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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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