Some Observations on First Looking at the Police, Crime, Sentencing and Courts Bill (2021)

 

Note this is nothing more than some musings on a few aspects of the Bill.  It is not intended to be comprehensive and does not purport to offer any expert or legal advice on the contents of the Bill.

 

It is a cold wet windy Wednesday and I have some urgent(ish) work to complete, but instead I have started to read the Police, Crime, Sentencing and Courts Bill.  You may think this is sad but the other alternative (apart from getting on with my work) is to watch Bargain Hunt and I really don’t think I could stand the excitement.  Lockdown has lasted a long time.

The Police, Crime, Sentencing and Courts Bill  a weighty piece of legislation that is going to take a lot of effort by members of both Houses to ensure that it gets the scrutiny it needs. There are 176 Clauses, 20 schedules and 307 A4 pages.   I say legislation because there is no doubt that with the current Government majority in the Commons that it will go through even if it picks up a few amendments on the way.

Governments of all political hues cannot resist the temptation to constantly tinker with the criminal justice system.  It really is difficult to keep up.  More importantly it is difficult to have a cohesive and just system when subject is the nearest thing to perpetual motion known to physics.   This Bill is marked out by the belief that tougher sentences are the answer (although it is not clear what the question is) and, for a conservative administration at least, this is a perennial vote winner.  It would have been good to see something intended to rescue the Legal Aid system and to ease pressure on the Courts.

As always these Bills are used to ‘tidy up’ issues and to fill gaps.  For example the changes that allow warrants to be issued in cases such as the Moors Murderer Ian Brady are a gap well filled.

My lack of legal knowledge and my short attention span leads my reading of the Bill down some narrow by-ways.  I will leave a comprehensive commentary on the Bill to those better qualified.

A few things that caught my eye include:

THE POLICE COVENANT

Despite having read all the background paperwork on this I am still not clear what this will amount to.  Police officers and police pensioners will need a lot of convincing that this will represent a major change to the way in which serving and retired police officers are treated by the organs of the state.  When the Covenant was the subject of a consultation last year there was almost universal support that it should be put on a statutory basis.  The Bill doesn’t do this.  Instead it creates a requirement for the Home Secretary to produce an annual report on the operation of the (non statutory) Covenant.  The consultation also produced support for the inclusion of Non Home Department Forces (NHDPF).   The wording of Clause (9) precludes these forces.  My understanding is that the current plan is for ‘some’ NHDPF to be included via a Memorandum of Understanding, but could they not be included in the face of the Bill?  It is not as if the Bill is silent on matters relating to NHDPF – there are numerous references to BTP, MDP and CNC.  The Secretary of State is already required to consult other Government Departments on matters touching the Covenant so why not on this aspect?

 

 

SPECIAL CONSTABLES

The provisions to allow the Police Federation to represent Special Constables in England and Wales is to be welcomed.  The Special Constabulary does not always work as the Government would wish but there can be no doubting the commitment and dedication of the majority or Specials or of the contribution they make.  Proper representation is long overdue.  There remain some questions about who will pay for subscriptions to the Federation and there is no mention of representation of senior Specials who hold the equivalent of superintendent or chief officer rank.

DRIVING STANDARDS

Other positive changes are the clauses to offer some protection to the police in respect of some offences under the Road Traffic Acts.  The link to driver training is an acknowledgement of the very high standards of training that police officers have received for many years to allow them to safely drive vehicles in emergencies.  Inevitably this will generate some bureaucracy but this will be worth it.  Training records will become even more important!  This provision will be a further incentive to ensure that driver training is consistent through England and Wales (a slightly different system will apply in Scotland).  There are likely to be demands for the inclusion of other emergency services and this should not come as a surprise.

UNAUTHORISED ENCAMPMENTS

This is a sensitive and difficult area.  There is no doubt that such encampments can cause considerable distress (and damage) to local communities.  However this is a provision that targets travelling communities and it will be controversial.  In the Fact Sheets that accompany the Bill the Government points out that the number of pitches provided for the use of persons in transit has increased by 41% in the last decade.  Actually this still only adds up to 356 pitches for the whole country.  Whilst these new in powers may well be necessary we must note that no extra provision for nomadic groups has been announced.  This is the Government playing to its shire base.

PUBLIC NUISANCE

The abolition of the common law offence and the creation of a statutory one, together with the post ‘Extinction Rebellion’ provisions (restrictions on protest etc) in the Bill be a source of some concern to defenders of civil rights.  There is nothing in the text itself which is especially objectionable but how these powers are used by the police, and in particular by the Metropolitan Police, will be the acid test.

WHAT ABOUT NHDPFs?

Reading through the Bill I am reminded of the strange position that Non Home Department Police Forces find themselves in with regard to legislation.  This is a niche subject but it is worth remembering that the NHDPFs employ around 7,000 police officers (plus police staff) so it is not an insignificant issue.

The fast changing nature of law enforcement makes getting the law right quite a challenge.  For the NHDPFs this is even more difficult. 

Looking at this Bill alone I note:

1.       That the Police Covenant Report clauses do not include NHDPFs in the definition of ‘police workforce’ – the suggestion of incorporation via an MOU is not enshrined in the Bill.

2.       The provisions around Dangerous and Careless Driving do include BTP, MDP and CNC but explicitly exclude police officers at Docks (which have extensive road networks, some of which are covered by the Road Traffic Act) regardless of their training.

3.       BTP and MDP are included in the arrangements for Sexual Offences Prevention Orders etc but CNC are not.

4.       BTP officers and police staff are included in the provisions around the extraction of information from electronic devices.  MDP officers (but not staff) are also included and CNC officers and staff are not included at all.  Other forces (Docks etc) are not included.

This is just a quick look at one Bill.  Imagine how complex the position of NHDPFs is when looked at across the whole spread of current legislation.  Is it not time that this was sorted out once and for all?  We have a whole range of limited jurisdiction forces that exist for ‘special’ reasons.  The larger ones are subject to Inspection by HMICFRS and some operate almost exclusively in public space.  A single piece of legislation that tidies this up would mean that in future big Bills such as this do not have to contain such detailed provisions to include or exclude NHDPFs.

I must declare an interest as I am a former officer of a NHDPF and in my current work as a consultant I offer (non legal) advice on their role and constitutional position.

CONCLUSION

This is a Bill to watch as it makes its way through Parliament.

 

PhilipTrendall

Scott Trendall Ltd

This originally appeared on the Scott Trendall Ltd Blog site.  The opinions expressed are those of the author.