Posts Tagged ‘police powers’
Revisiting ‘pre-charge bail’ – further changes in the wind
In recent years there was much complaint about the shadow that can be cast over someone’s life when that person has become of interest to the police, but where the police do not have enough evidence to justify charging him or her with the committal of an offence. A number of well-known members of the public were placed on police bail for months, not knowing whether any further steps were going to be taken against them.
When she was Home Secretary, Theresa May decided to amend the law so that, in most cases, a person would normally be subject to ‘pre-charge bail’ for only 28 days (though limited extensions could be granted). There were two main justifications offered for making these changes:
- When a person has been arrested, the time they can be detained by the police pending a charge is closely regulated. If the evidence is not available to justify a charge, they must be released. Mrs May thought it was right that ‘pre-charge bail’ should also be time limited.
- Mrs May thought that if a 28 day limit was imposed, this would incentivise the police to get on with their evidence gathering and therefore bring the issue of whether or not to charge a person to a head more quickly.
As an alternative to releasing a person on bail, the 2017 Act gave the police the power to release suspects under investigation (RUI).
It is fair to say that there was considerable professional resistence to these proposals. Individual police forces and the College of Policing were both very concerned that the implications of making these changes had not been fully thought through and were unlikely to have the hoped-for effect. Nonetheless, Part 4 of the Policing and Crime Act 2017 brought these changes into effect.
On 5 November 2019 the government announced that there would be a review of the pre-charge bail legislative framework. The objective of the review was to ensure that there was in place a system that:
• prioritises the safety of victims and witnesses;
• supports the effective management of investigations;
• respects the rights of individuals under investigation, victims and witnesses to timely decisions and updates; and
• supports the timely progression of cases to courts.
Between February and April 2020, the Home Office conducted a public consultation on proposals for amending the legislation.
At around the same time, in late 2019 and early 2020, a joint inspection by HM Inspectorate of Constabulary and Fire & Rescue Services (HMICFRS) and HM Crown Prosecution Service Inspectorate (HMCPSI) into how these changes were working in practice was undertaken. The report from the inspection was published in December 2020.
The headline findings of the joint inspection were:
- that suspects are still faced with lengthy delays and that the changes also had unintended consequences for victims, who view them as overwhelmingly negative;
- that not enough thought was given as to how the legislative changes would affect victims;
- that RUI leaves too many victims without the reassurance and protection that bail conditions can provide;
- there was an inconsistent implementation of the changes by forces due to a lack of clear guidance;
- that investigations involving suspects released under investigation tend to take longer and are subject to less scrutiny than ones involving formal bail; and
- that victims and suspects do not understand the legislation and are not being updated about the progress of their case.
For example, in many cases of domestic abuse and stalking, suspects were being released under investigation instead of being formally bailed with conditions. This was very worrying because of the high harm and risk associated with these types of crime. The Inspectorates found through their research that victims of domestic abuse felt less safe since the changes were made.
Reports in the press today (13 January 2021) suggest that the outcome of the Home Office’s review will shortly be published together with details on how the law is to be amended.
Details of the Home Office Consultation are at https://www.gov.uk/government/consultations/police-powers-pre-charge-bail
The Inspectorates reports and accompanying research is found at https://www.justiceinspectorates.gov.uk/hmicfrs/news/news-feed/further-changes-to-bail-legislation-must-consider-victims-needs/
The Press story is in the Times 13 January 2021 at https://www.thetimes.co.uk/article/reforms-to-police-bail-that-left-victims-at-risk-will-be-scrapped-2mdzzmxk5
Royal Commission on Criminal Procedure – 40th Anniversary of the publication of the Philips report
Yesterday (6 January 2021) I published a note on two recent reports about the police powers of stop and search. This has triggered a response from one reader who has reminded (more accurately informed) me that, almost 40 years to the day, the report of the report of the Royal Commission on Criminal Procedure (RCCP) – chaired by the late Sir Cyril Philips – was published on 5 January 1981.
Sometimes Royal Commissions get a bad press. It is said they are used as a means of kicking difficult subjects into the long grass, in the hope that somehow they will go away or at least provide Ministers with an excuse not to do something until the Commission has reported by which time someone else will be in charge.
The Royal Commission on Criminal Procedure was not one of these. It was a major undertaking – accompanied by a substantial research programme – which lead to three major developments in the criminal justice system in England and Wales.
The first of these was the establishment of the Crown Prosecution Service. Until the RCCP reported, the police were responsible for both investigating a crime and taking the decision to prosecute. A number of miscarriages of justice at the time occurred because the police did, on occasion, use these twin functions to ensure that they were in charge of getting evidence that would eventually enable them to bring a prosecution.
The RCCP insisted that there had to be a separation between the investigation function and the prosecution function. At the time this was regarded as a very controversial idea, but the Government agreed to implement the recommendation. Following the publication of a White Paper in 1983, the Prosecution of Offenders Act 1985 created the new service, which started work in 1986. It brought together, under the Director for Public Prosecutions (DPP), the former DPP’s office and the prosecution offices from individual police forces in England and Wales. Despite a lot of teething problems, the CPS has become a well established part of the criminal justice system – albeit now struggling with others from funding cuts and Covid 19.
The second major outcome from the RCCP was the enactment of the Police and Criminal Evidence Act 1984. This sought to bring clarity to the powers of the police. Since this involved some rationalisation and expansion of police power, the PACE Codes of Practice were also put in place to set boundaries on the ways in which those powers were to be exercised. Although the Codes have been revised and added to since the original legislation was enacted, the basis framework recommended by the RCCP has survived. Indeed, the creation of the CPS was, at least in part, to provide another check on the possible abuse by the police of their reformed powers.
A third development recommended by the RCCP was the creation of the Police Complaints Authority (now the Independent Office for Police Complaints). This replaced an earlier Police Complaints Board which did not have the powers or resources to take complaints against the police seriously.
I would not for one moment argue that the RCCP report solved all the problems relating to the criminal justice system. (The fact that only a decade later there was a further Royal Commission, this time on Criminal Justice, which – among other things – recommended the creation of the Criminal Cases Review Commission, shows that the criminal justice system always presents challenges for policy makers and practitioners.)
But it did create a structure which has lasted more or less intact for 40 years.
Experience with both these Royal Commissions demonstrates that their work can deliver significant and lasting change. This is one of the reasons why I, for one, am so disappointed that the Royal Commission on the Criminal Justice System, promised by the present Government, is not being taken forward more urgently. (See https://martinpartington.com/2020/07/13/royal-commission-on-the-criminal-justice-system-details-awaited/)
Stop and search – getting the balance right?
One of the most controversial powers use by the police is the power to stop and search people. Heavy-handed use alienates those who are stopped and searched (and the wider community); failure to use these powers can lead to increases in crime.
There is no doubt that the experience of stop and search is felt most acutely amongst the black communities. There is clear evidence that young black men are disproportionately subjected to these processes. While the law and policies relating to stop and search may in theory try to strike a balance between policing needs and the rights of individuals not to be stopped as they go about their business, getting that balance right in practice remains a challenge, particularly for those police forces that use stop and search a lot. Particularly concerning are those who have been stopped and searched on numerous occasions. It is understandable that they might feel they have been treated unfairly.
In this context, a report from the Independent Office for Police Conduct (IOPC) into the use of stop and search by the Metropolitan Police, published in October 2020, is worth noting. Having looked in detail at a sample of stop and search incidents, the IOPC concluded that the legitimacy of stop and searches was being undermined by:
- a lack of understanding about the impact of disproportionality
- poor communication
- consistent use of force over seeking cooperation
- the failure to use body-worn video from the outset of contact and
- continuing to seek further evidence after the initial grounds for the stop and search were unfounded.
Recommendations made by the IPOC to the Met included:
- taking steps to ensure that their officers better understand how their use of stop and search powers impacts individuals from groups that are disproportionately affected by those powers;
- ensuring there is a structure in place so leaders and supervisors are proactively monitoring and supervising the use of stop and search powers…;
- taking steps to ensure that assumptions, stereotypes and bias (conscious or unconscious) are not informing or affecting officer’s decision making when carrying out stop and searches, especially when using these powers on people from Black communities;
- ensuring officers are not relying on the smell of cannabis alone when deciding to stop and search someone and use grounds based upon multiple objective factors;
- ensuring officers carrying out stop and searches always use the principles of GOWISELY and engage in respectful, meaningful conversations with the persons being stopped;
- ensuring stop and search training incorporates a section on de-escalation, including the roles of supervisors and colleagues in controlling the situation and providing effective challenge;
- ensuring officers exercising stop and search powers are ending the encounters once their suspicion has been allayed, in a manner that minimises impact and dissatisfaction, unless there are further genuine and reasonable grounds for continued suspicion;
- ensuring officers exercising stop and search powers are not using restraint/handcuffs as a matter of routine and are only using these tools when reasonable, proportionate and necessary;
- amending stop and search records to include a question about whether any kind of force has been used;
- ensuring officers are following policy and switching on their body-worn video camera early enough to capture the entirety of a stop and search interaction;
- supervisors taking a proactive role in monitoring and ensuring compliance with body-worn video policy.
The challenge with all such reports is to know how they are followed through in practice. Do they lead to changes in front-line behaviour? Or are they left on a shelf, largely ignored?
A very useful review of the law and changes in policy relating to stop and search was published, in November 2020, in a House of Commons Briefing Paper, No 3878. Written by Jennifer Brown, it sets out: the law; the use of the law; the impact of the law; and a brief history of recent changes to law and practice.
Among the points made in the paper:
- The numbers of stops has reduced by over 50% over the past 10 years (though there has been a sharp increase recently).
- Black people were nine times more likely to be searched than white people.
- Use of stops is predominantly by 5 police forces (the Met, Merseyside, West Midlands, Essex and South Yorkshire police forces).
- Most searches were conducted to find drugs.
- Around 20% lead to either arrest or out of court disposal.
- It is estimated that around 8% of all arrests in 2018/19 were generated by a stop and search encounter.
- Stop and search hardly ever results in the prevention of a crime.
The IOPC report is at https://www.policeconduct.gov.uk/news/review-identifies-eleven-opportunities-met-improve-stop-and-search
The House of Commons Briefing paper is at https://commonslibrary.parliament.uk/?s=stop+and+search+&library=1&year=all and follow the link.
Search warrants: proposals from the Law Commission
One of the important powers the police have when they are investigating crime is the power to search premises and if necessary seize property that might be evidence to be used in a subsequent prosecution. A search warrant is an authorisation by a magistrate giving the police (or other investigtors) to make a search.
Around 40,000 search warrants are issued in England and Wales every year. There are over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984 (“PACE”), are used to look for evidence of a criminal offence. Some more specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials, or to rescue people or animals in danger or distress. Other powers relate to complex financial or specialised investigations.
However, as the Law Commission notes, there are problems with the current system. These include:
- Error: A 2016 review by the National Crime Agency found that 79% of investigations had defective warrants (of which 8% had significant deficiencies).
- Inefficiency: Sometimes it can take three weeks to obtain a search warrant, during which time evidence might have been lost and further crimes committed.
- Insufficient powers: Law enforcement agencies do not have effective powers to obtain electronic evidence, which might be stored on remote servers in an unknown jurisdiction. Such material can be vital for the successful prosecution of serious criminal offences.
- Inadequate safeguards: There is currently not enough protection for individuals whose electronic devices are seized. Safeguards also vary depending on the type of warrant issued, so some individuals have fewer statutory protections than others.
To meet these shortcomings, the Law Commission has made a number of recommendations:
- Strengthened law enforcement powers: These include:
- Updating law enforcement powers so that they more clearly apply to electronic devices and data and allow digital evidence to be seized and copied.
- The expansion of “multiple entry warrants” which would allow for a property to be searched on multiple occasions and “all premises warrants” which would allow all premises occupied or controlled by a specified person to be searched.
- Permitting a police constable to search a person found on premises under the authority of a search warrant issued under PACE.
- Giving the Insolvency Service and NHS Counter Fraud Authorities in England and Wales the ability to apply for and execute search warrants.
- Improved process: The Law Commission makes recommendations to improve procedural efficiency, reduce the scope for serious errors and ensure that the issuing authority, a magistrate or judge, is presented with an accurate and complete picture of the investigation. These include: ensuring that the duty of an applicant to provide full and frank disclosure to the court is properly adhered to; introducing standardised entry warrant application forms and a template for entry warrants; considering the possibility of creating an online search warrants application portal; improving procedures for hearing search warrant applications to ensure that there is adequate judicial oversight.
- Electronic evidence and materials: Amending the legal framework that currently governs the search and seizure of electronic material to facilitate the collection and examination of electronic material in a way which does not inhibit criminal investigations or impose unreasonable demands on law enforcement agencies. This could allow for electronic devices to be searched and data to be copied while on the premises. (The Government should consider whether this should include data stored remotely (even if in another jurisdiction).) The Commission also recommends measures to ensure transparency and accountability and limit the interference with property and privacy rights. Unneeded data should be swiftly deleted, and devices returned as soon as is practical.
- Safeguards: These should be reformed to ensure that non-police investigators, such as members of the Serious Fraud Office, are subject to similar safeguards as the police. The Commission also recommends that an occupier should have a right to ask for a legal representative to be present to observe the execution of a warrant.
- Personal records and journalistic material: In relation to personal records and confidential journalistic material, we conclude that they should remain obtainable under PACE in very limited circumstances. We recommend that the Government considers whether the law governing access to these categories of material under PACE strikes the right balance between the competing interests at play, and whether the law ought to be reformed.
As this project was undertaken at the request of the Home Office, there is reasonable likelihood that firm policy proposals will emerge in due course.
Source: adapted from https://www.lawcom.gov.uk/project/search-warrants/
Search warrants – reform proposals
As a keen follower of the work of the Law Commission (I was once a Commissioner), I confess I had not spotted the fact that the Commission was undertaking work relating to the law on search warrants. It did not get a mention in either its 12th or 13th programmes.
The reason for this is that in December 2016, they were give a specific commission by the Home Office to undertake work in this area. The first fruits of this project have now been published in the form of a Consultation Paper setting out the Commission’s initial ideas as to how the law might be reformed.
A search warrant is a written authorisation that allows an investigator to enter premises to search for material or individuals. Search warrants are usually issued by a court following an application by a police officer or other investigator. Most search warrants authorise the investigator to seize and retain relevant material found during the search.
Surprisingly, perhaps, detailed analysis of the law reveals that there over 175 different powers to issue search warrants. Some, like the general power under section 8 of the Police and Criminal Evidence Act 1984, are used to look for evidence of a criminal offence. More specific powers allow the searcher to remove stolen goods, drugs, firearms or other dangerous materials or to rescue people or animals in danger or distress. Other powers relate to complex financial or other types of specialised investigation.
The Commission identified a number of problems with the current law:
- the sheer number of provisions, coupled with their complexity, leads to a confusing legislative landscape;
- there is inconsistency across search warrant provisions and in the procedure for obtaining a search warrant. Importantly, there is inconsistency in the applicability of statutory safeguards and the protection afforded to particular categories of material;
- a large proportion of the legislation, in particular the Police and Criminal Evidence Act 1984, predates the advent of electronic material and risks failing to deal with emerging digital technology and the forms in which criminal activity now takes place; and
- the number of appeals generated by search warrants legislation, and the legal fees incurred, creates excessive cost for all parties.
In the light of their analysis, the Commission has made proposals to:
- simplify the law and procedure governing search warrants by rendering it more rational and accessible at all stages of the search warrant process;
- make the law fairer by extending protections, improving judicial scrutiny and making the law more transparent;
- modernise the law to ensure that it reflects the changing nature of investigations and is equipped to deal with current technology; and
- make the law more cost-effective by introducing a streamlined way to obtain a search warrant and a new procedure to challenge and correct procedural deficiencies.
The consultation runs until 5 September 2018.
For further details and links to the consultation go to https://www.lawcom.gov.uk/project/search-warrants/
Setting time limits to police bail
In recent years there has been much complaint about the shadow can be cast over people’s lives when those people have become of interest to the police, but where the police do not have enough evidence to justify charging them with the committal of an offence. A number of well-known members of the public were on police bail for months, not knowing whether any further steps were going to be taken against them.
When she was Home Secretary, Theresa May decided that there had to be limits to the time any person could be made subject to police bail (technically known as ‘pre-charge bail’).
Part 4 of the Policing and Crime Act 2017 contains provisions which reflect this decision.
The Act amends PACE Act 1984 by creating a presumption that where the police decide to release a person without charging them, the release should not be subject to the imposition of bail, unless defined pre-conditions are satisfied.
The conditions are
- Condition A is that there are reasonable grounds to suspect that the person on bail is guilty of the offence for which they were arrested and are on bail.
- Condition B is that there are reasonable grounds for believing either that further time is needed for the police to make a charging decision under police-led prosecution arrangements (where the person has been bailed for that purpose) or that further investigation is necessary.
- Condition C is that there are reasonable grounds for believing that the charging decision or investigation (as applicable) is being conducted diligently and expeditiously.
- Condition D is that releasing the person on bail continues to be both necessary
and proportionate in all the circumstances of the particular case (having regard, in particular,to any bail conditions that are or would be imposed).
Where the bail pre-conditions are satisfied, the period of bail will normally by limited to 28 days (3 months in Serious Fraud Office cases) though the period may be extended to three months by senior police officers, with the possibility of further extensions approved by the magistrates.
Further information is available at https://www.gov.uk/government/collections/policing-and-crime-bill
Policing and Crime Act 2017
The Policing and Crime Act 2017 received the Royal Assent at the end of January 2017. It is a large piece of legislation covering a wealth of topics. The Home Office Press Release summarises the main provisions as follows. The Act will:
- place a duty on police, fire and ambulance services to work together and enable police and crime commissioners to take on responsibility for fire and rescue services where a local case is made
- reform the police complaints and disciplinary 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
- further support the independence of HM Inspectorate of Constabulary and ensure that it is able to undertake end-to-end inspections of the police
- 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 (while for the first time specifying a core list of powers that may only be exercised by warranted police officers)
- increase the accountability and transparency of the Police Federation for England and Wales by extending its core purpose to cover the public interest and making it subject to the Freedom of Information Act 2000
- reform pre-charge bail to stop people remaining on bail for lengthy periods without independent judicial scrutiny of its continued necessity
- stop the detention in police cells of children and young people under 18 who are experiencing a mental health crisis (and restrict the circumstances when adults can be taken to police stations) by reforming police powers under sections 135 and 136 of the Mental Health Act 1983
- amend the Police and Criminal Evidence Act 1984, including to ensure that 17-year-olds who are detained in police custody are treated as children for all purposes, and to increase the use of video link technology
- amend the Firearms Acts, including to better protect the public by closing loopholes that can be exploited by criminals and terrorists
- make it an offence to possess pyrotechnic articles at qualifying musical events
- reform the late night levy to make it easier for licensing authorities to implement and put cumulative impact policies on a statutory footing
- better protect children and young people from sexual exploitation by ensuring that relevant offences in the Sexual Offences Act 2003 cover the live streaming of images of child sex abuse
- increase the maximum sentence from 5 to 10 years’ imprisonment for those convicted of the most serious cases of stalking and harassment
- confer an automatic pardon on deceased individuals convicted of certain consensual gay sexual offences which would not be offences today, and on those persons still living who have had the conviction disregarded under the provisions of the Protection of Freedoms Act 2012
In anticipation of these changes, a number of revisions to the PACE Codes of Practice were also presented to Parliament in December.
For further detail on the Policing and Crime Act 2017, go to https://www.gov.uk/government/collections/policing-and-crime-bill.
The current texts of the PACE codes as amended can be found at https://www.gov.uk/guidance/police-and-criminal-evidence-act-1984-pace-codes-of-practice.
Martin Partington: Introduction to the English Legal System 15th ed 2021
Oxford University Press Learning Link Resources
Martin Partington: Spotlight on the Justice System 