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Published:
28 February 2017
• Custody
• Arrest
• Detention
The Policing and Crime Act 2017 heralds significant
change to the powers of police staff and volunteers, going beyond those of
Police Community Support Officers.
When
the Act comes fully into force, the categories of employees with delegated
powers will be streamlined from four to two: “community support officer”
and “policing support officer”. The latter will cover the old categories of
investigating, detention and escort officers. There are also two categories
of volunteers: “community support volunteer” and “policing support
volunteer”.
In
relation to policing support officers and policing support volunteers,
chief officers will be able to confer upon them any policing power,
except for defined core powers. In other words, the position under the
PRA of designation from a limited menu of powers will largely be reversed
and staff could be designated with a wider variety of powers, duties and
functions.
The Police
Reform Act 2002 (PRA) permits Chief Officers to “designate a
relevant employee as an officer” holding certain police powers: section 38 and schedule 4. The employee only carries the powers
designated to them by the Chief Constable, for use in the course of
employment with the constabulary. Staff without express designation have no
such power.
There
are four categories of designated staff in the PRA:
•
Community support officers
•
Investigating officers
•
Detention officers
•
Escort officers.
In
the case of investigating officers, for instance, the powers which can be
designated are intended to support functions such as interviewing,
attending crime scenes and searches, e.g. entry and search after arrest,
the PACE section 19 power of seizure etc. (contained in part 2 of schedule 4 of the PRA).
This
approach to designation has now been reconsidered - first, during the
College of Policing’s leadership review in June 2015 and then as part of a
Home Office consultation: Reforming the Powers of Police Staff and Volunteers,
2015–2016. Plainly there was an appetite for greater flexibility in how
policing powers could be designated. The new Policing and Crime Act 2017
('PCA') is intended to provide just that.
Chapter 1 of Part 3 of the PCA, headed “Powers of
police civilian staff and police volunteers”, heralds significant change.
In particular, the ability to designate a wider variety of powers to
designated staff, new provisions for designation of powers to volunteers,
going beyond PCSOs and no more traffic wardens.
When
the PCA comes fully into force, the categories of employees with delegated
powers will be streamlined from four to two: “community support officer”
and “policing support officer”. The latter will cover the old categories of
investigating, detention and escort officers. There are also two categories
of volunteers: “community support volunteer” and “policing support
volunteer”.
In
relation to policing support officers and policing support volunteers,
chief officers will be able to designate any policing power, except for the
core police powers listed in schedule 3B, inserted into the PRA by the PCA.
In other words, the position under the PRA of designation from a limited
menu of powers will largely be reversed and staff could be designated with
a wider variety of powers, duties and functions.
The
“Excluded powers and duties of constables”, which cannot be delegated to
staff or volunteers – i.e. can only be exercised by warranted officers, are
as follows:
• Any
power or duty of a constable to make an arrest
• Any
power or duty of a constable to stop and search an individual or a vehicle
or other thing
• The
power of a constable, under section 36(4) of the Police and Criminal Evidence
Act 1984, to perform the functions of a custody officer at a designated
police station if a custody officer is not readily available to perform
them
• Any
power that is exercisable only by a constable of a particular rank (for
instance, decision making powers ascribed to the rank of chief inspector
and above)
• Any
power of a constable under the Terrorism Acts 2000–2015
• Any
power of a constable under the Official Secrets Acts 1911–1989
• The
power of a constable to make a warrant application on behalf of the
Commissioner of Police of the Metropolis under section 19 or section 21 of the Investigatory Powers Act 2016.
Designated
staff and volunteers can still carry (and use, where necessary) CS or PAVA
spray – but not to firearms (including Tasers).
The
use of “reasonable force” is not a designated power as such. Rather, it
accompanies particular designated powers. If a constable would be entitled
to use reasonable force in relation to a particular power, then staff
validly designated with that power could also use reasonable force, if
necessary: section 38(8) and the schedules to the PRA.
One
interesting question, spotted by an eagle-eyed force solicitor, relates to
the (very) limited power of staff to arrest. The current version of the PRA
permits staff investigators to be designated with the PACE power to arrest
a person who has already been arrested and is present at a police station,
for a further offence. When the PCA comes into effect, it seems that
power will be eliminated. The list of core or non-delegable police powers
in schedule 3B, referred to above, excludes from
designation “Any power or duty of a constable to make an arrest”: para. 1.
When
it comes to interpreting other legislation in the police law field, a
reference to a “constable” (however expressed) will include a reference to
a person designated with the relevant police powers or duties under section
38: schedule 3B, para. 8.
As to
community support officers (CSO) and a community support volunteers (CSV),
they can be delegated with any power or duty described in the new PRA schedule 3C. This replaces and largely replicates the
standard powers of PCSOs, for instance: power to detain pending arrival of
a constable, power to issue fixed penalty notices, power to require names
and addresses, certain powers to seize tobacco, controlled drugs and
psychoactive substances; road traffic and other powers. Now, chief officers
will now get to pick and choose which powers are delegated from the list to
CSOs, and the new CSVs.
Concluding
remarks
The
fact that the ability to delegate policing powers has opened up
significantly does not mean a formal written designation is no longer
required. Chief officers must expressly designate the powers they wish
their staff or volunteers to have. But now they have more to choose from,
and will be able to limit the exercise of designated powers to particular
functions and localities.
One
crucial feature of the PRA system of staff empowerment has not been amended
by PCA: the general limitation on designation of powers in section 38(4). Chief officers shall not designate any
power to persons, unless they are “satisfied” that the person is:
•
Suitable to carry out the designated functions;
•
Capable of effectively carrying out those functions; and
•
Adequately trained.
Proper
selection, vetting and training will obviously be crucial. The new
provisions appear to be an opportunity to improve the flexibility and
quality of police workforces. But if the wrong persons are appointed, or
appointed with inadequate training, then designation of powers could result
in a proliferation of complaints, conduct matters and claims regarding
staff and volunteers.
Note: we are currently in a
transition period. The core provisions of the PCA partially came into force
on 31 January 2017, enabling new regulations and orders which can bring the
remainder of the provisions into force: see section 183 of the PCA for more detail. It is not
yet clear when rest of the provisions and new regulations will come into
force. The law relating to designation of powers is complex and must be
considered carefully before any designation.
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