House of Commons - Explanatory Note
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Clause 17: Inspections of police premises on behalf of the Commission

147.     This clause places a duty on both the chief officer and the police authority for a police force to allow access as early as possible to its premises and to documents and other things on those premises to any person nominated by the Commission for the purpose of:

  • any investigation to do with that force in which it is involved; or

  • any examination by the Commission of the efficiency and effectiveness of the arrangements in that force for the handling of complaints and other conduct matters.

Clause 18: Use of investigatory powers by or on behalf of the Commission

148.     This clause enables the Secretary of State to make an order which would authorise the Commission to use specific surveillance powers and to conduct and use covert human intelligence sources for the purpose of carrying out any of its functions. Such an order will need the approval by resolution of each House. This power is required to ensure that the IPCC, when dealing with serious criminal offences alleged to have been committed by police officers, has similar powers to those given to the police under the Regulation of Investigatory Powers Act 2000.

Clause 19: Duty to keep the complainant informed

149.     One of the key features of the new system is greater openness with the complainant and there will be much wider powers and duties to achieve maximum openness both during and after an investigation.

150.     Subsection (1) places a duty on the Commission, with respect to an investigation it has undertaken or has managed and subsection (2) places a duty on an appropriate authority, with regard to a police investigation or a supervised investigation, to keep the complainant informed in as full a manner as possible of the matters listed in subsection (4). In addition to this duty on the Commission, subsection (3) places a further duty on the Commission to give the appropriate authority directions to enable it to comply with its duty to keep the complainant informed.

151.     Subsection (5) enables the Secretary of State to provide by regulation how the complainant should be kept informed and the exceptions to this duty, but the exceptions will apply only to information that could bring harm as described in subsections (6) and (7) to, for example, national security, individuals, or future police operations.

152.     Subsection (9) requires the person appointed to carry out an investigation to keep the Commission or appropriate authority, as appropriate, informed on such matters to enable it to perform its duties under this section.

Clause 20: Power of the Commission to issue guidance

153.     This clause enables the Commission, with the approval of the Secretary of State, to issue guidance to police authorities, chief officers and others serving with the police. The guidance will be on the exercise or performance of the duties and powers placed on them for the handling of complaints, conduct matters or any other related matters. The purpose of such guidance will be to encourage good practice and achieve commonality in the use of the arrangements secured by the Commission for the effective and efficient arrangements for the handling of all such matters. Before issuing guidance under this clause, the Commission must consult those whom it considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the Association of Police Authorities (APA) and the Association of Chief Police Officers (ACPO) and/or the Chief Police Officers' Staff Association (CPOSA). The Commission may also consult anyone else it chooses. Apart from guidance under clause 13 in relation to complaints dealing with direction and control, the Secretary of State will no longer issue guidance in relation to complaints.

Clause 24: Forces maintained otherwise than by police authorities

154.     Subsection (1) gives power to both the Commission and an authority, other than a police authority, which maintains a body of constables to enter into an agreement with each other to establish procedures similar to that provided for in this Part to deal with complaints and other conduct matters in relation to that body of constables.

155.     Subsection (2) gives the Secretary of State power to provide by order for the establishment and maintenance of procedures to deal with complaints about the conduct of members of a body of constables, whether or not such procedures are already in place in relation to that body of constables under this section or any of its predecessors. Any existing procedures for the body of constables to which the order relates will be superseded by the procedures established under the order. Subsection (3) ensures that the Secretary of State will issue such regulation in respect of the British Transport Police and the Ministry of Defence Police. Subsection (5) ensures that the provision of clause 34(1)(a) of this Bill can also be applied to non-Home Office forces. Subsection (7) requires the Secretary of State to consult the Commission and the authority that maintains that body of constables before making the order. Subsection (8) limits the coverage of such procedures to England and Wales. If that body of constables' powers and responsibilities extends into Scotland and Northern Ireland, the authority for that body will need to make separate arrangements under existing provisions for Scotland and Northern Ireland.

Clause 25: Conduct of the Commission's staff

156.     It is recognised that the general public expect that people serving with the police who are given powers, the use of which can have a significant impact on members of the public, should not abuse those powers and betray the trust and confidence placed in them. It is accepted generally that those who abuse those powers and betray that trust should be answerable and this Part provides a mechanism to deal with allegations of such abuse and betrayal. It follows that members of the Commission's staff who are given the same or similar powers as a person serving with the police should also be answerable for the abuse those powers.

157.     To bring these staff under the procedures of this Part would not be without its difficulties. Instead, this clause requires the Secretary of State to make provisions by regulations for the handling of both allegations of misconduct made against members of the Commission's staff and cases in which there are indications of misconduct. The regulations may apply any provision under this Part, modified as necessary.

Part 3: Removal, suspension and disciplining of police officers

Clause 28: Resignation in the interests of efficiency and effectiveness

158.     This clause extends existing powers in the Police Act 1996 to call on senior officers to retire in the interests of efficiency and effectiveness, to allow for officers to step down by way of resignation as well.

159.     Subsection (1) applies these new arrangements to the Metropolitan Police.

160.     Subsection (2) applies them to forces outside London.

Clause 29: Procedural requirements for removal of senior officers

161.     This clause adds procedural requirements for the exercise of the power of a police authority to remove a chief officer in the interests of efficiency or effectiveness. It requires that where a police authority exercises this power, it must give the officer concerned its reasons for removal in writing, afford him the opportunity to make representations in person at a hearing, and consider any representations made by or on behalf of the officer.

162.     Subsection (1) applies these requirements to the Metropolitan Police Authority.

163.     Subsection (2) applies them to police authorities outside London.

Clause 30: Suspension of senior officers

164.     This clause introduces a new power for police authorities, on their own initiative or when required to do so by the Secretary of State (for the latter of which, see also clause 31), to suspend chief officers who are or may be called on to retire or resign in the interests of the efficiency and effectiveness of their force. As a safeguard against arbitrary or unfair use by the police authority, the approval of the Secretary of State is required.

165.     Subsection (1) gives the suspension power to the Metropolitan Police Authority in respect of the Commissioner and Deputy Commissioner of Police of the Metropolis. It does this by inserting a new subsection (2A) in section 9E of the Police Act 1996: that section contains the powers to call on the Commissioner or the Deputy Commissioner to retire.

166.     Subsection (2) introduces the suspension power for police authorities outside London in respect of chief constables in their forces. In those cases, the subsection inserts a parallel new subsection (3A) in section 11 of the Police Act 1996.

167.     Subsections (3), (4) and (5) make equivalent provision for suspension of Assistant Commissioners, Deputy Assistant Commissioners and Commanders in the Metropolitan Police, and deputy chief constables and assistant chief constables for forces outside London, with the difference that the Secretary of State will not be able require the police authority to exercise its power to suspend these ranks.

Clause 31: Removal of senior officers at the instance of the Secretary of State

168.     This clause sets out revised powers for intervention by the Secretary of State. He will be able to require a police authority to call on the chief constable of a force outside London or the Commissioner or Deputy Commissioner of the Metropolitan Police to retire or resign in the interests of efficiency or effectiveness. He will also be able to require suspension of officers in certain circumstances. The clause introduces further safeguards regarding the use of the removal powers and also streamlines the process for considering cases brought under these powers.

169.     Subsection (2) contains the intervention powers. These are introduced by the insertion of a series of new subsections in section 42 of the 1996 Act. New section 42(1) allows the Secretary of State to require a police authority to call on a senior police officer to retire or resign in the interests of efficiency or effectiveness. New section 42(1A) allows the Secretary of State to require suspension of those officers in certain circumstances set out in new section 42(1B). New section 42(2) introduces the further safeguards. It makes it a requirement for the Secretary of State to give an officer formal notice of intention to exercise the section 42(1) power to require the police authority concerned to take action against the officer, and to provide a written explanation of the grounds for so doing. The purpose is to ensure that the officer is made directly aware of the Secretary of State's intention and the reasons behind it. This is in addition to the requirement for an officer to be able to make representations to the Secretary of State, which this subsection re-enacts. Section 42(2B) requires the Secretary of State to consider any representations made to him by the officer concerned. Section 42(2A) ensures that the relevant police authority is also kept informed of the Secretary of State's actions. If the Secretary of State intends to exercise his powers under this clause, he will be required, as now, to appoint an inquiry to report to him on the proposal. The officer and police authority concerned are entitled to make representations to this inquiry - the officer being explicitly allowed to do so in person (revised section 42(3), and new sections 42(3A) and 42(3B)).

170.     Subsection (6) effects the removal of unnecessary stages in two ways. Firstly, it removes the requirement for a police authority, which has been required by the Secretary of State under section 42 to take action against an officer, subsequently to seek the Secretary of State's approval - which would be axiomatic. Secondly, following exercise by the Secretary of State of his section 42 power, the subsequent consideration by him of representations by the officer concerned and the holding of an inquiry, there is currently a duplicating requirement for the police authority also to hear representations: this duplication is removed. Similarly, this subsection ensures that in these circumstances there is no duplication by the police authority of the new requirement for the Secretary of State to provide a written explanation of his grounds for calling upon the officer to retire or resign. The changes are made by the insertion of new subsection (4A) in section 42 of the 1996 Act.

Clause 32: Regulations concerning procedure for removal of senior officers

171.     This clause introduces (in a new section 42A of the Police Act 1996) a regulation-making power in respect of procedural matters in the hearing of representations and other aspects of considering proceedings taken under the 1996 Act's powers to call on an officer to retire or resign in the interests of efficiency or effectiveness. Before making any regulations under this clause, the Secretary of State must consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the Association of Police Authorities (APA) and the Association of Chief Police Officers (ACPO) and/or the Chief Police Officers' Staff Association (CPOSA). The Secretary of State may also consult anyone else he chooses. The regulations will be subject to the negative resolution procedure.

Clause 33: Disciplinary proceedings for special constables

172.     This clause enables the Secretary of State to make regulations under section 51 of the 1996 Act as to the handling of alleged misconduct of special constables. At present, there is no statutory mechanism for taking disciplinary action against specials. This provision, which will include a code of conduct for specials, will mean special constables will be on a similar footing to regular officers in regards to the handling of misconduct and disciplinary proceedings.

Clause 34: Conduct of disciplinary proceedings

173.     As with the handling of complaints, the handling of disciplinary proceedings could make or break public confidence and trust in the police. This clause deals with regulations that can be made by the Secretary of State under sections 50 and 51 of the Police Act 1996. In addition to the existing powers to make regulations under these sections, this clause allows regulations to cover the rights of the IPCC in regards to disciplinary proceedings and the right of specified persons to participate in or to be present at disciplinary proceedings, and to provide for inference to be drawn from a failure to mention a fact when questioned or charged in police disciplinary proceedings.

174.     The complainant and the general public need to be assured that evidence in a disciplinary hearing will be presented fully and robustly. There is a possibility of this not happening, particularly when the IPCC does not accept the disciplinary proposals from an appropriate authority and directs it to vary the proposals in a specified way, as provided in paragraph 27 of Schedule 3. To avoid this, subsection (1)(a) of this clause enables the creation of regulations to ensure that the IPCC will have the right to bring and conduct, or otherwise participate or intervene in, any disciplinary proceedings arising from a complaint or other conduct matter.

175.     To ensure greater openness in the disciplinary process, subsection (1)(b) allows regulations to update procedures regarding persons able to participate in or attend disciplinary proceedings. The current intention is that up to three supporters of the complainant will be able to attend in all cases. The presiding officer of the hearing may allow more in special circumstances, and he will be expected to be even-handed in the treatment of the officer facing the charge. It would be possible for regulations to allow members of the general public to have access to disciplinary hearings in certain appropriate cases.

176.     Subsection (1)(c) enables regulations to provide for inference to be drawn from a failure to mention a fact when questioned or charged in police disciplinary proceedings. This would bring the regulations on police conduct into line with those in criminal proceedings, where the change was made as a result of provision made under section 34 of the Criminal Justice and Public Order Act 1994.

Part 4: Police powers

Chapter 1: Exercise of police powers etc. by civilians

Clause 35: Police powers for police authority employees

177.     This clause enables chief officers of police to designate suitably skilled and trained civilians under their direction and control to exercise powers and undertake duties in carrying out specified functions. A chief officer can designate civilians to perform functions in four categories: community support officer; investigating officer; detention officer; and escort officer. The Director General of NCIS or NCS may designate support staff under his direction and control as investigating officers.

178.     Subsection (1) enables the chief officer in charge of a force to designate any person under his operational control and employed by the relevant police authority as an officer of one or more of the descriptions specified in subsection (2): community support officer; investigating officer; detention officer; and escort officer. Subsection (3) enables the Director General of NCIS or NCS to designate any person under his operational control and employed by the relevant Service Authority as an investigating officer. (Paragraph 32(1)(b) of Schedule 4 and subsection (7)(e) of clause 92 ensure that this is limited to persons in England and Wales only. Although the jurisdiction of NCS only covers England and Wales, that of NCIS is UK-wide.) Under subsection (5), chief officers and Directors General will be able to confer on such employees some of the powers and duties otherwise only available to police constables and others. Subsection (6) limits the powers that can be conferred on designated persons to the relevant Parts of Schedule 4 to the Bill. Subsection (7) clarifies that a designation cannot authorise or require conduct beyond the specified functions and that a designation may contain restrictions and conditions. For example, the designation may specify that the powers can only be used in a particular geographical area or for a particular period.

179.     Subsection (4) prevents a designation being granted unless the chief officer or Director General is satisfied that the person is suitable to carry out the relevant functions, capable of carrying them out, and has been adequately trained.

180.     Subsection (8) provides that where a power allows for the use of reasonable force when it is exercised by a constable, a person operating such a power under a designation shall have the same entitlement to use reasonable force; for example when carrying out a search.

181.     Subsection (9) provides that where the designation includes the power to force entry to premises, this power will be limited to occasions when the designated person is under the direct supervision of a constable and is accompanied by them - the exception to this requirement is when the purpose of forcing entry is to save life or limb or to prevent serious damage to premises.

Schedule 4: Police powers exercisable by police civilians

182.     This schedule links directly to the provisions in clause 35 of the Bill, which deal with the exercise of police powers by police authority and Service Authority employees. It sets out in detail the range of powers that can be conferred on designated civilians employed by a police authority or NCIS or NCS Service Authority and under the direction and control of the relevant chief officer or Director General.

Part 1: Community support officers

183.     This Part includes a limited range of powers linked to dealing with misconduct in public places. It lists the powers that can be conferred on community support officers. These include the power to issue a range of fixed penalty notices relating to anti-social behaviour - for example in respect of litter. It also gives the power to request a name and address from a person committing a fixed penalty offence or an offence that causes injury, alarm, distress or damage to another, and the power to detain, for a limited period awaiting the arrival of a constable, a person who fails to comply with the request to give their name and address. These powers will enable civilians performing patrolling functions to address many anti-social behaviour offences.

184.     Paragraph 1 enables a suitably designated person to exercise powers to issue fixed penalty notices. This includes issuing fixed penalty notices in respect of a range of anti-social behaviour and disorder offences under the Criminal Justice and Police Act 2001. These offences are: being drunk in a public highway, other public place or licensed premises (section 12 of the Licensing Act 1872); throwing fireworks in a thoroughfare (section 80 of the Explosives Act 1875); knowingly giving a false fire alarm to a fire brigade (section 31 of the Fire Service Act 1947); trespassing on a railway (section 55 of the British Transport Commission Act 1949); throwing stones etc. at trains or other things on railways (section 56 of the British Transport Commission Act 1949); buying or attempting to buy alcohol for consumption in a bar in licensed premises by a person under 18 (section 169C(3) of the Licensing Act 1964); disorderly behaviour while drunk in a public place (section 91 of the Criminal Justice Act 1967); wasting police time by giving false report (section 5(2) of the Criminal Law Act 1967); using public telecommunications system for sending message known to be false in order to cause annoyance (section 43(1)(b) of the Telecommunications Act 1984); and consumption of alcohol in designated public place (section 12 of Criminal Justice and Police Act 2001). Fixed penalty notices can also be issued for offences of cycling on a footway (section 54 of the Road Traffic Offenders Act 1988 in respect of section 72 of the Highway Act 1835); dog fouling (section 4 of the Dogs (Fouling of land) Act 1996) and litter (section 88 of the Environmental Protection Act 1990).

185.     Where paragraph 2 is applied to a community support officer, it extends to him the powers of a constable under clause 45 of this Bill to require the name and address of a person who is, or is believed to have been, acting in an anti-social manner as defined in section 1 of the Crime and Disorder Act 1998, namely 'in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household as himself'. Subparagraph (2) of this paragraph makes reference to 'paragraph 2'. This refers to the original paragraph 2 of this Schedule, which was deleted at third reading in the House of Lords on 25 April 2002 (Official Report, volume 634, columns 403 to 411). That paragraph contained a power to detain in certain, limited circumstances. The intention was to give a community support officer the same power of detention in relation to a person who fails to comply with the above requirement or appears to have given a false or inaccurate name or address.

186.     Paragraph 3 specifies the circumstances in which a designated community support officer may use reasonable force in the exercise of his duties. Again, the references to 'paragraph 2' in this paragraph refer to the original paragraph 2 of this Schedule, which was deleted at third reading in the House of Lords on 25 April 2002 (Official Report, volume 634, columns 403 to 411). That paragraph contained a power to detain in certain, limited circumstances. Likewise, the references to 'paragraph 3' refer to the original paragraph 3 of this Schedule, which is now paragraph 2.

187.     When paragraph 4 is specified in a community support officer's designation, it extends to him the duty of a constable under section 12 of the Criminal Justice and Police Act 2001 to require an individual not to consume alcohol (or what he reasonably believes to be alcohol) in places designated by local authorities, and surrender alcohol in an unsealed container to the community support officer. The CSO may then dispose of the alcohol as he considers appropriate. Failure to comply with a community support officer's request is an offence punishable, on summary conviction, to a fine not exceeding level 2 on the standard scale (currently £500).

188.     Paragraph 5 confers similar powers on a community support officer to paragraph 4, but this time under the authority of section 1 of the Confiscation of Alcohol (Young Persons) Act 1997. A suitably designated CSO will be able to confiscate alcohol (or what he reasonably believes to be alcohol) in an unsealed container, from someone who is under 18 years of age or from someone who intends to supply it to someone who is under age of 18 for their consumption. The CSO may then be able to dispose of the alcohol as he considers appropriate. Failure to comply with a community support officer's request is an offence punishable, on summary conviction, to a fine not exceeding level 2 on the standard scale (currently £500).

189.     When paragraph 6 is specified in a community support officer's designation, it extends to him the power of a constable or a uniformed park-keeper under subsection (3) of section 7 of the Children and Young Persons Act 1933 to seize tobacco or cigarette papers from any person who appears to be under 16 years old whom he finds smoking in any street or public place. The CSO may then dispose of any seized material in such manner as the relevant police authority provides.

190.     When paragraph 7 is specified in a community support officer's designation, it extends to him the power of a constable under section 17 of the Police and Criminal Evidence Act 1984 (PACE) (entry for the purpose of saving life or limb or preventing serious damage to property). This would, for example, enable a community support officer to enter a property where neighbours suspected an elderly occupant had fallen and was unresponsive. Unlike the power to enter premises conferred in paragraph 8, this power does not require a community support officer to be accompanied by a constable.

191.     Where paragraph 8 is specified in a community support officer's designation, it extends to him the new powers of a constable under clause 53 of this Bill regarding vehicles used in a manner causing alarm, distress or annoyance. However, the new powers in so far as they include power to enter premises are only exercisable when in the company of and under the supervision of a constable.

192.     Where specified in the designation of a community support officer, paragraph 9 extends any powers conferred on designated persons for the removal of abandoned vehicles by regulations under section 99 of the Road Traffic Regulation Act 1984.

193.     Paragraph 10 specifies powers that can be extended to a designated community support officer in respect of road checks. This includes the powers of a police officer to carry out an authorised road check under section 4 of PACE. This enables a road check (authorised by the rank of superintendent or above) to be established for the purposes of ascertaining whether a vehicle is carrying a person who committed an offence other than a road traffic offence or a [vehicle] excise offence; a person who is witness to such an offence; a person intending to commit such an offence; or a person who is unlawfully at large. It also includes the powers of a constable conferred under section 163 of the Road Traffic Act 1984 to enable him to require a vehicle to stop for the purpose of a road check.

194.     Paragraphs 11 and 12 enable the extension of strictly limited powers of a constable under the Terrorism Act 2000. The purpose of extending such powers to designated community support officers is to enable them to provide valuable support to constables in times of terrorist threat and to give chief officers the discretion to deploy constables for duties that require their full expertise and powers in such times. If specified in a community support officer's designation, paragraph 11 confers on him the powers of a constable under section 36 of the Terrorism Act 2000 to enforce a cordoned area, where the cordoned area has been established under the Terrorism Act. These powers enable a constable to prevent the cordon from being breached by giving orders (for example requiring a person to leave the cordoned area), making arrangements (for example for the removal of a vehicle) or imposing prohibitions or restrictions (for example to prevent or restrict access to the cordoned area). If specified in a community support officer's designation, paragraph 12 confers on him the powers of a constable under sections 44(1)(a), 44(1)(d), 44(2)(b) and 45(2) of the Terrorism Act 2000 (powers of stop and search). These are the powers to stop and search vehicles; to search anything in or on a vehicle or carried by the driver or by any passenger in that vehicle; to search anything carried by a pedestrian; and to seize and retain any article discovered in the course of a search by him or a constable under these provisions. It does not extend the powers of a constable to search people - drivers, passenger or pedestrians. Paragraph 12(2) provides that these powers cannot be exercised by a designated community support officer except in the company of and under the supervision of a constable.

 
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Prepared: 30 April 2002