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DigestFebruary 2017A digest of police law, operational policing practice and criminal justice

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OFFICIALDigest February 2017

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© College of Policing Limited 2017

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The Digest is a primarily legal environmental scanning publication intended to capture and consolidate topical and key issues, both current and future, impacting on all areas of policing.

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OFFICIALDigest February 2017

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Overview 4Legislation 5 Bills before parliament 5 Criminal Finances Bill 5 New Legislation 6 Policing and Crime Act 2017 6Case law 7 Evidence and procedure 7 R (oao TL) v Surrey Police [2017] EWHC 129 (Admin) 7Policing practice 9 Crime 9 Latest crime statistics published 9 Police 10 College publishes briefing materials on pre-charge bail 10 Best use of stop and search – second revisits published 10 HMIC consultation on 2017/18 inspection programme 10 MOU on police use of restraint in mental health and learning disability settings 11 New strategy for police custody launched 12 Second phase of local alcohol action areas announced 13 Alternative fitness tests for officers 13Criminal justice system 14 Standards on Post Acquittal meetings published 14

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Contents

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This month’s edition of the Digest contains a summary of issues relating to police law, operational policing practice and criminal justice.

We look at:

• a case on the necessity criteria in relation to arrest without warrant

• the new Policing and Crime Act 2017

• the latest crime statistics

• College briefing materials on pre-charge bail

• HMIC revisit of forces relating to Best use of Stop and Search scheme

• HMIC consultation on 2017/18 inspection programme

• MOU on police use of restraint in mental health and learning disability settings

• New strategy for police custody

• Second phase of local alcohol action areas

• Standards on post acquittal meetings published

• Alternative fitness tests for officers.

Overview

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LegislationBills before parliamentCriminal Finances Bill

The Criminal Finances Bill, which was introduced in September, amends the Proceeds of Crime Act 2002, makes provisions in connection with terrorist property and creates corporate offences relating to tax evasion. A summary of the Bill can be found in the September edition of the Digest.

Progress

The Public Bill Committee on the Bill has now completed its work and has reported the Bill to the House with amendments.

The Bill will next be considered at report stage and third reading. A date for these stages has not yet been announced.

Please see services.parliament.uk

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New LegislationPolicing and Crime Act 2017

The Policing and Crime Act 2017 received royal assent on 31 January 2017. It is made up of nine parts and includes provisions which the Home Office states will:

• reform pre-charge bail to put a stop to people remaining on bail for lengthy periods with no independent judicial scrutiny of its continued necessity

• better enable chief officers to make the most efficient and effective use of their workforce by giving them the flexibility to confer a wider range of powers on police staff and volunteers (whilst for the first time specifying a core list of powers that may only be exercised by warranted police officers) and conferring a power on the Home Secretary to specify police ranks in regulations, thereby affording the flexibility to introduce a flatter rank structure

• place a new duty on police, fire and rescue and emergency ambulance services to collaborate where it is in the interests of their efficiency or effectiveness and enable police and crime commissioners (PCCs) to take on responsibility for the governance of fire and rescue services, where a local case is made

• improve the response to those in mental health crisis, including stopping those under 18 from being detained in a police station and restricting such detention for adults by reforming police powers under sections 135 and 136 of the Mental Health Act 1983

• reform the police disciplinary and complaints systems to ensure that the public have confidence in their ability to hold the police to account, and that police officers will uphold the highest standards of integrity

• increase in the maximum sentence for stalking involving fear of violence from five to ten years’ imprisonment

• amend the Police and Criminal Evidence Act 1984 (PACE), including to ensure that 17-year-olds who are detained in police custody are treated as children for all purposes, and to facilitate the increased use of video link technology

• amend the firearms acts to better protect the public by closing loopholes that can be exploited by criminals and terrorists, and by issuing statutory guidance to ensure that the robust processes we have in place for assessing suitability to hold a firearms certificate are applied consistently

• confer pardons, subject to conditions, for individuals living or deceased who were convicted of now abolished gay sex offences

• improve protection for victims of forced marriage and give them more confidence to come forward by providing them with lifelong anonymity.

The majority of the Act is yet to be appointed.

The Act can be accessed in full at legislation.gov.uk

Legislation New legislation

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Evidence and procedureR (oao TL) v Surrey Police [2017] EWHC 129 (Admin)

The Claimant was arrested in relation to serious allegations of rape and sexual assault and filed judicial review proceedings claiming that his arrest was unlawful because it was unnecessary and was actuated by more than one collateral or improper purpose. The Claimant attended the police station to be interviewed in connection with the allegations and was arrested outside of the police station. He was informed in the first instance that his arrest was to ‘effect a prompt investigation’ and was later informed that the grounds for believing an effecting a prompt investigation required him to be arrested were to prevent interference with the Complainant, to search the premises and seize evidence and to obtain evidence by way of questioning.

He was interviewed under caution and provided two prepared statements. Later he was strip searched, finger-printed, photographed and provided samples for DNA profiling purposes. The Claimant was released without charge on bail subject to conditions. The investigation continued and the Claimant was later informed that the Defendant proposed to take no further action, given the complex history between the Claimant and the Complainant and the available evidence that was considered to be insufficient to take the matter further.

The claimant sought a declaration that his arrest, and associated bail conditions, was unlawful.

The court emphasised the underlying concept in section 24(5) of pace of necessity, when using the power of arrest without warrant. It considered the three reasons for the arresting officer believing that it was necessary to arrest the Claimant to effect a prompt investigation.

Obtaining evidence by way of questioning

The court stated that if the officer had reasonably believed that it was necessary to arrest the Claimant in order to interview him, the section 24(5) criterion would be met. However, in the court’s judgment that was not the arresting officer’s state of mind. The Claimant had made clear that he would attend on a voluntary basis and that he would not contact the Complainant. It was clear from Code G of PACE that it was incumbent on the officer to ask himself whether it was necessary to arrest the Claimant in preference to a voluntary interview.

Case law

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Prevention of interference

The court considered whether the Claimant could be lawfully arrested for the purpose of preventing him interfering with the Complainant and whether in principle the imposition of bail conditions was conducive to a prompt and effective investigation. In the court’s judgment, it was clear that the decision to impose bail conditions was made on general policy grounds rather than the particular circumstances of the Claimant. The court concluded that the officer did not have reasonable grounds to believe that bail conditions were necessary to ensure a prompt and effective investigation under section 24(5)(e).

To search the Claimant’s premises

The final issue which arose was whether the officer was entitled to exercise his power under section 24(5)(e) for the purpose of searching the Claimant’s premises under section 18. The court stated that although it was possible to envisage circumstances where the Police could reasonably conclude that for exigent operational reasons any delay entailed in obtaining a warrant could undermine the investigation, the Defendant’s officers did not have reasonable grounds for believing that it was necessary to arrest the Claimant in order to exercise their summary search powers under section 18 of PACE. In the court’s view, the Defendant’s officers should have applied for a search warrant under section 8, and no proper basis had been advanced for not doing so. It appeared to the court that the real reason for the police officers not making such an application was their concern that the magistrate would say that their powers under section 18 were preferable which controverts the whole statutory scheme.

Conclusion

The court concluded that:

a) the Claimant’s arrest was unnecessary for the specific purpose of interviewing him

b) there were no reasonable grounds necessitating his arrest in order to impose bail conditions, and

c) there were no reasonable grounds necessitating his arrest in order to search his premises (in preference to obtaining a search warrant under section 8 of PACE).

The court stated that lawfulness of the Claimant’s arrest could not be upheld.

The judgment can be accessed in full at bailii.org

Evidence and procedureCase law

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Policing practiceCrimeLatest crime statistics published

The latest bulletin from the Crime Survey for England and Wales (CSEW) has been published, showing an estimated 6.2 million incidents of crime in the year ending September 2016.

Main points

• Across all crime types covered, the police recorded 4.7 million offences in the year ending September 2016, an annual rise of 8%.

• Following an extension of the coverage of the survey, Experimental Statistics showed there were 3.6 million fraud and 2.0 million computer misuse offences for the first full year in which such questions have been included in the CSEW.

• Trend data on frauds referred to the police showed an annual rise of 3%. Other industry data on financial fraud, the vast bulk of which is unreported to the police, showed there were 1.9 million cases of frauds on UK-issued cards (an increase of 39% from the previous year).

• CSEW estimates showed no statistically significant change in levels of violence compared with the previous survey, with the underlying trend fairly flat in recent years. While the police recorded an annual rise of 22% in violence against the person offences, the volume increases were largely driven by changes in recording processes and the inclusion of additional harassment offences within the series.

• However, there appeared to be genuine smaller increases in some of the lower volume but higher harm categories of police recorded violence including homicide and knife crime.

The statistical release can be accessed in full at ons.gov.uk

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PoliceCollege publishes briefing materials on pre-charge bail

The College of Policing has launched briefing materials via the Managed Learning Environment (MLE) to assist forces in preparing for the forthcoming changes to pre-charge bail. The changes will come into force following the commencement of the relevant sections of the new Policing and Crime Act 2017, which recently received royal assent.

The College has developed a web page hosted on the MLE to introduce forces to the legislative changes and enhance their knowledge on the key issues. The product is designed for all police officers and staff who engage in the investigation and bail process. In addition, the College has published Frequently Asked Questions on the changes, which can be accessed via the College membership platform or through the briefing materials on the MLE.

To access the e-learning please log on to the College of Policing Managed Learning Environment (MLE) at www.ncalt.com or www.ncalt.pnn.police.uk

Best use of stop and search – second revisits published

HM Inspectorate of Constabulary (HMIC) has published a report following a revisit of the 19 forces who were found not to be complying with one or two features of the Best Use of Stop and Search (BUSS) scheme. The scheme, launched by the Home Office and the College of Policing in 2014, aims to achieve greater transparency and community involvement in the use of stop and search powers and to support a more intelligence-led approach, leading to better outcomes.

The report and the letters to the 19 forces inspected can be accessed at justiceinspectorates.gov.uk

HMIC consultation on 2017/18 inspection programme

HM Inspectorate of Constabulary (HMIC) is consulting on the proposed inspection programme for 2017/18, comprising:

• national thematic inspections

• joint inspections; PEEL assessments

• inspections of other national law enforcement agencies

• commissions from the Home Secretary, police and crime commissioners and other local policing bodies; and

• HMIC work on fire inspections and super-complaints.

PolicePolicing practice

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The consultation poses the following questions:

1. Do you agree that leadership in the police should be assessed as part of the HMIC effectiveness, efficiency and legitimacy inspections rather than as a separate inspection?

2. Are there significant new or emerging problems for policing which HMIC should take into account in the effectiveness, efficiency and legitimacy inspections?

3. Do the proposed thematic inspections of hate crime, counter-terrorism, child protection and crime data integrity cover areas that are of most concern to you at the moment?

4. How else could HMIC adapt the way in which it acquires information to take full account of current circumstances and risks to public safety?

The consultation closes at 5pm on 24 February 2017 and can be accessed in full at: justiceinspectorates.gov.uk

MOU on police use of restraint in mental health and learning disability settings

A Memorandum of Understanding (MoU) has been introduced for police and healthcare professionals, providing clarity on the role of the police service in responding to incidents within mental health and learning disability settings. Its intention is to outline when and how the responsibilities of the police service fit in to the established roles and responsibilities of care providers.

The police do not have specific powers to restrain a patient for the purposes of medical treatment regardless of whether the treatment is in the patient’s best interests however, research by Mind in 2013 revealed there is significant variance in the extent to which healthcare providers call the police for support around restraint and restrictive practices.

Physical restraint can be humiliating, terrifying, dangerous and even life-threatening. It can trigger psychological trauma, especially for people with previous experience of physical or sexual abuse. When police officers are involved this can be even more frightening. The MoU states that each situation where the police are called for emergency assistance should be properly assessed on its merits. There will be no assumption that police cannot be involved because the patient is either detained under the Mental Health Act 1983 or in hospital. The police role is the prevention of crime and protection of persons and property from criminal acts.

Police services and health providers should develop or review existing protocols to take account of this MoU. There should be timely joint reviews of incidents where the police use force or where the police did not attend an incident despite the agreed local protocol being properly used.

PolicePolicing practice

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Health providers should review the prevention and management of violence and aggression training they provide for their staff and review all the incidents in 2016 where the police have been called for emergency assistance. Any dispute about pre-incident issues are matters for review after safety has been restored.

The MoU has been endorsed by the National Police Chiefs’ Council, Mind, the Royal College of Psychiatrists, the Royal College of Nursing and the Faculty of Forensic and Legal Medicine, with a view to other organisations providing their formal support in due course.

The MoU can be accessed in full at college.police.uk

New strategy for police custody launched

A new set of nationally consistent principles have been developed to complement existing legislation and guidance and help forces to ensure that they are using custody in a way that is legitimate, effective and efficient.

The strategy has been launched in response to developments in policing, including more focus on vulnerability, increased scrutiny, and further collaboration between forces. At the centre of the strategy is the consideration of the impact of custody on vulnerable people and the commitment to ensure all detainees, particularly those that are vulnerable, are treated with respect and their rights protected.

The National Custody Strategy sets out a number of aspirations for police custody, including:

• eliminating the use of police custody for Mental Health Act detentions

• ensuring children are only held in custody as a last resort

• encouraging innovative but appropriate alternatives to custody

• utilising opportunities to collaborate where it will save money or help us work better

• consistently identifying and managing risk.

The strategy can be accessed in full at news.npcc.police.uk

PolicePolicing practice

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Second phase of local alcohol action areas announced

The Home Office has announced the second phase of the local alcohol action areas (LAAA) programme, extending it to include 33 new regions. On the 27 January the Home Office launched a new phase of the programme to tackle alcohol-related crime and health harms and create a more diverse night-time economy. The programme, which aims to tackle alcohol-related crime and health harms and create a more diverse night-time economy, initially launched in February 2014 covering 20 areas.

The first phase of LAAA saw a variety of interventions introduced to reduce street drinking, vulnerability and violence. The new areas will be supported in developing and implementing their plans by specialist support managers. They will receive support and expertise in crime prevention, licensing and public health from the Home Office, Public Health England, the Welsh government and Nightworks, a company that specialises in diversifying the night-time economy. The programme will run for two years and LAAA areas will also be put in touch with mentors who have successfully tackled the issues that they face and will come together to problem solve and share best practice.

Further information can be accessed at gov.uk

Alternative fitness tests for officers

The College has given its endorsement to two new alternative fitness tests for officers; the Chester Treadmill Police Walk Test (CTPWT) and the Chester Treadmill Police Run Test (CTPRT). Both tests were designed by Professor Kevin Sykes and are designed to give forces further choice alongside the 15-metre Multistage Shuttle Run (15m MSTF) which is currently in use.

The tests will be available to all forces in England and Wales however the decision as to whether to use them remains a local decision for chief officers.

Whilst officers will not be able to state a preference for either of the new tests, they could apply to take them following an occupational health referral or where there is a medical reason not to complete the current shuttle run test.

The new tests have been designed to ensure that officers demonstrate the requisite fitness standards required for operational duties as they would by completing the standard shuttle run test.

Of note, officers in specialist roles (such as Authorised Firearms Officers, dog handlers and police divers) are also eligible for the new tests but are expected to achieve a higher level of aerobic fitness to pass.

Further information can be found at college.police.uk

PolicePolicing practice

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Criminal justice systemStandards on Post Acquittal meetings published

Justice After Acquittal (JAA), the CPS and the Metropolitan Police have launched National Standards of Support (NSS) for families following an acquittal in a murder case. NSS is a series of meetings with the CPS and police, working with the family. It provides an opportunity for the family to learn what may have led to the acquittal, the next steps and how information can be obtained about future reviews.

Further information can be found in the CPS guidance at cps.gov.uk

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