The Police and Criminal Evidence Act 1984: themes and definitions

The Police and Criminal Evidence Act 1984 (PACE) became law on January 1, 1986. Prior to that date the law governing police (and some other investigative agencies) powers for the investigation of crime was unclear and antiquated. The Act placed police powers on a statutory footing, and as such represents a most significant influence on the investigator. A number of common themes and definitions are used throughout the statute and these will be discussed in this edition and future weeks.

Codes of practice (S66 & 67)

In spite of the considerable detail in its sections and schedules, PACE is largely an outline of the law. For practical implementation, it must be supplemented by Codes of Practice and Regulations. These add some operational flesh to the legislative skeleton. There are six Codes of Practice:

Code A The Exercise of Powers of Stop and Search,

Code B The Searching of Premises and Seizure of Property,

Code C The Detention, Treatment and Questioning of Persons by the Police,

Code D The Identification of Persons Suspected of Crime,

Code E Tape-recording of Interviews with Suspects,

Code F Video-recording of interviews.

The Codes had, until recently, to be approved by the resolution of both Houses of Parliament (Sections 67(3)-(5)) – the affirmative resolution procedure – and could be updated from time to time (subject to the same parliamentary procedure) (Section 67(7)). The Criminal Justice and Police Act 2001, Section 77 has now given the Home Secretary power to issue amendments for up to two years for trial purposes, subject only to the negative resolution procedure. Section 67(11) provides that the Codes shall be admissible in evidence in criminal or civil proceedings, and if any provision appears relevant to any question arising in the proceedings it shall be taken into account in determining the question.

The word ‘shall’ indicates that once the judge takes the view that a breach of the Code was relevant to any question in the proceeding he is obliged to take it into account (R v Kenny (1992)). The third, revised, edition, which incorporates all five (as there were then), Codes came into force on April 10, 1995 after much consultation.

They seek to be ‘clear and workable guidelines for the police, balanced by strong safeguards for the public’ (Foreword to the 1995 Codes). In R v Ward (1993) the Court of Appeal held that in deciding whether to exercise the discretion to exclude evidence under Section 78 of PACE, the Court could have regard to the current Codes of Practice.

In part, the Codes paraphrase some of the Act`s provisions and in this way the frequently complex provisions in the Act are explained in a lucid fashion. It follows that the language used in the Codes is looser than that used in the statute. It is important therefore to distinguish between parts of a Code which merely repeat the statute, and those which supplement it. The former parts are not the authoritative version. As to the latter, the Codes frequently supplement the Act in very important matters. Indeed, one of the issues regularly discussed during passage of the PACE Bill was whether items properly belonged to the Bill or to a Code. In this context the language employed in the Code assumes a greater significance. Since it bestows additional rights on the citizen and imposes extra duties on the police, it ought, it is suggested, to be interpreted more rigorously than the descriptive parts. However, a further distinction can be drawn. There are some parts of the Codes which are both supplementary to the Act and mandatory, and those which are supplementary but advisory. The Code of Practice on Stop and Search is the best example of the latter. By tackling the elusive concept of ‘reasonable suspicion’ it inevitably contains a larger measure of guidance than instruction.

Scope

The Codes of Practice are primarily directed to the police but they also extend to those other officials who are similarly charged with the investigati