Response to Home Office Consultation On Modernising Police Powers

Report: 13
Date: 30 September 2004
By: Clerk

Summary

The Home Office recently issued a consultation document proposing the reform of police powers so that the police service is better positioned to respond to community expectations. This report sets out the proposed response of the Authority.

A. Recommendation

That

1. Members endorse the overarching principles that should apply generally to the reform of police powers (para.12); and

2. agree the response to specific proposals as given at paragraphs 13 to 41).

B. Supporting information

1 The government believe that ensuring the police are empowered to act effectively and proportionately is an essential element in tackling crime and disorder, and improving the quality of life in our neighbourhoods. As part of this, in August 2004, the Home Office published the consultation document Modernising Police Powers to Meet Community Needs. It outlines a range of areas that will affect how the police and others carry out their roles but the focus is on the police effectively addressing the issues that are of public concern. A particular strand is enhancing the link between the police and the community by raising both the ability of the police to tackle crime and by building the confidence and awareness of the community. Ensuring that the police have the powers to match the needs of the community lies at the heart of delivering that goal so the consultation paper sets out key areas of police powers that may need extending or which might benefit from clarification, simplification and modernisation. Responses are required by 8 October 2004. The measures under consideration may be summarised as follows.

2 Section 2: - Arrest - concept of seriousness

• Redefine the framework of arrest powers so that a police officer can arrest for any offence subject to a necessity test.
• Revise the seriousness criterion and the concepts of the “arrestable” and “serious arrestable offence”.
• Introduce a new requirement for an offence to be triable either way or on indictment before the ‘trigger’ powers following arrest can be applied.
• Set clear criteria for the exercise of a citizen’s power of arrest.
• Abolish the capacity to arrest in relation to a breach of the peace.

3 Section 3- Search warrants - raising capacity

• Search warrants authorising any premises occupied or controlled or accessible by a named individual.
• Warrant focusing on the person and their whereabouts rather than on a specific single address.
• The officer applying to the court would have to satisfy the court that a ‘multi-premises’ warrant was necessary.
• The lifetime of the warrant would be a matter for the court based on the application setting out the period considered necessary and relevant.
• The court would be required to sanction multiple use of the warrant within the agreed timeframe.
• Accessing telephone and electronic communication in application for and granting of warrants.

4 Section 4-workforce modernisation

• Powers to direct traffic – in response to specified situations rather than routinely.
• Custody area: extending key involvement around custody and identification roles.
• Begging: providing PCSOs and accredited persons with new powers to issue a warning.
• Enforcing byelaws: subject to central or local determination.
• Searching the person for weapons or dangerous articles – a new power subject to suitable training and procedures.
• Remove the absolute requirement for civilian staff to wear a uniform.
• Raising PCSOs’ enforcement powers for certain licensing offences.
• Working with stakeholders on police charging for services.
• Designate chief officers as a ‘corporation sole’ for the purposes of health and safety legislation.

5 Section 5 - increasing prevention and detection powers – drug related crime

• Testing people on arrest (rather than charge) for certain ‘trigger’ offences.
• Enhancing the ability to encourage drugmisusing offenders leaving custody to undergo appropriate drug treatment.
• Court to draw inferences from refusal to submit to a search.
• Power to apply to the courts for extended detention after charge.

6 Section 5 - road/driver offences

• Create a new offence of using or keeping an incorrectly registered vehicle.
• Confer on the Secretary of State a power to fund ANPR through fixed penalty generated revenue.
• Provide civilian staff access to PNC data for supporting roadside enquiries.

7 Section 5 - the nuisance of fireworks

• Create a power of stop, search, seizure and confiscation in relation to:

• possession of fireworks by a person under 18 in a public place.
• category IV fireworks unless authorised.

8 Section 5 - protests outside homes

• Create a new offence of harassment, causing alarm or distress to complement existing powers under the Criminal Justice and Police Act 2001.
• Extend the period to 3 months for a person subject to a direction on returning to premises.
• Extend the Protection from Harassment Act 1997 to cover harassment of two or more people who are connected, such as employees of the same company, even if each individual is harassed on only one occasion.

9 Section 5 - Dealing with protests outside parliament

• Ensure that legislation to deal with demonstrations outside Parliament is effective and introduce new legislation if necessary.

10 Section 6 - Identification

• Power to take fingerprints of a suspect elsewhere other than a police station for the purpose of confirming the identity of a suspect.
• Taking of footwear impressions with or without the suspect’s consent.
• Power to take a visual image of an arrested person elsewhere other than a police station.
• Power of retention of moving images
• Clarify the ability to take a penile swab with consent.
• Establish a Missing Persons Database for the purposes of identification only.
• Power to take a DNA sample from an unidentified body or body parts where no offence is suspected for the purposes of identification only.
• Power to take a DNA sample from a missing person’s genetic relative or possessions for the purposes of identification only.
• Authority to speculatively search DNA profiles taken from unidentified bodies, missing person's possessions etc against the National DNA Database subject sample records for identification purposes only.
• Power to use fingerprints/DNA taken covertly for speculative searches to confirm or disprove a person’s involvement in an offence.

11 Section 7 - Forfeiture of electronic devices used to store or handle indecent photographs of children

• Removing indecent photographs of children from circulation.
• Need for increased powers on forfeiture.
• Maintaining co-operation from people and organisations.

Overarching principles
12 Responses received from members of the Authority in relation to the above proposals have common themes which are encapsulated by the following principles.

1. The case for new powers should be based on evidence which demonstrates a clear necessity and that their previous absence has hampered the fight against crime.
2. Any new powers sought should be proportionate to the intended benefit and be balanced against the importance of preserving fundamental rights and liberties.
3. The exercise of police powers on members of the public, inevitably involve interference with the liberty of an individual. For this reason their use should be limited to appropriate office holders with adequate training/supervision and to those who can be held accountable for their actions.

Comment on specific sections
The following specific comments have been received.

Section 2: arrest
Proposal:

13 Make all offences arrestable offences, regardless of the seriousness or otherwise of the offence.

Comment:
14 The consultation document offers no evidence that current powers of arrest limit the work of the police or that extending them will increase effectiveness. Indeed since police will still have wider discretion, arguably too wide, decisionmaking is likely to be more prone to error through variable interpretation and operational application. Whilst there is a need to simplify the basis for arrest, the need for simplicity must be balanced with the need for proportionality. In many instances, the minor nature of an offence would mean it would be disproportionate to exercise a power of arrest. It would therefore be unacceptable that the seriousness of the offence will no longer be considered relevant. If powers of arrest are simplified, the need to satisfy a ‘seriousness of incident’ test, for example, should be employed before an officer exercises his discretion to arrest.

Proposal:
15 Remove the distinction between arrestable offences and serious arrestable offences and replace the current distinction with one based on whether on offence is triable either way or on indictment only. The use of the more serious investigative powers would still be subject to formal authorisation by an officer of a specified rank.

Comment:
16 Whether this change is necessary is questionable and there is no support such a change in principle; current statutory protections exist to ensure that the most serious powers can only ever be used in respect of the most serious offences and this should remain the case. However, if such a change is made, then there is an argument for ensuring that the exercise of all the powers in question are subject to formal authorisation by an officer of a significant and specified rank.

Section 3: search warrants
Proposals:
17 Create a ‘super’ warrant, allowing multiple entry to any premises occupied or controlled by or accessible by a specified person.

Comment:
18 In some ways this makes sense; at the moment the police need to re-apply for warrants should the suspect have moved somewhere etc. However there would be considerable practical difficulties and a huge potential for misuse. For example, is it fair to subject the other occupants of the premises in question to the potential of repeated entry? Such a warrant would in practice potentially mean that the police can gain forced entry to any premises where the suspect in question may be, without seeking specific judicial approval for the premises in question, as long as a ‘super warrant’ has been issued in respect of the subject in question.

19 The extension of police powers to ‘any premises’ is drawn too widely. Whether such a warrant would ever be proportionate and whether it would violate the right to private life and the sanctity of property rights are questions that must be answered, but which have not been addressed in the paper.

20 If such a warrant were introduced, it would be preferable for the police to have to show the magistrate that there is a need to issue such a super-warrant rather than a normal (current) warrant and the issue of such a warrant should be extraordinary, rather than the norm. Any such warrant should be time-limited, and it may be preferable to list a number of potential addresses. In any event the proposed definition (controlled, occupied or accessible by the suspect) is too wide – it should be limited to premises controlled or occupied by the suspect.

Section 4: workforce modernisation
Proposal:
21 Extending powers to civilian police staff.

Comment:
22 On a general note, any civilians exercising police powers must be held accountable, must be trained properly, and should exercise the more serious of their powers under the direct supervision of a constable (which would apply to several of the proposals mentioned).

23 There support for a modest extension in the PCSO role in areas such as traffic and street management. In any event, the proposed extension of powers given to PCSOs can only be justified should sufficient training be in place. We have some concerns about the fact that extension to PCSO powers is being proposed so soon after their introduction and before a proper evaluation of their effectiveness has been completed and published.

24 We would strongly oppose extending stop and search type powers to PCSOs. Stop and search remains a controversial issue and to extend the use of such a power to persons less well-trained than constables would not be acceptable and may undermine the progress made since the Lawrence Inquiry.

25 Designated officers may be exempt from wearing uniforms if they have clear and visible name identification.

Section 5: increasing prevention and detection powers
Proposal:

26 Test suspects for Class A drugs at the point of arrest (for certain trigger offences).

Comment:
27 It is of course important to ensure more and more drug users have access to treatment. But while testing and treatment should be made available on a voluntary basis, mere arrest for a trigger offence should not be sufficient to justify a compulsory test. With this and other proposals/powers, we are moving further and further away from the whole principle of innocent until proven guilty.

Proposal:
28 Allowing a judge to direct a jury to draw adverse inferences from a refusal to be x-rayed or submit to an intimate search.

Comment:
29 While we recognise the problem, this is not the solution. Consent cannot be gained by the threat of prosecution and no doubt consent gained under such duress would be unlikely to satisfy many in the medical profession (which is identified in the paper as one of the problems this proposal would help rectify), if it is ethics they are concerned about and not prosecution.

30 We would also be extremely concerned if the Government were to propose the creation of an offence of failing to consent where there are sufficient grounds to believe that a suspect may have swallowed a drug, which is discussed in the paper but not formally proposed. Similar arguments as above apply here.

Proposal:
31 Allow the courts to remand a person suspected of swallowing a drug to custody for a period of time to allow the drug to pass through.

Comment:
32 The average length of time this takes is 12 days (as per the paper). The test of grounds to suspect that the person has swallowed a drug would therefore need to be sufficiently high to justify such lengthy detention (note that the maximum detention period for suspects under the Terrorism Act 2000 is 14 days; under PACE the maximum is 36 hours).

Proposal:
33 Legislating to allow the police to impose conditions on all demonstrations in the vicinity of Parliament.

Comment:
34 There is no need for this power and would not support it out of principle. The police can use public order legislation, anti-terrorism legislation and can ban marches should they need to. This measure risks restricting legitimate public protest (note that ‘vicinity’ of Parliament Square would be likely to include the area around 10 Downing Street), and also seems designed to enable the police to ‘deal’ with the sole anti-war demonstrator on Parliament Square. In any event, the list of potential conditions would have to be specified in legislation.

Section 6: identification
Proposal:
35 Allow the police to take fingerprints off suspects outside a police station in a public place

Comment:
36 There is clearly a huge potential for misuse. The paper is not specific on what the person in question must be suspected of doing (should there a trigger offence threshold?) or how reasonable/strong that suspicion needs to be. There should be sufficiently high tests that the police must meet before such a power can be used.

37 In the worst case scenario, the police could end up being able to take fingerprints of all those they stop and search – after all, except under the Terrorism Act, the police need to have some reasonable grounds for stopping and searching an individual and/or vehicle.

Proposal:
38 Allowing the police to take ‘visual images’ of suspects outside a police station, given the increasing use of police ‘interventions’ outside the police station.

Comment:
39 As above, sufficiently high tests that the police must meet before such a power can be used. The paper suggests that they might need to take visual images of those given a Fixed Penalty Notice – we are not convinced that this is necessary and proportionate, and could be unworkable given the wide range of people who can issue FPNs.

Proposal:
40 Allow speculative searches against DNA/fingerprint database profiles of DNA and fingerprints obtained covertly.

Comment:
41 This would be acceptable if the covert operation and thus the taking of samples are governed by sufficient safeguards. However what the paper does not specify is whether these samples will be retained or destroyed. Any samples not obtained under PACE should not be retained nor entered onto the national DNA database.

C. Race and equality impact

The draft response supports equality and diversity through the overarching principles by seeking to preserve the fundamental rights and liberties of individuals and requiring that those who exercise powers are properly trained, supervised and held to account for their actions. Around broadening powers of arrest, the commentary identifies and seeks to limit the dangers inherent in the variable interpretation and application of the powers. The draft response identifies similar problems with the wider application of stop and search powers which it also seeks to limit.

D. Financial implications

None.

E. Background papers

Home Office paper Modernising Police Powers to Meet Community Needs

F. Contact details

Report author: Keith Dickinson

For more information contact:

MPA general: 020 7202 0202
Media enquiries: 020 7202 0217/18

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