The Policing and Crime Act obtained Royal Assent on 31 January 2017. Below are a summary of Liberty's concerns with the law as it was passing through Parliament.
So what's the problem?
The Policing and Crime Bill contains important changes to fundamental police powers including the police complaints system and vital criminal justice procedures, but supposed ‘improvements’ don’t go far enough, or make things worse – and chilling new powers threaten division.
The Bill fails to:
Deliver a complaints system we can trust
To be worthy of public confidence the police complaints system needs essential reform, but the Bill fails to truly strengthen the capacity, powers and independence of the current body responsible for overseeing police complaints – the IPCC.
At the same time, it suggests passing responsibility for some complaints handling to Police and Crime Commissioners (PCCs) – local elected officials who have little public support (elected with an average ballot turnout of only 15.1%), may have a clear party-political agenda and who lack the experience, expertise and independence required.
These PCCs are then free to further delegate complaints to individuals or potentially even private firms – essentially farming out justice to whoever they like regardless of personal interests or past-performance and creating the exact opposite of a transparent, professional and independent complaints system the public can be confident in.
The changes would not only undermine the principle of independent investigation but also risk paving the way for a worrying, creeping privatisation of policing.
Create a fairer bail system
Police bail can be crucial for further investigation but currently has no time limit, meaning those arrested but not charged can be left subject to conditions – and victims without answers or justice – for months or even years. It is a frustrating and unfair system for both suspects and victims.
Liberty has previously pushed for a statutory time limit of six months to address this issue – giving the police adequate time to gather evidence, the suspect a reasonable limit to being under investigation and victims the opportunity for closure. The so-called 28 day limit on police bail contained in this Bill may look like good news, but is actually just a requirement to review after 28 days. Extensions can be granted indefinitely.
The Bill also makes it easier to release people without bail in certain cases and extends the definition of what constitutes ‘new evidence’ to allow re-arrest for the same offence at a later date.
Powers to continually re-arrest and limitlessly extend time on bail do nothing to address the problem of legal limbo for suspects or victims.
Respect the UK’s moral responsibilities
Under the heading ‘Maritime Enforcement’ are chilling new powers for police and customs officials to divert foreign ships found in English and Welsh waters on which they believe an offence may have been committed to a port anywhere in the world.
This could include ships containing or suspected of containing refugees and others in need of international protection. As the horrific images of bodies washing up on the beaches of Europe have shown, those fleeing horror and persecution may take desperate measures to reach safety in the UK, breaking immigration rules as a result.
Those in need of international protection have a right not to be returned to situations where they face a real risk of persecution or ill-treatment, and diverting these ships would be a serious breach of the Refugee Convention and the European Convention on Human Rights.
Clarify police powers
Liberty has long been concerned with the blurring of roles between police officers and citizens and sadly this will be further exacerbated by the expansion of powers given to police volunteers and other civilians in this Bill.
Volunteers and civilian staff inevitably have less training and experience than constables but under the new provisions, may be granted a number of powers by the chief police officer.
This has huge potential to lead to confusion, misuse or even abuse of powers which should be the responsibility of trained police constables. Members of the public will have no way of knowing which powers an individual is entitled to use – risking damaging confidence in modern policing and undermining social cohesion.
Avoid increasing racial tensions
Immigration status is irrelevant in the vast majority of criminal offences, but disturbing new powers will allow police officers to demand an individual declare their nationality when arrested and provide proof within 72 hours of any request for nationality documents. Failure to comply could result in up to 12 months in prison.
Historically, involving the police in enforcing the immigration system has inflamed tensions between the police and minority ethnic groups. Yet this Bill requires the police to make clumsy assumptions and ask provocative questions which will serve only to harm race relations in the communities they serve.
Any good news?
17-year-olds will be consistently treated as children
Thanks to Article 8 of the Human Rights Act – the right to private and family life – existing law will be amended so that 17-year-olds are treated as children at every stage in the criminal justice process.
People with mental health issues will be better protected
People with mental health issues continue to be subjected to unfair, inhumane and degrading treatment across the criminal justice system.
The Bill attempts to improve this in relation to detention.
Currently, people experiencing a mental health crisis awaiting a mental health assessment can be held in a police cell because it is deemed a “place of safety” under the Mental Health Act. This is wholly inappropriate as the police are neither trained nor equipped to help people in this situation.
The Bill will introduce a prohibition on police cells being a “place of safety” for those under 18 who appear to be in immediate need of care or control. This is vital to ensure that young people are given the right care.
Liberty would like to see this provision extended to adults. Specialist care is essential for anyone having a mental health crisis, ensuring both the police and those in custody are protected.
The Bill also makes changes to the length of time a person can be detained before having a medical assessment. Following a ruling by the European Court of Human Rights, a person may only be detained for 24 hours before the assessment.
Policing and Criminal Evidence Act 1984
The Government recently launched a consultation on the Policing and Criminal Evidence Act 1984 (PACE) Codes of Practice. The Codes establish the powers of the police to combat crimes while protecting the rights of the public. Striking the right balance between the two is crucial.
The Government is proposing to remove reference to the police's substantive Equality Act duties in its guidance on the identification of suspects under Code D.
They suggest removing the reference in the guidance to the police’s duties not to discriminate against, harass, or victimise individuals on the grounds of any 'protected characteristic' when that person is engaging in activities covered by the guidance (e.g. identification parades).
Although vague reference remains to ‘unlawful discrimination’ and the public sector equality duty, the new guidance would lack the previous detail as to the full range of duties and relevant to protected characteristics.
This is particularly significant in light of the police’s historic difficulties with race relations. It is essential that this groundless removal is corrected, restoring the essential level of protection to the position in which they have been for a number of years.
Liberty have responded to the Government's consultation on PACE in full. The briefing can be found below.