Policing and Crime Bill

Lord Dear Excerpts

Committee: 2nd sitting (Hansard - part two): House of Lords
Wednesday 26th October 2016 Lords Chamber

[Earl Attlee (Con)]

My Lords, in moving Amendment 176 I will speak also to our Amendments 177 and 178. These amendments all concern the quality and experience of senior officers.

Amendment 176 seeks to ensure that it would be unusual for a senior police officer not to have some international policing experience. There are two drivers for this. The main one is that the UK has done some great work with international policing missions. I recall visiting policing missions in the Balkans, where UK secondees were doing first-class work, although a lot of them were from the Royal Ulster Constabulary, for reasons that the Committee will understand. The rapid establishment of justice and the rule of law, JROL, in a post-conflict situation is extremely important—initially, I suggest, much more important than democracy and elections. I hope the Minister can show that we are still doing some useful international policing work somewhere in the world.

A difficulty with my amendment is that there are not always vacancies in international policing operations, for a variety of reasons, which is why I have broadened the qualifying roles. However, there are problems. In the past, particularly when we were carrying out policing operations in the Balkans, I detected reluctance on the part of policing authorities to authorise secondments to international policing operations, for parochial reasons. In other words, they saw no direct benefit to their policing operations—the Committee will understand that. In addition, our high-flying police officers know what they need to have on their CVs in order to secure a post at chief officer rank, and I do not believe it includes international policing operations. Although a relatively junior rank-and-file police officer can do a very good job in an international policing operation, we do not necessarily send out our very best people to those operations.

The other driver is that it is desirable that very senior police officers have broad policing experience, and not just in the UK. I am convinced that a senior police officer with some international experience would be a much better one, rather like politicians who have done something other than the standard route to Westminster: school, university, research assistant, local government. I have realistic aspirations for this amendment and the others, and there may be practical difficulties. But if the principle was implemented in some way, I would envisage high-flying police officers gaining their international experience at an early point in their careers. Police authorities and the College of Policing would know that it would have to be offered as part of the offer to recruits. It may be that they take on a big international policing job later on in their career.

My next amendment seeks to put quite tough limits on internal promotion or appointment to very senior positions within a force. I am more than content with the principle of PCCs, but at Second Reading we heard that there might be an unintended consequence of less promotion from outside a particular police force. The inherent risks of this are an unwillingness of the senior officers in a force to grasp unpleasant issues, sycophancy in order to gain promotion and, possibly, corruption. It would also tend to make it much more difficult to get wider experience, because positions in other forces would tend to go to internal candidates. An extremely unfortunate end result could be that the best-quality high-flyers might decide not to pursue a career in the police service at all, because they would realise that they would be unfairly competing with weaker, internal candidates. Can my noble friend say whether she has detected any change in recent years in the number of applications for very senior police posts?

My final amendment, Amendment 178, deals with leadership. First, I make it clear to the Committee that I do not regard myself as an expert on the matter of leadership or even an expert on measuring it. I regard leadership as the capability to get others to do things that they would rather not do or, perhaps sometimes, to desist from doing things that they want to do. It is not to be confused with management. For instance, a superior who relocates his or her centre of operations to an office rather more central for the majority of the team is exercising good management. If this relocation is to the superior’s personal disadvantage, there is an element of good leadership.

However, it is largely an acquired skill—that of being selfless. Leadership is not charisma, although the two often come together. There is innate leadership, and there may well be genetic factors at play, but I have no doubt at all that environmental and economic factors from the moment of birth are very significant. The good news is that there are methods of objectively measuring leadership, both acquired and innate.

Since at least the last war, our Armed Forces have had objective tests of leadership for selection for a commission. Several well-developed tools are used, but the command task is interesting. Candidates are tasked with the practical task of crossing an obstacle course with a range of 45-gallon oil drums, scaffolding planks and ropes. The directing staff know all the possible plans for achieving the objective, but only a few will work. What is being carefully measured is not the ability to select the correct plan but the ability to effectively lead the team even though the directing staff know that the plan selected will not actually work. How long will members of the team follow the task leader with such a plan? Most importantly, how willing are other members of the team to make a helpful suggestion, and how skilful is the task leader at taking up good suggestions while still maintaining command and control?

I am not suggesting that the Armed Forces have perfect selection procedures. They do not; sadly, I have come across several pretty poor officers. As I understand it, though, the UK police do not select for promotion to any rank taking into consideration an objective measurement of leadership. I am also led to believe that the pool of talent is no longer being properly managed, and I hope that other more experienced members of the Committee will cover that point. I am therefore never surprised at the things that go wrong with UK policing. Your Lordships have only to think of the aftermath of Hillsborough or Operation Midland.

All the amendments in this group seek to head off problems that will only get worse if not addressed. I look forward to the noble Lord, Lord Blair, moving his amendment. In the meantime, I beg to move.

[Lord Dear (CB)]

My Lords, I shall speak to Amendments 176, 177, 178 and, tangentially, 178A. I am pleased to support the noble Earl, Lord Attlee, in his amendments. I want to underpin much of what he has said and, to use his words again, to identify what I think is a growing law of unintended consequences that has flowed over the last five or six years in policing. To many of our minds, there is a growing shortage of leaders as opposed to managers, which the noble Earl has already alluded to. I might take that a little further and say that in my view there is some sign that the quality is diminishing among the senior ranks, and those who are putting themselves forward for senior ranks, within the British police.

It might be helpful if I go very quickly through the history of selection for the British police service, without taking too much of your Lordships’ time at this hour of the evening. Prior to 1948—there was a Police Act around that time—there was a superabundance of police forces in this country, many of them very small and most of them not talking to each other. The powers that they could exercise in neighbouring forces were severely limited or indeed non-existent. The words “parish pump” come to mind. This did not matter too much in those days because society was largely static; the great mobility of motorways, railways and that sort of thing had not yet come, so it was more or less okay for the time.

However, by the middle of the 1960s, following the royal commission of 1962, things had begun to change. There was a huge wave of amalgamations, which helped to fashion police forces in such a way that the parish pump largely disappeared, forces were largely aware of what was happening alongside them, co-operation began to grow and the whole policing scene changed for the better.

Underpinning all that was the establishment in 1948 of the Police Staff College. It started off originally in temporary accommodation at Ryton-on-Dunsmore in Coventry but moved fairly quickly in 1960 or thereabouts to Bramshill House in Hampshire. I venture to suggest, having been there as a student and on the staff, that it was probably the Bramshill staff college experience that helped to co-ordinate and make a cohesive whole of the police service in a way that nothing had done before. It brought together officers of various ranks on various courses, opened their eyes and broadened their horizons. It broke down, if you like, the old fetter of local training that was still going on in those days.

Policing and Crime Bill

Lord Dear Excerpts

Committee: 3rd sitting (Hansard - part one): House of Lords
Wednesday 2nd November 2016 Lords Chamber

[Viscount Hailsham (Con)]

My Lords, I support what my noble friend Lord Marlesford has said. He has identified something that has gone seriously wrong in recent years. The phrase “insufficient evidence” suggests the existence of some evidence. In some instances that will, of course, be right, but in other cases it will not be right—for example, in recent cases which will, doubtless, be in your Lordships’ minds. My noble friend has put forward a phrase which ought to be acceptable to the Government, but if it is not—and I am no wordsmith—perhaps I might suggest some alternatives. It would be proper to say, for example, “wrong to commence criminal proceedings” or “criminal proceedings are not justified”. Other phrases may occur to your Lordships.

What we must not do is to allow the police to come forward with a reason which implies the existence of a fire unsupported by sufficient smoke. That is not a fair state of affairs. My noble friend on the Front Bench may say that this is not a matter for statute. If the Committee is of that view, then advice could be given by ACPO to its members, but I think my noble friend has identified a real point which I hope your Lordships will support, by argument and debate.

[Lord Dear (CB)]

My Lords, I support what both noble Lords have said, the noble Lord, Lord Marlesford, in particular. I am sure I am right in saying that there is a growing sense of disquiet throughout society, which has swung away from the rampant interest that one saw in recent years in pursuing sex offenders, in particular—the Jimmy Savile case comes to mind immediately—towards beginning to say, “Wait a minute, it has gone too far”. I believe that it has gone too far. We live in a world where reputations can be traduced almost within seconds, given the spread of social media—I think the phrase now used is “going viral”. That can happen and, worldwide, a reputation is in tatters in a way that was not at risk of happening before.

One has only to look at Members of this House, never mind anyone outside—and outside is in many ways more important than our own membership of your Lordships’ House. Lord Bramall comes to mind. The son of the noble and right reverend Lord, Lord Carey, has recently been in the newspapers for reasons I found totally disquieting. So have Sir Cliff Richard, Lord Brittan, Sir Edward Heath and Bishop Bell, who has been the subject of many of our debates recently. I will not take up your Lordships’ time except to say that I support what is being said. Whether we should do it by advice, as has recently been said, I do not know, but the Government should take note of this growing tide of disquiet at what is going on. I hesitate to say, and I am sad to say, that the police are front runners in causing this situation. Something should be done and this amendment is a step in that direction. I support it.

[Lord Paddick (LD)]

My Lords, I support the noble Lord, Lord Marlesford. I might go a little further than the noble Viscount, Lord Hailsham, and say that “lack of evidence” is probably exactly the phrase that should be used and it should be made compulsory. Saying that there is a lack of evidence could quite easily mean a complete lack of credible evidence, whereas “insufficient evidence” could imply that there was some credible evidence in cases where there was none. “Lack of evidence” is exactly the right phrase and I look forward to the Minister’s response as to how this can be made compulsory.

--- Later in debate ---

[Viscount Hailsham]

My Lords, I hope the Committee does not accept this amendment. Of course, I have every sympathy with the generality of the points made by the noble Baroness, but I hope she will forgive me if I observe that many of the arguments that she has advanced are advanced in general against the use of Tasers, not with particular regard to the use on psychiatric wards. Your Lordships need to keep in mind that some people held on psychiatric wards can be prone to extreme violence. I am not prepared to say that there are no circumstances in which a Taser might not be appropriate in self-defence of the people with responsibility for the persons on the ward or in defence of third parties. That is an extreme position to take and I ask the Committee not to take it.

Furthermore, if the Committee was to accept this amendment it would create an offence on the part of the officer or nurse who used a Taser, who would be guilty of an assault, whereas the circumstances that arose in any ordinary context would justify the use. That strikes me as a very rum thing to do indeed. I hope that we will rely on the ordinary law, which is that a Taser should be used only in wholly exceptional circumstances in appropriate self-defence or in defence of a third party, and we should not try to prohibit its use in very specific circumstances of the kind identified by the noble Baroness.

[Lord Dear]

My Lords, I echo the words that we have just heard. I have considerable sympathy with the emotions and reasoning behind the amendment of the noble Baroness, Lady Walmsley. I make no comment about staffing in psychiatric wards—I have no knowledge of that—but as I speak against this amendment, we should remember that the Taser was introduced as an intermediate stage. It is intermediate between the use of batons, pepper sprays, CS gas and so on the one hand and firearms on the other. A Taser is not a firearm. It is something akin to it—it looks rather like one—but it is not a firearm within the definition of the Act. It does a different thing altogether. There is a violent interaction; of that, there can be no doubt. It brings immediate incapacity and some discomfort when it is fired but, as is sometimes said, in fact it knocks down the individual completely. That has to be the object of the exercise.

Perhaps I can give the Committee a circumstance which has already been alluded to. On a psychiatric ward a patient, for whatever reason, has become exceedingly violent and probably caused serious injury. They may even have caused death. The police are called; what are they going to do? If this amendment is passed into law, the police cannot use a Taser. They will use either the original, which is the pepper spray and so on, or a firearm. We need to remember that the use of a firearm in those extreme circumstances is justified in law, because there is a threat to life. By taking the Taser out we will in effect open the door, in extremis, to somebody being shot with a real lethal barrelled weapon.

I am all for looking at practice directions and reviewing the use of Tasers. Mission creep has been mentioned and perhaps there is mission creep—I do not know that and have not looked at the figures. However, to have something as extreme and prescriptive as this amendment within statute will certainly expose patients in psychiatric wards to the risk of death rather than anything else. In speaking against this, I am all for looking closely at the use of Tasers and for counselling officers using or thinking of using them to exercise extreme caution, but I would not go so far as the amendment stands.

[Lord Rosser]

My Lords, my name is attached to Amendment 194 and to a further amendment in this group, Amendment 201SB. As far as Amendment 194 is concerned, as has been said, it provides that a police officer may not use a Taser or electroshock weapon during deployment on a psychiatric ward. The purpose of adding my name to this amendment is to raise concerns that have been expressed to us about what is, in effect, a police response to what one might have thought was a clinical emergency but which has the potential effect of appearing to criminalise highly vulnerable people. I accept, though, that there could be very exceptional circumstances where a police officer might have to use a Taser during deployment on a psychiatric ward.

In response to this debate, perhaps the Government could provide figures on the extent of the use of Tasers or other devices by the police on psychiatric wards over the last 12-month period for which figures are available, and on the varying extent to which the trusts concerned called in the police and why there are such variations. The noble Baroness, Lady Walmsley, clearly has similar information to that which I have been given. I have been told that there are trusts which call in the police literally hundreds of times a year. It would be helpful if the Government could say in response whether they accept that that is true and why they think it happens. If the police are called in on frequent occasions, is the heart of the problem that results in them being called in in that way either inadequate numbers of staff on duty to cope with situations that arise, or is it due in any way to inadequate or insufficient training of staff?

The second amendment which I have in this group calls for a review of Tasers, including in places of custody, and the extent to which there is or is not a disproportionate use of Tasers against black and minority ethnic groups. Once again, this concern has been raised with us—hence the amendment—and it was highlighted following an incident which led to the death of a former well-known footballer. I simply ask: what procedures exist to ensure that there is transparency and scrutiny over the use of Tasers? What information is kept of the details of those against whom Tasers are deployed, including age, gender and ethnicity? What requirement is there for the use of Tasers to be reported immediately and to whom?

Like the noble Baroness, Lady Walmsley, I have just seen the letter sent yesterday to Charles Walker MP from the Minister of State for Policing and the Fire Service on the use of Tasers in mental health settings. No doubt in her response the Minister will seek to place on record in Hansard the thrust of the terms of that letter and the circular that has been sent to police and crime commissioners, chief constables and the chairs of local mental health crisis care concordat partnerships in England. Nevertheless, I hope that the Government will seek to respond to my questions insofar as they can, bearing in mind that the circular states that at present there are no reliable data on the frequency or scale of any Taser use in mental health settings.

Policing and Crime Bill

Lord Dear Excerpts

Committee: 3rd sitting (Hansard - part two): House of Lords
Wednesday 2nd November 2016 Lords Chamber

Moved by

[Lord Dear]

201SA: After Clause 107, insert the following new Clause—
“Power to remove disguises
In section 60AA(6) of the Criminal Justice and Public Order Act 1994 (powers to require removal of disguises) leave out “that is not practicable,” and insert “it is not practicable for an authorisation or direction to be given in writing, it shall be”.”

[Lord Dear (CB)]

My Lords, it is with some trepidation that I drag your Lordships’ attention from the interesting subjects of tank transporters, pigeon post and emails.

Amendment 201SA stands in my name and those of the noble Lords, Lord Donoughue and Lord Campbell of Pittenweem. The noble Lord, Lord Donoughue, has asked me to say that he is not able to speak to the amendment due to the lateness of the hour but he would have done so, as would the noble Baroness, Lady Mallalieu.

The amendment concerns Section 60AA of the Criminal Justice and Public Order Act 1994, which gives the police powers in some circumstances to require the removal of facial disguises. An authorisation is required under that section. The authorisation is strictly time limited, and is specific in many ways, particularly as regards location and time. It gives a power to uniformed police to require the removal of, among other things, masks, balaclavas and scarves if it is suspected that the purpose of wearing those disguises is wholly or mainly to conceal identity. The authorisation gives the police the power to seize those balaclavas et cetera, and provides that any person who fails to remove them when required commits an offence. A police inspector can authorise the removal of those articles if he or she reasonably believes, first, that offences are likely to be committed and, secondly, that the authority to remove them is expedient. It follows from that that one is dealing with demonstrations and prospective incidents of disorder which are foreseen or advertised to the police. The authorisation has to be in writing, has to be signed by the inspector and has to specify all the grounds—locality, period of time and so on—before it is valid. That brings me to the wording of Amendment 201SA, which seeks to remove “that is not practicable” and insert the words printed in the Marshalled List.

Somebody listening to me or reading the amendment may wonder whether it is splitting hairs. In a sense, it is, but there is a reason for that. As I said, the law as it stands deals with anticipated demonstrations—those that are pre-advertised in one way or another. The police know that such a demonstration is going to take place and can take pre-emptive action by issuing an authority in writing. However, there is a problem—and it has been a problem for some years now. It is what is often called, in popular parlance, “flash demos”. These are demonstrations of which the police have had no prior knowledge and which have erupted suddenly and spontaneously—a sort of “hit and run”, if you like. There is no doubt that in some cases the people who organise those flash demos—if I may continue to use that phrase—are working on the presumption that they can organise them because of the growth of communication by social media, which makes it much easier. They also know full well that if the police have no prior knowledge, the numbers of police officers available to deal with that intended disorder are likely to be very few. Those police officers on the street, faced with that sudden eruption of violence or disorder, will be faced with a dilemma. Quite simply, in their terms, if they effect an arrest, those two officers—or one officer or whatever—will go off the scene and then nobody is left to deal with the disorder. So one sees a degree of deliberation behind all this.

The point of the amendment is that there is some confusion at the moment in the minds of the police about whether the Act allows the permission to be written ex post facto—in other words, the police officer at the scene faced with the demonstration will usually use the radio to ask an inspector at the base station for permission—and whether or not it is correct within the existing law for the inspector to give the permission and write it when the officer is already dealing with the situation with which he is confronted.

I think that my amendment has full support; I hope that it has. Certainly there is full support for that change from the police service at the top level. From the police’s point of view, it will clarify their position, give them a degree of certainty and enable a much speedier response to deal with disorder, either impending or actual. I hope that I can say with some certainty that there is support from all around the House. On that point, we shall learn more in a moment. There have been some discussions with officials, who, without any commitment at all, have indicated a sympathy to discuss this further. I ask the Minister to recognise that and, in the light of whatever is said in this Chamber tonight, to consider taking this issue away and bringing back an amendment at a later stage. On those grounds, I beg to move.

[Lord Harris of Haringey]

My Lords, the noble Lord, Lord Dear, has raised a potentially important issue, and I think he is right to put it in the terms that he has. Particularly with the growth of social media and the very rapid organisation of demonstrations, there may be an issue here that needs to be addressed. Indeed, if the Minister, having thought about it, agrees to take it back and bring forward a proper amendment which addresses all these points at the next level—which I think is the noble Lord’s preferred course of action—there are a number of other issues that perhaps would usefully be addressed at the same time.

We have to be more explicit about what constitutes a disguise and the circumstances in which it happens. You could have a situation in which what would appear to a police officer on the scene as being a disguise might turn out to be a veil worn for religious purposes; or it might turn out to be the fact that it is extraordinarily inclement weather and no sensible people would go out without a scarf wrapped around their face; or it might be that they wear face masks—I have seen this; it is quite common particularly among Japanese tourists, although I am not sure that it is unique—allegedly to protect themselves from the notorious levels of air pollution in our capital city. All I am saying is that the definition of “disguise” that may have seemed to work in the 1994 Act may need to be reviewed and looked at in the context of whether it continues to make sense. There have to be some safeguards with regards to the way in which decisions are taken and recorded, which ensure that the power is not used in any way which could be deemed discriminatory, as that would be extremely unfortunate. I am sure that that is not the intention, but it is important that safeguards are built into this. While the process by which this happens should be able to respond quickly to the sorts of situations that the noble Lord, Lord Dear, outlined, it should also be amenable to ensuring that the power is not misused or used in a way which in retrospect turns out to be highly inappropriate.

The noble Lord, Lord Dear, has identified an issue that should be addressed, but it needs to be developed quite carefully to avoid some potential pitfalls in the future.

[Lord Dear]

My Lords, can I just put on the record what Section 60AA(2) of the 1994 Act says? To the best of my knowledge, it has not raised any problems in law so far. It says:

“This subsection confers power on any constable in uniform … to require any person to remove any item which the constable reasonably believes”—

those words are a well-known test in law—

“that person is wearing wholly or mainly for the purpose of concealing his identity”.

[Lord Kennedy of Southwark]

Briefly, I agree with my noble friend Lord Harris of Haringey, that the noble Lord, Lord Dear, has raised an important issue. However, it needs careful consideration for the reasons that my noble friend outlined. I therefore hope that the Minister will agree that the Government will take this away and have a look at this issue. We all want to make sure that the police have the appropriate power, but equally, of course, we should ensure that the proper safeguards are built in so that unintended consequences, which no one would want to occur, do not cause problems as well.

[Baroness Williams of Trafford]

The noble Lord, Lord Paddick, is right that the permission in writing can be given after the event, but we now find that that is not an ideal situation. On what the noble Lord, Lord Dear, proposes, both national policing leads and others would welcome a clarification on this matter. The noble Lord, Lord Dear, answered the question posed by the noble Lord, Lord Harris, for me, but I will repeat it, as it is important. With regard to removing face coverings for religious reasons, for example, the Act states that when an authorisation is in place, a constable can require a person to remove a face covering only if the constable reasonably believes that the person is wearing the item,

“wholly or mainly for the purpose of concealing his”,

or her “identity”. Of course, it is for individuals to ensure the fair and proportionate use of their powers.

If the noble Lord is content to withdraw his amendment—it sounds as though he is—I will give the matter further sympathetic consideration in advance of Report.

[Lord Dear]

My Lords, at this late hour I am grateful for the contributions that have been made. I am encouraged by and grateful to the Minister for what she has said, and I beg leave to withdraw the amendment.

Amendment 201SA withdrawn.

Policing and Crime Bill

Lord Dear Excerpts

Report: 2nd sitting (Hansard): House of Lords
Wednesday 7th December 2016 Lords Chamber

[Baroness Chisholm of Owlpen]

My Lords, these amendments respond to an amendment tabled by the noble Lord, Lord Dear, in Committee, which concerned the authorisation process for the exercise by a constable of the power to require the removal of a disguise. Section 60AA of the Criminal Justice and Public Order Act 1994 is an important preventive tool, enabling the police to remove disguises in instances where they believe offences may be committed. As an intrusive power, quite rightly this requires prior authorisation from an officer of the rank of inspector or above.

However, as the noble Lord, Lord Dear, explained in Committee, the spontaneous arising or escalation of public order incidents does not always permit sufficient time for this approval to come in written form. Amendment 150 ensures that oral authorisation is permitted where it is the only practicable course of action. This authorisation must then be put in writing as soon as is practicable. Amendment 204 makes a consequential amendment to the Long Title of the Bill.

These amendments have been the subject of extensive discussions between officials and the relevant national policing leads, as well as between MPs and the former Policing Minister, Mike Penning. They will give greater clarity and flexibility to the police in the operational use of this power. I beg to move.

[Lord Dear (CB)]

My Lords, I support the amendment. I remind the House that I tabled much the same amendment in Committee. I suggested then that the Minister might take the amendment back, consider it and bring it back on Report—which, of course, has been done. So I record my thanks to the Minister and the officials at the Home Office for their support.

Some misgivings were expressed in Committee that face veils—religious coverings—would be caught in this legislation. I would like to make it clear—as I think is now accepted—that the only change in this amendment is to allow authorisation for the police to use existing powers to be given orally and recorded in writing later. I hope that the fears concerning religious coverings have been allayed and I am very pleased to support the amendment.

[Lord Campbell of Pittenweem (LD)]

My Lords, my name was on the original amendment but I was unable to take part in Committee because of prior commitments. The noble Lord, Lord Dear, deserves more than praise for the very rational way in which he introduced this issue. The result is an entirely practical one, which is entirely consistent with the maintenance of good order and allowing the police to exercise necessary functions, sometimes in very difficult circumstances. Therefore, I too am happy to support the amendment.

--- Later in debate ---

[Lord Blair of Boughton]

I support the noble Viscount, Lord Hailsham, on that point. However, given that this is Report, I ask the Minister to bring back a government amendment that says that it is the coroner. We should not lose this opportunity. I support the noble Lord, Lord Rosser, in saying that we ought to have a process in which there is an equality of arms between the two sides. As I understand it, however—I stand to be corrected—the House can do that only if the Government bring forward an amendment on Third Reading which says what the noble Lord’s amendment does, but that it is not the police and crime commissioner; it is the coroner. I completely agree.

[Lord Dear]

My Lords, I can be very brief and agree entirely with the last two speakers. The sentiment behind the amendment is admirable, but the way it plays out needs regulation. I too strongly support the Government taking this away and bringing it back with the coroner in pride of place.