Policing and Crime Bill – Proposals to give new powers to police volunteers and reform pre-charge bail raise civil liberties concerns

The Government’s Policing and Crime Bill, scheduled for its third reading in Parliament later this month, proposes a raft of measures aimed at “finishing the job of police reform”. Among the changes are plans to give additional powers to civilian police support officers and volunteers and reforms to pre-charge bail, both of which are raising considerable concerns about their impact on civil liberties.

The Government’s consultation into the proposed Policing and Crime Bill closed in April this year. The Bill was considered by MPs at Report Stage on 26 April and was given a formal First and Second Reading on 19 May. The Third Reading Stage is now scheduled to take place on 13 June 2016.

The Bill’s key features include:

•  Reforms to the way that emergency services work together and enabling Police and Crime Commissioners (PCCs) to take responsibility for fire and rescue services;
• Reforms to the police complaints procedure;
• Changes to police workforce and representative institutions including the extensions of police powers to civilian volunteers;
• Changes to police powers including changes to pre-charge “street” bail and the imposition of time limits to bail; and
• Reforms to powers under the Mental Health Act 1983.

Although some of the provisions such as raising the age a person in custody is deemed to be an adult to 18 and removing police stations as a place of safety under the proposed reforms under the Mental Health Act 1983, have been well received, many of the other provisions in the Bill have been heavily criticised. The provisions contained within Part 3 of the Bill relating to the extension of police powers to civilian volunteers and those in Part 4 relating to pre-charge bail raise particular concerns.

Third Sector Policing: The rise of the amateur police officer

The Bill in its current form allows the chief officer to designate civilian employees as community and / or police support officers (PCSO) and civilian volunteers as community and / or police support volunteers (PCSV). Thereafter they are able to confer powers and impose duties on those volunteers and employees. The Bill is silent on how this would work in practice and chief officers are given considerable discretion in assigning powers and duties.

Recent years have seen considerable cuts to public services and it seems that the government is intending to fill the gap in police resources by allowing chief officers to confer a wide range of powers on civilian employees and volunteers. Though the power to arrest is not conferrable, it is extremely worrying that volunteers would be able to carry weapons, PAVA and CS Spray, and could be granted the power to stop and search.

In situations where a person refuses to comply with the search, the volunteer can demand that the individual provide their name. If this information is withheld or if it is believed the information is false, the Bill provides that an offence has taken place (regardless as to whether there were reasonable grounds to stop and search in the first place), allowing the volunteer to detain and use reasonable force to conduct a non-intimate search.

Even more troublingly, there are no provisions within the Bill imposing any kind of minimum amount of training. An amendment to the Bill was proposed, guaranteeing that there would be a duty on the College of Policing to issue guidance to chief police officers on the training of volunteers, but this was not supported by the government.

The Bill allows chief officers to tailor their workforce to the needs of the local area, a move which it was hoped would improve community relations. The lack of clarity and transparency on how the conferring of powers would work in practice however, can only lead to further strain in the relationship between police volunteers and members of the general public.

Notably, the Bill also fails to provide steps for accountability or scrutiny of police volunteers. In situations where police officers or constables have been dismissed following disciplinary proceedings, their details will be added to the barred list held by the College of Policing and chief officers will not be able to appoint anyone on that list as an officer, a member of police staff or a special constable. However, the same is not applicable to police volunteers.

A number of amendments to the Bill have been proposed but whether these will be adopted remains to be seen. The proposed amendments are as follows;

• that a provision in the following terms should be added, “(2A) The chief officer of any police force may not place a volunteer in any role which requires the use of force or restraint.” This amendment would prevent volunteers being placed in roles which may require the use of force or restraint which should be performed by officers and members of police staff;
• that provisions to provide volunteer PCSO’s with CS Gas and PAVA should be removed from the Bill;
• that the section granting additional police powers to volunteers cannot come into force until the House of Commons approves a report under section 46(6) of the Police Act 1996 which guarantees no annual reduction in funding in real terms to local policing bodies in each financial year until 2020.

Pre-Charge Bail: Arrest First – Release Later

Part 4 of the Bill is intended to ‘reform pre-charge bail to stop people remaining on bail for lengthy periods without independent judicial scrutiny of its continued necessity.’ It was drafted in answer to the inherent criticism of the current system which often sees people remain on bail for extensive periods of time.

The Bill proposes the introduction of the presumption that a suspect who has been arrested should be released without bail unless bail is necessary and proportionate in all the circumstances. Though such a presumption does appear to be a step forward, the fact that there is no requirement to inform the individual once he is no longer under investigation means the change will be little comfort to those released. Further, it is also provided that an individual can be released and then re-arrested should new evidence come to light or if an examination or analysis of evidence has been made which could not have been made prior to their initial arrest. Both these provisions place the individual in a state of investigatory limbo from which they may never be totally free.

It also seems somewhat dissonant that a police officer could deem an arrest necessary but shortly thereafter deem that giving street bail would not be. Though the tests of necessity for arrest and street bail are clearly separate, it is difficult to imagine a set of facts whereby a justified arrest leads to a release without bail. In the context of the policing of demonstrations this is of particular concern as we already see a general policing tactic of mass, often unjustified, arrests followed by short periods of detention before release without charge. From this it is not too difficult to imagine police officers who are seeking to disperse a protest, under admittedly stressful circumstances, continuing to “unnecessarily” arrest protesters exercising their right to demonstrate, without good cause, knowing that they can later justify a release.

The problem of prolonged pre-charge bail is serious with an FOI request by the BBC in 2013 showing over 3000 people waiting for more than six months for a decision on charges. Despite attempting to make the provisions as inscrutable as possible, it seems that the proposed time limits to bail can be summarised as follows:

• Initial limit to bail of 28 days;
•  A super-intendent can authorise further bail limit up to three months from the date the suspect was released from bail;
• There are then two options available to the police to further extend bail:
  • The CPS designate the case as “exceptionally complex” allowing bail to continue until six months of the date of release (Note: There is not guidance as to what an exceptionally complex case would look like);
  • The Investigating Officer makes an application to the Magistrate’s Court who can further authorise bail for up to nine months from release;
• Further application to Court can be made by the investigating officer to extend bail in three month increments.

In each of the above cases, the decision maker must be satisfied that the investigations will complete within the extended time limit. Though it is always difficult to prognosticate, it seems police would need to bring new reasons for requiring an extension to bail. Disturbingly, when an application to Court is made, the police can require that the suspect and his representative are excluded from any part of the hearing containing “sensitive material”. There is a presumption that the hearing will be in writing unless the proposed time limit to bail would be above 12 months from the start of bail.

Based on the numbers gathered by the BBC, and taking into consideration the continuous strain on courts, it seems likely that delays in hearing such applications would be inevitable. Note that a police officer can make an application to Court after a three-month period, so we can assume that the number of applications will be far higher than the BBC’s numbers imply as its figures cover only those on bail for over 6 months. The Bill confirms that only the application to extend bail need be lodged in time so the hearing can take place after the deadline has passed, leading to unauthorised and unscrutinised periods of bail conditions.

Civil liberties campaigners have been arguing for reform of pre-charge bail for many years and so it is disappointing to see that in attempting to address concerns about the practice, the government has failed to implement any real safeguards or incentives to keep bail periods to a minimum. Instead it could be argued the provisions only put in place further hoops for police officers to jump through in order to justify pre-charge bail.

Alongside this, provisions that confer further powers on volunteer officers, without the accompanying training, accountability and scrutiny that would go some way to safeguarding the rights of the public, it seems the Policing and Crime Bill is unlikely to ‘finish the job of police reform’ as intended. Instead, without significant amendments to the Bill, we are in danger of diminishing our civil liberties further and doing little to alleviate the uncertainty faced by those put on police bail for long periods.