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Police, Crime, Sentencing And Courts Act 2022

Contents

Commentary on provisions of Act

Part 1: Protection of the police etc.

Section 1: Police covenant report

  1. Section 1 establishes a new duty for the Secretary of State, in each financial year, to prepare a police covenant report, and lay it before Parliament.
  2. Subsection (2) sets out the substantive areas on which the report must focus, namely the health and wellbeing and physical protection of members and former members of the police workforce, and support for their families. The report must address those issues insofar as they relate to individuals’ current or previous role in the police workforce.
  3. Subsection (2)(d) allows the Secretary of State to also address in the report other areas they consider appropriate to include. This provides an element of flexibility where particular issues arise that the Secretary of State considers ought to receive attention in the report in a given year.
  4. Subsection (3) requires that, in putting together the police covenant report, the Secretary of State must have regard in particular to the sacrifices made by and obligations imposed on members of the police workforce. In doing so, subsection (3)(b) also requires the Secretary of State to have regard to the desire to remove any disadvantage that members and former members of the police workforce may experience as a result of their role.
  5. Under subsection (4), in preparing the report the Secretary of State must ensure the views of other relevant Government departments and anyone else deemed appropriate by the Secretary of State are sought, and, under subsection (5), either set out in full or summarised.
  6. Subsection (6) requires that, before a summary of any views obtained under subsection (4) can be included in the Police Covenant report, the person who provided the view in question must approve that summary.
  7. Under subsection (7), the report must state the Secretary of State’s view as to whether members or former members of the police workforce, or a particular group within that demographic, are at a disadvantage in comparison to such other people as the Secretary of State considers appropriate. Subsection (8) requires that the Secretary of State’s response to any such disadvantage identified under subsection (7) is to be set out in the report.
  8. Subsection (9) defines terms for the purpose of this section, including ‘members of the police workforce’ which includes for these purposes members of police forces in England Wales, special constables appointed under section 27 of the Police Act 1996; staff appointed by the chief officer of police of a police force in England and Wales and persons designated as community support volunteers or policing support volunteers under section 38 of the Police Reform Act 2002 (the "2002 Act"). It also includes constables and special constables (appointed under section 25 of the Railways and Transport Safety Act 2003 (the "2003 Act")) of the British Transport Police Force; employees of the British Transport Police Authority appointed under section 27 of the 2003 Act and under the direction and control of the Chief Constable of the British Transport Police Force; persons designated as community support volunteer or policing support volunteers under s.38 of the 2002 Act as applied by section 28 of the 2003 Act. In addition it includes members of the Civil Nuclear Constabulary; employees of the Civil Nuclear Police Authority employed under paragraph 6 of Schedule 10 of the Energy Act 2004 if, or to the extent that they are employed to assist the Civil Nuclear Constabulary; members of the Ministry of Defence Police and other persons under the direction and control of the Chief Constable of the Ministry of Defence Police; and National Crime Agency officers.
  9. It also makes clear that ‘former members of the police workforce’ means persons who have ceased to be members of the police workforce. The section also defines ‘financial year’ as the period beginning with the day on which the section comes into force ending with the following 31 March and then every successive period of 12 months. It goes on to define a ‘relevant Government department’ as a UK Government department, apart from Home Office, which the Secretary of State considers has functions relevant to a matter covered by the report.
  10. As one of the aspects the report must focus on is support for families, subsection (10) makes clear that the reference to ‘members of the families of members and former members of the police workforce’ in subsection (2) means such descriptions of persons connected with members or former members of the police workforce as the Secretary of State considers should be covered by the report.

Section 2: Increase in penalty for assault on emergency worker

  1. Section 2 increases the maximum penalty upon conviction on indictment for the offence of assault on an emergency worker. Subsection (1) amends section 1(2)(b) of the Assaults on Emergency Workers (Offences) Act 2018, which provides that the maximum penalty for common assault or battery committed against an emergency worker is 12 months’ imprisonment, or a fine, or both. Subsection (1) substitutes the maximum penalty for conviction on indictment of 12 months for 2 years’ imprisonment. Under section 3(1) of the 2018 Act the occupations and positions covered by the term emergency worker include police constables, National Crime Agency officers, prison and custody officers, fire, rescue and search personnel and those providing NHS healthcare services who have face to face interaction with patients or other members of the public
  2. Subsection (2) provides that this section of the Act will apply only to offences committed on or after the section comes into force. This means that there is no retrospective application with regards to the provision.

Section 3: Required life sentence for manslaughter of emergency worker

  1. Subsection (6) inserts a new section 258A into the Code.
  2. New section 258A(1) sets out the circumstances in which the provision applies, namely, where a person aged under 18 is convicted of a "relevant offence"; that the offence was committed when the person was aged 16 or over and on or after the date on which section 3 comes into force, and the offence was committed against an emergency worker acting in in the exercise of functions as such a worker.
  3. New section 258A(2) provides that where section 258A applies, the court must impose a sentence of detention for life unless the court is of the opinion that there are exceptional circumstances which relate to the offence or the offender and justify not doing so.
  4. New section 258A(4) defines "relevant offence" to mean the offence of manslaughter, excluding manslaughter by gross negligence, and manslaughter arising from a partial defence to murder.
  5. New section 258A(5) defines "emergency worker" by reference to section 68 of the Code. Section 68(1) sets out that "emergency worker" means:
    1. a constable;
    2. a person (other than a constable) who has the powers of a constable or is otherwise employed for police purposes or is engaged to provide services for police purposes;
    3. a National Crime Agency officer;
    4. a prison officer;
    5. a person (other than a prison officer) employed or engaged to carry out functions in a custodial institution of a corresponding kind to those carried out by a prison officer;
    6. a prisoner custody officer, so far as relating to the exercise of escort functions;
    7. a custody officer, so far as relating to the exercise of escort functions;
    8. a person employed for the purposes of providing, or engaged to provide fire services or fire and rescue services;
    9. a person employed for the purposes of providing, or engaged to provide, search services or rescue services (or both);
    10. a person employed for the purposes of providing, or engaged to provide-
      1. NHS health services, or
      2. services in the support of the provision of NHS health services,
      and whose general activities in doing so involve face to face interaction with individuals receiving the services or with other members of the public.
  6. New section 258A(3) expressly provides that if at the time the offence was committed the victim was not at work but was carrying out functions which, if done in work time, would have been in the exercise of their functions, they will be considered to be an emergency worker acting in exercise of their functions for the purposes of subsection (1).
  7. New section 258A(7) sets out when an offence is taken to have been committed if it is committed over a period of 2 or more days; namely, on the last of the days. New section 258A(6) provides that the sentence is not to be regarded as an offence "the sentence for which is fixed by law".
  8. Subsection (9) inserts a new section 274A into the Code. New section 274A makes the same provision as the new section 258A but in respect of the sentence of custody for life for persons aged 18 or over but under 21.
  9. Subsection (11) inserts a new section 285A into the Code. New section 285A makes the same provision as the new section 258A but in respect of the sentence of imprisonment for life for persons aged 21 or over.
  10. Subsections (2) to (5) and (12) make amendments to sections 177, 221, 249, 255 and 329 of the Code that are consequential to the introduction of the new section 258A.
  11. Subsections (7), (8) and (14) make amendments to sections 267, 272 and 417 of the Code that are consequential to the introduction of the new section 274A.
  12. Subsection (10) makes amendments to section 280 of the Code that are consequential to the introduction of the new section 285A.
  13. Subsections (13) and (16) make amendments to section 399 of the Code and section 37 of the Mental Health Act 1983 that are consequential to the introduction of the new sections 258A, 274A and 285A of the Code.
  14. Subsection (15) makes amendments to Schedule 22 to the Code that are consequential to the introduction of the new sections 274A and 285A.

Section 4: Special constables and Police Federations: amendments to the Police Act 1996

  1. Section 59 of the Police Act 1996 ("the 1996 Act") sets out that there shall be the Police Federation of England and Wales and Police Federation for Scotland. Section 60 enables the Secretary of State to make regulations to prescribe the constitution and proceedings of the Police Federations or authorise the Federations to make rules concerning such matters relating to their constitution and proceedings.
  2. By virtue of sections 59 and 60 of the 1996 Act, membership of the Police Federations are open to ‘members of police forces’. Throughout policing legislation references to ‘members of police forces’ have not been considered to mean the special constabulary in England and Wales. For example, section 90 of the 1996 Act relating to assaults against police officers refers to the special constabulary in addition to ‘members of a police force’. In Scotland, special constables are considered to fall under the definition of "members of police forces" by virtue of section 99 of the Police and Fire Reform (Scotland) Act 2012.
  3. It is important to note that throughout the provision, there are two versions of amendments made to section 59: one version for England and Wales and another version for Scotland. This has the advantage of making it clear on the face of the provision which parts apply to each jurisdiction. The arrangements for the Police Federation of Scotland will not change. This is because special constables are already eligible to join the Police Federation of Scotland.
  4. Subsection (2) amends section 51 of the 1996 Act to enable the Secretary of State to make regulations as to whether the time spent by special constables in attendance of meetings of the Police Federation, and any recognised body under section 64 (such as trade unions), is treated as time spent on duty.
  5. Subsection (4) amends section 59(1) of the 1996 Act to enable England and Wales special constables to become members of the Police Federation of England and Wales. The amended section 59(1) retains the wording setting out who the Police Federation can represent and on what matters; namely, matters which affect members’ welfare and efficiency. Subsections (1)(a) and (b) set out that questions of promotion and discipline affecting individual members are excepted.
  6. Subsection (5) inserts section 59(1B) of the 1996 Act, restating the law in Scotland.
  7. Subsection (6) amends section 59(1) of the 1996 Act to enable the Police Federation of England and Wales to represent special constables in any proceedings brought under regulations about disciplinary proceedings relating to conduct, efficiency and effectiveness of special constables under section 51(2A) of that Act. Subsection (6) also inserts section 59(2A), restating the law in Scotland.
  8. Subsection (7) amends sections 59(3)(a) and (b) of the 1996 Act to specify that special constables may be represented by members of a police force and vice versa. This is because special constables and regular officers work alongside each other, and there is a need for flexibility as to who can provide that representation, depending on the situation and availability of the individual in question. New section 59(3)(c) restates the law in Scotland, making clear that a constable of the Police Service of Scotland may be represented under section 59(2A) only by another constable of the Police Service of Scotland.
  9. Subsection (8) amends section 60(2)(e) of the 1996 Act to enable the Secretary of State to make regulations under section 60(1) about the pay, pension or allowance and other conditions of service for any member of a police force or special constable who is the secretary or officer of a Police Federation, and to apply existing regulations with modifications. Whilst special constables are volunteers, were a special constable be elected to a secretary or officer position in the future, this provision enables the Secretary of State to make regulations governing any pay, pension or allowance or other conditions of service.

Section 5: Meaning of dangerous driving: constables etc.

  1. Sections 1, 1A and 2 of the Road Traffic Act 1988 (the "1988 Act") provide for offences of causing death by dangerous driving, causing serious injury by dangerous driving and dangerous driving respectively. Section 2A of the 1988 Act defines dangerous driving for the purpose of these offences. This section amends section 2A so that in any prosecution for an offence under section 1, 1A or 2 of the 1988 Act a designated person’s standard of driving is compared to that of a competent and careful constable who has undertaken the prescribed training, and therefore has the same skills, where the designated person is driving for police purposes.
  2. Subsection (3) inserts new subsections (1A) to (1F) into section 2A of the 1988 Act (meaning of dangerous driving). New section 2A(1A) and (1B) provide that a designated person is to be regarded as driving dangerously if: (a) the way the designated person drives falls far below what would be expected of a competent and careful constable who has undertaken the same prescribed training; and (b) it would be obvious to such a careful and competent constable who had undertaken the same prescribed training that driving in that way would be dangerous. Under the new comparison, a careful and competent police driver is not expected to be a perfect police driver. The new comparison takes into account whether a careful and competent police driver, who has undertaken the same training, would have reasonably made the same decision under the circumstances. This modified test applies where a designated person is driving for police purposes (or, in the case of NCA, law enforcement purposes), and has undertaken prescribed training.
  3. New section 2A(1C) defines the term ‘designated person’ as a constable, a member of staff appointed by the chief officer, a member of staff appointed by a local policing body and employed to assist a police force in England and Wales, a member of staff appointed by the British Transport Police Authority, a member of staff appointed by the Scottish Police Authority, an NCA officer, a driving instructor employed or engaged by a chief officer of police, Scottish Police Authority or NCA to instruct those individuals, and driving instructors employed or engaged by those bodies to instruct those driving instructors
  4. New section 2A(1D) sets out that ports constables are not included within the definition of constable.
  5. New section 2A(1E) states that the test applies to NCA officers when they are driving for law enforcement purposes rather than for policing purposes.
  6. New section 2A(1F) specifies that the test applies to persons engaged by the NCA for the purpose of training NCA officers or to train a person to become an NCA driving instructor.
  7. Subsection (4) makes consequential amendments to section 2A(3) of the 1988 Act.
  8. Subsection (5) provides that the change to the definition of dangerous driving does not have retrospective effect.

Section 6: Meaning of careless driving: constables etc

  1. Sections 2B and 3 of the 1988 Act provide for offences of causing death by careless, or inconsiderate, driving and careless, or inconsiderate, driving respectively. Section 3ZA of the 1988 Act defines careless, or inconsiderate, driving for the purposes of these offences. This Section amends section 3ZA so that in any prosecution for an offence under section 2B or 3 of the 1988 Act, a designated person’s standard of driving is compared to that of a competent and careful constable with the same training and, therefore, the same skills.
  2. Subsection (3) inserts new subsections (2A) to (2F) into section 3ZA of the 1988 Act. New section 3ZA(2A) and (2B) provide that a designated person is to be regarded as driving without due care and attention if the way the designated person drives falls below what would be expected of a competent and careful constable who has undertaken the same prescribed training and, therefore, the same level of skills. Under the new comparison, a careful and competent police driver is not expected to be a perfect police driver. The new comparison takes into account whether a careful and competent police driver, who has undertaken the same training, would have reasonably made the same decision under the circumstances. This modified test applies where a designated person is driving for police purposes (or, in the case of NCA, law enforcement purposes), and has undertaken prescribed training.
  3. New section 3ZA(2C) defines the term ‘designated person’ as a constable, a member of staff appointed by the chief officer, a member of staff appointed by a local policing body in England and Wales, a member of staff appointed by the British Transport Police Authority, a member of staff appointed by the Scottish Police Authority, an NCA officer, or a driving instructor employed or engaged by a chief officer of police, Scottish Police Authority or NCA to instruct those individuals and driving instructors employed or engaged by those bodies to instruct those driving instructors.
  4. New section 3ZA(2D) sets out that ports constables are not included within the definition of constable.
  5. New section 3ZA(2E) states that the test applies to NCA officers when they are driving for law enforcement purposes rather than for policing purposes
  6. New section 3ZA(2F) specifies that the test applies to persons engaged by the NCA for the purpose of training NCA officers or to train a person to become an NCA driving instructor.
  7. Subsection (4) makes consequential amendments to section 3ZA(3) of the 1988 Act.
  8. Subsection (5) provides that the change to the definition of dangerous driving does not have retrospective effect.

Section 7: Regulations relating to sections 5 and 6

  1. Section 7 amends section 195 of the 1988 Act to provide that the power to make regulations prescribing training or skills for the purposes of new section 2A(1A)(b) or 3ZA(2A)(b) may make different provision for different persons or areas.

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