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These notes refer to the Policing and Crime Bill as introduced in the House of Commons on 18 December 2008 [Bill 7]
POLICING AND CRIME BILL
EXPLANATORY NOTES
INTRODUCTION
1. These explanatory notes relate to the Policing and Crime Bill as introduced in the House of Commons on 18th December 2008. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament.
2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given.
SUMMARY AND BACKGROUND
3. The Bill seeks to place a duty on police authorities to have regard to the public’s views on policing in their area and for this duty to be recognised in inspections of police authorities. The Bill also seeks to amend the law to give statutory status and greater independence to the Police Senior Appointments Panel to advise the Secretary of State as well as police authorities on matters relating to senior officer appointments and succession planning. It also includes measures related to collaborative working between police forces and seeks to repeal unused or uncommenced legislation.
4. The Bill also contains measures aimed at protecting vulnerable groups by: including provisions which intend to reduce the demand for prostitution and increase police powers to close premises associated with prostitution. The Bill also includes measures intended to widen the circumstances in which sex offender prevention orders and foreign travel orders can be applied and allow the Criminal Records Bureau to disclose ‘right to work’ checks to employers.
Bill 7-EN 54/4
5. The Bill contains provisions intended to prevent low-level crime and disorder by: introducing mandatory licensing conditions relating to alcohol, amending police powers to deal with children drinking alcohol in public; increasing the penalties for those who sell alcohol to children and those people who refuse to stop drinking in public when asked to by the police; providing for the mutual recognition of football banning orders between England and Wales and Scotland.
6. The provisions of the Bill would implement the main recommendations of the Asset Recovery Action Plan (2007) and seek to strengthen the arrangements for recovery of assets obtained through criminal means. The Bill seeks to improve the arrangements for judicial co-operation in relation to extradition and to streamline the process of extradition. It will also include measures aimed at strengthening customs powers at the border.
7. The Bill contains provisions which would implement the key recommendations of the Independent Review of Airport Policing by requiring the majority of airports to agree a local airport security plan with key stakeholders and allowing the police to recover policing costs.
8. Prior to the introduction of the Bill, the Government undertook extensive consultation on possible measures for inclusion in the Bill; the consultation documents include The Youth Crime Action Plan, From the Neighbourhood to the National: Policing our Communities Together, Youth Alcohol Action Plan, Safe, Sensible, Social - Consultation on further action. Measures are also included from the Independent Review of Airport Policing carried out by Stephen Boys Smith.
OVERVIEW
9. Part 1 (Police Reform) contains provisions to place an additional duty on police authorities to have regard to the public’s views on policing in their area and to require Her Majesty’s Inspectorate of Constabulary (HMIC) to report on this as part of their inspections of police authorities. Part 1 also contains provisions to address how senior officers are appointed and developed. The Bill also contains provisions aimed at improving the co-operation of police forces at a regional and national level. These provisions were consulted on through the Policing Green Paper - ‘From the Neighbourhood to the National: Policing our Communities Together’ published in July 2008.
10. Part 2 (Sexual offences and sex establishments) contains provisions aimed at reducing the demand for prostitution and shifting the focus of enforcement from those working as prostitutes to those that pay for sex. The provisions include the creation of a new offence of paying for sex with someone who is controlled for gain and giving the courts the power to make premises closure orders where there is evidence of the premises being used for activities relating to certain prostitution and pornography offences. Provisions are also included which create a new offence of soliciting. This replaces the existing offences of kerb-crawling and persistent soliciting for sex and offenders will be able to be prosecuted for these offences without the need to prove “persistence”. These provisions will implement recommendations from ‘Tackling the Demand for Prostitution: A Review’. Measures also include the creation of referral orders, which can be used by courts as an alternative to a fine for those prosecuted for loitering and soliciting under section 1 of the Street Offences Act 1959.
11. In addition, Part 2 of the Bill seeks to amend how lap dancing is licensed so that it is treated in the same way as other sex establishments.
12. Part 2 also makes amendments to the civil orders that can be imposed on sex offenders. In particular, amendments will be made to foreign travel orders, which can be imposed to prevent convicted sex offenders from travelling abroad. The provisions extend the maximum duration of such an order from six months to five years, allows for the removal of passports from those who are banned from worldwide travel and extend the age of a child that must be at risk from the offender before such an order can be made from 16 to 18.
13. Part 3 (Alcohol Misuse) contains provisions intended to reduce alcohol misuse by amending police powers to deal with young people drinking alcohol in public. There are also provisions which will raise the maximum penalties for those premises that sell alcohol to young people and those people who refuse to stop drinking in public when instructed to by the police. There are also provisions to allow the Secretary of State to create, through secondary legislation, mandatory licensing conditions relating to alcohol. These provisions have been consulted on in the Government publications ‘Youth Alcohol Action Plan’ and ‘Safe, Sensible, Social - Consultation on further action’.
14. Part 4 (Proceeds of Crime) contains provisions to give police, other law enforcement agencies, and prosecutors additional powers aimed at improving the recovery of criminal assets. These powers include the ability of law enforcement authorities to search a vehicle for cash that is suspected to have been obtained through, or intended for use in, unlawful conduct, and to obtain the forfeiture of detained cash without a magistrates’ court order in uncontested cases. The Bill seeks to introduce new powers to allow for the search and seizure and retention of property that might be sold in satisfaction of a confiscation order. The limitation period for bringing proceedings for the civil recovery of property obtained through unlawful conduct is to be extended from 12 to 20 years.
15. Part 5 (Extradition) contains provisions to ensure that the UK is in a position to execute European Arrest Warrant (EAW) alerts transmitted via the second generation Schengen Information System (SIS II). These provisions will also enable an European Union Member State which has made a request for provisional arrest to apply for an extra 48 hours in which to submit a full order request for extradition. A provision will also allow preliminary and remand hearings conducted under the Extradition Act 2003 to take place by video link and without the consent of the person whose extradition is sought. The Bill also amends and clarifies a number of provisions within the Extradition Act 2003 on temporary surrender in relation to incoming and outgoing extradition requests.
16. Part 6 (Aviation Security) contains provisions for a new process designed to enhance airport security planning by ensuring airports undertake an assessment of the threats to the airport and draw up a risk register. They also seek to clarify the role and funding of airport police where airport operators will pay for any dedicated police presence that they have agreed is required. These provisions implement the recommendations in the ‘Independent Review of Airport Policing’ in 2006.
17. Part 7 (Miscellaneous) contains provisions for the Criminal Records Bureau to supply criminal convictions certificates to employers and to include “right to work” information on standard and enhanced disclosures. Provisions also enable the Secretary of State to prescribe other methods of verification of identity for such certificates and determine the form, content and manner of application forms under Part V of the Police Act 1997 and the Safeguarding Vulnerable Groups Act 2006
18. Provisions seek to change the name of the Independent Barring Board to the Independent Safeguarding Authority (ISA) and enable volunteers who initially become registered with the ISA to be charged a fee when they move into paid activity. Provisions also make changes relating to the checking of school governors in particular.
19. Provisions are also included in Part 7 which ensure that those subject to football banning orders in England and Wales will also be banned from attending regulated football matches in Scotland and Northern Ireland.
20. Part 7 additionally contains provisions to clarify the respective powers of the Scottish Executive and the UK Government to ban offensive weapons to ensure import controls are consistent across the UK. These amendments will also makes changes to powers of Revenue and Customs officers and UK Border Agency staff to open and examine international postal packets for the purpose of preventing smuggling. They will give wider powers to Revenue and Customs officers to question travellers and require the production of passports and travel documents for customs purposes. The changes will also confirm that criminal cash crossing frontiers is “goods” for customs purposes and prohibit the importation of false identity documents.
21. Part 7 also contains a provision to place the Scottish Drugs Enforcement Agency on the same footing as police forces and the Serious Organised Crime Agency in terms of dealing with an armed threat and purchasing and storing CS sprays and firearms. Probation Authorities will also become a responsible authority on a Crime and Disorder Reduction Partnership (CDRP) in England and Community Safety
Partnership (CSP) in Wales and “reduce re-offending” will become a statutory obligation of a CDRP/CSP. There are also several repeals of unused or uncommenced legislation.
TERRITORIAL EXTENT AND APPLICATION
22. Clause 88 sets out the territorial extent of the Bill. This Bill applies to England and Wales. In addition some parts apply to Northern Ireland and Scotland. Any amendment, repeal or revocation made by this Act has the same extent as the provision amended, repealed or revoked unless otherwise specified in clause 88 or Schedule 7.
Territorial Application: Wales
23. The Bill applies to Wales in the same way as to England; however the provision and schedule on lap dancing (clause 25 and schedule 3) will be commenced by order of the Welsh Ministers as it is a devolved matter. These provisions on lap dancing also give powers to make secondary legislation on certain matters to the Welsh Ministers.
Territorial Application: Scotland
24. At Introduction this Bill contains provisions that trigger the Sewel Convention. The provisions relate to Football Banning Orders, Extradition, and Proceeds of Crime. The Sewel Convention provides that Westminster will not normally legislate with regard to devolved matters in Scotland without the consent of the Scottish Parliament. If there are amendments relating to such matters which trigger the Convention, the consent of the Scottish Parliament will be sought for them.
Territorial Application: Northern Ireland
25. At Introduction the Bill contains provisions that will apply to Northern Ireland. These are as follows:
- Offence of paying for sexual services with a prostitute controlled for gain (Clause 14)
- Amendments to the offence of kerb-crawling and persistent soliciting (Clause 19)
- Closure orders (clause 20 and Schedule 2)
- Orders imposed on sex offenders (Clauses 21-24)
- The offence of persistently possessing alcohol in a public place, (Clause 29)
- The powers for the Secretary of State to prescribe the form, manner and contents of an application under Part V of the Police Act 1996 (Clause 72)
- Prohibition of importation of offensive weapons (clause 77)
- The provisions to enforce the Football Spectators Act 1989 and the Police, Public Order and Criminal Justice (Scotland) Act 2006 (Clause 80(1), 80(3)-(5) and 81)
PART 1: POLICE REFORM
Public accountability
Clause 1: Duty of police authorities in relation to public accountability
26. Clause 1(1) inserts into the Police Act 1996 a requirement for police authorities, when discharging any of their functions, to have regard to the views of the public concerning policing. This duty complements the duty of police authorities, under section 96 of the Police Act 1996, to obtain the views of the public concerning policing.
27. The functions of a police authority, under section 6 of the Police Act 1996 and under the Police Authorities (Particular Functions and Transitional Provisions) Order 2008 (S.I. 2008/82) are as follows: securing the maintenance of an efficient and effective police force; holding to account chief officers for the exercise of their functions; monitoring the performance of their force in complying with the Human Rights Act 1998 and in carrying out the local policing plan; securing that arrangements are made for their force to co-operate with other forces in the interests of efficiency or effectiveness; and promoting equality and diversity in their force. This clause will require police authorities to have regard to the views of the public in the execution of all these functions.
28. Clause 1(2) has the effect that Her Majesty’s Inspectorate of Constabulary has a power to carry out an inspection of, and report to the Secretary of State on, the new requirement imposed on police authorities by clause 1(1). This power sits alongside their existing power to inspect and report on a police authority’s performance of its functions.
Appointment of senior officers
Clause 2: Police Senior Appointments Panel
29. Clause 2 inserts new sections 53B, 53C and 53D into the Police Act 1996. New section 53B establishes a statutory Police Senior Appointments Panel (the Panel). (There is presently a senior appointments panel which exists on a non-statutory basis with the primary role of advising the Secretary of State about the appointment of senior officers.)
30. The Panel will be constituted in accordance with arrangements made by the Secretary of State. Under these arrangements, the Panel will consist of an independent chair and members appointed by the Secretary of State as well as representative members nominated by the Secretary of State, the Association of Police Authorities and the Association of Chief Police Officers. These arrangements will also include provisions about the proceedings of the Panel and the issuing of annual (or other) reports.
31. The Secretary of State may make staff available to the Panel, pay fees to the independent members and defray expenses incurred by the Panel.
32. New section 53C sets out the functions of the Panel. The Panel will advise the Secretary of State on any matter on which it is consulted by the Secretary of State in connection with senior officer appointments, on consents to deputy chief constables and assistant chief constables fulfilling the role of the chief constable for a period exceeding three months, and on consents for the second most senior officer in the City of London police to act as Commissioner for a particular period.
33. The Panel will advise the Secretary of State and police authorities about matters relating to succession planning. New section 53C(2) gives the Panel the function of advising about ways to increase the pool of potential candidates for senior officer appointments, and the training and development needs of such potential candidates.
34. The Secretary of State may refer a report made by Her Majesty’s Inspectors of Constabulary to the Panel, and following such a referral the panel will provide advice to the Secretary of State and police authorities on any matters it thinks appropriate in connection with the training and development needs of senior officers, and other matters relating to senior officers.
35. Under new section 53D, the Secretary of State has the power to confer additional functions on the Panel by order. Such an order may, in particular, confer advisory or other functions on the Panel in connection with the appointment or promotion of senior officers. Before making an order the Secretary of State will consult the Panel.
36. Clause 2(2) amends section 54 of the Police Act 1996 by omitting subsection (3A). This omission removes the ability of the Secretary of State to delegate certain functions relating to senior officers to the chief inspector of constabulary.
37. Subsection (3) amends the Race Relations Act 1976 so that the Panel is listed in Schedule 1A to that Act as subject to the general statutory duty. Therefore, in exercising its functions, the Panel must have due regard to the need to eliminate unlawful racial discrimination, and to promote equality of opportunity and good relations between persons of different racial groups.
38. Subsection (4) amends the Freedom of Information Act 2000, so that the Panel is listed in Schedule 1 to that Act. The Panel will therefore be a “public authority” for the purposes of that Act.
Clause 3: Regulations about senior officers
39. Clause 3 will enable regulations under section 50 of the Police Act 1996 to make provision for payments to be made to senior officers who cease to serve before the end of their fixed term appointment. It will also enable such regulations to make provision with respect to steps to be taken in connection with the appointment or promotion of senior officers.
Clause 4: Metropolitan police force appointments
40. Currently, appointments to the ranks of Assistant Commissioner, Deputy Assistant Commissioner and Commander in the Metropolitan police are made by the police authority and the Commissioner has no role in these appointments. Clause 4 amends the relevant provisions of the Police Act 1996 to give the Commissioner a formal role in these appointments which mirrors that of the Chief Constable in the appointment of Deputy Chief Constable and Assistant Chief Constable in forces outside London. Before making such an appointment, the police authority will be required to consult the Commissioner.
Police co-operation
Clause 5: Police collaboration
41. Clause 5 replaces section 23 of the Police Act 1996 with nine new sections, providing for the creation of agreements between police forces and between police authorities to collaborate. The new sections 23 to 23I provide a framework in England and Wales to support collaboration arrangements and to enable agreements to include arrangements for the transfer of the direction and control of police officers and staff seconded as part of a collaboration agreement.
42. New section 23 provides for agreements to be made between chief officers of police forces to carry out their functions through collaboration in the interests of the efficiency or effectiveness of policing, where prior approval has been given by the police authorities of the forces involved. Subsection (2) allows for a range of types of agreement about the delivery of policing services (for example, these might be operational policing services, back office services or procurements) by one or more police forces to one or more police forces. Subsection (3) allows for provisions about police staff to be included in agreements and subsection (4) allows for agreements to include arrangements for the transfer of direction and control of police officers or police staff.
43. New section 23A allows collaboration agreements to be made between police authorities in the interests of the efficiency or effectiveness of policing, following consultation with the chief officers of their forces. Police authority collaboration
agreements can include arrangements for one or more police authorities to provide support (examples of which are listed in subsection (3)) to one or more police authorities or police forces.
44. New section 23B allows collaboration agreements between police forces or between police authorities to include provisions about payments, which may, for example, include payments in relation to costs for support provided and any arrangements for liabilities or indemnities.
45. New section 23C provides that plans for collaboration agreements involving seven or more forces or authorities must first involve consultation with the Secretary of State; that agreements must be in writing; that they may include provisions which account for different cases or circumstances (for example, an agreement might specify that the transfer of direction and control may be dependent on the geographical location of particular operations); that new agreements may vary existing agreements; and that agreements may be terminated by an agreement between the parties to it.
46. New section 23D specifies that police authorities must establish accountability arrangements for collaborations involving their own police force, including consideration of co-operative arrangements (for example joint committees) to do so jointly. Subsection (2) stipulates that the police authorities should notify their chief officers of the proposed accountability arrangements.
47. New section 23E provides that the parties to collaboration agreements must publish them in full or else publish the fact that the agreement has been made and such details at they think appropriate. It also provides that chief officers must publish the accountability arrangements that will apply to police force collaborations.
48. New section 23F provides that the Secretary of State may issue guidance about collaboration agreements or related matters. This is expected to include guidance on best practice in accountability and governance structures in collaborations of different kinds.
49. New section 23G outlines the types of direction which the Secretary of State may give about collaboration agreements. These include directions to enter into, to consider entering into or to prohibit from entering into an agreement or directions about the terms of agreements and may be applied to particular agreements, types of agreements or all agreements.
50. New section 23H allows the Secretary of State to terminate existing agreements by notice.
51. New section 23I specifies that sections 23 to 23H apply to the British Transport Police and the Civil Nuclear Constabulary as well as to the territorial police forces
Clause 6: Authorisations to interfere with property etc
52. Clause 6 amends section 93 of the Police Act 1997 (authorisations to interfere with property etc).
53. Clause 6(2) and (4) insert new subsections (3)(za) and (3A) into section 93 of the Police Act 1997 so that an authorising officer within section 93(5)(a)-(c) of that Act may grant an authorisation to interfere with property on an application made by a member of his own police force (“the authorising force”) or by a member of another police force (“a collaborative force”) if the chief officers of the forces in question are parties to an agreement under section 23(1) of the Police Act 1996 (“police force collaboration agreements”) and the agreement provides for such authorisations to be granted.
54. Clause 6(5) amends section 93(6) of the Police Act 1997 so that an authorising officer from the authorising force may authorise property interference in the force areas of the authorising force or a collaborative force, or any part of them, on an application made by a member of the authorising or collaborative force in accordance with the terms of the relevant police force collaboration agreement.
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