THE POLICE ACT 1997

This article was published in Archbold News on December 15th 1997 and is a short summary of the commentary on the Act [Uglow with Telford: The Police Act 1997] which was published by Jordans in 1997

Introduction

The Police Act 1997 was one of the final pieces of legislation of the Conservative administration: the Act may be seen, in Part III of the Act which gives wide-ranging powers of intrusive (and hitherto unlawful) surveillance powers to the police, as re-emphasising the conservative commitment to strong law-and-order policies before the general election. . These and other parts were ill-drafted and hastily pushed through Parliament. The Act has five parts: Part I puts the existing National Criminal Intelligence Service on a statutory footing; Part II creates a new national squad, the National Crime Squad; Part III gives wide-ranging powers of intrusive surveillance to the police and customs; Part IV creates the Police Information Technology Organisation (not discussed here) and Part V develops a wholly new system to provide access to criminal records for employment purposes.

National Criminal Intelligence Service

The National Criminal Intelligence Service (NCIS) has existed on a non-statutory basis since April 1992 and has already been commended for improving the response to serious, organised and international crime. Its establishment was the national manifestation of the changes in police strategy that have been taking place at local level during the 1990s. Police tactics had always been essentially reactive yet as a broad strategy, this had failed to contain recorded crime which has increased steadily since the war. Allied to this increase, by the early 1990s the government was also imposing both cash limits on and applying key performance indicators to police forces. As a result, an increasing number of forces such as Kent and Northumbria experimented with >proactive= models of policing, namely the identification of particular categories of offences or offenders as problematic in a particular area and the use of strategic initiatives against these. Such proactivity was intelligence-led as it involved the gathering of information, the analysis of that information and of crime patterns associated with it. The purpose was the targeting of specific, 'criminally-active', individuals to monitor their activities.

This approach to policing required a response at national level, especially since no single force was capable of countering the trade in drugs, stolen vehicles or money laundering nor of providing the necessary intelligence for such operations. The need for a national intelligence unit grew from the recognition of the increasing sophistication of major criminals, of the extent of national and international co-operation between such people, and especially of their ability to exploit global financial systems to launder proceeds of crime. NCIS was set up in April 1992, bringing together the police and HM Customs and Excise in order to collect, develop and analyse information up to the point at which intelligence packages could be passed on to the police or Customs for enforcement.

Part I of the Act is designed to put the NCIS on a statutory basis. The Act establishes a statutory body, the NCIS Service Authority, with a responsibility to maintain the service. This has been deliberately fashioned on the UK model of local police authorities responsible for local police forces, operating under the Police Acts of 1964 and 1996. In s.2 of the Act the functions of NCIS are laid down as gathering, storing and analysing information in order to provide criminal intelligence for other police forces. In this context, information is simply data which, when put together, can provide intelligence, an overall composite picture. The service will act in support of other police forces, including the National Crime Squad (NCS), established under Part II of the Act, and law enforcement bodies, both in the UK and abroad. But it is also an operational service on its own account, initiating and developing intelligence projects which may be pass onto other forces for action. It was one of the first services to be set up in Europe to deal with the development of criminal intelligence on a national scale. There are currently approximately 600 staff drawn from the police, Customs and Excise and the Home Office with a basic objective of helping law enforcement and other agencies, by processing and disseminating information, giving guidance and direction, and analysing major criminal activity.

NCIS is headed by a Director General. Its first Director General was Albert Pacey, formerly Chief Constable of Gloucestershire, succeeded by his deputy, John Abbott from the Sussex force in September 1997. In addition to the role at NCIS, the Director General acts as the co-ordinator for the activities of the Security Service when they act in support of the police - under the Security Service Act 1996, the security services may now function to prevent and detect serious crime.

National Crime Squad

Part II of the Act establishes a wholly new organisation, the National Crime Squad (NCS). Although the initial functions of the NCS will be in support of individual police forces, the development of the squad may well be seen as another step towards the eventual nationalisation of policing in the UK. Government ministers were anxious to downplay the comparison with the FBI, pointing out that the squad will be an adjunct to local forces and that the absence of federal offences meant that NCS did not have a special jurisdiction peculiar to itself.

The concern about a national police force under central government control dates back to the debates surrounding the creation of the first formal police force in 1829. But recent decades have seen the amalgamation of police forces and closer collaboration between forces which have increasingly operated on a regional and national basis. There has also been a more apparent identification between senior police management and the Home Office. Despite this, there have been no moves to amalgamate local forces into either a regional or national structure. The current situation suits senior police management and the Home Office, leaving the former with operational autonomy and the latter with indirect control. That Home Office influence comes from providing various national facilities, overseeing the inspection of forces through the HMI and laying down guidelines for operational and financial management. The Police Act 1996 extends Home Office influence by enabling the Home Secretary to set national objectives for policing, to require performance targets to be set for measuring the achievement of those targets, to issue Codes of Practice for the performance of police authority functions and to require reports from the police authority on any matter concerning the policing of that area.

The same concerns about the centralised control of police surfaced time and time again in the parliamentary debates on this Act: over the extent of the Home Secretary=s influence of the membership of the service authorities, over national objectives and performance targets, over the power to dismiss the Director General, over the power to require action by the Service Authority after an adverse report after an HMIC inspection. This Act does nothing to reverse the trend towards greater Home Office influence over everyday police affairs.

There is an obvious need for co-ordination between individual forces which has long been recognised. Mutual assistance between forces was first given statutory recognition in 1890. The power of a Chief Constable to provide assistance to other forces is now governed by s.24 Police Act 1996. One of the oldest of these collaborative agreements, dating from 1965, are the regional crime squads (RCS). RCS responsibilities are in the fields of serious crime and criminal intelligence, especially those offences and potential offences which transcend force boundaries. The squads are, in a sense, owned by the forces from which they drew their members. The organisation of the squads is that each region is headed by a Regional Coordinator, accountable to a management committee comprising the region=s Chief Constables as well as a representative of the HMIC. The committee appoints the coordinator, organises the structure of the squad and arranges funding. The individual police authority would have little contact or knowledge of the work of the RCS. However the authorities in that region would have a joint committee to provide oversight and resources. There is a national coordinator, based in the Home Office, appointed by the Standing Committee of Chief Officers who gives advice and assistance but has no formal power to direct operations or policy. The squads themselves are staffed by detectives from adjacent forces. There are perhaps 1200 officers seconded to RCS at any one time. During 1995-96, the squads made 3,180 arrests, seized drugs with a street value of ,252m and recovered property worth ,33m.

The operations of the RCS cross the normal boundaries of accountability - there is a Management Committee of Chief Constables to oversee operational activity and a Committee of Police Authority representatives to provide resource. The squads have no independent statutory basis, having simply been established under collaborative agreements under the predecessor of s.23 of the Police Act 1996.

Part II of the current Act addresses this situation. A National Crime Squad will be set up under its provisions which will not merely coordinate the work of the existing regional squads but which will absorb those squads into a national structure, presumably with regional groups, under the direction and control of a Director General. NCS will also have a Service Authority responsible for it in a similar fashion to both police authorities under the Police Act of 1996 and to NCIS. s.48 of the Act defines the function of NCS as the prevention and detection of serious crime which is of relevance to more than one police area in England and Wales.

NCS will thus be established in its own right as an independent agency. It will be able to employ its own staff direct and have greater operational freedom, enhancing its intelligence-gathering function. However, like NCIS, NCS is not a police force, in the sense the term is used by s.2 of the Police Act 1996 and where legislation uses this term, it cannot be taken to include NCS.

Police Surveillance

Part III of the Act is designed to create a system of control and authorisation for intrusive surveillance techniques when such operations are carried out by the police or Customs and Excise. As has been discussed, intelligence-led policing involves the targeting by the police of individuals suspected of involvement in criminal activities. Normally this will involve covert surveillance of one form or another in order to obtain evidence of offences. Such surveillance used to be carried out under existing Home Office guidelines published in 1984 which required the personal authority of the Chief Constable for such an operation. There were 1,300 police authorisations in England and Wales and 2,100 in the UK in 1995. There is now a Code of Practice on Intrusive Surveillance promulgated under s.101

The Court of Appeal has rarely interfered in covert operations by its power of excluding evidence although the court did lay down guidelines for the police so that such operations would yield admissible evidence. An example of a surveillance operation which came to the courts is the case of R v Khan in which the appellant was suspected of importing drugs. He visited the house of another man where, unknown to both of them, the police had installed a listening device from which they subsequently obtained a tape recording of a conversation which clearly showed the accused=s involvement. There were no statutory provisions which authorised such an action which was both a civil trespass and also a breach of the right to respect for private and family life protected by art 8 of the European Convention on Human Rights. The Home Office guidelines, however, had been complied with. At the trial and on appeal, the appellant argued that nevertheless the evidence had been improperly obtained and should be excluded. The House of Lords held that any breach of privacy or of art 8 was relevant to, but not determinative of, the trial judge=s discretion to exclude evidence under the provisions of s.78 of the Police and Criminal Evidence Act 1984 and that in this case the facts were such that the judge had been entitled to hold that the circumstances did not require the exclusion of the evidence. But the House criticised the lack of a statutory system regulating the use of surveillance devices by the police. Such judicial disapproval and the prospect of further cases being taken to the European Court of Human Rights were motivating factors behind the promulgation of Part III. This lack of a statutory system has to a certain extent been remedied by this legislation. But the Bill=s passage was marked by considerable controversy, not over the fundamental principle of the legitimacy of police bugging, but over the conditions under which it should take place and especially whether there should be a requirement for prior judicial approval.

Ultimately the Act deals with a limited, but very important, area of police activity: namely those forms of police surveillance which involve some form of unlawful conduct on the part of the police. Normally the unlawfulness will involve civil trespass. s.92 makes such conduct lawful. What the Act does not do is equally significant because it does not provide a general scheme to regulate the use of listening devices by the police nor to clarify the criteria by which the product of such surveillance may be used in evidence. The aims were more limited, namely to protect the police from civil actions on the grounds of civil trespass and the government from high profile actions in front of the European Court of Human Rights.

The Act establishes a system to authorise various methods of covert surveillance. Initially the government sought only to formalise the existing system of authorisation by chief officers. This system would be strengthened by the appointment of a commissioner whose only function would be to review authorisations retrospectively and to investigate complaints of improper authorisations. There was considerable opposition to this from inside and outside Parliament. The Act as passed still relies upon senior police officers to give the necessary initial authority to the investigating officers and for such authorisations to be retrospectively scrutinised by commissioners appointed under the Act. But, very significantly, where the surveillance is of a private dwelling or office or involves acquiring knowledge of confidential information of various kinds, then it is necessary under s.97 for the commissioners to approve the action in advance.

Criminal Records

Part V of the Act contains provisions which bring into effect the proposals for access to criminal records for employment purposes and for the non-statutory voluntary sector which were set out in the White Paper On The Record. However the Act itself does not make it a requirement for individuals applying for jobs to obtain or produce such certificates or for prospective employers to insist upon their production.

The situation prior to implementation of this Act is that police forces conducted, free of charge, criminal record checks on prospective employees at the request of employers. Several hundred thousand of such checks are made annually, especially on those working with children but also taxi drivers, managers of residential homes and claimants for criminal injuries compensation. At the moment, such checks are sought by local authorities and provided free of charge by the police. It is a labour intensive task. The new legislation will not only enable local authorities to obtain proper confirmation but will also pass the cost of this either onto the authorities or the individual applicants.

Currently there is no comprehensive nationwide collection of criminal records. There is a collection of records of those who have committed reportable offences held at the National Identification Service at New Scotland Yard. Local forces currently hold information about non-reportable offences, cautions and a certain amount of intelligence in relation to suspected crimes. Soon there will be a new computerised criminal justice record service, known as Phoenix, which became operational for new convictions for reportable offences from May 1995. From November 1995, new police cautions for the same category of offences were also added. Eventually even minor, non-recordable, offences, at present held locally, will be held on Phoenix. The development of this system means that there will be a one central point to obtain the necessary information.

There will now be a new agency within the Home Office although this is not provided for in the Act - legislation is unnecessary for a government department to set up such an organisation. The agency will provide individuals with information about their criminal records. In certain circumstances and with the consent of the individual, this information will also be provided to registered bodies. Such bodies will include employers, licensing bodies and voluntary organisations.

The Act creates three types of certificate:

a criminal conviction certificate, issued only to individuals and showing only convictions recorded in central police records which are not spent under the Rehabilitation of Offenders Act. It will be a matter for the applicant and employer to decide when it is reasonable to require that such a certificate be produced

a criminal record certificate, described as a "full" check, covering both spent and unspent convictions. This will be available for occupations which are exceptions to the Rehabilitation of Offenders Act, such as doctors, nurses, teachers and prison officers. A joint application will need to be made by the individual and organisation which is seeking the check. Information will be provided from central police records about spent and un-spent convictions and about cautions. It will still be a matter for the applicant and employer to decide when it is reasonable to require that such a certificate be produced but when there is a certificate, there will be more information contained in it.

an enhanced criminal record certificate, described as an "enhanced" check in the White Paper, again covering both spent and unspent convictions and other information. This will be restricted to those working on a regular, unsupervised basis with children; for certain licensing purposes; and, prior to appointment, judges and magistrates. An enhanced certificate will include the information contained in a criminal record certificate, plus information from local police records. There is still no requirement that such a certificate is required as a prerequisite in any occupation.

Individuals are expected to meet the cost of the checks although employers or others could reimburse them if they wished to do so. Bodies eligible to receive criminal record or enhanced criminal record certificates must register with the agency. A condition of registration is that organisations should follow a code of practice. However the Secretary of State has the power under the relevant sections to make regulations for payment which might exempt certain voluntary groups from paying charges.

The wider access to criminal records and police intelligence which is envisaged by this Part of the Act raises civil liberties issues, not least the need to strike a balance between the need to protect vulnerable members of society, particularly children, while avoiding the need for intrusive checks. Such vetting can reveal information about individuals that might have no relevance to the particular job and could lead to unnecessary discrimination against ex-offenders. There is particular concern when a check involves revealing police cautions or intelligence, information which has not been tested before the courts or indeed in any procedurally proper fashion.

This balance is achieved by restricting the use of spent convictions to situations already provided for under the Rehabilitation of Offenders Act. Stricter limits were placed on access to sensitive, non-conviction, information. In the original provisions of the Act, enhanced criminal record certificates were only available in situations where children might be at risk and for those applying for gaming, betting and lottery licences. The reasoning was that those working with children were in a position which gives them regular and unsupervised contact; and for the various statutory licensing purposes, it was important to guard against fraud. It was not envisaged in situations involving, for example, the old, the infirm or those who were vulnerable in some other way. However the government amended the Bill to include s.115(4)(b) to enable enhanced criminal record certificates to be available in a wider range of circumstances.