Michael Zander QC, Police Oracle, 24/10/13
The next few days mark important Police And Criminal Evidence (PACE) developments. From midnight on October 27 revised versions of six of the eight PACE Codes of Practice come into force – A, B, C, E, F and H. On October 31, 13 pages of new statutory PACE rules come into force for the retention and destruction of biometric material.
Interpreters and translation
The most dramatic impact will be the implementation of the EU Directive on Interpreters and Translation. PACE Code C has always required interpreters for suspects who could not speak English. But the EU Directive takes this obligation considerably further.
The basic principle is that the arrangements made and the quality of interpretation and translation must be such that the suspect can communicate effectively with police officers, interviewers, solicitors and appropriate adults in the same way as a suspect fully able to speak and understand English (Code C, para.13.1A).
Moreover, the requirement now extends to the provision of a written translation of all essential documents, a list of which is given in new Annex M of Code C. They include:
1) The grounds for keeping the suspect in custody before and after charge given by the custody officer and the review officer.
2) A superintendent’s authorisation extending pre-charge detention.
3) A warrant of further detention and any extension issued by a magistrates’ court.
4) Authority to detain in a warrant of arrest issued in connection with criminal proceedings.
5) The written notice showing particulars of the offence charged.
6) Written interview records and any written statement under caution.
There are two stated exceptions:
* The custody officer can authorise oral translation or an oral summary of documents (1) to (5) in the list – not (6) interview records – if satisfied that it would not prejudice the fairness of the proceedings by adversely affecting the suspect’s ability to understand their position or communicate effectively.
* Alternatively, the suspect can waive his right to written translation of essential documents but only after receiving legal advice “or having full knowledge of the consequences” and giving “unconditional and fully informed consent” in writing (Annex M, para.4).
The suspect can be asked if he wishes to waive the right to a written translation but must be reminded of the right to legal advice. Nothing must be done or said to encourage such waiver. Waiting for written translation to be completed will likely result in suspects spending more time in custody which may of course be a reason for them agreeing to waive the right. But given the constraints, it will be a brave custody officer who authorises oral translation of essential documents or accepts that the detainee has validly waived the right to have a written translation.
Code C previously allowed for the possibility that a police officer who spoke the relevant language could act as interpreter. That is no longer possible. Revised para.13.9 states: ” A police officer may not be used.”
There have been serious issues with regard to the provision of interpreter services. The Ministry of Justice wanted to give a monopoly to one organisation. Under the new rules chief officers are free to decide which individuals or organisations to employ.
17 year olds to be treated like juveniles
The most significant other change in the Codes of Practice is the new rule that, with a couple of exceptions, anyone who is or appears to be 17 years old has to be treated under the rules of the Codes in the same way as juveniles under the age of 17. An appropriate adult must be provided and a person responsible for their welfare (usually a parent) must be informed.
The specifics of the long list of provisions that are affected by this change are set out in new Note for Guidance 1M in Code C.
The two exceptions are where the present rule is based on statute – namely, the rule that a detained juvenile should be transferred to local authority accommodation and the definition of “appropriate consent” of someone over 17 for an intimate search, x-ray, taking of fingerprints and DNA samples etc means the consent of that person.
Around 75,000 arrests of 17 year olds take place each year.
The destruction of DNA material
The new rules on the retention of biometric material are the Coalition Government’s response to the European Court of Human Rights’ decision that the then applicable rules breached the Convention. It is five years ago that the Strasbourg Court gave that decision. The rules allowed indefinite retention of DNA material even when taken from a suspect who was acquitted or from someone who was never the subject of proceedings.
The new rules allow for indefinite retention of fingerprints and DNA of an adult who has been convicted of any offence and of someone under 18 who has been convicted of a “qualifying (i.e. serious violent, sexual or burglary) offence. Where a person under 18 is convicted of one minor offence, retention can be for five years and indefinite after a second conviction.
If the person was not convicted, the retention rule depends on whether the offence in question was serious and whether they were charged. Where, for instance, the person was charged with a qualifying offence but not convicted, retention can be for three years plus a further two years on application by the chief constable to the Biometrics Commissioner. At the other extreme, if a person is arrested or charged but not convicted for a minor offence their biometric material cannot be retained at all, though it can be the subject of a speculative search.
Preparation for the start date of October 31 involved the destruction of millions of fingerprints, and DNA samples and profiles on the database. The destruction of hard copies of fingerprints, requiring manual searches, has been given until January 31 for completion.
Michael Zander QC is Emeritus Professor, LSE. He is a member of the Home Office PACE Strategy Board.