Clause 45: Independent custody visitors for places of detention

256.     Custody visiting to police stations provides a means by which volunteers from the community who are independent of the police and the criminal justice system can inspect and report on the way in which arrested persons are dealt with by the police and the conditions in which they are held. Although it remains a little known feature of the criminal justice system, it is thought to have a vital role as the only fully independent check on the extent to which the rights of those individuals detained at police stations are being respected.

257.     Custody visiting takes place already, through the voluntary application by police authorities of Home Office guidance. Placing custody visiting on a statutory basis will immediately raise the profile of the whole system. Custody visiting schemes in each police authority area will then be mandatory rather than an optional requirement. A supporting code of practice will provide for consistent standards across England and Wales.

258.     Subsection (1) of this clause provides that each police authority in England and Wales will set up, administer and review the arrangements for independent custody visiting within their area.

259.     Subsection (2) provides that police authorities, when recruiting, shall ensure that any volunteer appointed to become a custody visitor must be independent of the police authority and the chief officer of the relevant police force. This will ensure that there is no conflict of interest. For example, serving police authority members, serving police staff and special constables will not be eligible to apply until after they have left or retired from their current duties.

260.     Subsection (3) covers the general powers considered necessary for custody visitors to carry out their functions. For example, the custody visitor should have access to the custody suite where detainees are kept and the food preparation area if that is separate to the custody suite.

261.     Subsection (4) enables the police to refuse a custody visit to a specific detainee in limited circumstances and with the authority of an officer of at least inspector rank. The grounds need to be grounds already specified in the arrangements regarding independent custody visiting made by the police authority, and procedures regarding denial of access must be followed. Under subsection (5) the grounds must also be amongst those set out in the Secretary of State's code of practice referred to in subsection (6). Such grounds may, for example, refer to a reasonable belief that a visit would have adverse consequences such as interference with evidence or other suspects being alerted.

262.     Subsection (6) requires the Secretary of State to issue (and permits him from time to time to revise) a code of practice regulating independent custody visiting, to which police authorities and independent custody visitors must, under subsection (7), have regard. This will help to ensure consistent standards across England and Wales. It also permits the Secretary of State to modify the code if necessary.

263.     Subsection (8) provides a definition of a detainee.

Clause 46: Detention review for detained persons who are asleep

264.     The Bill makes a technical amendment to the Police and Criminal Evidence Act 1984 (PACE/the 1984 Act), to resolve a conflict between section 37(4) and (5) of PACE (duties of custody officer before charge) and section 40(12) (review of detention).

265.     Section 40 of PACE sets out provisions for periodic reviews of detention of each person held in police custody in connection with the investigation of an offence. The officer who carries out a review is known as the "review officer". Section 40(12) of PACE allows a detainee who is asleep not to be woken to make representations about his continued detention and there is no requirement for the review officer to offer him the opportunity to make representations in such circumstances. But sections 37(1) to (6) (duties of custody officer before charge) which apply by virtue of section 40(8), and specifically sections 37(4) and (5), mean that the detainee must be present when the grounds for continued detention are recorded by the review officer who must at the same time inform him of those grounds. Section 37(6) sets out exceptions to cover situations where a person is (a) incapable of understanding what is said to him;(b) violent or likely to become violent; or (c) in urgent need of medical attention.

266.     The conflict is resolved in this Bill by an amendment to PACE making an exception similar to those contained in section 37(6) to cover a situation where a person is asleep at the time when review and representations should take place.

267.     Subsection (1) of this clause amends section 40(8) of PACE to make reference to a new subsection (8A) containing specific modifications. Subsection (2) inserts after 40(8) the new subsection (8A). Subsections (8A)(a) and (b) replicate existing provisions. However, new subsection (8A)(c) inserts after section 37(6)(a) of PACE a new paragraph "(aa)" containing the word "asleep", thus adding situations in which the person arrested is asleep to the list of exceptions to the requirement for the person arrested to be present when the written record as to reasons for his detention is made, and to have those reasons explained to him at that time.

Clause 47: Persons suspected of offences connected with transport systems

268.     A second technical amendment to the Police and Criminal Evidence Act 1984 (PACE/the 1984 Act) addresses some loopholes in respect of Part II of the Transport and Works Act 1992 (TWA) and sections 34 and 62 of PACE, which could cause problems with the processing of a drunken train or tram driver at the police station and potentially may impact on a subsequent prosecution.

269.     Chapter 1 of Part II of the TWA deals with offences involving drink or drugs on particular transport systems. Section 29 gives the police power to require breath tests; section 30 gives the police powers of entry and arrest. The provisions are analogous to those that apply under road traffic legislation to driving with excess alcohol. In particular, the power to arrest without warrant contained in section 30(2) of the TWA uses identical wording to that in Section 6(5) of the Road Traffic Act 1988 (RTA):

A constable may arrest a person without warrant if-

(a) as a result of a breath test.. he has reasonable cause to suspect that the proportion of alcohol in that person's breath or blood exceeds the prescribed limit, or

(b) that person has failed to provide a specimen of breath when required to do so.. and the constable has reasonable cause to suspect that he has alcohol in his body.

270.      A person arrested under either section 30(2) of the TWA or section 6(5) of the RTA is not necessarily being arrested "for an offence". This is significant in respect of the provisions of the Police and Criminal Evidence Act (PACE) dealing with detention. For example, Section 34(1) of PACE provides that "a person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act."

271.     Section 34(6) of PACE provides that a person arrested under Section 6(5) of the RTA is to be treated under PACE as if he had been arrested for an offence. That ensures that all the normal PACE provisions in regard to treatment in custody apply. It also ensures that where a positive breath test is provided, the person can then be charged and detained or bailed under PACE.

272.     There is no similar provision in relation to persons being breath tested under the TWA. This has led to doubt as to whether there is power to charge a person under PACE and then use the relevant PACE powers to detain or bail him.

273.     Subsection (1) of this clause simply inserts into section 34(6) of PACE a reference to section 30(2) of the Transport and Works Act 1992 (TWA). This ensures that all the normal PACE provisions will apply to someone arrested under that Act too, either for failure to provide a specimen of breath when required to do so or where a constable has reasonable grounds to suspect that the proportion of alcohol in that person's breath or blood exceeds the prescribed limit.

274.     Another anomaly applies in relation to blood or urine samples which may be required if a suspected offender refuses to supply a breath test. Blood and urine samples are intimate samples the taking of which, under section 62(1)(a) of PACE, must be authorised by an officer of at least superintendent rank (this will be lowered to officer of at least inspector rank on implementation of section 80(1) of the Criminal Justice and Police Act 2001) and with the consent of the suspect. Road traffic cases under sections 4 to 11 of the RTA are exempt from the normal requirement to obtain the authority of a superintendent to take an intimate sample from a person in custody by virtue of section 62(11) of PACE. However, this exemption does not currently apply under the TWA. That would mean that if a blood or urine specimen were required from a suspected offender without prior authorisation by a Superintendent, the sample could be treated as inadmissible. This could lead to the failure of attempts to prosecute successfully persons suspected of driving particular transport systems while under the influence of alcohol or drugs.

275.     Subsection (2) of this clause therefore amends section 62(11) of PACE to include a reference to sections 26 to 38 of the TWA so that the taking of specimens under the 1992 Act is similarly unaffected by the PACE requirement to obtain the authorisation of an officer of at least superintendent rank.

Clause 48: Extension of role of nurses

276.     When investigating whether a driver has committed a drink driving offence, a constable may, under section 7 of the Road Traffic Act 1988 (RTA 1988), require the driver to provide a specimen of blood for testing in a laboratory. The offences in question are: causing death by careless driving when under the influence of drink or drugs (section 3A, RTA 1988); driving or being in charge of a vehicle when under the influence of drink or drugs (section 4, RTA 1988); and, driving or being in charge of a vehicle with alcohol concentration above the prescribed limit (section 5, RTA 1988). From the sample they can discover the level of alcohol present and whether the legal limit has been exceeded. This helps determine whether a charge should be brought and the nature of any such charge.

277.     The current position is that intimate samples, such as specimens of blood, can be taken, for whatever purpose, with the driver's consent, and only by a medical practitioner. This position is established by section 62(9) of the Police and Criminal Evidence Act 1984 and section 11(4) of the Road Traffic Act 1988.

278.     As regards section 62(9), a yet to be implemented amendment was made by section 80(2) of the Criminal Justice and Police Act 2001. This allows nurses to take such section 62(9) samples at police stations. Section 80(2) did not however amend section 11(4). As a result, in road traffic cases the specimen must still be taken by a medical practitioner.

279.     The effect of this clause is to enable, in routine cases, a registered nurse instead of a medical practitioner to take the specimen required. The new provision aims to help prevent delays and removes the need to call on a medical practitioner unnecessarily.

280.     Subsection (1) provides that it shall be the constable making the requirement who decides whether the specimen is taken by a nurse or a medical practitioner. This is to avoid the possibility that a person might argue he would consent to the taking of a specimen by a medical practitioner (who might not be readily available) but not by a nurse.

281.     Under the present section 7 there can be no requirement to provide a specimen where a medical practitioner is of the opinion that for medical reasons a specimen cannot or should not be taken. Subsection (2) provides that a nurse's opinion should carry the same weight unless a medical practitioner is of the contrary opinion.

282.     Subsection (3) confirms that a specimen is properly taken only if the subject consents and the specimen is taken by a medical practitioner or, if at a police station, by either a medical practitioner or a nurse.

Clause 49: Specimens taken from persons incapable of consenting

283.     Under existing legislation (Road Traffic Act 1988, section 11(4)) a person must consent before a blood specimen can be taken. If he does not consent, the person taking the specimen will be committing an offence. To take a sample without consent could constitute an assault. It could also, in affecting the relationship between patient and doctor, amount to a breach of medical ethics. As a result, if a person cannot give consent, typically because he is unconscious following a road traffic accident, there can be no specimen. This can prevent an appropriate drink driving prosecution because evidence as to the amount of alcohol in the person's blood is not available.

284.     This clause enables a medical practitioner (but not a registered nurse) to take a specimen without consent when, and only when, a person cannot give consent because of his condition following an accident. However, once the person's condition has improved, he will be asked if he consents to the analysis of the specimen. If he does not consent, he will be committing an offence, but the sample will not be analysed. The person taking the sample will be a police surgeon whenever possible, but never a person with direct medical responsibility for the patient. He will not to be obliged to take the specimen if it is against his own ethics or the medical well-being of the patient. Consequently, the changes enable a specimen to be taken from someone incapable of giving their consent, without the person taking it becoming potentially liable for assault and without putting a person unable to give consent at a disadvantage by comparison with one who can.

285.     Subsection (1) inserts a new Section 7A in the RTA 1988.

286.     New subsection 7A(1) empowers a constable to request a medical practitioner to take a specimen without consent in appropriate cases. To exercise this power, a constable must, first, otherwise be entitled to require a specimen. It must then appear to him that the person concerned has been involved in an accident and that as a result of a medical condition he is unable to give valid consent. New Subsection 7A(3) authorises, but does not require, the medical practitioner to act on this request, if he thinks fit. He can therefore refuse to do so. This recognises that some medical practitioners might have ethical objections to acting on a patient without consent other than where immediately necessary for the patient's medical well-being.

287.     New subsection 7A(2) provides that a request under new subsection 7A(1) should not be made to a medical practitioner who is responsible for the subject's clinical care. This is to avoid undue pressure and a possible conflict of interests. The request should where possible be made to a police medical practitioner (defined in new subsection 7A(7)). This relieves pressure on other medical practitioners and emphasises that their primary responsibility is to the medical well-being of their patients.

288.     New subsection 7A(4) provides that although a specimen has been taken it shall not be tested in a laboratory unless the subject, on regaining the ability to consent, has given consent. This is to avoid such a person being placed at a disadvantage by comparison with someone who has refused to provide a specimen. Its effect is that in both cases there will be no laboratory test results. New subsections 7A(5) and (6) parallel the existing provision that refusal to consent is an offence and that the subject must be warned of his consequent liability to prosecution.

289.     Subsection (2) extends to someone asked to consent to laboratory testing of a specimen the same protection enjoyed by someone required to provide a specimen. This means that procedure can only take place if the medical practitioner does not object on medical grounds.

290.     Subsections (3), (4) and (5) make failure to consent to laboratory testing subject to the same penalties as refusal to provide a specimen.

291.     Section 143 of the Powers of Criminal Courts (Sentencing) Act 2000 gives courts the power to deprive offenders of property used for the purpose of committing an offence. Section 143(6)(b) of that Act deals with the offence of refusing to supply a specimen in a drink driving case. It provides that the vehicle driven by the person refusing shall be regarded as used for the purpose of the offence. He is therefore liable to be deprived of the vehicle. Subsection (6) makes the same provision for cases where a person refuses to consent to analysis of a specimen taken without consent.

Clause 50: Use of specimens taken from persons incapable of consenting

292.     Subsections (1), (2) and (3) relate to the use in court of specimens taken under clause 48 by a nurse at a police station or under clause 49 by a medical practitioner without consent. Their effect is that such specimens shall be treated in the same way as a specimen taken with consent by a medical practitioner.

293.     Subsection (4) provides that when a specimen is taken without consent it must be divided in two, with one part being provided to the subject if he so requests. This parallels the provision for samples taken with consent, and enables the subject to have an independent laboratory test undertaken if he wishes.

Clause 51: Equivalent provision for offences connected with transport systems

294.     Chapter 1 of Part III of the Transport and Works Act 1992 creates offences similar to the drink driving offences of the Road Traffic Act 1988 in respect of those persons working on public transport systems such as railways. It also makes similar provision as to the taking of blood specimens. This clause makes the same amendments to those provisions as are made to the Road Traffic Act provisions by clauses 48-50.

Clause 52: Vehicles used in a manner causing alarm, distress or annoyance

295.     This clause gives the police new powers to deal with the anti-social use of motor vehicles on public roads or off-road. It includes (under subsections (1) and (3)) powers to stop and to seize and to remove motor vehicles where they are being driven off-road contrary to section 34 of the Road Traffic Act 1988 or on the public road or other public place without due care and attention or reasonable consideration for other road users, contrary to section 3 of the 1988 Act (as substituted by section 2 of the Road Traffic Act 1991). By virtue of subsection (8), these new police powers will not be exercisable until regulations under clause 53 of this Bill are in force.

296.     Subsections (3) and (7) provide that an officer may enter premises, other than a private dwelling house, for the purpose of exercising these powers.

297.     Under subsection (6), it is an offence for a person to fail to stop a vehicle when required to do so by a police officer acting in accordance with this clause. The offence is punishable, on summary conviction, to a fine not exceeding level 3 on the standard scale (currently £1000).

298.     Subsection (4) requires the officer to warn the person before seizing the vehicle, to enable its anti-social use to be stopped. By virtue of subsection (5), the requirement to give prior warning does not apply where it is impracticable to do so or where a warning has previously been given.

Clause 53: Retention of vehicles seized under section 52

299.     This clause allows the Secretary of State to make regulations relating to the removal, retention, release or disposal of motor vehicles seized in accordance with clause 52. The regulations will include, amongst other things, the procedures for notifying the owner of a vehicle that has been seized, and the circumstances in which the owner will be liable to meet the costs arising from the removal and retention of the vehicle.

Clause 54: Removal of truants to designated places

300.     The Crime and Disorder Act 1998 allows a police constable to remove a child or young person found by him in a public place if the constable believes that they are of school age and are absent from school without authority. The constable may remove the child to designated premises or return them to the school from which they are absent.

301.     Before the power is exercised three conditions must be met. First, the local authority must have designated premises to which children and young persons may be removed. Second, the chief officer of police for that area must have been informed about such premises. Third, a police officer of the rank of Superintendent (or above) must have directed that the power to remove children and young persons may be exercised within a specified area and for a specified period of time. At present British Transport Police (BTP) superintendents (and above) are not able to make such directions.

302.     This clause will allow a BTP officer of the rank of superintendent or above to direct specified areas within, or partly within, the BTP's railways jurisdiction and specified periods of time when the power to remove children or young persons may be exercised. The constable may remove the child to designated premises or return them to the school from which they are absent provided he reasonably believes they are of compulsory school age and are absent from school without lawful authority. Designated premises are those places nominated by the local authority as places where children can be removed by a constable using these powers.

Clause 55: Authorised persons under the Road Traffic Offenders Act 1988

303.     The Road Traffic Offenders Act 1988 allows for certain motoring offences to be dealt with by issuing a fixed penalty notice. A variety of offences are covered by these provisions, including failure to comply with traffic signs, driving without a licence and not wearing a seatbelt. In these cases a fixed penalty notice may be issued to the offender allowing them to discharge their liability for the offence provided they pay the financial penalty stated. The 1988 Act allows a 'Chief Officer of Police' to designate 'authorised persons' for his 'police area' to handle certain aspects of the fixed penalty notice process.

304.     The phrases 'Chief Officer of Police' and 'police area', as defined by the Police Act 1996, do not apply to the BTP. Thus they cannot authorise 'authorised persons' to deal with certain elements of the fixed penalty notice process.

305.     This clause will allow the BTP's Chief Constable, or someone else on his behalf, to authorise persons at BTP police stations. Such 'authorised persons' will, in certain circumstances, be able to issue fixed penalty notices and issue receipts for driving licences surrendered to them. The authorised person's signature may also constitute evidence of service of certain statements.

Part 5: The Ministry of Defence Police

Clause 56: Ministry of Defence Police serving with other forces

306.     This clause inserts a new section 2B in the Ministry of Defence Police Act 1987, the main legislation governing the Ministry of Defence Police ("MDP"). The new section 2B deals with the position where MDP officers serve with other forces under arrangements such as secondment. It provides that they come under the direction of the chief officer of the force with which they are serving for the time being and have the full powers of a constable of that force, (i.e. without the jurisdictional limits that apply to MDP officers).

Clause 57: Disciplinary matters

307.     This clause adds new provisions to the Ministry of Defence Police Act 1987 concerning the disciplinary procedures for the MDP. The intention is to enable those procedures to be aligned as closely as possible with those of Home Department police forces. At present, the MDP Act (in section 1(4)) gives the Secretary of State for Defence the power to dismiss a member of the MDP. He has no power to transfer to an outside body the function of deciding the imposition of penalties. In Home Department forces, on the other hand, a key element of the process of disciplinary cases, and of review and appeal, is that officers or other persons from outside the force concerned take such decisions.

308.     Subsection (1) inserts a new section 3A in the 1987 Act, creating a power for the Secretary of State for Defence to make regulations establishing disciplinary procedures for the MDP. It specifies that the regulations may provide for decisions on these matters to be taken or reviewed by persons other than the Secretary of State or the chief constable or persons acting on their behalf, and for the appointment of such persons. This is to allow disciplinary decisions to be made by persons outside the Ministry of Defence and the MDP. The Bill does not prescribe what the procedures should be, so that they can be altered by statutory instrument as the need arises. The intention is to adopt procedures aligned with those of the Home Department forces, and then to keep track of changes in these procedures. Regulations under this clause will be made by statutory instrument subject to the negative resolution procedure.

309.     Subsection (2) inserts a new section 4A in the 1987 Act, providing members of the MDP who have been subject to disciplinary proceedings and awarded one of the punishments listed in new section 4A(1) with the right of appeal to a tribunal. This right may not be exercised if the officer has the prior right (as is the case with officers who are not senior officers) to seek review, unless and until the review confirms a punishment of dismissal, requirement to resign or reduction in rank. The new section empowers the Secretary of State to make by order provision for the composition and procedures of the appeals tribunal corresponding to the relevant enactments for Home Department police forces (subject to modifications). New section 4A(5) enables the appeals tribunal to substitute a less severe punishment than that originally awarded.

Subsection (3) enables the powers of the Ministry of Defence Police Committee (which are at present only advisory) to be extended, so that it may be appointed to take certain decisions in the disciplinary process.