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Policing and Crime Act 2017

Legal background

  1. The legislation relating to policing in England and Wales is set out in a number of statutes. The principal enactments are as follows:
  2. The Police Act 1996 ("the 1996 Act") provides for the organisation of police forces in England and Wales (including of the Metropolitan Police Service, the City of London Police (see also the City of London Police Act 1839) and the 41 police forces outside London (Schedule 1 to the Act lists the police areas outside London)); sets out the functions of the Secretary of State (in practice, the Home Secretary) in relation to policing; confers certain functions on the College of Policing, including in respect of the preparation of regulations made by the Home Secretary about the government, administration and conditions of service of police forces; provides for the inspection of forces by HMIC; provides for the Police Federation and the Police Remuneration Review Body; and makes provision in respect of disciplinary matters.
  3. Part 1 of the Police Reform and Social Responsibility Act 2011 ("the 2011 Act") provides for the governance of police forces and, in particular, provides for the oversight of police forces outside London by directly elected PCCs and of the Metropolitan Police Force by MOPAC. The Common Council remains the police authority for the City of London Police (see section 6AZA of the 1996 Act). The Local Democracy, Economic Development and Construction Act 2009 ("the 2009 Act") (as amended by the Cities and Local Government Devolution Act 2016) would enable the functions of a PCC to be undertaken by the directly elected mayor of a combined authority area. Collectively PCCs, MOPAC and the Common Council are referred to in the 2011 Act and elsewhere as local policing bodies.
  4. Part 2 of the Police Reform Act 2002 ("the 2002 Act") establishes the IPCC, sets out its functions and makes provision for the handling of complaints against the police.
  5. Provisions in respect of the powers of police officers are contained in multiple statutes, but the core powers to prevent, detect and investigate crime are set out in the Police and Criminal Evidence Act 1984 ("PACE").
  6. Part 4 of the 2002 Act makes provision in respect of the designation of police staff with certain specified powers of a police officer.

Emergency Services Collaboration

  1. Sections 22A to 23I of the 1996 Act make provision for collaboration agreements entered into either by two or more policing bodies (which includes local policing bodies) or by the chief officer of police of one or more police forces and two or more policing bodies. The governance of FRAs is provided for in the Fire and Rescue Services Act 2004 ("the 2004 Act"). Sections 13 to 14 of the 2004 Act require FRAs to enter into mutual assistance schemes with other FRAs and make provision for the Secretary of State to make directions about such schemes and sections 16 and 17 enable FRAs to enter into agreements with other such authorities or other persons for that other authority or person to discharge certain of their statutory functions and make provision for the Secretary of State to make directions about these arrangements. The governance of ambulance services in England is provided for in the National Health Service Act 2006, under that Act the ten ambulance services in England are constituted as NHS Trusts of NHS Foundation Trusts.
  2. Part 1 of the 2004 Act provides for FRAs for England and Wales. Section 1 sets out which authority is the FRA for an area – this is subject to sections 2 to 4 which provide for the making of schemes, by order, for the creation of a combined FRA for two or more areas and for combined fire authorities under the Fire Services Act 1947 to continue to exist. Currently in England the FRA is, in a non metropolitan area, either the district council where there is no county council or – where there is a county council – that county council. In a metropolitan county it is the metropolitan county FRA, in Greater London the London Fire and Emergency Planning Authority and in the Isles of Scilly the Council is the FRA. The 2004 Act also in particular sets out the core functions of FRAs (although an FRA has statutory functions under other legislation, for example, as a category 1 responder under the Civil Contingencies Act 2004), and the role of the Secretary of State in setting out a Fire and Rescue National Framework and supervision. As with PCCs, the 2009 Act (as amended by the Cities and Local Government Devolution Act 2016) would enable the functions of an FRA to be undertaken by the directly elected mayor of a combined authority area.

Inspection of fire and rescue services

  1. Section 28 of the 2004 Act provides for the inspection of FRAs, although there are currently no inspectors appointed under these provisions.

Police complaints and discipline

  1. Part 2 of the 2002 Act deals with complaints against the police and related matters. Amongst other things, Part 2 establishes the IPCC (section 9) and sets out its general functions (section 10). Schedule 3 to the 2002 Act makes detailed provision for the handling of complaints, conduct matters (that is a matter that has not been the subject of a complaint but where there is an indication that a person serving with the police may have committed a criminal offence or behaved in a manner which would justify the bringing of disciplinary proceedings), and DSI matters and for the carrying out of investigations into complaints, recordable conduct matters, and death and serious injury matters.
  2. Section 50 of the 1996 Act confers on the Home Secretary the power to make regulations as to the governance, administration and conditions of service of police forces. In particular, regulations made under this section may make provision in respect of police discipline. Section 51 of the 1996 Act makes similar provision in respect of special constables. Chapter 2 of Part 4 of the 1996 Act makes further provision about disciplinary proceedings. In particular, section 84 enables the Home Secretary to make regulations about representation at disciplinary proceedings. The principal regulations made under these sections are the Police (Conduct) Regulations 2012 (SI 2012/2632). These apply where an allegation comes to the attention of the police force (or the PCC where the allegation relates to a chief constable) which indicates that the conduct of a police officer may amount to misconduct or gross misconduct. The regulations set out the procedure for dealing with such allegations, including provisions on investigations and misconduct proceedings.
  3. Section 85 of, and Schedule 6 to, the 1996 Act make provision regarding appeals to a police appeals tribunal against dismissal. The Police Appeals Tribunals Rules 2012 (SI 2012/2630) govern the procedure for such appeals.

HMIC

  1. HMIC was originally established by the County and Borough Police Act 1856. Its statutory framework is now provided for in sections 54 to 56 of the 1996 Act; these provide for the appointment and functions of inspectors of constabulary, the publication of reports, and the appointment of assistant inspectors and staff officers.

Exercise of powers by civilian staff and volunteers

  1. Section 38 of the 2002 Act sets out the four roles that can be designated to police staff (that is, PCSO, investigating officer, detention officer and escort officer), while section 38A of, and Schedule 4 to, the 2002 Act set out the powers that must or may be conferred on designated staff in each of those roles.
  2. Sections 95 to 97 of the Road Traffic Regulation Act 1984 provides for the appointment and powers of traffic wardens.

Police ranks

  1. Sections 9H and 13 of the 1996 Act are the key current provisions in relation to police ranks.
  2. Section 9H concerns the ranks that may be held in the Metropolitan Police. Subsection (1) provides that the ranks of that force are those prescribed in regulations made under section 50. However, the effect of subsection (2) is that such regulations must (in addition to the ranks of commissioner, deputy commissioner, assistant commissioner, deputy assistant commissioner and commander (see the provisions of the 2011 Act below)) include the ranks of chief superintendent, superintendent, chief inspector, inspector, sergeant and constable.
  3. Section 13 concerns the ranks for the other police forces (those outside London maintained in accordance with section 2 of the 1996 Act). Again, the ranks of those forces are those prescribed in regulations made under section 50. However (in addition to the ranks of chief constable, deputy chief constable and assistant chief constable (see the provisions of the 2011 Act below)), these must include the ranks of chief superintendent, superintendent, chief inspector, inspector, sergeant and constable (subsection (1)).
  4. The 2011 Act makes provision for chief officer ranks, that is, the ranks above that of chief superintendent. For forces outside London, sections 2, 39 and 40 of the 2011 Act require every force to have a chief constable, one or more deputy chief constables and one or more assistant chief constables respectively. In the case of the Metropolitan Police, sections 4, 43, 45, 46 and 47 of the 2011 Act require there to be a commissioner of police for the metropolis, one deputy commissioner, one or more assistant commissioners, one or more deputy assistant commissioners and one or more commanders respectively.
  5. The City of London Police Act 1839 ("the 1839 Act") makes provision for the City of London Police. Section 3 of that Act empowers the Common Council to appoint a Commissioner of the City of London Police. (That Act does not require the appointment of persons to any other particular rank.)
  6. Section 50(1) of the 1996 Act provides the general power for the Secretary of State to make regulations as to the government, administration and conditions of service of police forces. Section 50(1)(a) specifies that this may include provision with respect to the ranks held by members of police forces.
  7. The relevant regulations made under section 50 are the Police Regulations 2003 (S.I. 2003/527, as amended). Regulation 4 prescribes the ranks in relation to police forces maintained under section 2 of the 1996 Act, the Metropolitan Police and the City of London police. The prescribed ranks are the same as those provided for in the 1996 Act and 2011 Act.

Police Federation for England and Wales

  1. The Police Federation was established by section 59 of the Police Act 1919. It has continued to exist since that time.
  2. The core functions of the Police Federation are set out in sections 59(1) and (2) of the 1996 Act. Section 59(1) provides for the continuation of a "Police Federation for England and Wales and a Police Federation for Scotland for the purpose of representing members of the police forces in those countries respectively in all matters affecting their welfare and efficiency, except for (a) questions of promotion affecting individuals, and (b) (subject to subsection (2)) questions of discipline affecting individuals." (NB: The provisions of this Act relating to the Police Federation apply to England and Wales only.)
  3. Section 59(2) provides that a "Police Federation may represent a member of a police force at any proceedings brought under regulations made in accordance with section 50(3) above... or on an appeal from any such proceedings". (Section 50(3) makes provision for the dismissal, demotion and other disciplinary measures of members of police forces.)
  4. The Police Federation Regulations 1969 (SI 1969/1787, as amended), made under section 60 of the 1996 Act, set out the constitution of the Police Federation. These regulations were amended by the Police Federation (Amendment) Regulations 2015 (SI 2015/630) to give members of police forces the choice as to whether to be a member of the Police Federation, and to impose greater disclosure obligations on the Federation in relation to all monies held by the Federation and its branches and committees.

NPCC

  1. ACPO was constituted as a company limited by guarantee and, as such, was not a statutory body, but section 96 of the 2002 Act provided for the President of ACPO to continue to hold the office of constable with the rank of chief constable. There are references to ACPO across some 13 enactments.

Pre-charge bail

  1. Part 4 of PACE makes provision for the detention and release (either on bail or without bail) of persons suspected of committing a criminal offence but who have not yet been charged. Where a suspect is released on bail, either conditionally or unconditionally, the provisions of the Bail Act 1976 apply.

Mental health

  1. Sections 135 and 136 of the Mental Health Act 1983 ("the 1983 Act") set out how and when a person considered to have a 'mental disorder' can be removed to a place of safety and detained there without their consent if specific requirements are met. Under both sections 135 (which deals with the search for and removal of persons from private premises) and 136 (which deals with the removal of persons from public places), a person may be detained for a maximum of 72 hours.

Maritime enforcement

  1. Section 30 of the 1996 Act specifies the jurisdiction within which the police may exercise their powers under PACE and other enactments as being 'England and Wales and the adjacent United Kingdom waters’ (UK waters are those waters within 12 nautical miles of UK shores).
  2. Police maritime enforcement powers in respect of the investigation of drug trafficking and modern slavery offences are contained in section 20 of, and Schedule 3 to, the Criminal Justice (International Co-operation) Act 1990 ("the 1990 Act"), and Part 3 of, and Schedule 2 to, the Modern Slavery Act ("the 2015 Act") respectively.

PACE

  1. The Police and Criminal Evidence Act 1984 ("PACE") provides the police with core powers to prevent, detect and investigate crime. In particular, it makes provision about powers of stop and search (Part 1); entry, search and seizure (Part 2); arrest and bail (Part 3); detention (Part 4); interviewing, taking and retention of fingerprints and intimate and non intimate samples (for example, for the purposes of DNA profiling) (Part 5); and the issuing of Codes of Practice (Part 6). The Codes of Practice made under PACE govern the use of those powers. There are eight such Codes as follows:
  • Code A - Exercise by police officers of statutory powers to search a person or a vehicle without first making an arrest and the need for a police officer to make a record of a stop or encounter;
  • Code B - Police powers to search premises and to seize and retain property found on premises and persons;
  • Code C - Requirements for the detention, treatment and questioning of suspects not related to terrorism in police custody by police officers;
  • Code D - Main methods used by the police to identify people in connection with the investigation of offences and the keeping of accurate and reliable criminal records;
  • Code E - Audio recording of interviews with suspects in the police station;
  • Code F - Visual recording with sound of interviews with suspects;
  • Code G - Powers of arrest under section 24 of PACE (which provides the statutory power for a constable to arrest without warrant for all offences);
  • Code H - requirements for the detention, treatment and questioning of suspects related to terrorism in police custody by police officers.

Cross-border enforcement

  1. Section 136 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act") provides that, where a warrant for the arrest of a person has been issued in any of the jurisdictions of England and Wales, Northern Ireland and Scotland, the person can be arrested in any other jurisdiction by a police officer from either the jurisdiction where the offence was committed or the jurisdiction in which the person is found.
  2. Section 137 of the 1994 Act provides that a constable from one jurisdiction can, without a warrant, arrest (or in the case of Scottish constables, "detain") a person in a jurisdiction other than their own 'home' jurisdiction, if that constable has reasonable grounds for suspecting that the person has committed or attempted an offence in the constable’s 'home' jurisdiction.
  3. Section 140 of the 1994 Act provides that a constable from one jurisdiction who is present in another jurisdiction can, without a warrant, arrest a person in that other jurisdiction in respect of an offence committed there. Arrest would be on the same basis as a constable who is from that other jurisdiction

Firearms

  1. The Firearms Act 1968 ("the 1968 Act") is the principal statute regulating the control of firearms in England and Wales, and Scotland. Sections 1 and 2 prohibit the possession of a firearm or shotgun without an appropriate certificate (Part 2 of the Act provide for the application process for such certificates). Section 3 of the Act makes it an offence to commit certain acts by way of a trade or business relating to section 1 firearms, shotguns, ammunition or air weapons without being registered as a firearms dealer (sections 33 to 39 set out the process for registration of firearms dealers). Section 5 of the Act prohibits the possession of specific types of weapons, their component parts and ammunition without the authority of the Secretary of State. These include handguns, automatic weapons and weapons which dispense noxious gas, amongst others.

Alcohol: licensing

  1. The Licensing Act 2003 ("the 2003 Act") creates a regulatory regime for the sale and supply of alcohol. Alcohol is defined in section 191 of the 2003 Act.
  2. Sections 53A to 53C of the 2003 Act create a summary review process which allows the police to apply to a licensing authority for a review of the premises licence of premises licensed to sell alcohol by retail, where they consider the premises to be associated with serious crime or serious disorder (section 53A(1)).
  3. Personal licences are provided for in section 111 of the 2003 Act.
  4. Schedule 4 to the 2003 Act lists the relevant offences, conviction for which can result in the refusal of a personal licence or the suspension or forfeiture of such a licence.
  5. Section 182 of the 2003 Act requires the Secretary of State to issue guidance to licensing authorities on the discharge of their functions under the Act.
  6. Chapter 2 of Part 2 of the 2011 Act provides for the late night levy.

Financial sanctions

  1. The UN requires financial sanctions to be imposed under Article 41 of the UN Charter. This sets out that the Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the UN to apply such measures. These may include complete or partial interruption of economic relations.
  2. The legal basis for EU financial sanctions regimes is Article 215 of the Treaty on the Functioning of the European Union. This Article sets out that the Council may, on receipt of a proposal from the High Representative for Foreign Affairs, interrupt or reduce financial or economic relations with third countries. This proposal might be prompted by a UN Resolution or the concerns of member States. The Council will then do so by way of a Decision or Regulation.
  3. Section 2(2) of the European Communities Act 1972 ("the 1972 Act") enables provision to be made for the enforcement of all EU financial sanctions regulations. For example, the Ukraine (European Union Financial Sanctions) Regulations 2014 (SI 2014/507) provides for asset freezes in relation to individuals and entities listed under the EU Council Regulation 208/2014.
  4. The UK has also enacted domestic legislation to impose financial sanctions regimes, such as Part 2 of the Anti-terrorism, Crime and Security Act 2001 and Schedule 7 to the Counter-Terrorism Act 2008.
  5. DPAs were introduced by section 45 of and Schedule 17 to the Crime and Courts Act 2013 ("the 2013 Act"). (They only extend to England and Wales (see section 61(12) and 61(13)(g) of the 2013 Act).)
  6. SCPOs were introduced by Part 1 of the Serious Crime Act 2007 ("the 2007 Act") in England and Wales and Northern Ireland. Section 46 of, and Schedule 1 to, the Serious Crime Act 2015 (which came into force on 1 March 2016), extended the provisions in Part 1 of the 2007 Act to Scotland.

National Crime Agency

  1. The NCA was established by Part 1 of the 2013 Act and became operational on 7 October 2013. It is classified as a non-ministerial government department.
  2. Section 10 of the 2013 Act confers powers on the Director General of the NCA to designate NCA officers with the powers of a constable, an officer of Revenue and Customs and an immigration officer.
  3. Section 22A of the 1996 Act provides for collaboration agreements between the NCA and police forces in England and Wales.

Requirements to confirm nationality

  1. The following powers are currently available to the police and/or immigration officers in relation to travel documents:
  2. Section 20 of the Immigration and Asylum Act 1999 ("IAA") provides powers for documents to be supplied by chief constables and the NCA to the Secretary of State "for use for immigration purposes".
  3. Powers to retain those documents are set out at section 17 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 ("the 2004 Act"), while the Secretary of State or an immigration officer suspects that "retention of the document may facilitate the individual’s removal".
  4. Section 35 of the 2004 Act provides the power to require a person to provide travel documents or information (including fingerprints) to the Secretary of State that may assist with the deportation or removal of that person from the UK.
  5. Section 44 of the UK Borders Act 2007 ("the UKBA") also gives immigration and police officers the power to search premises in order to seize and retain nationality documents. It enables immigration or police officers to search specified premises1 where there is "reasonable suspicion" that an offence has been committed and the individual may not be a British Citizen.
  6. Section 45 of the UKBA provides further powers to search other premises where there are reasonable grounds for believing that nationality documents may be found there. Documents can be retained where officers suspect that the person "may be liable to removal from the United Kingdom" and where "retention of the document may facilitate the individual’s removal."
  7. Section 57 of and Schedule 6 to the Immigration Act 2016 amend the IAA so as to place a new duty on the police to send nationality documents to Immigration Enforcement upon request, provided certain conditions are met, namely where the Secretary of State has reasonable grounds to believe that the police are lawfully in possession of a nationality document; and suspects that the person to whom the document relates may be liable to removal from the UK and that the nationality document would assist this.
  8. In respect of the existing court procedure, details of a defendant’s name, address and date of birth are currently requested under the Criminal Procedure Rules 2015 (SI 2015/1490), which govern the practice and procedure of the criminal courts. (No sanction currently attaches to failure to provide this information, nor is there any requirement to provide information on nationality.)

Powers to seize invalid passports

  1. Schedule 8 to the Anti-Social Behaviour, Crime and Policing Act 2014 ("the 2014 Act") sets out powers to seize invalid passports and other invalid travel documents.

Pardons for certain abolished offences

  1. A pardon can be granted by the Crown under the royal prerogative of mercy. The grant of such a Royal pardon is rare. The Crown used this power in 2013 to pardon Alan Turing for gross indecency. Pardons can also be granted by statute, such as the pardons for servicemen executed for disciplinary offences during World War I, under section 359 of the Armed Forces Act 2006.
  2. Chapter 4 of Part 5 of the Protection of Freedoms Act 2012 makes provision for disregarding certain convictions and cautions for buggery and gross indecency between men.

Forced marriage: anonymity for victims

  1. Section 121 of the 2014 Act provides for a criminal offence in England and Wales of forcing someone to marry. The legislation came into force on 16 June 2014 and criminalises the use of violence, threats, deception or any other form of coercion for the purpose of forcing a person into marriage or into leaving the UK with the intention of forcing that person to marry.

Stalking and harassment

  1. Sections 4 and 4A of the Protection from Harassment Act 1999 provide for offences of putting people in fear of violence and stalking involving fear of violence or serious alarm or distress respectively. Section 32 of the Crime and Disorder Act 1998 provides for the penalty for racially or religiously aggravated forms of these offences.

Protection of children and vulnerable adults

  1. The offences at sections 48 to 50 of the Sexual Offences Act 2003 ("the SOA") criminalise the following conduct: section 48 - causing or inciting sexual exploitation of a child; section 49 - controlling a child in relation to sexual exploitation; and section 50 - arranging or facilitating sexual exploitation of a child.
  2. Section 51 of that Act defines the term "sexual exploitation" which applies to the offences at sections 48 to 50 of the SOA.
  3. In England and Wales, outside London, taxis (also referred to as 'Hackney Carriages') are licensed by district councils under the Town Police Sections Act 1847 or the Local Government (Miscellaneous Provisions) Act 1976. All taxis and their drivers must be licensed. Private hire vehicles ("PHVs"), sometimes referred to as minicabs, drivers and operators are subject to licensing if a district council has adopted Part II of the 1976 Act (most have) or has similar provisions contained in a local Act.
  4. In London, the main licence conditions are made under the London Cab Order 1934 (SI 1934/1346). The minicab trade in London is licensed by regulations made under the Private Hire Vehicles (London) Act 1998. Transport for London is responsible for taxi licensing while PHV licensing falls for the London Boroughs.

Coroners' investigations into deaths

  1. Section 1 of the Coroners and Justice Act 2009 sets out the duties of a coroner to undertake the investigation of a person’s death. Subsection (2)(c) provides that an investigation must be conducted if the coroner has reason to suspect that "the deceased died while in custody or otherwise in state detention".
  2. Section 48 of the Coroners and Justice Act 2009 sets out the definition of "state detention" for these purposes. Subsection (2) of section 48 states: "A person is in state detention if he or she is compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act 1998 (c. 42)."
  3. Sections 4A and 4B of the Mental Capacity Act 2005 provides the authority for a person who lacks capacity to consent to their living arrangements to be lawfully subject to a level of restriction on their freedom of movement which may amount to deprivation of liberty in order to maintain their wellbeing.

1 i) premises occupied or controlled by the individual, ii) premises on which the individual was arrested, and iii) premises on which the individual was, immediately before being arrested.

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