Policing and Crime Bill (HC Bill 158)

(3) Section 37 (duties of custody officer before charge) is amended as follows.

(4) After subsection (6) insert—

“(6A) Subsection (6B) applies where—

(a) a person is released under subsection (2), and

(b) 5the custody officer determines that—

(i) there is not sufficient evidence to charge the person with
an offence, or

(ii) there is sufficient evidence to charge the person with an
offence but the person should not be charged with an
10offence or given a caution in respect of an offence.

(6B) The custody officer must give the person notice in writing that the
person is not to be prosecuted.

(6C) Subsection (6B) does not prevent the prosecution of the person for an
offence if new evidence comes to light after the notice was given.”

(5) 15After subsection (8) insert—

“(8ZA) Where—

(a) a person is released under subsection (7)(b) or (c), and

(b) the custody officer makes a determination as mentioned in
subsection (6A)(b),

20subsections (6B) and (6C) apply.”

(6) Section 37B (consultation with Director of Public Prosecutions) is amended as
follows.

(7) After subsection (5) insert—

“(5A) Subsection (5) does not prevent the prosecution of the person for an
25offence if new evidence comes to light after the notice was given.”

(8) Omit subsection (9).

(9) In section 37CA (release following arrest for breach of bail) after subsection (4)
insert—

“(5) Subsection (6) applies where—

(a) 30a person is released under subsection (2), and

(b) a custody officer determines that—

(i) there is not sufficient evidence to charge the person with
an offence, or

(ii) there is sufficient evidence to charge the person with an
35offence but the person should not be charged with an
offence or given a caution in respect of an offence.

(6) The custody officer must give the person notice in writing that the
person is not to be prosecuted.

(7) Subsection (6) does not prevent the prosecution of the person for an
40offence if new evidence comes to light after the notice was given.”

(10) In section 24B(2) of the Criminal Justice Act 2003 (application of provisions of
Police and Criminal Evidence Act 1984)—

(a) in paragraph (d) for “(5)” substitute “(5E)”, and

(b) in paragraph (f) for “(6)” substitute “(6C)”.

62 Duty to notify person released under any of sections 41 to 44 of PACE that not
to be prosecuted

(1) The Police and Criminal Evidence Act 1984 is amended as follows.

(2) 5In section 41 (limits on period of detention without charge) after subsection (9)
insert—

“(10) Subsection (11) applies where—

(a) a person is released under subsection (7), and

(b) a custody officer determines that—

(i) 10there is not sufficient evidence to charge the person with
an offence, or

(ii) there is sufficient evidence to charge the person with an
offence but the person should not be charged with an
offence or given a caution in respect of an offence.

(11) 15The custody officer must give the person notice in writing that the
person is not to be prosecuted.

(12) Subsection (11) does not prevent the prosecution of the person for an
offence if new evidence comes to light after the notice was given.”

(3) In section 42 (authorisation of continued detention) after subsection (11)
20insert—

“(12) Subsection (13) applies where—

(a) a person is released under subsection (10), and

(b) a custody officer determines that—

(i) there is not sufficient evidence to charge the person with
25an offence, or

(ii) there is sufficient evidence to charge the person with an
offence but the person should not be charged with an
offence or given a caution in respect of an offence.

(13) The custody officer must give the person notice in writing that the
30person is not to be prosecuted.

(14) Subsection (13) does not prevent the prosecution of the person for an
offence if new evidence comes to light after the notice was given.”

(4) In section 43 (warrants of further detention) after subsection (19) insert—

“(20) Subsection (21) applies where—

(a) 35a person is released under subsection (15) or (18), and

(b) a custody officer determines that—

(i) there is not sufficient evidence to charge the person with
an offence, or

(ii) there is sufficient evidence to charge the person with an
40offence but the person should not be charged with an
offence or given a caution in respect of an offence.

(21) The custody officer must give the person notice in writing that the
person is not to be prosecuted.

(22) Subsection (21) does not prevent the prosecution of the person for an
offence if new evidence comes to light after the notice was given.”

(5) In section 44 (extension of warrants of further detention) after subsection (8)
insert—

“(9) 5Subsection (10) applies where—

(a) a person is released under subsection (7), and

(b) a custody officer determines that—

(i) there is not sufficient evidence to charge the person with
an offence, or

(ii) 10there is sufficient evidence to charge the person with an
offence but the person should not be charged with an
offence or given a caution in respect of an offence.

(10) The custody officer must give the person notice in writing that the
person is not to be prosecuted.

(11) 15Subsection (10) does not prevent the prosecution of the person for an
offence if new evidence comes to light after the notice was given.”

Breach of pre-charge bail conditions relating to travel

63 Offence of breach of pre-charge bail conditions relating to travel

(1) This section applies where—

(a) 20a person is arrested under section 24 of the Police and Criminal
Evidence Act 1984, or under article 26 of the Police and Criminal
Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I.12)S.I. 1989/1341 (N.I.12), in
respect of an offence mentioned in section 41(1) or (2) of the Counter-
Terrorism Act 2008,

(b) 25the person is released without charge and on bail under Part 4 of the
1984 Act or (as the case may be) Part 5 of the 1989 Order, and

(c) the release on bail is subject to a travel restriction condition.

(2) Each of the following is a travel restriction condition—

(a) a condition that the person must not leave the United Kingdom,

(b) 30a condition that the person must not enter any port, or one or more
particular ports, in the United Kingdom,

(c) a condition that the person must not go to a place in Northern Ireland
that is within one mile of the border between Northern Ireland and the
Republic of Ireland,

(d) 35a condition that the person must surrender all of his or her travel
documents or all of his or her travel documents that are of a particular
kind,

(e) a condition that the person must not have any travel documents, or
travel documents of a particular kind, in his or her possession (whether
40the documents relate to that person or to another person),

(f) a condition that the person must not obtain, or seek to obtain, any travel
documents (whether relating to that person or to another person) or
travel documents of a particular kind.

(3) The person commits an offence if—

(a) the person’s release on bail is subject to the travel restriction condition
mentioned in subsection (2)(a) and he or she fails to comply with the
condition, or

(b) the person’s release on bail is subject to a travel restriction condition
5mentioned in subsection (2)(b) to (f) and he or she fails, without
reasonable excuse, to comply with the condition.

(4) A person guilty of an offence under subsection (3) is liable—

(a) on summary conviction—

(i) in England and Wales, to imprisonment for a term not
10exceeding 12 months (or, in relation to offences committed
before section 154(1) of the Criminal Justice Act 2003 comes into
force, 6 months) or to a fine, or to both;

(ii) in Northern Ireland, to imprisonment for a term not exceeding
6 months, or to a fine not exceeding the statutory maximum, or
15to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding
12 months or to a fine, or to both.

(5) Section 64 defines words used in subsection (2).

64 Offence of breach of pre-charge bail conditions relating to travel:
20interpretation

(1) This section defines words used in section 63(2).

(2) “Travel document” means anything that is or appears to be—

(a) a passport, or

(b) a ticket or other document that permits a person to make a journey by
25any means from a place within the United Kingdom to a place outside
the United Kingdom.

(3) “Passport” means—

(a) a United Kingdom passport (within the meaning of the Immigration
Act 1971),

(b) 30a passport issued by or on behalf of the authorities of a country or
territory outside the United Kingdom, or by or on behalf of an
international organisation, or

(c) a document that can be used (in some or all circumstances) instead of a
passport.

(4) 35“Port” means—

(a) an airport,

(b) a sea port,

(c) a hoverport,

(d) a heliport,

(e) 40a railway station where passenger trains depart for places outside the
United Kingdom, or

(f) any other place at which a person is able, or attempting, to get on or off
any craft, vessel or vehicle in connection with leaving the United
Kingdom.

CHAPTER 2 Powers under PACE: miscellaneous

65 PACE: entry and search of premises for the purpose of arrest

In section 17 of the Police and Criminal Evidence Act 1984 (entry for the
purpose of arrest) after subsection (1)(caa) insert—

“(cab) 5of arresting a person under any of the following provisions—

(i) section 30D(1) or (2A);

(ii) section 46A(1) or (1A);

(iii) section 5B(7) of the Bail Act 1976 (arrest where a person
fails to surrender to custody in accordance with a court
10order);

(iv) section 7(3) of the Bail Act 1976 (arrest where a person is
not likely to surrender to custody etc);

(v) section 97(1) of the Legal Aid, Sentencing and
Punishment of Offenders Act 2012 (arrest where a child
15is suspected of breaking conditions of remand);”.

66 PACE: treatment of those aged 17

(1) The Police and Criminal Evidence Act 1984 is amended as follows.

(2) In section 30A (bail elsewhere than at police station), in subsection (3B)(d), for
“under the age of 17” substitute “under the age of 18”.

(3) 20In section 63B (testing for presence of class A drugs)—

(a) in subsection (5A), for “has not attained the age of 17” substitute “has
not attained the age of 18”;

(b) in subsection (10), in the definition of “appropriate adult”, for “has not
attained the age of 17” substitute “has not attained the age of 18”.

(4) 25In section 65 (which makes provision to supplement the provisions of Part 5 on
the questioning and treatment of persons by the police), in subsection (1), in the
definition of “appropriate consent”, in paragraph (a), for “has attained the age
of 17 years” substitute “has attained the age of 18 years”.

67 PACE: detention: use of live links

(1) 30The Police and Criminal Evidence Act 1984 is amended as follows.

(2) After section 45 insert—

““Use of live links

45ZA Functions of extending detention: use of live links

(1) The functions of a police officer under section 42(1) or (2) may be
35performed, in relation to an arrested person who is held at a police
station, by an officer who is not present at the police station but has
access to the use of a live link if—

(a) a custody officer considers that the use of the live link is
appropriate,

(b) the arrested person has had advice from a solicitor on the use of
the live link, and

(c) the appropriate consent to the use of the live link has been
given.

(2) 5In subsection (1)(c), “the appropriate consent” means—

(a) in relation to a person who has attained the aged 18, the consent
of that person;

(b) in relation to a person who has not attained that age but has
attained the age of 14, the consent of that person and of his or
10her parent or guardian;

(c) in relation to a person who has not attained the age of 14, the
consent of his or her parent or guardian.

(3) The consent of a person who has not attained the age of 18 (but has
attained the age of 14), or who is a vulnerable adult, may only be given
15in the presence of an appropriate adult.

(4) Section 42 applies with the modifications set out in subsections (5) to (7)
below in any case where the functions of a police officer under that
section are, by virtue of subsection (1), performed by an officer who is
not at the police station where the arrested person is held.

(5) 20Subsections (5)(b) and (9)(iii) and (iv) of that section are each to be read
as if, instead of requiring the officer to make a record, they required the
officer to cause another police officer to make a record.

(6) Subsection (6) of that section is to be read as if it required the officer to
give the persons mentioned in that subsection an opportunity to make
25representations—

(a) if facilities exist for the immediate transmission of written
representations to the officer, either in writing by means of
those facilities or orally by means of the live link, or

(b) in any other case, orally by means of the live link.

(7) 30Subsection (9) of that section is to be read as if the reference in
paragraph (b) to the right conferred by section 58 were omitted.

(8) In this section—

• “live link” means an arrangement by which an officer who is not
  present at the police station where an arrested person is held is
  35able to see and hear, and to be seen and heard by, the arrested
  person and the arrested person’s solicitor (and for this purpose
  any impairment of eyesight or hearing is to be disregarded);

• “vulnerable adult” means a person aged 18 or over who may have
  difficulty understanding the purpose of an authorisation under
  40section 42(1) or (2) or anything that occurs in connection with a
  decision whether to give such an authorisation (whether
  because of a mental disorder or for any other reason);

• “appropriate adult”, in relation to a person who has not attained
  the age of 18, means—

  (a)

  45the persons’s parent or guardian or, if the person is in
  the care of a local authority or voluntary organisation, a
  person representing that authority or organisation,

  (b)

  a social worker of a local authority, or

  Policing and Crime BillPage 86

  (c)

  if no person falling within paragraph (a) or (b) is
  available, any responsible person aged 18 or over who is
  not a police officer or a person employed for, or engaged
  on, police purposes;

• 5“appropriate adult”, in relation to a vulnerable adult, means—

  (a)

  a relative, guardian or other person responsible for the
  vulnerable adult’s care;

  (b)

  a person who is experienced in dealing with vulnerable
  adults but who is not a police officer or a person
  10employed for, or engaged on, police purposes, or

  (c)

  if no person falling within paragraph (a) or (b) is
  available, any responsible person aged 18 or over who is
  not a police officer or a person employed for, or engaged
  on, police purposes.

(9) 15In subsection (8), in both definitions of “appropriate adult”, “police
purposes” has the meaning given by section 101(2) of the Police Act
1996.

45ZB Warrants for further detention: use of live links

(1) A magistrates’ court may give a live link direction for the purpose of
20the hearing of an application under section 43 for a warrant authorising
further detention of a person, or the hearing of an application under
section 44 for an extension of such a warrant, if—

(a) a custody officer considers that the use of a live link for that
purpose is appropriate,

(b) 25the person to whom the application relates has had legal advice
on the use of the live link,

(c) the appropriate consent to the use of the live link has been
given, and

(d) it is not contrary to the interests of justice to give the direction.

(2) 30In subsection (1)(c), “the appropriate consent” means—

(a) in relation to a person who has attained the age of 18, the
consent of that person;

(b) in relation to a person who has not attained that age but has
attained the age of 14, the consent of that person and of his or
35her parent or guardian;

(c) in relation to a person who has not attained the age of 14, the
consent of his or her parent or guardian.

(3) Where a live link direction is given, the requirement under section
43(2)(b) for the person to whom the application relates to be brought
40before the court for the hearing does not apply.

(4) In this section—

• “live link direction” means a direction that a live link be used for
  the purposes of the hearing;

• “live link” means an arrangement by which a person (when not in
  45the place where the hearing is being held) is able to see and hear,
  and to be seen and heard by, the court during a hearing (and for
  this purpose any impairment of eyesight or hearing is to be
  disregarded).

Policing and Crime BillPage 87

• “vulnerable adult” means a person aged 18 or over who may have
  difficulty understanding the purpose of the hearing or what
  occurs at it (whether because of a mental disorder or for any
  other reason);

• 5“appropriate adult”, in relation to a person aged under 18,
  means—

  (a)

  the person’s parent or guardian or, if the person is in the
  care of a local authority or voluntary organisation, a
  person representing that authority or organisation,

  (b)

  10a social worker of a local authority, or

  (c)

  if no person falling within paragraph (a) or (b) is
  available, any responsible person aged 18 or over who is
  not a police officer or a person employed for, or engaged
  on, police purposes;

• 15“appropriate adult”, in relation to a vulnerable adult, means—

  (a)

  a relative, guardian or other person responsible for the
  appropriate adult’s care,

  (b)

  a person who is experienced in dealing with vulnerable
  adults but who is not a police officer or a person
  20employed for, or engaged on, police purposes, or

  (c)

  if no person falling within paragraph (a) or (b) is
  available, any responsible person aged 18 or over who is
  not a police officer or a person employed for, or engaged
  on, police purposes.

(5) 25In subsection (4), in both definitions of “appropriate adult”, “police
purposes” has the meaning given by section 101(2) of the Police Act
1996.”

(3) In section 45 (detention before charge-supplementary), in subsection (1), for
“sections 43 and 44” substitute “sections 43, 44 and 45ZB”.

(4) 30In section 45A—

(a) for the heading substitute “Use of live links for other decisions about
detention”;

(b) in subsection (1)(b), for the words from “video-conferencing facilities”
to the end substitute “a live link”;

(c) 35in subsection (3), for “the facilities mentioned in subsection (1) above”
substitute “a live link”;

(d) in subsection (7), in each of paragraphs (a)(i) and (b), for “the video-
conferencing facilities” substitute “the live link”;

(e) for subsection (10) substitute—

“(10) 40In this section, “live link”, in relation to any functions, means an
arrangement by which the functions may be performed by an
officer who is not present at the police station where an arrested
person is held but who is able (for the purpose of the functions)
to see and hear, and to be seen and heard by, the arrested person
45and any legal representative of that person (and for this
purpose any impairment of eyesight or hearing is to be
disregarded).”

(5) In consequence of the amendments made by subsection (4), in section 40A—

(a) in subsection (2)(a), for “video-conferencing facilities” substitute “a live
link”;

(b) in subsection (5), for “video-conferencing facilities” substitute “live
link”.

68 5 PACE: interviews: use of live links

(1) Section 39 of the Police and Criminal Evidence Act 1984 (responsibilities in
relation to persons detained) is amended as follows.

(2) In subsection (2)(a), for “a police officer investigating an offence for which that
person is in police detention” substitute “another police officer at the police
10station where the person is in police detention, for the purpose of an interview
that is part of the investigation of an offence for which the person is in police
detention or otherwise in connection with the investigation of such an offence”.

(3) After subsection (3) insert—

“(3A) Subsections (3B) and (3C) apply if the custody officer, in accordance
15with any code of practice issued under this Act, transfers or permits the
transfer of a person in police detention to an officer mentioned in
subsection (2)(a) for the purpose of an interview that is to be conducted
to any extent by means of a live link by another police officer who is
investigating the offence but is not at the police station where the
20person in police detention is held at the time of the interview.

(3B) The officer who is not at the police station has the same duty as the
officer mentioned in subsection (2)(a) to ensure that the person is
treated in accordance with the provisions of this Act and of any such
codes of practice as are mentioned in subsection (1).

(3C) 25If the person detained is subsequently returned to the custody of the
custody officer, the officer who is not at the police station also has the
same duty under subsection (3) as the officer mentioned in subsection
(2)(a).

(3D) For the purpose of subsection (3C), subsection (3) applies as if the
30reference to “in his custody” were a reference to “being interviewed”.

(3E) In subsection (3A), “live link” means an arrangement by which the
officer who is not at the police station is able to see and hear, and to be
seen and heard by, the person in police detention, any legal
representative of that person and the officer who has custody of that
35person at the police station (and for this purpose any impairment of
eyesight or hearing is to be disregarded).”

69 PACE: audio recording of interviews

(1) The Police and Criminal Evidence Act 1984 is amended as follows.

(2) In section 60 (which currently makes provision about the tape-recording of
40interviews)—

(a) in subsection (1), in each of paragraphs (a) and (b), for “tape-recording”
substitute “audio recording”;

(b) in the heading of the section, for “Tape-recording” substitute “Audio
recording”.

(3) In section 113 (application of Act to armed forces), in subsection (4)(a), for “tape
recording” substitute “audio recording”.

70 PACE: consultation on codes of practice

In section 67 of the Police and Criminal Evidence Act 1984 (codes of practice:
5supplementary), after subsection (4) insert—

“(4A) The duty to consult under subsection (4) does not apply to a revision of
a code where the Secretary of State considers that—

(a) the revision is necessary in consequence of legislation, and

(b) the Secretary of State has no discretion as to the nature of the
10revision.

(4B) Where, in consequence of subsection (4A), a revision of a code is issued
without prior consultation with the persons mentioned in subsection
(4), the Secretary of State must (at the same time as issuing the revision)
publish a statement that, in his or her opinion, paragraphs (a) and (b) of
15subsection (4A) apply to the revision.

(4C) In subsection (4A), “legislation” means any provision of—

(a) an Act,

(b) subordinate legislation within the meaning of the Interpretation
Act 1978.”

71 20Definition of “appropriate adult” in criminal justice legislation

(1) In section 63B of the Police and Criminal Evidence Act 1984 (testing for
presence of Class A drugs), in subsection (10), in paragraph (c), in the
definition of “appropriate adult”, for “a person employed by the police”
substitute “a person employed for, or engaged on, police purposes; and “police
25purposes” has the meaning given by section 101(2) of the Police Act 1996”.

(2) In section 66ZA of the Crime and Disorder Act 1998 (youth cautions), in
subsection (7) (which defines “appropriate adult”), in paragraph (d), for “a
person employed by the police” substitute “a person employed for, or engaged
on, police purposes; and “police purposes” has the meaning given by section
30101(2) of the Police Act 1996”.

(3) In section 161 of the Criminal Justice Act 2003 (pre-sentence drug testing), in
subsection (8) (which defines “appropriate adult”), in paragraph (c), for “a
person employed by the police” substitute “a person employed for, or engaged
on, police purposes; and “police purposes” has the meaning given by section
35101(2) of the Police Act 1996”.

CHAPTER 3 Powers under the Mental Health Act 1983

72 Extension of powers under sections 135 and 136 of the Mental Health Act 1983

(1) The Mental Health Act 1983 is amended as follows.

(2) In section 135 (warrant to search for and remove patients), after subsection (1)