Schedule 4 - Police bail
Police and Justice Bill
5:00 pm
Nick Herbert (Shadow Minister (Police Reform), Home Affairs; Arundel and South Downs, Conservative)
We now come to the part of the Bill that extends the concept of street bail, which was introduced in the Police and Criminal Evidence Act 1984. I have considerable concerns, which I expressed briefly on Second Reading, about the provisions and how they will operate. I have therefore tabled amendments, which I believe will be complementary to those that the Liberal Democrats have tabled, to suggest some moderation in the operation of those provisions.
What I have to say is not to be taken as a challenge to the concept of street bail, which I recognise as valuable. Where police officers arrest a suspect but for some reason find it difficult to fulfil their statutory obligation to take them straight to a police station, street bail allows them to impose the condition that they report to a police station at a later stage. We know from a report published in 2001 by the PA Consulting Group that the average time taken to process an arrest is three and a half hours. Given the potential difficulties for police officers, particularly early on in their shifts or when they have to deal with a large number of offenders, it makes sense for them to have the discretion to require people to report to a police station at a later stage.
However, the Bill goes considerably further by enabling police officers to attach a wider range of conditions to street bail than simply having to report to a police station. Those conditions include not committing an offence, not interfering with witnesses and not obstructing the course of justice. There is also a condition to protect the person themselves. Although those measures sound perfectly reasonable, the problem is that, in effect, custodial conditions are potentially to be imposed by police officers without the supervision of the courts. The provisions represent a significant shift away from a system in which the courts properly exercise such functions to one in which individual police officers do so. They are potentially the extension of a form of summary justice.
Such conditions could be imposed for lengthy periods of time, despite the fact that the offender had not been charged with any crime. I cannot see any measure in the schedule that will put time limits on those conditions. The conditions could include curfews, tagging and restrictions on whom a person can meet and speak to, so they are potentially onerous penal conditions. The role of the independent custody sergeant, as a semi-independent arbiter of bail conditions—a role that is important in the current process of granting bail at police stations—is effectively eliminated in such cases. The provision has given rise to worry outside the House not least on the part of Liberty, which said:
“It is unreasonable to impose conditions on a person’s freedom, by means of bail conditions, before there is even considered to be sufficient evidence to prosecute in respect of offences they may never be charged with and before the person knows the nature of the case against them.”
We shall come shortly to amendments that will deal with that worry by bringing the provisions of the extension of street bail under the auspices of the Police and Criminal Evidence Act 1984, so I shall not discuss them now. That would be one way in which to deal with the extension of power. My amendments are not mutually exclusive; they have the same objective. They propose an additional way in which to moderate the use of the sweeping additional police power. Under amendment No. 135, the power to confer street bail and set the conditions should be exercisable only by a “senior” constable. Amendment No. 136 defines a senior constable who is designated as such
“by the Chief Officer of the force.”
In part, the amendment is probing, because I am not sure of the extent to which the office of senior constable may or may not exist under current legislation. I do not believe that it does, but we are moving to a criminal justice system where, increasingly, such discretion will be given to police officers. We are moving to a remarkable extension of summary justice through the Bill and through other measures that form part of the Government’s respect agenda. We must bear in mind the Prime Minister’s proposal to bypass the court system and to speed up the process of justice. All such matters give rise to serious issues about whether such discretion should be exercised by relatively inexperienced police officers.
When punitive conditions can be set by police officers, not only do they need to be subject to proper constitutional checks and safeguards, but those powers should be exercised under supervision and by police officers with more experience than a recent trainee graduate. That view is shared broadly by others. The Criminal Justice Act 2003 introduced the concept of street bail. In 2002, the Home Affairs Select Committee said:
“We believe that the custody sergeant is an officer with an appropriate level of experience for the responsibility of imposing bail conditions before charge because, unlike detention, conditional bail requires the consent of the prospective defendant.”
The Police Federation said that, while it welcomes the decision to extend street bail, police officers should still be subject to the scrutiny of a police sergeant, which is important to ensure integrity and proportionality. The body that represents police officers is expressing some worry about the extension of the discretionary power that will be given to police officers.
Other countries have the position of senior constable. For example, in the Australian federal police, the position requires six years’ service in community policing. In New Zealand, it requires 14 years’ service. The Tasmanian state police have grades of constables: for example, first-class constable first grade and first-class constable second grade. That sounds wonderfully old-fashioned in many respects. The concept that there should be constables in whom powers, which are not regarded as appropriate for use by all police officers, are vested is important.
I resisted the temptation in amendment No. 136 to designate a senior constable by reference to their length of service, because that is more a matter of judgment on the part of chief officers as to whether an individual has the maturity as well as the experience to fulfil that particular role. We can debate that. This Committee, or a future one considering a similar proposal might judge that a statutory term of experience is necessary. I am open to such a suggestion.
My alternative is in line with the principle that I have been trying to set out during our deliberations: where possible, chief officers should have discretion over these matters. I propose that chief officers could make the judgment. It is possible that relatively young officers or those who have spent relatively little time on the beat might nevertheless be of a calibre, and have sufficient maturity to be able to exercise the powers; it is not just a matter of experience. I hope that there will be work force reform that enables police officers to be recruited who are not necessarily at the young age of those who are currently being recruited.
I hope that the Minister will respond by addressing my substantive concern about the operation of these powers and by recognising that we do not seek to oppose wholesale their exercise. There is an important debate to be had about the extension of summary justice and the need to try to ensure that police officers have immediate powers to deal with things such as antisocial behaviour and exercise their role on the streets appropriately. If the police are to have these powers, it is important that they are balanced properly and that the public’s confidence in the system is maintained.
My view about this matter was reinforced when I met a constituent last week. He is a highly respectable senior businessman who encountered some youths in an unpleasant way in a local car park. Some disagreement resulted. The youths later claimed that he scratched their car when passing it, which he denies. As a consequence, the police officers visited him at his home. A relatively young police officer offered him the alternatives of admitting guilt and being given a fixed penalty notice or going to a police station some distance away and having to be dealt with there. He chose the fixed penalty notice route but felt that the police officer was not exercising his discretion in a particularly sensible way.
I am concerned that, if we give these sweeping additional powers to police officers who do not have the experience to exercise them—leaving aside the civil liberties implications of what they are doing—it will lead to an undermining of the relationship between the police and the communities that they serve. The fact that the Police Federation has expressed concern about the supervision of the powers should send a strong warning message about whether we are doing the right thing by extending street bail conditions in this way. I hope that these amendments and the concept of the introduction of a senior constable will be taken seriously by the Minister.