2002 Chapter 30

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These notes refer to the Police Reform Act 2002 (c.30) which received Royal Assent on 24 July 2002

POLICE REFORM ACT 2002

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Police Reform Act which received Royal Assent on 24 July 2002. They have been prepared by the Home Office in order to assist the reader of the Act. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

3.      A glossary of abbreviations and terms used in these explanatory notes is contained in the annex to the notes.

SUMMARY

Part 1: Powers of the Secretary of State

4.     Part 1 makes new provisions regarding the supervision of police forces. The Secretary of State is under a duty to produce an annual National Policing Plan and present it to Parliament; he has a power to issue codes of practices to chief officers as well as to police authorities; and the power to issue directions to police authorities as well as some of the existing regulation-making powers are widened.

Part 2: Complaints and Misconduct

5.     Part 2 establishes a new system for handling complaints against the police. It replaces the Police Complaints Authority with a new body, the Independent Police Complaints Commission (IPCC).

Part 3: Removal, suspension and disciplining of police officers

6.     Part 3 broadens the circumstances in which senior officers can be removed in the interests of the efficiency or effectiveness of the force, provides for the issue of regulations regarding the procedure for removing senior officers and makes provision for the suspension of senior officers. It makes some alterations to the conduct of disciplinary proceedings and provides for disciplinary regulations for special constables. In addition, it confers on police officers the protections provided by the Public Interest Disclosure Act 1998.

Part 4: Police Powers

7.     Part 4 contains the legislative provisions necessary to facilitate more effective use of police support staff, and provides for community safety accreditation schemes. It also adds to the list of offences for which someone can be arrested without warrant and places independent custody visiting on a statutory footing. It contains provisions regarding the taking of blood samples from those involved in road traffic incidents. It makes provision for powers for constables in relation to vehicles used in a manner causing alarm, distress or annoyance. It makes several changes to legislation regarding anti-social behaviour orders (ASBOs) and sex offender orders. It confers on the British Transport Police (BTP) additional police powers to allow them to deal more effectively with truants in their railways jurisdiction and matters connected with fixed penalty notices for motoring offences. It also enables the National Crime Squad (NCS) to dispose of property that comes into its possession during the course of an investigation.

Part 5: The Ministry of Defence Police

8.     Part 5 contains disciplinary and other provisions regarding the Ministry of Defence Police.

Part 6: Miscellaneous

9.     Part 6 contains miscellaneous provisions covering aspects of recruitment and appointment to police forces, NCS and the National Criminal Intelligence Service (NCIS). It covers various changes to other bodies with functions related to the police - police authorities, the NCS and the NCIS Service Authorities, the Association of Chief Police Officers (ACPO), Crime and Disorder Reduction Partnerships, the Police Information Technology Organisation (PITO), the Metropolitan Police Authority and the Common Council of the City of London. It also makes provision regarding international joint investigation teams.

Part 7: Supplemental

10.     Part 7 contains general interpretation, commencement and extent provisions.

BACKGROUND

11.     The Government published the white paper Policing a New Century: A Blueprint for Reform (CM 5326) in December 2001 (available on the website http://www.policereform.gov.uk). The white paper set out the Government's intentions for the future of policing in England and Wales. It followed an extensive period of consultation with the police service, representative organisations and others. The key principles of the reform programme are:

• to continue the reduction in crime;

• to tackle persistent offenders more effectively;

• to improve detection and conviction rates;

• to tackle anti-social behaviour;

• to reduce the fear of crime;

• to provide support to victims of crime; and

• to rebuild public confidence in key aspects of the police service.

12.     A summary of the main responses to the white paper is available on the website: http://www.policereform.gov.uk

13.     Many aspects of the reform programme can be implemented without primary legislation, through alteration of regulations, guidance issued by the Home Office, agreements between the Home Office and police organisations, and so on. This Act incorporates the changes that require legislation.

Part 1: Powers of the Secretary of State

14.     The Government wishes to improve performance in the police service, bringing all forces up to the level of the best. In legislative terms, this involves:

• A National Policing Plan that will set out the Government's priorities for policing and how they are to be delivered, and the indicators by which performance will be measured.

• A three tiered approach to good practice - regulations, codes of practice and guidance - to ensure that good operational and management policies for policing are applied throughout the service. Regulations are binding in law on chief officers and must be applied. The Secretary of State already has powers under the Police Act 1996 (the 1996 Act) to make regulations in various circumstances. This Act extends the scope of those regulation-making powers. Codes of practice are the means of ensuring that all chief officers reflect good practice into the particular approach of their force in the interests of efficiency and effectiveness. They differ from regulations in that although all chief officers must have regard to them, they allow for variation in the light of local circumstances. The 1996 Act already contains provision for codes of practice to which police authorities must have regard; this Act introduces a parallel provision for chief officers. The third tier, guidance, is not usually issued under any statutory authority and so for the generality of police operational and management policies, is not addressed in this Act. However, the Act does contain a number of provisions to issue guidance in specific areas, for example the matters to be contained in three-year strategy plans. Guidance is already issued by the Home Office, ACPO, HM Inspectorate of Constabulary (HMIC) and others: the decisions of chief officers should be informed by the guidance, but they are not bound by it.

• Further measures that will allow the Secretary of State to intervene in a force where HMIC is satisfied the force is not efficient or effective. Section 40 of the 1996 Act already allows the Secretary of State to direct a police authority to take specific remedial action following an adverse report by HMIC; the Act widens the ways in which the Secretary of State can take such action. In particular, the Act introduces a new power enabling the Secretary of State to direct a police authority to produce, in conjunction with the relevant chief officer, an action plan to address the poor performance highlighted by HMIC. The Act also allows the Secretary of State to require that HMIC inspects a force or part of a force.

Part 2: Complaints and Misconduct

15.     The Government issued a consultation paper in May 2000 entitled Complaints against the Police: A Consultation Document (available on the Home Office website at http://www.homeoffice.gov.uk). This paper was based on a KPMG study commissioned by the Home Office on Feasibility of an Independent System for Investigating Complaints against the Police (ISBN 1-84082-453-0) and a study by Liberty on An Independent Police Complaints Commission (available through Liberty's website at http://liberty-human-rights.org.uk). The paper sought views on various aspects of the police complaints system including the recording and investigation of complaints, police discipline, and openness on the part of the police, including the disclosure of reports and other information. The Government received 45 responses (28 from police bodies, 12 from other interested bodies and 5 from private individuals).

16.     In response to the consultation exercise the Government issued, in December 2000, a framework document entitled Complaints against the Police: Framework for a New System (also available through the Home Office website). This document set out the emerging framework for the new complaints procedures, explained how this framework was developed, and invited further views on specific points. In light of the responses to the consultation paper and the framework document the Government has introduced the provisions in Part 2 and sections 35 to 37 of Part 3 of the Act.

17.     Part 2 will create a new system for handling complaints against the police and will establish a new body to oversee this system, the IPCC. The IPCC will replace the Police Complaints Authority (originally established under the Police and Criminal Evidence Act 1984) and will be a Non-Departmental Public Body (NDPB).

18.     The IPCC will have referred to it all serious cases falling into specified categories, whether or not a complaint has been made. It will have its own powers of investigation and will have a body of independent investigators at its disposal. It will also have the power to manage or to supervise police investigations of complaints. The IPCC will have the power to call in any case to investigate, to manage or to supervise.

19.     Chief officers of police will have to co-operate with IPCC investigations. They will have a legal obligation to provide the IPCC with access to documentation or other material, allow the IPCC to copy such documentation, and allow the IPCC access to police premises.

20.     Access to the complaints system will be increased. Persons other than the victim will be able to make a complaint against the police. Furthermore, complainants will be able to make their complaints via a third party or through independent organisations. Complainants will also have a right of appeal to the IPCC against the refusal by the appropriate authority to record a complaint.

21.      Subject to a test relating to any risk that harm may be caused by disclosure of the information, complainants will be provided with an account of how the complaint investigation has been conducted, a summary of the evidence and an explanation of why the conclusions to an investigation were reached. A complainant will have a right of appeal to the IPCC if they feel that the written account does not provide a satisfactory explanation of the investigation. In certain circumstances, information may be disclosed to persons other than the complainant but they will not have a right of appeal.

22.     These provisions are intended to provide a more robust system for dealing with complaints against the police and to increase public confidence in the complaints system as a whole.

Part 3: Removal, suspension and disciplining of police officers

23.     Circumstances in which the removal of a chief officer is required are likely to be rare. Nonetheless, it is thought to be prudent to ensure that adequate arrangements are in place to cover this eventuality. Consequently, the Act adds to the circumstances in which senior officers can be required to retire or resign and introduces a new power of suspension from duty. It also streamlines the process surrounding the early departure of chief officers.

24.     This Part of the Act also contains measures regarding the conduct of disciplinary proceedings for all officers, which are tied into the provisions of Part 2 of the Act on complaints and misconduct. One element of this, regulations enabling a change in police conduct procedures to allow inferences to be drawn from failure to mention a fact when questioned or charged, as is the case in criminal proceedings as a result of provision made under section 34 of the Criminal Justice and Public Order Act 1994, was recommended by the Home Affairs Committee in December 1997 (First Report from the Home Affairs Committee Session 1997-98: Police Disciplinary and Complaints Procedure (HC 258) - accessible via http://www.parliament.uk). The Committee felt it would go some way towards addressing concerns over the use of 'no comment' in interviews in police discipline investigations. The Secretary of State accepted their recommendation to end the 'right to silence' in discipline proceedings and announced it in the House of Commons on 23 March 1998 (Official Report, volume 309, column 22).

Part 4: Police Powers etc.

Chapter 1: Exercise of police powers etc. by civilians

25.     As proposed in Policing a New Century: A Blueprint for Reform, the Act provides for specified police support staff and civilians to be given particular powers in various defined circumstances in order to perform certain defined functions. The purpose of this is three-fold:

• Firstly, it is intended to free up police officer time for their core functions by making more effective use of support staff, including detention officers, escort officers, and investigating officers acting as Scenes of Crime Officers (SOCOs).

• Secondly, as part of the drive to tackle crime more effectively, it is the Government's intention to enable forces to employ specialist investigating officers to provide expertise in combating specialist crime involving areas such as finance and Information Technology. The Act enables such investigators to be granted the powers necessary to enable them to do their job effectively.

• Thirdly, it is designed to provide additional capacity to combat low level disorder, and thereby help reduce the public's fear of crime. The Act enables chief officers to appoint suitable support staff ('community support officers') to roles providing a visible presence in the community, with powers sufficient to deal with minor issues. Such staff would be under the formal direction and control of the chief officer. The Government also wants to harness the commitment of those already involved in crime reduction activities, such as traffic wardens, neighbourhood and street wardens and security staff, through an extended police family. The Act makes provision for community safety accreditation schemes and a railway safety accreditation scheme and, in certain circumstances, the granting of limited powers to accredited members of those schemes.

Part 5: The Ministry of Defence Police

26.     The Ministry of Defence Police (MDP) is a civilian police force exercising full constabulary powers within its jurisdiction. This jurisdiction is defined in the Ministry of Defence Police Act 1987, which is the principal legislation governing the force, its powers and procedures. In July 2000, the Home Office issued a consultation document, Ministry of Defence Police: Proposals for Extension of Jurisdiction and Amendments to Powers. The Armed Forces Bill 2001 contained various MDP provisions, including extending its jurisdiction, but these clauses were dropped before the Bill obtained Royal Assent. Changes to the jurisdiction of the MDP were subsequently enacted in section 98 of the Anti-terrorism, Crime and Security Act 2001. Part 5 of this Act makes a number of other alterations to the legislation applying to the MDP that were originally included in the Armed Forces Bill. The first main change is to provide for MDP officers seconded to other police forces to be under the direction and control of the chief officer of the receiving force and to have the full powers of constables of that force. The other main changes are to enable the MDP's disciplinary procedures to be aligned with those of the Home Office police forces, and to make the MDP subject to statutory inspection by Her Majesty's Inspectors of Constabulary.

THE ACT

COMMENTARY ON SECTIONS

Part 1: Powers of the Secretary of State

Section 1: National Policing Plan

27.     This section inserts new section 36A into the 1996 Act. Section 36A requires the Secretary of State to prepare a National Policing Plan by 30 November each year, unless exceptional circumstances - like an autumn general election, or a major incident such as 11 September - prevent this. The Plan will set out the Government's strategic priorities for the police service over a three-year period. It will include the priorities and requirements which the police service is expected to consider when planning for the coming financial year - the deadline of 30 November for the production of the National Policing Plan is intended to facilitate this. The Plan must set out the Secretary of State's plans for: issuing Ministerial objectives (under section 37 of the 1996 Act) and the performance targets he intends to set in relation to such objectives (under section 38 of the 1996 Act); setting Best Value performance targets for police authorities (under section 4 of the Local Government Act 1999); making regulations under the 1996 Act as amended, section 97 of the Criminal Justice and Police Act 2001 (regulations as to police training and qualifications) and Part 2 of this Act (complaints and misconduct); issuing guidance under the 1996 Act or Part 2 of this Act; and issuing codes of practice under the 1996 Act and under section 45 of this Act (code of practice relating to chief officers' powers under Chapter 1 of Part 4). The Plan may also include such other information, plans and advice as the Secretary of State considers relevant. Before issuing the Plan, the Secretary of State must consult those whom he considers represent the interests of police authorities and chief officers of police. Where this formulation occurs in existing legislation, the Secretary of State currently consults the Association of Police Authorities (APA) and ACPO and/or the Chief Police Officers' Staff Association (CPOSA). The Secretary of State may also consult anyone else he chooses. The consultation process will be undertaken through a non-statutory National Policing Forum, on which both ACPO and the APA are represented, amongst others.

Section 2: Codes of practice for chief officers

28.     Section 39A of the 1996 Act (which is inserted by this section) allows the Secretary of State to issue and as necessary revise codes of practice relating to the discharge by chief officers of police of any of their functions. Where the Secretary of State proposes to issue or revise a code of practice he is required to ask the Central Police Training and Development Authority (CPTDA) - an NDPB established under section 87 of the Criminal Justice and Police Act 2001 - to prepare a draft of the code or appropriate revision (subsection (3)). In preparing a draft the CPTDA must consult appropriate persons. This will include persons whom it considers represent the interests of police authorities and chief officers of police (subsection (4)). It is anticipated, in line with the practice of the Secretary of State where this formulation is used in existing legislation, that the CPTDA will consult the APA, ACPO and/or CPOSA. The CPTDA may also consult anyone else it chooses. Subsections (5) and (6) require the Secretary of State, subject to a sensitivity test, to lay before Parliament all codes of practice issued under this section. The new section complements the existing section 39 of the 1996 Act, which contains a parallel power to issue codes of practice to police authorities.

Section 3: Powers to require inspection and report

29.     This section allows the Secretary of State to require an inspection by HMIC of a police force in England and Wales, NCIS or NCS (subsection (1)). The requirement may relate to their activities as a whole or only to a particular aspect. Such inspections would be separate from the routine inspections which HMIC carry out in accordance with their existing statutory duty, under section 54 of the 1996 Act, to inspect and report to the Secretary of State on the efficiency and effectiveness of all forces, NCIS and NCS. By virtue of the amendment made to section 55(1) of the 1996 Act, the report of an inspection carried out at the direction of the Secretary of State must be published by him. As a result of this provision, the existing section 40(1) of the 1996 Act is no longer required and is omitted as a result of section 4. Subsection (2) makes a parallel amendment to the equivalent Northern Ireland provision.

Section 4: Directions to police authorities

30.     This section substitutes a new section 40 of the 1996 Act for the existing one. Section 40 currently enables the Secretary of State to direct a police authority to take specific remedial action following an adverse inspection report by HMIC. New section 40(1) broadens the circumstances in which the direction making power may be exercised. First, as it stands the power is exercisable only in response to a specifically commissioned inspection by HMIC; in future the power will be exercisable after either a routine or a special inspection. Second, it is a necessary prerequisite of the existing power that HMIC concludes that the force as a whole is not efficient or effective. Under the new section the trigger will be that the force or a part of it is not efficient or effective either as a whole or in any aspect of its operations (or will become so unless remedial measures are taken).

31.     New section 40(2) to (9) provide new safeguards against inappropriate use of the powers under this section. The Secretary of State can only specify remedial measures which address existing or approaching inefficiency or ineffectiveness in the whole or any part of the relevant force, as identified in HMIC's report. In addition, the Secretary of State must prepare and submit to Parliament reports on the use of his power under this section (new section 40(3) and (4)). The other subsections ensure that the power to give directions is only used as a last resort. New section 40(5) places a duty on the Secretary of State to put the evidence that a force or part of a force is failing to the chief officer and police authority and afford them the opportunity to make representations. He will be under a duty to have regard to such representations. New section 40(5) further requires the Secretary of State to afford the chief officer or police authority the opportunity to put in place their own remedial measures before they are directed to do so. The intention is that where such remedial measures fully address the area of concern there would be no need for the Secretary of State to issue a formal direction. New section 40(6) to (9) allow the Secretary of State to make by regulations further provision for the procedures to be followed. Before doing so, he must consult those whom he considers represent the interests of police authorities (currently the APA), those whom he considers represent the interests of chief officers of police (currently ACPO), and anyone else he sees fit. Regulations made under this section are subject to the affirmative resolution procedure.

Section 5: Directions as to action plans

32.     This section amends the 1996 Act by inserting new sections 41A and 41B into that Act. These new sections provide an alternative mechanism to the power to give directions in section 40 of the 1996 Act (as substituted by section 4 of this Act) for the Secretary of State to intervene to require remedial measures to be taken to address poor performance in a force. The intervention power in new section 41A may be used instead of, or as well as, the power of direction in revised section 40.

33.     Section 41A(1) to (3) empower the Secretary of State to require a police authority to submit an action plan setting out the remedial measures that the authority proposes to take to address those aspects of the force's performance which has been judged by HMIC to be inefficient or ineffective (or will become so unless such measures are taken). A police authority will have between four and twelve weeks to submit an action plan (section 41A(10)). Where so directed by the Secretary of State the police authority must, in turn, direct the chief officer to prepare a draft of the action plan (section 41A(4)). The police authority may submit the action plan to the Secretary of State with or without modifications, but where the authority proposes to make changes to the draft of the plan prepared by the chief officer it must first consult him about the proposed modifications (section 41A(5) and (6)). It is open to the Secretary of State to comment on the action plan submitted to him where he considers that the remedial measures contained therein are inadequate (section 41A(7)). The police authority must consider the Secretary of State's comments but it is a matter for them, in consultation with the chief officer, whether to amend the action plan (section 41A(8)).

34.     An action plan must set out the steps the police authority proposes to take to address the matters identified in the adverse HMIC report. The direction may require the inclusion of performance targets and timescales for implementation. It may also require periodic progress reports to be sent to the Secretary of State (section 41A(11)). Section 41A(12) specifically limits the Secretary of State's and police authority's power of direction by providing that they cannot require action in relation to particular cases or individuals.

35.     New section 41B sets out the same procedural safeguards in relation to the exercise by the Secretary of State of his powers to give directions as to action plans as are contained in revised section 40(3) to (9) regarding directions to police authorities (described in paragraph 31 above).