that your appearance and your behaviour during this interview may also be shown in evidence. Commentary: The justification for this amendment arises for the reasons advanced in our executive summary. Current proposed amendment: Note for guidance 13A Whenever possible, interpreters should be provided in accordance with national arrangements approved or prescribed by the Secretary of State. Our proposed amendment 5

6 Note for guidance 13A Whenever possible, interpreters should be provided in accordance with national arrangements approved or prescribed by the Secretary of State. Whenever possible the interpreter should not be a police officer Commentary: In the absence of the urgent circumstances of a safety interview, the interpreter should not be a police officer, and should be a person whose neutrality between the parties is apparent. It is obviously inconsistent with legal professional privilege for a police officer to be the interpreter when legal advice is being given. 6

7 PACE CODE OF PRACTICE: CODE G Introduction Code G provides regulation for the statutory powers of arrest held by the police. There are no proposed amendments to the suggested changes to the Code other than the inclusion of the risk of disciplinary proceedings as a result of failure to exercise the power correctly in paragraph 1.3. The reason for this limited amendment is to ensure that police officers using the Code as a training manual should be aware of all potential repercussions of a failure to abide by the Code. The risk of disciplinary proceedings is a significant repercussion that police officers should be aware of. Proposed amendment to para 1.3 Code G PACE 1.3 The use of the power must be fully justified and officers exercising the power should consider if the necessary objectives can be met by other, less intrusive means. Arrest must never be used simply because it can be used. Absence of justification for exercising the powers of arrest may lead to challenges should the case proceed to court. It could also lead to civil claims against police for unlawful arrest and false imprisonment and/or internal disciplinary proceedings. When the power of arrest is exercised it is essential that it is exercised in a non-discriminatory and proportionate manner which is compatible with the Right to liberty under Article 5. See Note 1B. 7

8 PACE CODE OF PRACTICE: CODE H Introduction. The Code deals with the detention treatment and questioning by police officers of persons in police detention under Section 41 of, and schedule 8 to, the Terrorism Act Many of the provisions of the Code are in identical terms to those within Code C. We therefore make identical proposals to those we have made in connection with Code C. These are:- To amend paragraph 3.8A to read 3.8A The content of any risk assessment and any analysis of the level of risk relating to the person's detention is not required to be shown or provided to the detainee or any person acting on behalf of the detainee, if there are reasonable grounds for withholding information. But information should not be withheld from any person acting on the detainee s behalf, for example, an appropriate adult, solicitor or interpreter, if to do so might put that person at risk. To amend paragraph 5.4 to read 5.4 If The the detainee agrees, they may receive visits from friends, family or others likely to take an interest in their welfare, or in whose welfare they have an interest, at the custody officer s discretion. To amend paragraph 10.4 (as opposed to 10.5) by the insertion of a new paragraph 10.4A to read 10.4A After the caution is administered, in an interview which is to be video recorded with sound, the following additional words should be added; This interview is being video recorded. This means that your appearance and your behaviour during this interview may also be shown in evidence. 8

9 We make the following additional proposals concerning the further provisions of the Code. Current proposed amendment 11.8A A written record shall be made of any comments made by a suspect, including unsolicited comments, which are outside the context of an interview but which might be relevant to the offence. Any such record must be timed and signed by the maker. When practicable the suspect shall be given the opportunity to read that record and to sign it as correct or to indicate how they consider it inaccurate. See Note 11E Proposed amendment 11.8A A written record shall be made of any comments made by a suspect, including unsolicited comments, which are outside the context of an interview but which might be relevant to the offence. Any such record must be timed and signed by the maker. When practicable the suspect shall be given the opportunity to read that record and to sign it as correct or to indicate how they consider it inaccurate. See Note 11E. A copy of the record should be provided to the suspect or his legal advisor (if any) prior to any subsequent interview. Commentary. The amendment is necessary to ensure prompt and detailed disclosure of any alleged unsolicited comment outside the context of an interview. We have no comments upon the draft of Code H concerning post charge questioning, as the terms of the Code appear to follow the required statutory framework. 9

10 THE PROPOSED NEW CODE UNDER THE TERRORISM ACT 2000 and COUNTER-TERRORISM ACT The new Code relates to the video recording with sound of interviews of persons detained under Section 41 of, or Schedule 7 to, the Terrorism Act 2000 and to post charge questioning of authorised persons under Section 22 of the Counter Terrorism Act Our concern is that the suspect and his legal advisers should be made fully aware of the nature of the recording. Both interviewing officers, and those officers supervising and monitoring the interview, will be fully aware of the location of the cameras making the recording, and the way the recording will appear on screen, when given in evidence. The suspect, and his legal advisor (if any) will be unaware of the location of the cameras, or the manner in which the recording of the interview will appear when given in evidence. Our proposed amendments seek to achieve more equality as between interviewer and interviewee, and that sufficient information is given to the interviewee and his legal advisor. This should properly enable informed advice to be given to the interviewee and choices made as to how properly to conduct themselves during the course of the interview. Current proposal: 2.6 A sign or indicator which is visible to the suspect must show when the recording equipment is recording. Proposed amendment: 2.6 A sign or indicator which is visible to the suspect, and which is pointed out to him prior to the interview must show when the recording equipment is recording. Commentary. The proposed amendment is intended to ensure that the suspect is aware of when the equipment is recording. Current proposal 4.3 When the person to be interviewed is brought into the interview room the interviewing officer shall without delay, but in sight of the person, load the recording equipment and set it to record. The recording media must be unwrapped or otherwise opened in the presence of the suspect. See Note 4A [This paragraph does not apply to interviews recorded using a secure digital network, see paragraphs 7.4 and 7.5]. 10

11 4.4 The interviewing officer shall then tell the person formally about the video recording with sound and point out the sign or indicator which shows that the recording equipment is activated and recording. See paragraph 2.6. The interviewing officer shall: (a) say the interview is being video recorded with sound (see paragraph 2.4); (b) give their warrant or other identification number and state the police station they are attached to, and provide these details in relation to any other police officer present (see paragraph 3.5); (c) ask the person to be interviewed and any other party present (e.g. a solicitor) to identify themselves. (d) state the date, time of commencement and place of the interview; and (e) state that the person to be interviewed will be given a notice about what will happen to the copies of the recording. [This sub-paragraph does not apply to interviews recorded using a secure digital network, see paragraphs 7.4 and 7.6 to 7.7] Proposed Amendment 4.3 When the person to be interviewed is brought into the interview room the interviewing officer shall without delay, but in sight of the person, load the recording equipment and set it to record. The recording media must be unwrapped or otherwise opened in the presence of the suspect. See Note 4A [This paragraph does not apply to interviews recorded using a secure digital network, see paragraphs 7.4 and 7.5]. 4.4 The interviewing officer shall then tell the person formally about the video recording with sound and point out the sign or indicator which shows that the recording equipment is activated and recording. See paragraph 2.6. The interviewing officer shall: (a) say the interview is being video recorded with sound (see paragraph 2.4); (b) give their warrant or other identification number and state the police station they are attached to, and provide these details in relation to any other police officer present (see paragraph 3.5); (c) ask the person to be interviewed and any other party present (e.g. a solicitor) to identify themselves. (d) state the date, time of commencement and place of the interview; and (e) state that the person to be interviewed will be given a notice about what will happen to the copies of the recording. (f) point out to the suspect and his legal advisor (if any) the location of all cameras recording the interview. [This sub-paragraph does not apply to interviews recorded using a secure digital network, see paragraphs 7.4 and 7.6 to 7.7] Commentary. The purpose of the proposed amendment is to ensure that the suspect and his advisor (if any) are fully aware of the location of the recording equipment, so that they may fairly judge the manner of response in the light of the evidence likely to be given. 11

12 Current proposal. 4.6 The interviewing officer shall then caution the person and remind the person of their entitlement to free and independent legal advice and their right to consult a solicitor. Proposed amendment 4.6 The interviewing officer shall then caution the person in the terms of the special caution for video interviews and remind the person of their entitlement to free and independent legal advice and their right to consult a solicitor. Commentary The proposal is to ensure compliance with the modified code (should our suggestion be accepted). Current proposal 7.3 Sections 1 to 6 of this Code apply to recordings made on a secure digital network except for the following paragraphs: Paragraph 3.4 under Recording and sealing of master recordings Paragraph 4.4 under (b) Commencement of interviews Paragraph 4.6 (e) under (b) Commencement of interviews Paragraphs under (e) Changing recording media, (f) Taking a break during interview, (g) Failure of recording equipment, (h) Removing recording media from the recorder and (i) Conclusion of interview Paragraphs under Media security Proposed amendment. (deleting the removal of para 4.4 set out above) 7.3 Sections 1 to 6 of this Code apply to recordings made on a secure digital network except for the following paragraphs: Paragraph 3.4 under Recording and sealing of master recordings Paragraph 4.6 (e) under (b) Commencement of interviews Paragraphs under (e) Changing recording media, (f) Taking a break during interview, (g) Failure of recording equipment, (h) Removing recording media from the recorder and (i) Conclusion of interview Paragraphs under Media security 12

13 Commentary. Recording of interviews by Secure Digital Networks are likely to become the norm for these interviews. If the removal of paragraph 4.4 is intended, the provision for the provision of necessary information to the suspect ceases to have effect, and the draft provisions will fail wholly to provide the suspect with any information as to manner of the recording. It is inconsistent because paragraph 7.6 states:- 7.6 In addition to the requirements of paragraph 4.4 (a) to (d) above, the interviewer must inform the person that: they will be given access to the recording of the interview in the event that they are charged or informed that they will be prosecuted but if they are not charged or informed that they will be prosecuted they will only be given access as agreed with the police or on the order of a court; and they will be given a written notice at the end of the interview setting out their rights to access the recording and what will happen to the recording. The reference to the requirements of paragraph 4.4 (a) to (d) above is inconstant with the removal of the provision from application to Secure Digital Networks in paragraph 7.3 above. An alternative approach would be to leave paragraph 7.3 as currently drafted and amend paragraph 7.6 as follows:- Proposed amendment 7.6 In addition to the requirements of paragraph 4.4 (a) to (d) above, tthe interviewer must then inform the person that: (a) the interview is recorded with sound by a Secure Digital Network ; (b) give their warrant or other identification number and state the police station they are attached to, and provide these details in relation to any other police officer present (see paragraph 3.5); (c) ask the person to be interviewed and any other party present (e.g. a solicitor) to identify themselves. (d) state the date, time of commencement and place of the interview; and (e) state that the person to be interviewed will be given a notice about what will happen to the copies of the recording. (f) point out to the suspect and his legal advisor (if any) the location of all cameras recording the interview. (g) they will be given access to the recording of the interview in the event that they are charged or informed that they will be prosecuted but if they are not charged or informed that they will be prosecuted they will only be given access as agreed with the police or on the order of a court; and (h) they will be given a written notice at the end of the interview setting out their rights to access the recording and what will happen to the recording 13

14 Commentary. The purpose of this alternative proposal is to ensure the suspect has the same rights in connection with interviews recorded by Secure Digital Network, as to those given when the interview is recorded by video. On behalf of the LRC and CBA James Wood QC Isabella Forshall QC Martin Huseyin Alison Morgan Ahmed Hossain Nathan Rasiah 25 January