Policing and Crime Bill (Second sitting)

James Berry Excerpts

Tuesday 15th March 2016 Public Bill Committees

[The Chair]

How would we categorise him?

Vera Baird: He is a volunteer, but he does not have police powers; he does not need them. It is giving volunteers police powers that is the problem.

[James Berry (Kingston and Surbiton) (Con)]

Q I have worked as a barrister in independent practice for West Mercia, Northumbria and Hertfordshire police—all very fine constabularies, as is yours, Mr Roddick. I want to come back to a point Vera Baird made earlier. You gave a long list of things that these volunteers would be able to do without being supervised by the IPCC under the police misconduct regime. Would I be correct in assuming that you would not object to them having those roles if they were under that regime?

Vera Baird: No, I gave you an equally long list of why it would not be appropriate. They are not contracted, they are not under a disciplinary regime, there is no guarantee of adequate—

[James Berry]

Yes, that is the point: under a disciplinary regime.

Vera Baird: That is insufficient.

[James Berry]

Police officers are not contracted anyway, but if volunteers are under a disciplinary regime does your objection fall away?

Vera Baird: No, not at all. It is about the contractual nature of it. A disciplinary regime that is external would be excellent and would be absolutely imperative, but there is a need for much more than that.

[James Berry]

Special constables are under the disciplinary regime.

Vera Baird: Yes, they are, but we are not talking about specials.

[James Berry]

So what is wrong with volunteers being under exactly the same regime?

Vera Baird: There is nothing wrong with it, but it is not sufficient. That is the point. I have given you a long list, and I am exhorted by Mr Howarth not to repeat it.

[The Chair]

I think we are going around in circles.

[James Berry]

Q Fine. I will move on to something else. One of the other proposals in the Bill—an entirely different one—is to transfer some of the functions currently exercised by the chief constable to police and crime commissioners, under the police complaints system. Transferred functions could include hearing appeals where complaints have gone against the complainant, so you would be doing that, if you wished. Is that something you would support?

Vera Baird: I would be satisfied to do appeals from complaints. If appeals were rendered independent, then doing them would give me some oversight of how the complaints had been done internally, yet without requiring me to have a whole separate police force to do the complaints, as it were. I would welcome that, but I would need some more staff, so I would need some more budget, Mr Penning.

[James Berry]

Can the other PCCs come in on that question?

[The Chair]

Yes, if they are brief. I thought that question was very specifically directed, but if any of the other witnesses want to add to that they are welcome to.

David Jamieson: For completeness, I agree with Vera on the point about dealing with some of the appeals that are currently dealt with by chief constable. That would give people greater confidence in the system. One of the problems we have at the moment is that people feel that the police investigate themselves. Whether they are right or wrong in making the assertion that that is not the right way of doing it, people feel that that is wrong.

For us to have the ability to do the appeals, if we go further and look at models 2 and 3, there really are some problems there. I think somebody called it statutory navel-gazing, in that we are trying to put so many statutory layers into the system that we are actually going to create a bigger problem. One issue is that if we took on the whole of the complaints, in some cases I would have to ask for an investigation to take place, but I have no powers to tell the chief of police to do the investigation. In effect, if an investigation needed to take place, I would have to look at it and say, “Yes, an investigation needs to happen. Chief constable, I am now giving it back for you to do.” So we would build in an extra layer, which I do not think would be very helpful to the public.

--- Later in debate ---

[Jack Dromey]

Q Welcome to both of you. May I begin by asking about bail? The provisions in the Bill follow on from deliberations in this House, including by the Home Affairs Committee. I have two questions. The first is more general, on what was described last week as the Gambaccini case, where individuals are indefinitely on bail. The Bill seeks to address that. What are your views on that and the associated practical problems?

Secondly, I know that Mark has previously expressed concern about what we called last week the Dhar clause. In other words, if the police are to be required to take certain steps in respect of bail in future, the view has been expressed that as the law stands there are not sufficient powers for the police to prevent what happened in the Dhar case. I would be grateful for comments on those two related questions.

Sara Thornton: If I may, I will take the more general issue first. You referred to the Gambaccini issue. We understand absolutely the difficulties when people have uncertainty hanging over their lives for a very long time, so we absolutely understand when politicians want to legislate to deal with that. We are quite comfortable with the criteria, but the concerns we have are threefold. The first is in respect of the 28-day and three-month timescales and the basis for them. The College of Policing has done some survey work that looks at all bailed cases. The average times are a lot longer than that. Very often, people are bailed for a long time because of reliance on third parties—for example, third-party statements, whether they are medical evidence or cases from social services, or whether they are about phone downloads or computer equipment investigations. There are real issues about why people are sometimes on bail for a long time and the timescales do not seem to take much account of that.

The second issue is about the impact of bureaucracy. There has been some work—I think it is in the House of Commons Library—about just how many cases this legislation might apply to and the time it will take, in terms of superintendents’ time and court time. I understand that there are suggestions about how much that might cost. I know that the superintendents are concerned, because we have fewer of them than we used to have and the whole process in the Courts Service is to try to reduce the number of cases going through the courts. That is a second, practical issue.

Thirdly, I suspect that the consequence of this will be that far fewer people will be released on police bail. In some ways, that is a good thing, but I think a lot of people will be released on police bail but will still be a suspect in a live criminal investigation. So you are, in effect, creating a new category of person. The difficulty with that is they are subject to no requirement to review the case, and no framework, so potentially it is more problematic. If that were me, I do not know whether I would prefer to be on bail or still a suspect in a live criminal investigation.

Assistant Commissioner Rowley: I agree with all the general points that Sara has made. Speaking to the Home Affairs Committee on the back of a particular case, but without discussing that case, there was some debate around offenders who are on bail before charge—this is before charge, not post-charge.

Parliament has, in the past, legislated—this is not just about terrorism, but about all offences—to enable police to put conditions on people who are on bail before charge. Those conditions might simply be to make sure people do not flee—like handing in documents, a passport and so on—or they might be to stop reoffending, such as restrictions on association with believed criminal associates. We make the point that this is a very odd piece of legislation, because while Parliament legislated to allow these conditions to be put on, Parliament did not make it an offence to breach those conditions. That creates something that I have previously described as toothless. When someone breaches, the police have a power to arrest, but then have to release pretty much immediately, so it is of limited value.

Let me give some facts about the context of counter-terrorism, which was discussed previously. We are arresting a little shy of one person a day in the counter-terrorism network across the country—it was 339 people last year. About one-third of those arrests result in bail. Four in 10 of those on bail are there for terrorism offences, five in 10 for financial crime, fraud and so on, and the other one in 10 for a range of other matters. We look to use bail conditions to try to prevent people fleeing the country and to prevent reoffending, but we face the challenge that to breach the bail conditions is not an offence.

As we try to control the risks posed by potential terrorists, we have three things we can do, broadly. The first is surveillance. Surveillance is a very resource-intensive activity and is only used against the most dangerous individuals. The second control, of course, is ports controls, which, despite everyone’s best efforts, will never be completely perfect. The third control for people on bail is bail conditions and some ability to enforce them. In that context, it seems odd to have these powers that are unenforceable.

I will finally extend it beyond terrorism, because the same issues apply to officers dealing with complex cases, perhaps involving child abuse or domestic violence, where their long investigations sometimes involve digital evidence and there are real dangers about offenders and victims coming back together during the investigation. Those conditions are useful in that circumstance as well. Again, the lack of robust enforceability is a challenge. We have had conversations with the Home Office on these points, and I am aware that it is thinking about whether there is more that can be done.

[James Berry]

Q I should declare that I have been instructed in cases involving both of the witnesses in their previous roles as chief constables. Can I ask first about the Dhar case? There was a lot of public scrutiny of that case, but there were a number of complicating factors behind it, including the availability of passports. Generally speaking, as well as increasing the legal powers to enforce breach of bail, is there something to be done within the police service about the operational practice around seeking the correct bail conditions and enforcing them?

Assistant Commissioner Rowley: I will not talk about an individual case, because in every case you look at, you think there are some things to learn from it. I absolutely accept that, Mr Berry, and there are things we can learn from that case. The point about enforcing is exactly my point. Our ability to enforce is limited, and that affects the conditions that officers apply and how they follow up. If you know you are putting a power on somebody where you have little ability to follow up, that affects how you use it. That is an understandable reaction.

[James Berry]

Q Since that case, is there now routine consideration of flight risk for CT cases, to ensure that all action is taken to mitigate the risk of flight?

Assistant Commissioner Rowley: There always has been routine consideration. We are constantly looking to see if there is anything more we can do to reduce the risk of flight in any one case. That goes all the way through to our border systems in trying to spot people leaving the country, and all the way back to how we deal with people on bail.

Sara Thornton: If I may, I will give a volume crime example. If you were to bail somebody with conditions whom you were investigating for, say, domestic violence, maybe the condition you would put on them would be not to go near the victim. If that is breached, all you can do is arrest the offender and bring them into custody. The custody clock starts again and so, frankly, what you would probably do is bail them out pretty quickly. So there is very little, in fact there is no, sanction for that breach.

[James Berry]

Q Coming to the more general point about the limitation on the length of time you can hold someone on pre-charge bail, Chief Constable Thornton, you said that some people would not be released. What else would the police do to respond to that limitation on your powers in cases where at the moment you are taking longer to investigate?

Assistant Commissioner Rowley: There are several steps you can take, aren’t there? I share the concerns that have been articulated. We could always look at whether there are ways we can accelerate some components of investigation, and there will always be work we can do to improve on that front.

There are some fundamental limitations around issues that have been discussed already, such as digital evidence and some of the increasing challenges faced in that space. There is also the dependence on third parties for evidence—different professions and different expert witnesses. It is not in our gift as police officers and investigators to speed up any of those. That is a real challenge for us.

As has been said, you end up with this decision: do we keep somebody on bail or do we keep them under investigation but not on bail? I am not sure that the latter is actually a preference, but it is simply how the police will have to adapt in some cases, if the case is going to take a long time. You lose the guarantee that somebody is going to return to custody, and the suspect probably loses some understanding of the exact timescale of what is going to happen.

[James Berry]

Q Finally, are there any particular categories of offending in respect of which you are especially concerned about having a restriction on the time you can bail someone for pre-charge?

Sara Thornton: There are certain offence types and sorts of investigations. Any investigations that require the examination of digital forensic material will be problematic. Often, child sexual abuse investigations, where you have masses of third-party material within social services, can be problematic. Indeed, so can financial offences where you have got frauds and you are trying to get information from banks. It would be a mixture of different sorts of offence types, but also investigations that involve certain sorts of evidence.

[Mr Kevan Jones (North Durham) (Lab)]

Q Will you say what powers you actually need and how the system would work if it were an offence to break a bail condition?

Assistant Commissioner Rowley: In the same way that at the moment it is an offence to breach a bail condition post-charge, one could bring the same sort of approach pre-charge. You would not make it life imprisonment; it might be a year for the maximum sentence or something like that. It would not be the most serious offence but it would give some degree of traction.

If you were considering legislation, you could think about whether you put that in place for breaches of bail for all matters or just for serious crime and terrorism. There are ways you could consider it. You could consider how a subject may appeal to a judge against the conditions put on them. There are things you can put around it, but fundamentally it is the ability to say, “If you breach that condition, there is some follow-through from the legal system.”

--- Later in debate ---

[The Chair]

I think we are getting into the realms of very lengthy questions and potentially lengthy answers, and a number of people want to get in. Perhaps just a quick word on this.

Dame Anne Owers: I can write further to the Committee on this, if that would be helpful.

[James Berry]

Q My question is to Chief Constable Marshall. I should declare that I have worked as a barrister, and I lecture at the College of Policing—it is good to have experience. The College of Policing led on the barred list. That responsibility was given to you. Could you tell the Committee how it has worked in the time that you have had ownership of that portfolio and how the changes in the Bill will help to take it to the next stage?

Alex Marshall: The overall purpose of the College of Policing is: to build up the knowledge base in policing so that people can make evidence-based decisions; to set the educational standards for people joining policing and the education for people when they are in policing; and to set standards for forces and individuals. In that context, we have been operating the list for about 18 to 20 months, and it has achieved one place to go for all forces to ensure that someone who has been dismissed for gross misconduct in policing, or who left but would have been dismissed for gross misconduct, cannot get back into policing. The Bill puts that on a firm footing to make sure that we have the authority to do that and that, if we choose to do so, we can publish details from the list. We will still require forces to submit the data to us and to collect it in a consistent way.

[James Berry]

Q Thank you. This is my second and final question. You run the senior command course, on which I have had the pleasure of lecturing. That is the course senior officers go on in order to qualify to be a chief officer, effectively. Could that course be opened to senior fire officers to prepare them for appointment to chief constable posts in a single-employer model?

Alex Marshall: I came from there today—that is where I have been this morning—and it is already open to people from outside policing. For example, other Home Office departments and other parts of the military, and it will certainly be open to fire officers. The issue at the moment would be that to become a chief police officer, you must pass the four-day selection process, complete the course successfully, and be a constable. We will look at these proposals on how we bring people to that level and standard. It might just help very quickly to say that the current course has different elements such as professional policing skills, which is all about professional policing skills, and modules on leadership, ethics, business skills and working in partnership. Many of those areas, of course, will be common to senior leadership in many other organisations.

[Jake Berry]

Q Coming back to the point about your role, I think you were in the room when we had quite a lot of evidence from Sally Burke. She gave us some powerful evidence about the ability of police officers, when they arrive at someone’s house, to deal with young people in mental health crisis. Specifically what support could the College of Policing give officers to ensure that they get appropriate training to deal with situations like that? Is there more that the Bill could do to support that work?

Alex Marshall: I very much support the way in which the Bill gives greater protection, particularly to young people suffering from mental health crises and keeps them out of police cells, where they should not be. I think it reinforces the right areas. This is a very important issue for our members, particularly for the people on the frontline of policing. We have relooked at what we know about mental health, what the knowledge base is, what standards we set in this area and what education should be laid out.

We recently finished a consultation on brand new guidance for everyone who works in policing on dealing with mental health, reflecting the concordat and the work with voluntary organisations, and we will publish that in the next few weeks. There is still a lot we can do to improve the education of those officers and to set clear standards but, equally, the onus must sit with other organisations, particularly health services, to have the professionals on hand, particularly out of hours, to deal with someone who is in a crisis.