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DigestFebruary 2016A digest of police law, operational policing practice and criminal justice

OFFICIALDigest February 2016

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The Digest is a primarily legal environmental scanning publication intended to capture and consolidate topical and key issues, both current and future, impacting on all areas of policing.

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Overview 4Legislation 5 Bills before parliament 5 Psychoactive Substances Bill 5 Statutory Instruments 6 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Alcohol Abstinence 6 and Monitoring Requirements) Piloting (Amendment) Order 2016 Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring Requirement) 6 (Prescription of Arrangement for Monitoring) (Amendment) Order 2016 Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code E) Order 2016 6 Regulation of Investigatory Powers (Interception of Communications: Code of Practice) Order 2016 7 Equipment Interference (Code of Practice) Order 2016 7Case law 8 Evidence and procedure 8 R v Platt [2016] EWCA Crim 4 8 General police duties 10 Davis v Commissioner of Police of the Metropolis [2016] EWHC 38 (QB) 10 Human rights 13 R (on the application of) Collins v The Secretary of State for Justice [2016] EWHC 33 (Admin) 13Policing practice 16 Crime 16 Social network analysis of a street gang published 16 Latest crime statistics published 17 Diversity 18 Report on transgender equality published 18 Police 19 Consultation on police and crime commissioners launched 19 Consultation response on closer working between the emergency services published 19 IPCC Focus published 20 Outcome of consultation on reforming the powers of police staff and volunteers 20 Revised Code E in force 21 Consultation on Policing Education Qualification Framework 21Criminal justice system 22 Consultation on penalties for using a hand-held mobile phone while driving 22 Initial assessment of burglary guideline published 22 Inspection on communicating with victims published 23 Law Commission report on unfitness to plead 23 Responsibility for fire and rescue policy moves to Home Office 24 Sentencing Council consults on guideline for the imposition of community and custodial sentences 24

Contents

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This month’s edition of the Digest contains a summary of issues relating to police law, operational policing practice and criminal justice.

There are case reports on:

• the admissibility of bad character evidence and evidence relating to the mental state of a co-defendant

• a claim for damages after the claimant was shot by a police officer

• whether the so-called ‘householder defence’ is incompatible with Article 2 of the ECHR.

We look in detail at the:

• Women and Equalities Committee report on transgender equality

• Sentencing Council assessment of the burglary guideline

• HMIC inspection on communicating with victims

• outcome of the consultation reforming the powers of police staff and volunteers.

We also look at:

• the revised PACE Code E

• a social network analysis of a street gang

• the latest crime statistics

• consultations on PCCs, closer working between the emergency services and the penalties for using a hand-held mobile phone while driving.

The progress of proposed new legislation through parliament is examined and relevant Statutory Instruments are summarised.

Overview

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LegislationBills before parliamentPsychoactive Substances Bill

This Bill creates a blanket ban on the production, distribution, sale and supply of psychoactive substances in the United Kingdom. The Bill passed Third Reading, with amendments, in the House of Commons on 20 January 2016 without a vote. The House of Lords will now consider Commons amendments.

A detailed summary of the Bill can be found in the July Digest.

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Statutory InstrumentsSI 1/2016 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Alcohol Abstinence and Monitoring Requirements) Piloting (Amendment) Order 2016

This Order amends the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (Alcohol Abstinence and Monitoring Requirements) Piloting Order 2014 which brought into force section 76 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, only in relation to the South London local justice area. This Order further extends the period of time for which section 76 is in force, in that area, to the end of 31 March 2016.

Please see legislation.gov.uk

SI 10/2016 Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring Requirement) (Prescription of Arrangement for Monitoring) (Amendment) Order 2016

This Order, which comes into force on 30 January 2016, amends the Criminal Justice Act 2003 (Alcohol Abstinence and Monitoring Requirement) (Prescription of Arrangement for Monitoring) Order 2014 (the ‘2014 Order’). It keeps in place, to the end of 31 March 2016, the specification that monitoring of compliance with the obligations of an alcohol abstinence and monitoring requirement that has been imposed as part of the pilot scheme provided for by the 2014 Order will be through a transdermal electronic tag. This is a tag fitted to an offender to measure the level of alcohol contained in their sweat.

Please see legislation.gov.uk

SI 35/2016 Police and Criminal Evidence Act 1984 (Codes of Practice) (Revision of Code E) Order 2016

This Order brings into force, on 2 February 2016, a revised code of practice under section 60(1)(a) of the Police and Criminal Evidence Act 1984 which will supersede the existing code of practice issued under that subsection.

Please see legislation.gov.uk

Statutory InstrumentsLegislation

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SI 37/2016 Regulation of Investigatory Powers (Interception of Communications: Code of Practice) Order 2016

This Order brought into force, on 14 January 2016, the revised code of practice on Interception of Communications prepared under section 71 of the Regulation of Investigatory Powers Act 2000. The purpose of the code is to set out guidance relating to the interception of communications under Chapter 1 of Part 1 of that Act.

Please see legislation.gov.uk

SI 38/2016 Equipment Interference (Code of Practice) Order 2016

This Order brought into force, on 14 January 2016, the Code of Practice on Equipment Interference prepared under section 71 of the Regulation of Investigatory Powers Act 2000. The purpose of the code is to set out guidance relating to interference with property authorised under section 5 of the Intelligence Services Act 1994.

Please see legislation.gov.uk

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Case lawEvidence and procedureR v Platt [2016] EWCA Crim 4

In the original case, which is the subject of this appeal, the victim was found with multiple facial fractures and a ligature around his neck, however he died from carbon monoxide poisoning. Accelerant had been poured onto his body, which was still partially alight when found. The appellant’s fingerprint was found on a bottle of white spirit in the victim’s room and his blood was on the victim’s duvet.

The Crown’s case was that the appellant (A) had attacked the victim when he refused to give him his bank card, inflicting serious injuries before setting the body on fire. The appellant’s co-defendant (B) ran a ‘cut-throat’ defence implicating the appellant. He also applied to adduce A’s previous convictions, which included arson, two offences of causing grievous bodily harm and dishonesty offences. The judge ruled that A’s arson conviction was sufficiently unusual to have substantial probative value and that the causing grievous bodily harm offences supported B’s version of the facts. These previous convictions were therefore admitted by the Judge in the case.

The appellant (A) was convicted for murder and arson with intent to endanger life. His co-defendant (B) was acquitted.

Grounds for appeal

The appellant put forward the following two grounds appealing his conviction:

1. the judge wrongly admitted on the application of his co-defendant evidence of the bad character of the appellant

2. the judge was wrong in refusing to admit on common law principles evidence from a psychiatrist on the mental state of his co-defendant in relation to that defendant’s credibility and propensity to violence.

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The decision

The test of ‘substantial probative value’ to an important matter in issue between co-defendants under section 101(1)(e) of the Criminal Justice Act 2003 was a higher test than that applicable under section 101(1)(d) of relevance to an important matter in issue between the defendant and the prosecution. They held that the previous convictions should not have been admitted. They stated that the arson conviction was a completely different type of offence to the instant one, as it involved the use of accelerant in an attempt to destroy evidence. They also stated that the causing grievous bodily harm offences were committed some years previously and in a completely different context. Despite this error the court held that the conviction would only be quashed if it was unsafe.

The court held that the judge had rightly concluded, in relation to relevance on credibility, that the psychiatric evidence was insufficient to provide a basis for saying that B’s mental state had any particular features that would make expert evidence necessary. The judge was also right to determine that there was no evidence to establish propensity to murder or cause really serious bodily harm. B had no history of serious violence and there was nothing to suggest that he had been undergoing a psychotic episode on the day in question.

The court stated that the judge in his direction had made it clear that A’s bad character evidence was of limited value to propensity. The judge also adequately emphasised the age of the previous convictions and their very different circumstances and as a result the court held that the convictions were not unsafe.

The appeal was dismissed.

The full judgment can be found at bailii.org

Evidence and procedureCase law

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General police dutiesDavis v Commissioner of Police of the Metropolis [2016] EWHC 38 (QB)

This High Court case concerned a firearms operation in which the claimant was shot and injured. The claimant lodged a claim for damages for battery, negligence, and breach of Article 2 of the European Convention of Human Rights (ECHR).

Facts

The Metropolitan Police received information that the claimant was planning a robbery and had been trying to acquire a gun. A team of specialist firearm officers was briefed and was told, erroneously, that the claimant had fired at police officers while committing a previous offence. This was incorrect. The claimant was placed under surveillance. One of the police officers thought that he had seen him in a car with three others, fiddling with what appeared to be a gun in his waistband. An armed officer approached the car and said that he saw a small black object with a square end. He said that he believed that a gun was pointing at him and that he was about to be shot. The officer shot the claimant, causing injuries. No gun was found in the car. There was inconsistent evidence as to whether the claimant, who was a front-seat passenger in the car, had reached into the footwell immediately before the shot was fired.

The IPCC Investigation

The incident was reported to the Independent Police Complaints Commission (IPCC) by the Metropolitan Police. The IPCC authorised a managed investigation which was conducted by the Metropolitan Police’s Department of Professional Standards. No criminal or disciplinary proceedings against any officer was recommended. The following recommendations were made in the report of the investigation.

• Words of advice should be given to intelligence briefing officers to ensure that future briefings are accurate in particular in relation to firearms operations. This should be by way of management action rather than disciplinary procedure.

• Officers should be reminded of the need to comply with the obligation to make an initial written statement when firearms are used.

• In the case of open ended firearms operations, such as this one, a contingency for replacement firearms teams should be put in place at the planning stage to ensure that firearms officers did not work beyond the recommended tour of duty unless there were exceptional circumstances.

General police dutiesCase law

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The Claim

The claimant made a claim for damages, claiming:

• damages from the Commissioner as vicariously responsible for the actions of his officers

• battery

• negligence and

• breach of his right to life under Article 2 of the European Convention of Human Rights.

Liability was denied under any of these causes of action. The Commissioner said the officer acted in lawful self-defence. He denied that any duty of care in negligence was owed to the claimant, but, in any case, whatever mistakes were made in the operation, the police were not negligent in any material way. The defendant accepted that Article 2 was engaged, even though the claimant was not killed, because potentially life threatening force was used. Nonetheless, the defendant said that there was no breach of that provision since no more force was used which was more than absolutely necessary to prevent a crime.

Battery

As the claimant had been shot, there was no dispute that there was a battery. The question was whether the officer could prove that he acted in self-defence and honestly believed that he was in imminent danger of physical violence. It was also necessary to show that the act of the officer was reasonably proportionate to the violence against which he believed he was defending himself. The judge made it clear that when deciding whether the force used is proportionate to the perceived danger, the courts have frequently emphasised the need to be realistic. Such judgments have to be made, not in ‘the calm analytical atmosphere of the court room after counsel with the benefit of hindsight have expounded at length the reasons for and against the kind and degree of force that was used by the accused: but in the brief second or two which the accused had to decide whether to shoot or not and under all the stresses to which he was exposed.’

The judge was satisfied on the facts that the officer acted in lawful self-defence and dismissed the claim for battery.

Negligence

To establish a duty of care, the claimant had to show that it was fair, just and reasonable for the officers who planned and conducted the operation to owe him a duty of care. The duties of care which were advanced concerned the planning and briefing of firearms officers and the relaying of intelligence in the course of the police operation. The judge was satisfied, in the circumstances, that the police did not owe the claimant a duty of care.

General police dutiesCase law

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The judge also considered the evidence to determine whether there was negligence and whether it was material negligence. He concluded that the mistake in the briefings, negligent though it was, was not material. With regard to the mistaken sighting of a firearm, the judge concluded that even if the mistake hadn’t been made, the intervention would still have taken place and, at the point when the officer looked into the car, he would still have been aware of some intelligence that the Claimant was in possession of a gun.

For these reasons, the judge did not consider that the mistake was of any, or any material, significance in the belief which the officer formed as to the Claimant pointing a gun at him.

Article 2

The judge found that, on the facts, the officer honestly and reasonably believed that he was about to be shot. In those circumstances, the shooting itself did not amount to a breach of Article 2. He also found that there was no material negligence by the police. In those circumstances, the planning and conduct of the operation did not amount to a breach of Article 2.

The judge had regard to the way in which firearms officers are trained, the control structure under which they operate and the briefings which they received as to the circumstances in which force could be used. In the present case, the training was rigorous, the control structure was detailed and robust and the officer was reminded in the briefing of the limited circumstances in which he was entitled to fire.

Accordingly, the defendant was entitled to rely on these factors as additional reasons why there was no breach of Article 2. The judge concluded that the claim under the Human Rights Act 1998 also failed.

Judgment

The claim in battery failed because the claimant was shot in lawful self-defence by the police officer who wrongly, but honestly and reasonably, believed that he was about to be shot. The claim in negligence failed because the defendant owed the claimant no duty of care, but, in any case, there was no material negligence on the part of the police. Article 2 of the ECHR was engaged, but it was not violated either by the act of the officer in shooting the claimant, nor in consequence of the planning or conduct of the operation.

Accordingly, the claim was dismissed.

The full judgment can be found at bailii.org

General police dutiesCase law

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Human rightsR (on the application of) Collins v The Secretary of State for Justice [2016] EWHC 33 (Admin)

This application for judicial review related to the so-called ‘householder defence’ contained within 76(5A) of the Criminal Justice and Immigration Act 2008 (‘the 2008 Act’). It seeks a declaration to the effect that the provision is incompatible with Article 2 of the European Convention on Human Rights (ECHR).

Facts

Collins was in the home of B when he was restrained, at least in part, by means of a headlock; as a result of this restraint, he suffered serious personal injury from which he is not expected to recover. There was a police investigation following which the Crown Prosecution Service (CPS) decided not to prosecute B. This decision was upheld following a review by a specialist prosecutor at the Appeals and Review Unit. Initially, Mr Collins sought to challenge the decision of the Director of Public Prosecutions (DPP) on the basis that the CPS had wrongly directed itself as to the appropriate test and the Secretary of State under the Human Rights Act 1998. The claim against the DPP has been abandoned but the construction placed on the legislation by the CPS is used to support the allegation of incompatibility.

The Law

The common law relating to self-defence requires consideration of two elements. The first is a subjective element, namely whether the defendant genuinely believed that it was necessary to use force to defend himself. The second was an element which is partly objective (whether the nature and degree of force used was reasonable in the circumstances) and partly subjective (on the basis that what was reasonable had to be tested against the circumstances as the defendant genuinely, even if mistakenly, believed them to be. Once there was sufficient evidence to raise the defence, the burden of disproving it rested on the prosecution.

Section 76(5A) of the ‘2008 Act’ contains what is described as the householder provision which qualifies the second limb of the common law defence of self-defence. The precise nature of the qualification and the extent to which it affects the common law was disputed between the parties and was said by the DPP to be crucial to determining the principal point in the case, namely the compatibility of the statutory provision with Article 2 of the ECHR, as part of a framework of criminal law that deters offences against the person.

Human rightsCase law

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The Court stated that it is clear from that s. 76(3) adopts and preserves the second limb of self-defence at common law. As it has been for many years, the central question (and the standard) remains whether the degree of force that a defendant used was ‘reasonable in the circumstances as the defendant believed them to be’. The standard remains that which is reasonable not whether the force used was proportionate, disproportionate or grossly disproportionate.

The operation of s. 76(5A) automatically excludes a degree of force which is grossly disproportionate from being reasonable in householder cases. If the degree of force was not grossly disproportionate, s. 76(5A) does not prevent that degree of force from being considered reasonable within the meaning of the second self-defence limb. On the other hand, it does not direct that any degree of force less than grossly disproportionate is reasonable. Whether it was or was not reasonable will depend on the particular facts and circumstances of the case.

Thus, s. 76(5A), read together with s. 76(3) and the common law on self-defence, requires two separate questions to be put to the jury in a householder case. Presuming that the defendant genuinely believed that it was necessary to use force to defend himself, these the Court stated are:

1. Was the degree of force the defendant used grossly disproportionate in the circumstances as he believed them to be? If the answer is ‘yes’, he cannot avail himself of self-defence. If ‘no’, then;

2. Was the degree of force the defendant used nevertheless reasonable in the circumstances he believed them to be? If it was reasonable, he has a defence. If it was unreasonable, he does not.

The Court summarised that the true meaning and effect of s. 76(5A) was:

i. Whether the degree of force used in any case is reasonable is to be considered by reference to the circumstances as the defendant believed them to be (the common law and s. 76(3));

ii. A householder is not regarded as having acted reasonably in the circumstances if the degree of force used was grossly disproportionate (s. 76(5A));

iii. A degree of force that went completely over the top prima facie would be grossly disproportionate;

iv. However, a householder may or may not be regarded as having acted reasonably in the circumstances if the degree of force used was disproportionate.

Human rightsCase law

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There may be instances when a jury consider the actions of a householder in self-defence to be more than what might objectively be described as the minimum proportionate response but nevertheless reasonable given the particular and extenuating circumstances of the case. The Court stated that this does not weaken the capacity of the criminal law of England and Wales to deter offences against the person in householder cases. The headline message is and remains clear: a householder will only be able to avail himself of the defence if the degree of force he used was reasonable in the circumstances as he believed them to be.

Conclusion

The Court found that section 76(5A) of the 2008 Act does not extend the ambit in law of the second limb of self-defence but, properly construed, provides emphasis to the requirement to consider all the circumstances permitting a degree of force to be used on an intruder in householder cases which is reasonable in all the circumstances. In particular, it does not alter the test to permit, in all circumstances, the use of disproportionate force. Neither does the provision offend Article 2 of the ECHR.

The application for judicial review was dismissed.

The judgement can be accessed in full at bailii.org

Human rightsCase law

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Policing practiceCrimeSocial network analysis of a street gang published

The Home Office has published research aimed at exploring the use of social network analysis as a technique to aid understanding of local gangs. The report uses intelligence data from Greater Manchester Police to systematically understand local gangs to help direct law enforcement activities, and addresses the following two questions:

1. What can social network analysis tell us about gangs?

2. How useful are the social network analysis outputs for the police?

Key findings

An overall network of 137 individuals was identified, from the starting point of five individuals identified as having gang links. While all individuals within the network were not necessarily gang related, all were potentially vulnerable to, or at risk from gang association. Links that were not explicitly criminal or gang-related made up a large proportion of the overall network and were important to its overall structure and how individuals link together. The report states that this demonstrates the importance of understanding how other types of links within a network might operate and how interventions aimed at disrupting a gang may be more effective if they take these relationships into consideration. The social network analysis approach allows different types of links between individuals to be explored.

Police force representatives from Greater Manchester were broadly positive about the value of the network analysis approach for operational and strategic planning, and using intelligence data to map networks had advantages and disadvantages. The extensive network of links between individuals that were not crime related could be useful for planning police activity. It also helped identify people potentially vulnerable to gang association and found a link between two known gangs in the area that the police had suspected but did not fully understand.

There were, however, limitations to using intelligence data. The volume of records on an individual may be an indication of a genuine higher level of activity, but it could also be the result of increased attention from the police. The quality of the intelligence data can be variable and may create a potentially false impression of the situation. The reports states, therefore, that there may be value in looking to supplement police data with information from other community safety partners in order to build a more detailed picture what is known, and recorded, locally about a gang problem.

The report can be accessed in full at gov.uk

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Latest crime statistics published

The latest figures from the Crime Survey for England and Wales (CSEW) have been published, showing that for the offences covered there were an estimated 6.6 million incidents of crime in the year ending September 2015. The figures also show:

• a 6% increase in police recorded crime compared with the previous year, with 4.3 million offences recorded in the year ending September 2015

• that improvements in recording of crime are thought to have particularly affected some categories of violent crime recorded by the police

• increases in some of the more serious types of police recorded violence, including a 9% rise in offences involving knives or sharp instruments and a 4% increase in offences involving firearms

• sexual offences recorded by the police continued to rise with the latest figures up 36% on the previous year; equivalent to an additional 26,606 offences

• a 5% increase in the volume of fraud offences referred to the National Fraud Intelligence Bureau (NFIB) at the City of London Police.

The statistics can be accessed in full at ons.gov.uk

CrimePolicing practice

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DiversityReport on transgender equality published

The Women and Equalities Committee has published a report on transgender equality which looked at how far, and in what ways, trans people still have yet to achieve full equality and how the outstanding issues can most effectively be addressed. The inquiry looked at a wide range of policy areas, including health services, schools and the criminal justice system.

Evidence from the inquiry showed significant problems relating to the reporting and prosecution of hate crime against trans people, with evidence suggesting that transphobic hate crimes are massively underreported. The inquiry stated that the Ministry of Justice must ensure that that it consults fully with the trans community in developing the Government’s new hate-crime action plan, to ensure the proposals are well-targeted and likely to be effective in increasing levels of reporting. It states that the plan must include mandatory national transphobic hate-crime training for police officers and the promotion of third-party reporting.

There is provision in current legislation for separate transphobic ‘aggravated offences’ equivalent to those that exist under the Crime and Disorder Act 1998 for racist and faith-hate crimes. There are also no offences relating to ‘stirring up hatred’ against trans people, as there are for race, religion or sexual orientation under the Public Order Act 1986. The Committee welcomed the Government’s willingness to further strengthen hate crime legislation. The report states that the Government should introduce new hate-crime legislation which extends the existing provisions on aggravated offences and stirring up hatred so that they apply to all protected characteristics, as defined for the purposes of the Equality Act 2010.

The inquiry also looked at prison and probation services. The Committee concluded that while the safety and welfare of all offenders is paramount, caring for and managing trans offenders appropriately was crucial. The report stated that there is a clear risk of harm where trans prisoners are not located in a prison or other setting appropriate to their acquired/affirmed gender. It also stated that it was not fair or appropriate for them to end up in solitary confinement solely as a result of their trans status. The Committee welcomed the revision of the Prison Service Instruction on Care and Management of Transsexual Prisoners to make it more flexible and to extend it to prisoners on remand and offenders in statutory contact with the National Probation Service.

The report can be accessed in full at publications.parliament.uk

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PoliceConsultation on police and crime commissioners launched

The Home Office has published a consultation, seeking views on the complaints process for police and crime panels (PCPs) when seeking to resolve non-serious complaints made against a police and crime commissioner (PCC). The government proposes changes in three broad areas:

• clarifying, through non-statutory guidance, what constitutes a complaint, ensuring PCPs take forward complaints about a PCC’s conduct rather than their policy decisions

• providing PCPs with greater investigatory powers to seek evidence pertinent to a complaint

• clarifying, through non-statutory guidance, the parameters of ‘informal resolution’ and setting out that, where agreement cannot be reached, it is open to PCPs to make recommendations on the expected level of behaviour of a PCC, and that they have powers to require the PCC to respond.

The consultation closes on 10 March 2016 and can be accessed in full at gov.uk

Consultation response on closer working between the emergency services published

In September last year, the Government published a consultation paper seeking views on a range of proposals to increase joint working between the emergency services. Having considered the consultation responses, the Government intends to legislate to:

• introduce a high level duty to collaborate on all three emergency services, to improve efficiency or effectiveness

• enable Police and Crime Commissioners (PCCs) to take on the functions of fire and rescue authorities (FRAs), where a local case is made

• where a PCC takes on the responsibilities of their local FRA, further enabling him or her to create a single employer for police and fire personnel

• in areas where a PCC has not become responsible for fire and rescue services, enabling them to have representation on their local FRA with voting rights, where the local FRA agrees; and

• abolish the London Fire and Emergency Planning Authority and give the Mayor of London direct responsibility for the fire and rescue service in London.

The consultation document can be accessed in full at gov.uk

PolicePolicing practice

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IPCC Focus published

The Independent Police Complaints Commission (IPCC) has published issue 8 of Focus which provides practical guidance for police forces and other appropriate authorities on handling complaints, conduct matters, and death or serious injury matters. The eighth issue looks at when a complaint becomes recordable and can be accessed in full at ipcc.gov.uk

Outcome of consultation on reforming the powers of police staff and volunteers

The Home Office has published a summary of the responses and proposals for legislation, following a consultation on reforming the powers of police staff and volunteers. The consultation in September 2015 consulted on a series of reforms to enhance the powers of designated police staff and, for the first time, enable volunteers to be designated with powers without taking on the office of special constable. It also proposed that a single piece of legislation should set out the core list of powers available only to those that hold the office of constable.

Key findings

• The vast majority of responses (86%) agreed with the principal proposal to give chief officers a greater level of control over the designation of powers on their staff.

• 67% of responses agreed that chief officers should be able to designate powers on volunteers, however concern was raised that this should not lead to volunteers replacing police officers or paid staff.

• The proposal to create a list of powers exercisable only by police officers was welcomed by 92.5% of respondents.

• 20% of respondents expressed concern over the merger of the roles of detention and escort officers with the role of investigating officer.

• 6% of respondents queried the need for designated staff and volunteers to wear uniform, given the cost of providing a uniform to a volunteer who may only perform a few shifts per month.

Given the level of support for the proposals, along with the flexibility they offer to police forces, the Government intends to bring forward legislation as part of the forthcoming Policing and Crime Bill, to bring the reforms into effect.

The responses can be accessed in full at gov.uk

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Revised Code E in force

A revised Code E of the Codes of Practice to the Police and Criminal Evidence Act 1984 (PACE) was brought into force on 2 February 2016, following a consultation on the proposed changes. The amendments to the Code exempt four types of offences from the requirement that the interviews of individuals regarding indictable offences must be audio recorded. The amendments set out the conditions that must be met before the exemption can apply. The four types of offences are:

• possession of cannabis

• possession of khat

• retail theft (shoplifting) of property with a value not exceeding £100, and

• criminal damage to a value not exceeding £300.

The revised Code can be accessed at gov.uk

Consultation on Policing Education Qualification Framework

The College of Policing has launched a consultation, seeking responses to initial proposals about how the College will develop a Policing Education Qualification Framework (PEQF) for those working in UK policing. The framework would align to the official UK qualifications framework, which regulates the awarding of credit for equivalent levels of learning and expertise and is used by employers and education providers to recognise and compare achievement.

Policing does not currently have consistent, national education levels for all policing roles or rank, or an entry level qualification that would be considered commensurate with that of a profession. The implementation, assessment and accreditation of initial police education is wide ranging, variable and inconsistent across the 43 forces. While some forces have already developed foundation or bachelor degree entry programmes, others deliver training to the appropriate level but do not require or enable officers to achieve the externally accredited diploma qualification. As a result, some officers have no recognised accredited qualification.

The PEFQ is proposed as a standardised national framework, setting minimum education qualification levels by level of practice or rank, forming a key step toward developing policing as a profession and supporting the professional development of those working in policing. The College will consult and engage throughout the programme of work, up to and including during the implementation of any proposals.

The consultation closes on 29 March 2016 and can be accessed in full at college.police.uk

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Criminal justice systemConsultation on penalties for using a hand-held mobile phone while driving

The Department for Transport has published a consultation seeking feedback on proposed changes to the penalties for the offence of using a hand-held mobile phone whilst driving. The consultation seeks feedback on proposals to increase the fixed penalty notice (FPN) level from £100 to £150 for all drivers. It also invites views on increasing the penalty points from:

• 3 to 4 points for non-HGV drivers

• 3 to 6 points for those that hold a large goods vehicle (HGV) licence and commit the offence whilst driving an HGV.

The consultation can be accessed in full at gov.uk

Initial assessment of burglary guideline published

The Sentencing Council has published an initial assessment of the impact of the burglary guideline on sentencing trends. The guideline was implemented in January 2012 with the aim of regularising practice and ensuring consistency of sentencing burglary offences, rather than substantially altering it.

The assessment shows that for domestic burglary there has been a shift towards more severe sentences. This was anticipated and as it appears to be part of a long term trend, it is unlikely to be connected to the release of the guideline. There was also a shift towards more severe sentences for non-domestic burglary offences, however it had not been possible to establish whether this was a result of the guideline. As a result, further research on this has been proposed. In relation to aggravated burglary, there was an increase in sentencing severity following the introduction of the guideline. However, due to the low volume of cases it has not been possible to undertake further detailed analysis to establish causes for this. The Sentencing Council will undertake further analysis to explore potential reasons for the changes in non-domestic and aggravated burglary. The findings will be published in due course.

The assessment can be accessed in full at sentencingcouncil.org.uk

OFFICIALDigest February 2016

© College of Policing (2016)

OFFICIAL 23

Inspection on communicating with victims published

HM Crown Prosecution Service Inspectorate (HMCPSI) has published an inspection assessing how effectively the Crown Prosecution Service (CPS) communicates with victims, with a focus on the quality and timeliness of communications. Inspectors from HMCPSI visited six CPS areas, including two pilot sites for Victim Liaison Units (VLUs) and conducted interviews with CPS staff and criminal justice partners. They also evaluated over 162 files to assess the quality and timeliness of CPS communications with victims.

The VLUs were set up to provide a dedicated point of contact for victims. The inspectors found that while the concept was sound in principle, VLUs were understaffed which has an impact on the timeliness of correspondence with victims. They found that the quality of explanation that the prosecutor provided to the Victim Liaison Officer (VLO) when a charge was dropped or altered was often inadequate, meaning the quality of correspondence with victims was inconsistent. In addition, template paragraphs were being used in letters. While writing the letter may be quicker, the letters lacked empathy and were not victim friendly as a result. Inspectors also found that if the CPS decided not to pursue a case, victims were not always told of their right to have a decision reviewed. The inspectors also found that face to face communications with victims at court were also inconsistent.

Inspectors concluded that due to on-going financial constraints, the CPS should be realistic about what is achievable. They also stated that it was essential it work closer with criminal justice partners, not only at a strategic level, but also operationally to improve the victim’s experience of the criminal justice system.

The report can be accessed in full at justiceinspectorates.gov.uk

Law Commission report on unfitness to plead

The Law Commission has published a report on the law relating to unfitness to plead, stating that the current law in the area is outdated, inconsistently applied and can lead to fairness. The report makes recommendations to reform the unfitness to plead framework, aiming to modernise the law and make it fair, effective and accessible. These include streamlining the clinical assessment process for defendants with participation difficulties, in order to reduce unnecessary costs and delays. A new legal test is also recommended, which will accurately identify those who are unable to participate effectively in their trial. Under the recommendations, defendants who lack capacity for trial will be dealt with in a reformed alternative hearing, where all aspects of the allegation will be fairly scrutinised.

Under the reform, the Commission states that the judge will have more robust and effective options for dealing with defendants who lack capacity for trial. The court will be able to provide for more constructive support of the individual within the community, as well as having greater powers to monitor the progress of the individual under supervision and to impose restrictions where necessary to ensure public safety.

The report can be accessed in full at lawcom.gov.uk

Criminal justice system

OFFICIALDigest February 2016

© College of Policing (2016)

OFFICIAL 24

Responsibility for fire and rescue policy moves to Home Office

Ministerial responsibility for fire and rescue policy has transferred from the Department for Communities and Local Government to the Home Office. The move aims to improve local fire and policing by providing clear leadership, supporting greater collaboration and delivering value for money. It also aims to allow the government to share good practice more effectively, across areas such as procurement and prevention.

Further information can be accessed at gov.uk

Sentencing Council consults on guideline for the imposition of community and custodial sentences

The Sentencing Council has launched a consultation on a new guideline for the imposition of community and custodial sentence and the process for deciding when these types of sentence should be imposed. Existing guidance ‘New Sentences - Criminal Justice Act 2003’ issued by the Councils predecessor body is outdated due to legislative changes.

The proposed guideline aims to promote consistency when imposing sentences in courts in England and Wales. The introduction of the guideline will mean all courts will have the same up to date guidance. Development of the new guideline was prompted by an inconsistency found in the imposition of sentence orders whilst similar work was being undertaken to produce a guideline on breach of orders.

The consultation on the draft guideline closes on 25 February 2016 and can be accessed in full at sentencingcouncil.org.uk

Criminal justice system

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Protecting the public Supporting the fight against crime

As the professional body for policing, the College of Policing sets high professional standards to help forces cut crime and protect the public. We are here to give everyone in policing the tools, skills and knowledge they need to succeed. We will provide practical and common-sense approaches based on evidence of what works.

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