2Policing and Crime Bill
Background
76.The Queen’s Speech of 27 May 2015 included an announcement that the Government would bring forward a Policing and Crime Bill. The Government indicated that this wide-ranging Bill would have a number of elements and would address, amongst other things, pre-charge bail; the treatment of 17 year olds under the Police and Criminal Evidence Act; mental health and policing; changes to the police disciplinary system; and the reform of the Police Federation.
77.The Bill was introduced on 10 February 2016.45 The Bill received its second reading on 7 March 201646, and there were seven sittings of the Public Bill Committee, including two public evidence sessions47 and Report Stage commenced on 26 April. The House of Commons agreed a carry-over motion for this Bill on 7 March 2016 which meant that consideration of the Bill resumed in the 2016–17 session. The Bill, has now completed its Commons stages and, following Second Reading in the House of Lords on 18 July 201648, commenced Committee Stage in the House of Lords on Wednesday 14 September.49
78.We wrote to the Secretary of State on 15 June 2016, posing a number of questions about the Bill.50 In particular, we identified two particular concerns–namely proposed amendments to the Mental Health Act 1983 under Part 4 of the Bill and certain requirements to confirm nationality under Part 9.
79.In relation to the first issue, we questioned whether a person taken to a ‘place of safety’51 by the Police under s 135 or 136 of the 1983 Act should have the right to an independent mental health advocate, or a right to access to a relative, guardian or other appropriate adult. On the second issue, we noted the risk that the provision contained in Part 9 of the Bill on requirements to confirm nationality could have a differential impact on BAME UK citizens. We also questioned whether a person asked to produce a passport or other nationality document should instead be entitled to supply documentation sufficient to demonstrate an entitlement to such a document.
80.Mike Penning MP, then Minister for Policing and Criminal Justice, replied on 1 July 2016.52
Detention in a place of safety
81.On the Mental Health Act issue, he indicated, amongst other things, that:
The purpose of the intervention and detention under sections 135 and 136 of the 1983 Act is different in nature to many of the other powers given to the authorities under that Act. The powers are primarily for the purpose of conducting an initial mental health assessment of the person and determining the most appropriate course of action as a consequence [ … ] It is important, therefore, that we do not inadvertently build unintended and unnecessary delay and bureaucracy into this process or as a consequence of having to await the arrival of a formal advocate or independent representative.
82.His letter added that:
It is open for a person subject to section 135 or 136 to request their own legal representation or the presence of a relative or a friend if they wish and–subject to safety considerations–there is no reason why such wishes should not normally be accommodated. [ … ] Where it is deemed most suitable in all the circumstances to use a private residence as a place of safety, we would also expect that police and health professionals would seek to involve any family or friends in helping to reassure and calm the person, pending a formal assessment.
83.Amendments on this issue were tabled and debated at Committee Stage in the House of Commons and were tabled for debate at Committee Stage in the House of Lords.53
84.We believe that additional safeguards are required to ensure that a person detained in a place of safety under s 135 or 136 of the Mental Health Act 1983 should have access to an ‘appropriate adult’, particularly in circumstances where they are detained in their own home. In those circumstances, we propose an amendment to the Bill to make such provision, the text of which is contained below:
After Clause 81, insert the following new Clause:
Access to an appropriate adult
(1) A person detained in a place of safety under section 135 or 136 of the Mental Health Act 1983 shall have the right to an appropriate adult
(2) For the purposes of subsection 1 “right to” means:
(i) all detainees must be informed that they may at any time consult and communicate privately with an appropriate adult, whether in person, in writing or by telephone, and that such advice is available.
(3) For the purposes of subsection 1, “appropriate adult” means:
(i) a relative, guardian or other person responsible for the detained person’s care;
(ii) someone experienced in dealing with mentally disordered or mentally vulnerable people but who is not a police officer or employed by the police; or
(iii) some other responsible adult aged 18 or over who is not a police officer or employed by the police.
Requirement to produce nationality document
85.On the question of requiring an individual arrested for an offence to state their nationality (Clause 140), the Minister stated that:
Before deciding to issue a notice requiring a nationality document to be produced, as a matter of operational best practice, officers should check whether or not there is an immigration interest with Home Office Immigration Enforcement. If, having undertaken these checks, it is confirmed that the individual is not a UK national (or it is suspected the person may not be), it is a proportionate response to require the production of a document in order to properly establish identity. Should a UK national not possess a passport but are able to produce evidence (documentary or otherwise) that they are entitled to one under the terms of published guidance, it is reasonable that officers should take that into account. We do not consider it necessary that such eventualities are set out on the face of the Bill, but will instead issue guidance to officers in that regard.
86.If the Government accepts that alternative documentation may be required in circumstances where an individual does not possess a passport or driving licence, it is not clear why this fact should not be stated on the face of the Bill.
87.Where a UK citizen is asked to provide a nationality document, and is not in possession of such a document, it should instead be possible for him or her to provide documentation sufficient that such a document would be issued by the passport authority. This safeguard should be reflected on the face of the Bill rather than as operational guidance. Accordingly, we propose an amendment in the following terms:
Requirement to produce nationality document
Clause 140 (7)
At page 154, line 17, after the words “nationality or citizenship” add the words “, or where a person is not in possession of such a document, such alternative documents sufficient that such a document would normally be issued by the relevant authorities”.
45 See Policing and Crime Bill, Briefing Paper CBP-7499, House of Commons Library, March 2016, which provides an analysis of the Bill as originally introduced in the Commons and this detailed information is not rehearsed here.
47 The Library produced a second briefing note, Policing and Crime Bill: Committee Stage Report, Briefing Paper 07563, House of Commons Library on 22 April 2016.
49 Policing and Crime Bill: Briefing for Lords Stages, Lords Library Note, LLN-2016–0035, July 2016
50 Letter from Rt Hon Harriet Harman MP, Chair, Joint Committee on Human Rights, to Rt Hon Theresa May MP, then Secretary of State for the Home Department, dated 15 June 2016
51 If you are in a public place and it appears to a police officer that you are “suffering from mental disorder” and are “in need of immediate care or control”, he or she can take you to a place of safety if it’s felt to be in your interests or necessary to protect others. You will be kept at the place of safety, so that you can be examined by a doctor and interviewed by an approved mental health professional and any necessary arrangements can be made for your treatment or care.
52 Letter from Rt Hon Mike Penning MP, Minister for State for Policing, Fire, Criminal Justice and Victims, to Rt Hon Harriet Harman MP, Chair, 1 July 2016
53 An amendment (new Clause 12) requiring access to an independent mental health advocate) was tabled at Committee Stage in the House of Commons and was subject to debate (PBC Deb 12 April 2016 c236 et seq. The NGO, MIND, has proposed a (perhaps less onerous) amendment which would entitle persons to access to an ‘appropriate adult’. This amendment has been tabled by Baroness Walmsley as a new clause (Amendment 193) and is similar to the amendment that we propose).
© Parliamentary copyright 2015
13 October 2016