House of Commons - Explanatory Note
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Police Reform Bill - continued          House of Commons

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Part 2: Investigating Officers

195.     This Part includes a range of powers which would be needed to support the work of civilian investigating officers in specialist areas such as financial and Information Technology crime. They are mainly linked to entry, search and seizure. For example, powers to obtain and exercise search warrants, to seize evidence and to apply to a judge for access to confidential material. It also covers powers to enter and search premises following arrest. This set of powers is particularly relevant to the work of Scenes of Crime Officers, many of whom are already civilians.

196.     Paragraph 13 enables a suitably designated person to apply for and receive search warrants under PACE, to execute warrants and to seize and retain things for which a search has been authorised. It extends that power of seizure to computerised information. It provides that the standard safeguards covering the process of applying for a search warrant, the contents of the warrant and the way in which the warrant should be exercised are extended to warrants dealt with by designated persons. It imposes the same obligations on designated persons in relation to providing records of seizure, providing access to or copies of seized material and retaining seized material as apply to constables. It gives the same protection from seizure to legally privileged material in relation to seizures by designated persons as applies to seizures by constables.

197.     Paragraph 14 enables a suitably designated person to obtain access to confidential material under section 9 of PACE by making an application to a circuit judge under Schedule 1 to that statute. It extends standard PACE protections and obligations to material seized by or produced to a designated person under these provisions.

198.     Paragraph 15 enables a suitably designated person to use the powers under section 18 of PACE to enter and search any premises occupied or controlled by a person who is under arrest for an arrestable offence and to seize and retain items found on such a search. The designated person may conduct such a search before the arrested person is taken to a police station and without obtaining the authority of an inspector if the presence of the arrested person is necessary for the effective investigation of the offence. Standard PACE protections and obligations are extended to material seized by a designated person under these provisions.

199.     Paragraph 16 enables a suitably designated person, when lawfully on any premises, to exercise the same general powers to seize things as are available to a constable under section 19 of PACE. The designated person may also make use of the power to require, in certain circumstances, the production of electronically stored material in a form in which it can be taken away. Once again, standard PACE protections and obligations are applied.

200.     Paragraph 17 enables a suitably designated person, instead of a constable, to act as the supervisor of any access to seized material to which a person is entitled, to supervise the taking of a photograph of seized material, or to photograph it himself.

201.     Paragraph 18 enables a suitably designated person to use powers available to constables under Part 2 of the Criminal Justice and Police Act 2001 where those powers supplement powers conferred on designated persons under other paragraphs of Part 2 of the Schedule. In essence this means that where a designated person has been provided with a specific power of seizure and exercising it on premises is compromised by the sheer bulk or complexity of the material to be searched through, that material can be moved elsewhere for sifting, subject to a range of detailed safeguards.

Part 3: Detention officers

202.     This Part covers powers that would be exercised by detention officers at police stations. Many of them are connected to the handling of persons in custody - an area of work in which police support staff are increasingly involved - such as powers to search detained persons, to take fingerprints and certain samples without consent and to take photographs. Providing police support staff with these and other powers will broaden the scope of the work they can undertake and ensure their work is underpinned by the law. Police support staff can also have an extended role in other aspects of detainee processing such as interviewing. This is recognised through other powers available in this Part: the power to arrest for further offences which may come to light during interview and the power to warn interviewees about the consequences of any failure to account for their presence at a particular place.

203.     Paragraph 19 enables a designated detention officer to require certain defined categories of persons who have been convicted, cautioned or warned in relation to recordable offences to attend a police station to have their fingerprints taken. A recordable offence is one that must be recorded in national police records.

204.     Paragraph 20 enables a designated detention officer to arrest a detained person for a further offence if it appears to him that the detained person would be liable to arrest for that further offence if released from his initial arrest. It also provides that the consequences of failure to account for objects or marks etc. will apply to such arrests.

205.     Paragraph 21 enables a designated detention officer to carry out non-intimate searches of persons detained at police stations or elsewhere and to seize items found during such searches. Restrictions on the scope of searching and seizure and on the circumstances in which searches can be carried out are applied to designated persons in the same way as to constables.

206.     Paragraph 22 enables a designated detention officer to carry out searches and examinations in order to determine the identity of persons detained at police stations. Identifying marks found during such processes may be photographed. This effectively replaces provision in section 90 of the Anti-terrorism, Crime and Security Act 2001, under which this power can already be exercised by people designated for the purpose by a chief officer of police.

207.     Paragraph 23 enables a designated detention officer to carry out intimate searches in the same very limited circumstances that are applicable to constables. An intimate search is a search that consists of the physical examination of a person's body orifices other than the mouth.

208.     Paragraph 24 enables a designated detention officer to take fingerprints without consent in the same circumstances that a constable can. They can also discharge the duty to inform the person concerned that his fingerprints may be the subject of a speculative search against existing records.

209.     Paragraph 25 enables a designated detention officer to discharge the duty to inform the person concerned that an intimate sample may be the subject of a speculative search against existing records.

210.     Paragraph 26 enables a designated detention officer to take non-intimate samples without consent and to inform the person from whom the sample is to be taken of any necessary authorisation by a senior officer and of the grounds for that authorisation. The designated person may also inform the person concerned that a non-intimate sample may be the subject of a speculative search against existing records.

211.     Paragraph 27 enables a designated detention officer to require certain defined categories of persons who have been charged with or convicted of recordable offences to attend a police station to have a sample taken.

212.     Paragraph 28 enables a designated detention officer to photograph detained persons in the same way that constables can. This effectively replaces provision in section 92 of the Anti-terrorism, Crime and Security Act 2001, under which this power can already be exercised by people designated for the purpose by a chief officer of police.

213.     Paragraph 29 enables a suitably designated person to question an arrested person under sections 36 and 37 of the Criminal Justice and Public Order Act 1994 about facts which may be attributable to the person's participation in an offence. For example, that person's presence at a particular place at a relevant time or the presence of potentially incriminating objects, substances or marks. The designated person may also give the suspect the necessary warning about the capacity of a court to draw inferences from a failure to give a satisfactory account in response to questioning.

Part 4: Escort Officers

214.     This Part covers escort powers. It includes powers enabling civilians to transport arrested persons to police stations. More broadly it allows civilians to escort detained persons between police stations or between police stations and other locations specified by the custody officer.

215.     Paragraph 30 enables a suitably designated person to carry out the duty of taking a person arrested by a constable to a police station as soon as practicable. That must be a designated station (i.e. a main station equipped for holding detainees) unless the person is working in an area not covered by such a station and it appears that it will not be necessary to hold the arrestee for more than six hours. The designated person may delay removal to a police station if the arrestee is required elsewhere for immediate investigative purposes. A designated person using powers under this paragraph is regarded as having the arrestee in lawful custody. He has a duty to prevent escape and is entitled to use reasonable force and to carry out non-intimate searches.

216.     Paragraph 31 enables a suitably designated person, with the authority of the custody officer, to escort detainees between police stations or between police stations and other specified locations. Once again, a designated person using powers under this paragraph is regarded as having the detainee in lawful custody. He has a duty to prevent escape and is entitled to use reasonable force and to carry out non-intimate searches. Where the custody officer transfers a detainee to a designated person under these provisions, the designated person becomes responsible for ensuring appropriate treatment for the detainee.

Clause 36: Community safety accreditation schemes

217.     This clause enables a chief officer of police to establish and maintain a scheme that accredits suitably skilled and trained non-police employees with powers to undertake specified functions in the support of the police. For example, a chief officer may accredit street wardens employed by the local authority with powers to address some anti-social behaviour offences.

218.     Subsection (1) of this clause enables the chief officer of a force to establish and maintain a community safety accreditation scheme in order that some of the powers normally available to police constables or others could be conferred on persons accredited under this scheme. Subsection (2) sets out the purposes of such a scheme. Subsection (3) specifies that a chief officer must consult with the relevant police authority and the principal local authority for that area before establishing a community safety accreditation scheme in that police area.

219.     Subsection (4) requires that annual policing plans (prepared under section 8 of the Police Act 1996) and drafts of such plans must detail the existence or otherwise of a community safety accreditation scheme in the area and any proposals to introduce such a scheme or modify an existing scheme. Annual plans should also detail the arrangements for powers to be extended to police support staff, and how the community safety accreditation scheme supplements this.

220.     Subsection (5) ensures that a community safety accreditation scheme will require that arrangements be made with employers in the local police area. These arrangements will establish the supervision by these employers of those employees who have had conferred on them some of the powers normally available to a police constable or others.

Clause 37: Accreditation under community safety accreditation schemes

221.     Subsection (1) specifies that this clause applies only where a chief officer has made arrangements with an employer to carry out community safety functions as part of a community safety accreditation scheme. Subsections (2) and (3) of the clause enable the chief officer to accredit any employee of an employer who has entered into arrangements for the purposes of a community safety accreditation scheme, on receipt of an application, with any of the powers listed in schedule 5.

222.     Subsection (4) lists preconditions for the accreditation of any person. The chief officer must be satisfied that the employer is suitable to supervise a person who has such an accreditation, and that the accredited person is suitable to exercise the specified powers and duties, is capable of carrying out the relevant functions and has been adequately trained.

223.     Subsection (5) enables a chief officer to charge a fee he considers appropriate for consideration of an application for accreditation or the renewal of accreditation, and for the granting of a accreditation.

224.     Subsection (6) clarifies that accreditation cannot authorise or require conduct beyond the specified functions and that a designation may contain restrictions and conditions. For example, the accreditation may limit the extension of powers to a particular geographical area such as a particular area that is known to suffer from anti-social behaviour.

225.     Subsection (7) enables the chief officer to determine a fixed period for the accreditation, which must be specified in the accreditation. The accreditation may be renewed at any time. However, it can be withdrawn or cease. Subsection (8) requires the accreditation to cease if the accredited person stops working for the employer who made arrangements with the chief officer to provide community safety functions under a community safety accreditation scheme.

Schedule 5: Powers exercisable by accredited persons

226.     This schedule details the powers that can be exercised by an accredited person if specified in his accreditation. The list of powers is more limited than those that can be conferred on community support officers under Part 1 of Schedule 4. Accredited persons can issue fixed penalty notices for offences of cycling on a footway (section 54 of the Road Traffic Offenders Act 1988 in respect of section 72 of the Highway Act 1835); dog fouling (section 4 of the Dogs (Fouling of Land) Act 1996) and litter (section 88 of the Environmental Protection Act 1990), but cannot issue fixed penalty notices under the Criminal Justice and Police Act 2001. Under paragraph 2 of Schedule 5, accredited persons can have conferred on them the same power to require the name and address of a person acting in an anti-social manner as community support officers under paragraph 2 of Schedule 4. (Subparagraph (2) of this paragraph makes reference to 'paragraph 2'. This refers to the original paragraph 2 of this Schedule, which was deleted at third reading in the House of Lords on 25 April 2002 (Official Report, volume 634, columns 416 to 421). That paragraph contained a power to detain in certain, limited circumstances. The intention was to give an accredited person the same power of detention in relation to a person who fails to comply with the above requirement or appears to have given a false or inaccurate name or address.) However, accredited persons cannot use reasonable force when exercising their powers (as community support officers can under paragraph 3 of Schedule 4). Under paragraphs 3, 4 and 5, accredited persons can have conferred on them the same powers regarding alcohol consumption in designated places, confiscation of alcohol and confiscation of tobacco as community support officers under paragraphs 4, 5 and 6 of Schedule 4. Again as with community support officers, accredited persons can have conferred on them any powers conferred on designated persons for the removal of abandoned vehicles by regulations under section 99 of the Road Traffic Regulation Act 1984. However, accredited persons are not permitted to enter or search any premises for the purposes of saving life or limb or preventing serious damage to property (as suitably designated community support officers can under paragraph 7 of Schedule 4). Accredited persons do not have any of the powers to seize vehicles used to cause alarm etc (paragraph 8 of Schedule 4). They do not have any of the powers to carry out road checks (paragraph 10 of Schedule 4). Nor do they have any of the powers under the Terrorism Act 2000 (paragraphs 11 and 12 of Schedule 4).

Clause 38: Supplementary provisions relating to designations and accreditations

227.     Subsection (1) provides that where a designated or accredited person relies on any power or duty in dealings with a member of the public, they must show that person their designation or accreditation if asked to do so.

228.     Subsection (2) provides that persons designated or accredited by a chief officer of police can only exercise powers if they are wearing a uniform endorsed by the chief officer and identified or described in their designation or accreditation. Accredited persons must also wear a badge in a form to be decided by the Secretary of State.

229.     Subsections (3) and (4) allow chief officers and Directors General respectively to modify or withdraw a designation or accreditation at any time.

230.     Subsection (5) specifies that if a chief officer modifies or withdraws accreditation of an individual, he must notify the relevant employer.

231.     Subsection (6) provides that, for the purposes of determining liability for unlawful conduct, conduct in reliance on a designation or accreditation shall be taken as conduct in the course of employment by the designated or accredited person's employer - whether that be the police authority or some other entity. Following from that, the relevant employer is to be treated as a joint tortfeasor. Subsection (7) makes similar provision for investigating officers employed by the NCIS and NCS Service Authorities.

Clause 39: Removal of restriction on powers conferred on traffic wardens

232.     Under section 95 of the Road Traffic Regulation Act 1984 (RTRA 1984), traffic wardens are empowered to undertake functions prescribed by the Secretary of State. Section 96(1) of the RTRA 1984 provides that for the purposes of carrying out such functions, references in certain specified enactments to a constable shall include references to a traffic warden. Traffic wardens can then exercise the powers of a constable.

233.     A limitation is, however, applied by section 96(3). This has the effect of providing that certain powers cannot be conferred on traffic wardens. One of these powers is the general power to stop vehicles conferred by section 163 of the Road Traffic Act 1988 (RTA 1988). At present, traffic wardens can stop vehicles only in a limited range of circumstances. This restricts the functions they can carry out. It means that generally police officers must be employed in undertakings where it may be necessary to stop vehicles, even though their other powers may not be required. This clause removes the reference in section 96(3) of the RTRA 1984 to section 163 of the RTA 1988. It thereby enables traffic wardens to be given the same power to stop vehicles as that currently held by police officers.

Clause 40: Code of practice relating to chief officers' powers under Chapter 1

234.     This clause requires the Secretary of State to issue a code of practice about the exercise of the powers extended under Chapter 1 of Part 4. It provides that he may revise any part or all of the code of practice from time to time; and that chief officers and Directors General must have regard to this code in discharging any function to which the code applies. Before issuing or revising any such code, the Secretary of State must consult the Directors General of NCIS and NCS and the Service Authorities of those two organisations. He must also consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the Association of Police Authorities (APA) and the Association of Chief Police Officers (ACPO) and/or the Chief Police Officers' Staff Association (CPOSA). The Secretary of State may also consult anyone else he chooses. The Secretary of State must lay any codes or revisions of codes issued under this clause before Parliament. The code will include such matters as appropriate combinations of powers that could be given to the various categories of civilian officers. It is likely to cover issues such as criteria for satisfaction of the tests in clauses 35(4) and 37(4) as to the suitability and capability of persons for particular functions and as to adequate standards of training. For example, it is proposed that criminal record checks should be carried out before a person is designated or accredited under the Bill. It is also likely to cover issues such as consultation in the establishment of a community safety accreditation scheme: amongst other things, it may well recommend that responsible authorities under the Crime and Disorder Act 1998 (commonly known as Crime and Disorder Reduction Partnerships) are consulted.

Clause 41: Offences against designated and accredited persons etc.

235.     This clause sets out various offences relating to assaulting, obstructing or impersonating designated or accredited persons. They parallel the provision for offences relating to assaulting, obstructing or impersonating police officers contained in sections 89 and 90 of the Police Act 1996.

236.     Subsection (1) makes it an offence to assault a designated or accredited person in the execution of his duty or to assault a person assisting a designated or accredited person in the execution of his duty. The penalty is imprisonment not exceeding six months or a fine not exceeding level 5 on the standard scale (currently £5000) or both.

237.     Subsection (2) makes it an offence to resist or wilfully obstruct a designated or accredited person in the execution of his duty or to resist or wilfully obstruct a person assisting a designated or accredited person in the execution of his duty. The penalty is imprisonment not exceeding one month or a fine not exceeding level 3 on the standard scale (currently £1000) or both.

238.     Subsection (3) makes it an offence, provided there is intent to deceive, to impersonate or pose as a designated or accredited person. It is also an offence for an accredited or designated person to make any statement or act in a way that falsely suggests that he has powers above and beyond those he in fact has. The penalty is imprisonment not exceeding six months or a fine not exceeding level 5 on the standard scale (currently £5000) or both.

Clause 42: Interpretation of Chapter 1

239.     This clause defines certain terms used in Chapter 1 of Part 4. Amongst other things it provides that references to carrying on business include reference to carrying out statutory functions. This would include, for example, the functions of a local authority.

Part 4 Chapter 2: Provisions modifying and supplementing police powers

Clause 43: Offences for which a person may be arrested without warrant

240.     This clause amends section 24 of the Police and Criminal Evidence Act 1984 (PACE) for the purpose of including three further offences in the list of offences for which a power of summary arrest exists. It also provides for the complete list of arrestable offences previously in section 24(2) to be set out in a more accessible form in a new schedule. Under section 24 of PACE a constable may arrest without warrant anyone he has reasonable grounds to suspect has committed, is about to commit or is committing an arrestable offence. Section 24 sets out the definition of an arrestable offence as (a) any offence for which the sentence is fixed by law, (b) any offence for which a sentence of imprisonment of five years or more may be imposed and (c) any offence listed in subsection (2). If an offence is not listed as arrestable under section 24 of PACE, then unless general arrest conditions under section 25 of PACE apply, or there is a specific statutory power of arrest such as that attached to section 103(1)(b) of the Road Traffic Act 1988, the police are unable to take suspects into custody and question them. Questioning can only take place at the scene of the offence and a suspect may only be summonsed to appear at a magistrates' court to answer charges. Arrestable offences attract other investigative powers under PACE. For example under section 17(1)(b) of PACE a constable can enter and search any premises without a warrant for the purpose of arresting a person for an arrestable offence.

241.     Subsections (2) and (3) have the effect of amending subsections 1(c) and (2) of section 24 of PACE to replace the list of arrestable offences in section 24(2) of PACE with a new Schedule 1A. As well as re-enacting the existing list of arrestable offences, this new Schedule 1A contains a further three arrestable offences:

  • Assaulting a police officer in the execution of his duty or a person assisting such an officer which is an offence under section 89(1) of the Police Act 1996;

  • Making off without payment which is an offence under section 3 of the Theft Act 1978; and

  • Driving while disqualified which is an offence under section 103(1)(b) of the Road Traffic Act 1988. This offence has a power of arrest, but it is restricted to situations where, effectively, a uniformed police officer physically sees a motorist driving a vehicle whom he reasonably suspects of being disqualified. The power of arrest is therefore being extended firstly so that it can be exercised by police officers not in uniform, and secondly so that it can be exercised after the event, in relation to any person who has driven a vehicle on the road while disqualified.

242.     Subsection (4)(a) amends section 24(3)(a) of PACE to replace the reference to offences mentioned in section 24(2) of PACE with offences listed in Schedule 1A.

243.     Section 24(3) of PACE provides that conspiring to commit, attempting to commit, inciting, aiding, abetting and counselling or procuring the commission of any offence under section 24(2) of PACE will constitute an arrestable offence without prejudice to section 2 of the Criminal Attempts Act 1981. However, where an offence is triable only summarily, it cannot be the object of a criminal attempt under section 1 of the Criminal Attempts Act 1981. Currently, section 24(3)(b) of PACE (attempts to commit such offences) specifically excludes an offence under section 12(1) of the Theft Act 1968 (taking a vehicle without consent). However this is now not the only summary only offence listed in section 24(2). Subsection 4(b) therefore amends section 24(3)(b) to make it clear that it only applies to offences that are triable either way or indictable only.

244.     Subsection (5) inserts, after Schedule 1 to PACE, new Schedule 1A - set out in Schedule 6 to this Bill.

245.     The creation of three new arrestable offences will not have effect in relation to offences committed before commencement of the Bill.

 
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Prepared: 30 April 2002