Recording interviews with body-worn cameras: the latest PACE codes consultation
The Home Office recently put out for consultation the latest proposals to revise the PACE Code of Practice. The proposed changes include a new definition for ‘vulnerable adult’, clarification of the role of appropriate adults, provisions regarding the use of live link for police interviews, and reviews and extension of detention (reflecting changes to the Police and Criminal Evidence Act 1984 (PACE) by the Policing and Crime Act 2017), and a clear statement that 17-year-olds are to be treated as juveniles for all purposes. However, the amendments that have attracted the greatest attention are those concerning the use of electronic recording technology, including body worn cameras (BWV), to record interviews of suspects.
The revised Code E would require all interviews of suspects conducted under caution, whether they are arrested or a volunteer, to be recorded using an ‘authorised recording device’ provided that such a device in working order is available and the location of the interview is suitable for such a device to be used. If an interview of an arrested suspect is conducted in a police station, this would mean that existing recording devices would continue to be used, but in the case of interviews of volunteers conducted either at or away from a police station, the recording device could be a BWV or, indeed, any other recording device authorised by chief officers.
The proposals for authorisation of a decision to record an interview in writing rather than electronically is (over) complicated. Broadly, in the case of a suspect who has been arrested and detained, recording an interview in writing must be authorised by the custody officer. However, in the case of a suspect who has not been arrested, the level of authorisation depends upon whether the interview is conducted at a police station or elsewhere, and if not at a police station, whether the suspected offence is an indictable offence listed in a new Annex to Code E, an indictable offence not so listed, or a summary-only offence (summarised in a new Note for Guidance 2B).
At first sight, the requirement to electronically record interviews (although not the authorisation provisions) is a positive change – the circumstances in which the police could record an interview in writing would be restricted. And there is no change to the requirement that, following a decision to arrest, an interview must normally be conducted at a police station (Code C para 11.1), meaning that such interviews would continue to be electronically recorded. However, the initial response of many defence lawyers to the proposals has been sceptical, if not hostile. Is this justified?
Defence lawyers are acutely aware of the application of the law of unintended consequences to the police bail provisions of the Policing and Crime Act 2017. These have resulted in a dramatic fall in the use of bail without charge, and the emergence of ‘release under investigation’ (RUI), leaving suspects and their lawyers completely in the dark about whether an investigation is continuing and when it might be concluded.
The provisions of PACE and the Codes of Practice designed to protect suspects – access to a lawyer, custody records, appropriate adults, electronic recording of interviews – have historically been primarily directed at the police station. The essential idea was that once a decision was made to arrest a suspect they should normally be taken to a police station as soon as practicable, should there be informed of their rights, and should not be interviewed without the verifiable compliance with their procedural rights.
In 2005, the Serious Organised Crime and Police Act extended police powers of arrest and, as a quid pro quo, arrest was made dependent upon the arresting officer believing that arrest is necessary (primarily for investigative purposes). The necessity requirement was a late fulfilment of a recommendation originally made by the Royal Commission on Criminal Procedure in 1981, which took the view that arrest should, in effect, be a last resort and that many suspects could be dealt with on a voluntary basis.
However, one consequence of requiring that an arrest be necessary was the prospect that many suspects would be interviewed on a voluntary basis, either at a police station or elsewhere. The effects of the change were largely disguised for a decade because the police often ignored the necessity requirement. Police officers were also discouraged from dealing with suspects as volunteers because the procedures for dealing with them were unclear, and custody officers took the view that volunteers were not their responsibility. More recently, however, it seems that the message that an arrest must be necessary has got through, so than many more suspects are being dealt with without arrest.
To an extent, the proposed revisions to the Codes recognise some of these problems. A new provision in Code C explicitly states that the ‘rights, entitlements and safeguards that apply to the conduct and recording of interviews with suspects are not diminished simply because the interview is arranged on a voluntary basis’ (Code C para 3.21(b)). If the proposals are accepted, an officer interviewing a suspect on a voluntary basis must carry out many of the duties of the custody officer – inform the suspect of their right to a lawyer (and contact the Defence Solicitor Call Centre if a lawyer is requested), check whether an appropriate adult or interpreter is required, provide written notification of rights, and record action taken (Code C paras 3.21A and 3.21B).
However, the proposed changes raise some significant questions, and pose some intractable problems. Is the requirement that the interviewer fulfil many of the functions of the custody officer (who is, in principle at least, a trained officer performing a dedicated role) realistic? Will the process be transparent and verifiable? Most police forces have invested large sums of money in installing CCTV in custody suites as part of a process of ensuring that procedural rights are fully respected, but such facilities will not be available where suspects are interviewed as volunteers. Will the electronic recording provisions ensure that interviews are only conducted at suitable locations? If BWV is used, will it be as reliable as the recording technology used in police stations? How will the suspect (and their lawyer, if they have one) obtain a copy?
Perhaps of greatest concern to many defence lawyers is whether the new provisions (especially given that they permit the use of BWV) will encourage police officers to conduct interviews away from police stations. It is important to remember that an interview need only be conducted at a police station if an officer has decided to arrest a suspect. We know that the pre-conditions for an arrest – reasonable suspicion and necessity – are very flexible concepts and, in any event, even if they are satisfied, arrest is still discretionary. Indeed, in an era of austerity and limited police budgets, police officers may even be encouraged to interview suspects away from police stations. As experience with police bail has demonstrated, even reforms introduced with the best of intentions can go horribly awry.
The consultation closes on 6 December 2017.
Author: Ed Cape
Prof Cape is an internationally known researcher at the University of West England in the field of criminal justice