House of Commons - Explanatory Note
Police Reform Bill - continued          House of Commons

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Clause 56: Power of Secretary of State to add relevant authorities

301.     This clause inserts a new section 1A into the Crime and Disorder Act 1998. It gives the Secretary of State the power by order to enable non-Home Office police forces to apply for anti-social behaviour orders (ASBOs) (i.e. be added to the list of relevant authorities) and thereby removes the need for future primary legislation in order to achieve this. An order under new section 1A is subject to the negative resolution procedure.

Clause 57: Orders in county court proceedings

302.     This clause inserts new section 1B into the Crime and Disorder Act 1998. It enables relevant authorities to apply for an order prohibiting behaviour described that order in the county courts in certain circumstances.

303.     New section 1B(2) allows a relevant authority to apply for an order in the county courts if that authority is already party to proceedings. If the relevant authority is not party to such proceedings, section 1B(3) allows it to apply to the court to be joined to such proceedings. In all cases, the person against whom the order is being sought must be party to the proceedings (the clause does not allow for an application to be made to join them to proceedings).

304.     New section 1B(4) stipulates that the county court may make an order under new section 1B if it is proved that the conditions set out in section 1(1) of the Crime and Disorder Act 1998 as amended have been met. Those conditions are that the individual has acted in an anti-social manner, and that the order is necessary to protect relevant persons from further anti-social acts by him.

305.     New section 1B(5) allows for an order made in the county court to be varied or removed by the court, subject to section 1B(6).

306.     New section 1B(7) applies to section 1B subsections (5) to (7) and (10) to (12) of section 1 of the Crime and Disorder Act 1998, as amended. Subsection (5) provides that in determining whether a defendant has been acting in an anti-social manner, the court must disregard any act that the defendant shows was reasonable in the circumstances. Subsection (6), as amended by clause 55(7), enables courts to make ASBOs for the protection of persons anywhere in England and Wales. Subsection (7) states that an ASBO remains in place for the period it specifies, which must be for a minimum of two years, or until replaced by a further order. Subsection (10) provides that if a person does anything which he is prohibited to do by an ASBO, he is liable, on summary conviction, to imprisonment for a maximum of six months, or to the maximum statutory fine (currently £5000) or to both. If convicted on indictment, he is liable to imprisonment for a term not exceeding five years or to a fine, or to both. Subsection (11) specifies that a person cannot be given a conditional discharge as sentence for breach of an ASBO. Subsection (12) contains definitions of terms used in the section.

Clause 58: Orders on conviction in criminal proceedings

307.     This clause inserts new section 1C into the Crime and Disorder Act 1998. It enables the criminal courts to make an order prohibiting the defendant from doing anything described in the order where a person has been convicted of an offence committed after the coming into force of this section.

308.     Subsection (2) provides that an order may be made under this section if the court considers that the offender has acted since 1 April 1999 (the commencement date of section 1 of the 1998 Act) in an anti-social manner and that the order is necessary to protect persons anywhere in England and Wales from further anti-social acts by him. The court can make an order on its own initiative: no application by a relevant authority is required (subsection (3)). An order under this section can only be made in addition to the sentence or a conditional discharge for the offence of which the person has been convicted (subsection (4)). It is a preventative order and not a penalty for the offence. If appropriate, the effect of the order may be suspended by the court for any period in which the offender is in custody.

309.     Subsections (6) to (8) provide for applications for variation or discharge of the order.

310.     New section 1C(9) ensures that certain provisions of section 1 of the Crime and Disorder Act 1998 also apply to orders under this section. The effect is that an order under section 1C remains in place for the period it specifies, which must be for a minimum of two years, or until replaced by a further order. On breach of an order under section 1C, a person is liable, on summary conviction, to imprisonment for a maximum of six months, or to the maximum statutory fine (currently £5000) or to both. If convicted on indictment, he is liable to imprisonment for a term not exceeding five years or to a fine, or to both. A conditional discharge cannot be made in respect of a breach of an order under this section.

Clause 59: Interim orders

311.     This clause inserts new section 1D into the Crime and Disorder Act 1998.

312.     New section 1D(1) enables the magistrates' court and the county court to make an interim order under section 1 or 1B, before the full application process is complete, if the court considers it just to do so. (Interim orders are not available to the criminal courts because orders under section 1C will be only made in the criminal courts once the court case is complete and the offender has been convicted).

313.     New section 1D(3) provides that an interim order can prohibit the defendant from doing anything described in the order. Under new section 1D(4), it must be for a fixed period but can be varied, renewed or discharged. If still in force, it ceases to have effect when the main application is decided.

314.     New section 1D(5) applies subsections (6), (8) and (10) to (12) of section 1 of the Crime and Disorder Act 1998 to this section. Subsection (6), as amended by clause 55(7), enables courts to make orders for the protection of persons anywhere in England and Wales. Subsection (8) entitles the applicant or defendant to apply to the court which made the order to vary or discharge it. Subsection (10) provides that if a person does anything which he is prohibited to do by an order, he is liable, on summary conviction, to imprisonment for a maximum of six months, or to the maximum statutory fine (currently £5000) or to both. If convicted on indictment, he is liable to imprisonment for a term not exceeding five years or to a fine, or to both. Subsection (11) specifies that a person cannot be given a conditional discharge as sentence for breach of an order.

315.     Subsection (2) applies the existing provision regarding the appeals process against ASBOs to interim orders under section 1D. Appeal is to the Crown Court.

Clause 60: Consultation requirements

316.     This clause inserts new section 1E into the Crime and Disorder Act 1998. It effectively replaces subsection (2) of section 1 of the 1998 Act, which is deleted by clause 55(5) of this Bill. It re-enacts the existing requirement for a council of a local government area to consult each chief officer of police with jurisdiction in that area before applying for an ASBO, and for a chief officer of police to consult the council of the local government area and any other chief officer of police with jurisdiction in that area before so doing. In addition, it requires the British Transport Police and registered social landlords to consult the council of the local government area in which they are applying for an ASBO and every chief officer of police with jurisdiction in that area. The consultation requirements also apply to an application to a county court under new section 1B.

Clause 61: Removal of truants to designated places

317.     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.

318.     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.

319.     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 62: Amendments to Part 3 of the Road Traffic Offenders Act 1988

320.     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.

321.     Sections 75 and 76 of the Road Traffic Offenders Act 1988 (as amended by the Road Traffic Act 1991) concern the powers and procedures for issuing conditional offers. Conditional offers can be issued under the fixed penalty regime for offences where a constable has reason to believe that a fixed penalty offence has been committed and a fixed penalty notice has not been given. Typically conditional offers will be issued for offences detected by an enforcement camera. Section 87 requires the Secretary of State to issue guidance concerning the operation of Part III of the Road Traffic Offenders Act 1988 that includes the provisions for fixed penalty notices.

322.     Section 54(9) of 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. This allows a chief officer of police, or someone else on his behalf, to authorise persons at police stations. Such authorised persons can, in certain circumstances, issue fixed penalty notices and receipts for driving licences surrendered to them. The authorised person's signature may also constitute evidence of service of certain statements.

323.     These provisions in the Road Traffic Offenders Act 1988 contain the phrase 'chief officer of police' which, as defined by the Police Act 1996, does not apply to the British Transport Police. It is the 'chief officer of police' who currently plays a key role in the fixed penalty regime. Thus the British Transport Police cannot issue conditional offers nor can the Chief Constable designate authorised persons to deal with certain aspects of the fixed penalty process.

324.     The amendments proposed in this clause will extend these provisions regarding authorised persons and conditional offers to the British Transport Police in England and Wales, so that the chief constable of the British Transport Police can designate authorised persons and conditional offers may be issued by him or on his behalf.

Part 5: The Ministry of Defence Police

Clause 63: Ministry of Defence Police serving with other forces

325.     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, while serving with another force, they come under the direction and control of the chief officer of the force with which they are serving and have the full powers of a constable of that force (i.e. without the jurisdictional limits that apply to MDP officers).

Clause 64: Disciplinary matters

326.     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 Office 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 Office 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.

327.     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 Office 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.

328.     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 Office police forces (subject to modifications). New section 4A(5) enables the appeals tribunal to substitute a less severe punishment than that originally awarded.

329.     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.

Clause 65: Functions of inspectors of constabulary

330.     This clause inserts new sections 4B and 4C in the 1987 Act. The new section 4B puts inspections of the MDP by Her Majesty's Inspectors of Constabulary on a statutory basis. At present the MDP are inspected by HMIC on a non-statutory basis by invitation. The new section 4C provides for publication of the Inspectors' reports on the MDP.

Clause 66: Exemptions from firearms legislation

331.     This clause amends the firearms legislation applicable in Great Britain and Northern Ireland respectively, so as to enable potential recruits to the MDP to use firearms without a certificate while they are being trained or assessed under MDP supervision. As part of their assessment process, potential recruits take a firearms aptitude test. This involves 'possession' (in the sense used in the firearms legislation) of a firearm, which is generally unlawful without a firearms certificate.

Part 6: Miscellaneous

Clause 67: Nationality requirements

332.     Section 3 of the Act of Settlement 1700 provides that 'no person born out of the kingdoms of England, Scotland or Ireland or the dominions thereunto belonging.. shall.. enjoy any office or place of trust either civill [sic] or military.' Section 6 of the Aliens (Restriction) Amendment Act 1919 provides that no alien shall be appointed to any office or place in the Civil Service of the State, though there are various exceptions to these provisions. The prohibitions do not apply to Commonwealth citizens or to citizens of the Irish Republic by virtue of the British Nationality Act 1981, while the Aliens' Employment Act 1955 as amended by the European Communities (Employment in the Civil Service) Order 1991 (SI 1991/1221) disapplies the prohibitions to various groups, such as British protected persons. Nonetheless, currently - and in consequence of the above - employment as a member of a police force of England and Wales, Scotland, Northern Ireland, the National Criminal Intelligence Service (NCIS), the National Crime Squad (NCS), the British Transport Police (BTP), the United Kingdom Atomic Energy Authority Constabulary (UKAEAC), the Royal Parks Constabulary, or the Special Constabulary, is restricted to British citizens, citizens of the Irish Republic and Commonwealth citizens. If an applicant is a citizen of the Irish Republic or a Commonwealth citizen other residential and ancestry conditions must be satisfied.

333.     Subsection (1) of this clause provides that the prohibition on the employment of persons born out of the UK and the prohibition arising from nationality do not apply to employment in the police services of England and Wales, Scotland, Northern Ireland (including the Reserve Police Service of Northern Ireland), NCIS, NCS, BTP, UKAEAC, the Royal Parks Constabulary, and the Special Constabulary. Any person, regardless of birth or nationality, may be attested and may hold office as a constable.

334.     Subsections (2) and (3) provide that the capability of holding office as a constable or special constable or for membership of any force or constabulary or for appointment to particular ranks, offices or positions will be subject to any regulations as to qualifications for appointment; or (in respect of members of NCIS and NCS) to terms and conditions of service; or (in relation to BTP, UKAEAC and Royal Parks Constabulary) to any other arrangements for appointment.

335.     Subsection (4) states that these regulations, terms and conditions or arrangements for appointment may include, amongst other things, the setting of standards for competence in written and spoken English, qualification as to residence in the UK, and the ability to reserve certain posts which may be of a particularly sensitive nature for UK nationals or EEA nationals.

336.     All new constables in England and Wales will still be obliged to take the oath of allegiance as amended by clause 68 of this Bill.

Clause 68: Attestation of constables

337.     Every police officer and every special constable is required, on appointment, to be attested by making a declaration in a prescribed form before a justice of the peace in the force area concerned. The Police Advisory Board for England and Wales, on which all the main police organisations are represented, advised the Home Secretary in December 2000 that the wording of the attestation should be changed to make it clear that police officers had a duty to uphold the rights of and protect everyone living or staying in the country, not just Her Majesty's subjects. The Home Secretary has accepted the advice of the Police Advisory Board.

338.     The prescribed form of wording is currently set out in Schedule 4 to the Police Act 1996. This clause inserts a new form of words for the attestation into Schedule 4 to the 1996 Act. The existing and revised declarations are set out below with the words to be omitted or added shown in italics in each case.

339.     Existing form of declaration:

    I, .. .. .. of .. .. .. do solemnly and sincerely declare and affirm that I will well and truly serve Our Sovereign Lady the Queen in the office of constable, without favour or affection, malice or ill will; and that I will to the best of my power cause the peace to be kept and preserved, and prevent all offences against the persons and properties of Her Majesty's subjects; and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law.

340.     Revised form of declaration:

    I, .. .. .. of .. .. .. do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will to the best of my skill and knowledge discharge all the duties thereof faithfully according to law.

341.     When the new attestation comes into effect, an order will be made under the Welsh Language Act to enable Welsh-speaking officers to make the attestation in Welsh.

Clause 69: Delegation of functions in relation to senior appointments

342.     The Secretary of State has a statutory responsibility to approve every appointment made by a police authority of officers from the rank of assistant chief constable upwards, together with the equivalent ranks in the Metropolitan Police, by virtue of sections 9F, 9FA, 9G, 11, 11A and 12 of Police Act 1996. Section 12A of the 1996 Act also requires the Secretary of State to approve an officer acting as a chief constable for more than 3 months. In both cases, his approval power has always being exercised on the basis of professional advice.

343.     New arrangements for considering the approval of these posts were set up in spring 2001. These arrangements were designed to make the approval process more transparent. A Senior Appointments Panel, chaired by HM Chief Inspector of Constabulary (HMCIC), which includes representatives from the Association of Police Authorities, the Association of Chief Police Officers and the Home Office, together with an independent member, now looks at all cases.

344.     As part of the new arrangements, it was decided that the Panel should be able to exercise the Secretary of State's power of approval in routine cases. A change to the primary legislation is needed to allow this to happen. This clause introduces provision allowing the Secretary of State to delegate his approval. Since the Panel is not a statutory body, the approval powers are being delegated to HMCIC. In practice, HMCIC will act in agreement with the Panel.

345.     The clause similarly confers powers to delegate powers of approval of an officer acting as a chief constable for more than 3 months to HMCIC.

Clause 70: Director General of NCIS

346.     This clause amends section 6 of the Police Act 1997 to broaden the eligibility for appointment as Director General of the National Criminal Intelligence Service. Currently the post is open only to chief constables; the Commissioner of the City of London Police; the Commissioner, Deputy Commissioner, Assistant Commissioners and Deputy Assistant Commissioners of the Metropolitan Police; or officers eligible to be appointed to these ranks. The Director General holds the rank of chief constable. The intention is that any person with relevant experience and expertise should be eligible to apply.

347.     NCIS is a multi-agency organisation employing civilians and police officers. The Director General's job is not comparable to that of a chief constable in so far as the exercise of police powers is concerned. NCIS's focus is on intelligence, not operational work, and police officers are not the only individuals with the skills and expertise necessary to head the organisation.

348.     The clause provides that if a police officer is appointed as Director General, he will (as now) hold the rank of chief constable. A civilian so appointed will not have that rank, but will have the necessary powers to carry out his functions through existing legislative provision. The authority the Director General has is drawn from his position as Director General, rather than by virtue of being a Chief Constable. For example, the Director General is specifically mentioned in the Regulation of Investigatory Powers Act 2000, and in the Police Act 1997 relating to mutual aid and temporary service.

349.     Subsection (2) provides that a panel of the Service Authority shall draw up a shortlist of candidates for approval by the Secretary of State. The current wording restricts the list of candidates to those "eligible for appointment".

350.     Subsection (3) deletes section 6(3) of the 1997 Act. That subsection lists the police officers eligible to apply to be Director General.

351.     Subsection (4) adds a new subsection (5A), which provides that the Director General shall not be attested as a constable if he was not a serving officer before his appointment, or is already attested as a constable.

352.     Subsection (5) provides that sections 6(6) and 6(7) of the 1997 Act will not apply if the Director General is not a police officer. These subsections confer on the Director General the powers of a constable and the rank of chief constable.

353.     Subsection (6) adds two new subsections to section 6 of the 1997 Act, defining terms used in that section.

Clause 71: Police members of NCIS

354.     With the exception of senior officers, the Police Act 1997 only allows police officers to be seconded to NCIS, rather than working there permanently. Furthermore, it restricts secondments to NCIS to officers from the forty-three forces of England and Wales, forces in Scotland and the Police Service of Northern Ireland.

355.     This clause amends section 9 of the Police Act 1997 to extend the secondment provisions in the Police Act 1997, enabling NCIS to take officers from the Ministry of Defence Police on secondment.

356.     It also provides, for the first time, that NCIS may recruit police officers of any rank directly from police forces, rather than rely solely on secondments. NCIS will advertise for officers in the same way as territorial forces. The intention is that only serving police officers may apply, but from a wide range of forces. In addition to the forces from which NCIS will be able to second, NCIS will be able to recruit officers from the British Transport Police and from the Channel Islands and Isle of Man. The recruitment pool (but not the secondment pool) for NCIS and NCS will be identical.

357.     Subsection (2) provides that, subject to new subsection (3), police officers of any rank may be appointed as police members of NCIS, in addition to being engaged there on temporary service.

358.     Subsection (3) replaces the existing subsection (3) to provide that police officers may be recruited from: any force maintained under section 2 of the Police Act 1996; the Metropolitan Police; the City of London Police; police forces in Scotland; the Police Service of Northern Ireland; the National Crime Squad; the Ministry of Defence Police; the British Transport Police; and the police forces of Jersey, Guernsey and the Isle of Man. It also provides that officers on temporary service may be recruited on a permanent basis.

359.     Subsection (4) amends subsection (9) to provide that the appointment of police officers at the rank of assistant chief constable may not be delegated to the Director General from the Service Authority.

360.     Subsection (5) adds a new subsection (9A), which defines 'temporary service'. The effect of this provision is to extend the pool of officers who may be seconded to NCIS to include officers from the Ministry of Defence Police.

 
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Prepared: 30 April 2002