Memorandum submitted by The Police Federation of England and Wales

(CJ&I 280)

Criminal Justice & Immigration Bill

About us:

1. The Police Federation of England and Wales is the representative body for over 139,000 members of the police service up to the rank of Chief Inspector. Established by statute, we have a responsibility to ensure the welfare of officers and the efficiency of the police service. We take an active interest in any subject which could impact on the police service and seek wherever we can to present our views on behalf of our members. It is in this capacity that we respond to the Bill with our comments and key concerns.

2. Given that we agree with much of what the Bill contains and considering its wide-ranging and disparate nature, we will, in this brief, comment only on those clauses which directly impact on policing or where our knowledge and experience can add value to your considerations. You may also be aware that the we have responded to many of the government consultation papers from which a number of clauses in this Bill have been drawn.

3. Of particular interest and concern to us are the provisions relating to sentencing. Over the past few years there have been numerous consultations which have subsequently fed in to various legislation but what persists is a lack of overall vision. In our view, the primary function of sentencing is the protection of the public. Effective sentencing should act as a deterrent to potential offenders and should prevent criminal behaviour from taking place. It should also provide an opportunity for rehabilitation which can only be achieved with the appropriate levels of investment.

4. Many clauses within the Bill will, if enacted have significant resource implications for the police service. Whilst we support the majority of the provisions they will only function effectively if they are adequately resourced, we fear that this will put further strain on an already overburdened police service if not.

Part 1: Youth Rehabilitation Orders

5. Whilst this legislation will have little direct impact on our officers in general we welcome it as part of a proactive approach to breaking the cycle of youth crime by using various and innovative methods to deter future offending. However there appears to be no provision for parents, foster parents or guardians to be able to use reasonable force to ensure that children and young persons comply with the orders leaving it for the Courts to deliver further sanctions if they do not.

6. We strongly believe that persons tasked with the custody of offenders must be supported in this difficult role by the legislation to assure them that they can physically prevent a child from breaching an order if the opportunity arises. That is not to say that reasonable force should extend to physical punishment, but it could easily mirror that recently given to teachers and persons in charge of children whilst at school (as recommended in the Steer report 'Learning behaviour' and enacted in the Education and Inspections Bill 2006 which now gives staff the right to use reasonable force). We consider that this measure in many cases would circumvent the need for Court appearances and further sanctions to be imposed.

Proposed additional clause:

The Police Federation of England and Wales support these provisions but we advocate that consideration be given to adding a provision to enable the use of reasonable force to comply with the order, for those having custody of the relevant person or parental responsibility.

Part 2: Sentencing

Clause 10: Abolition of suspended sentences for summary offences.

7. The Police Federation of England & Wales do not support the abolition of suspended sentences for summary offences. We have supported the greater use of community sentences, provided the infrastructure is in place to support such a sentencing regime. We believe suspended sentences provide magistrates with an additional sentencing incentive which can effectively act as a deterrent. We would therefore recommend that the proposal to remove this option be reconsidered.

Clause 12: Indeterminate sentences: determination of tariffs.

8. The Police Federation of England & Wales welcomes the proposed changes in this clause which will free judges from the obligation to take into account the notional determinate sentence and, hence, the duty to release prisoners at the half-way point of their sentence if they have committed what is deemed to be an exceptionally serious offence. We do not support the use of half term release for determinate sentences as we believe that it undermines the gravity of the sentence and sends out the wrong message to the victim and the offender. It can also serve to undermine the effectiveness of rehabilitation orders as often the prisoner is released before any remedial action has had chance to take affect.

Part 3: Appeals

9. The Police Federation of England & Wales welcomes and supports these clauses which aim to prevent the Court of Appeal overturning 'safe' convictions solely on the ground of deficiencies in the trial or pre-trial process. We believe that justice is not served by allowing technical breaches of the law to unduly influence an outcome of a case. The focus should be primarily on the strength of the evidence rather than the perfection of the process. However, this should not be viewed as a green light to ignore finely balanced procedures, the judiciary should be allowed to evaluate such technical deficiencies on a case by case basis to ensure justice has been served.

Part 4: Prison and Probation Ombudsman

10. The Police Federation of England & Wales has no comment to make on this subject.

Part 5: Other Criminal Justice Provisions (Alternatives to Prosecutions)

Clause 53: Conditional cautions for offenders aged 16 & 17 years.

11. This is a measure which extends the availability of conditional cautions to 16 and 17 year olds. Procedures are already in place for adults and following several pilot schemes are due to be rolled out nationwide soon. In our response to the consultation on the adult schemes we expressed concern about enabling the CPS to set caution conditions. Given the evidence from the pilot schemes of an increase in bureaucracy and extra time burden, it would appear that this concern has been borne out. Not only is it more efficient, it is constitutionally correct that setting caution conditions is the responsibility of magistrates.

12. Whilst accepting restorative justice can be an effective and appropriate measure in some cases, we believe that the police role in society is to enforce the law rather than have ongoing responsibility for any punishment, reparation or rehabilitation. Any conditional caution scheme (adult or juvenile) places an expectation on the police to enforce conditions imposed by the CPS. We remain concerned about the resource implications for police if additional expectations are placed on us to monitor and enforce any conditions. This function should be the responsibility of the National Offender Management Service or the Ministry of Justice.

Clauses 54 & 55: Inclusion of cautions, reprimands and final warnings into the Rehabilitation of Offenders Act.

13. The Police Federation of England & Wales recognised a long time ago the anomaly that cautions are excluded from the ROA. This is a pragmatic move as cautions are given to an offender following an admission of guilt to a criminal act. The PFEW supports this provision which will enable cautions to become 'spent'.

Clauses 56 to 63:

14. The Police Federation of England & Wales has no comment to make on these clauses.

Part 6: Criminal Law

Clauses 64 - 69: Possession of extreme pornographic images; indecent photographs of children.

15. The Police Federation of England & Wales welcome and supports these clauses. It is right that the criminal law sets the standards of appropriate behaviour in society and protects our most vulnerable. Our response to an earlier Home Office consultation (November 2005) is attached for your information.

Clause 70: Maximum penalty for publication etc. of obscene articles

16. The Police Federation of England and Wales supports this clause.

Clauses 71 - 73: Changes to the offence of loitering or

soliciting for the purposes of prostitution

17. The Police Federation of England & Wales supports these clauses. We have previously supported measures to make sexual offences non gender specific (i.e. Sexual Offences Act 2003) and we welcome the important clarification of the word 'persistent'. The option of the court being able to issue an order for the offender to attend meetings to deal with their offending is a useful and important alternative to the current system of fining. However, the success of any of these provisions is reliant upon sufficient funding and appropriate resources.

Part 7: International Co-operation In Relation To Criminal Justice Matters

18. The Police Federation of England & Wales has no comment to make on this subject.

Part 8: Violent Offender Orders (VOO's)

19. The Police Federation of England & Wales supports these clauses in principle. In doing so there is a need to emphasise that any decision to release violent prisoners should in no way be related to the number of prison spaces available. The protection of the public must come first at all times. Whilst recognising the benefit VOO's can provide, they will only do so if effectively monitored and enforced. Our experience is that there is an over reliance on the police service in this regard..

Part 9: Anti-Social Behaviour

Clause 103 & Schedule 17: Premises Closure Orders

20. The Police Federation of England & Wales supports the extension of PCOs for anti-social behaviour and welcomes the recognition of our proposal that where a police officer or local authority have issued a closure notice the matter should be heard before a magistrate's court within 48 hours. However, we would wish to once again highlight that closing down premises in an effective manner is a resource intensive exercise.

Clause 104: Offence of Causing a Nuisance or disturbance on NHS premises.

Clause 105: Powers to remove offenders from NHS premises.

21. The Police Federation of England & Wales supports the new offence. The PFEW has an on going policy to support staff employed in the public sector who face increasing levels and violence and abuse. We have been working with the Royal College of Nursing to ensure the prosecution of those responsible for assaulting NHS staff. Indeed, we strongly recommended to both the CPS and ACPO that under the Sentencing Guidelines Panel (SAP) guidelines, such assaults on any public worker should be treated as an 'aggravated' assault before any court.

22. Any legislation that attempts to improve public behaviour on NHS premises is welcomed. However, we have concerns regarding the authority to remove an individual by NHS staff or an 'authorised officer' and the use of 'reasonable force'. It is one thing to cajole or even guide an individual from the premises but a totally different matter to use physical force to do so. Our concern is that if NHS staff attempt to use force they may be subject to further assaults themselves or open to allegations against them. If an individual refuses to leave the premises the police should be called and the individual prosecuted accordingly. We therefore caution against the use of force by NHS staff to remove an offender from the premises.

Clause 109: Individual Support Orders

23. The Police Federation of England & Wales welcomes and supports the extension and provision of Individual Support Orders.

Clause 110: Definition of a local authority for the purposes of parenting contracts and orders.

24. The Police Federation of England & Wales supports this provision.

Part 10: Policing

Clause 111 & Schedule 19: Police misconduct and performance issues

Clause 112 & Schedule 20: Investigation of complaints of police misconduct etc

25. The Police Federation of England and Wales are fully supportive of the changes set out in both Clauses 111 and Clause 112 together with Schedule 19 and Schedule 20 and have fully collaborated with the development of the new regulations.

26. Whilst we welcome the new legislation we wish to point out that far too often police officers are characterised as lazy and incompetent by politicians and senior officers who then put the blame on existing conduct procedures. It is the case that the old procedures already made it possible (if correctly utilised) for managers to deal with any performance or misconduct issues effectively. The new procedures will assist further still but are based upon an ethos of development and learning, using carrots rather than sticks. These procedures will only be effective if senior officers and managers adopt their inherent spirit.

Part 11: Special Immigration Status

Clauses 115 to 122:

27. The Police Federation of England & Wales supports these clauses, but we remain concerned as to which body will take on the responsibility for monitoring individuals and how their supervision will be resourced in order to be effective.

28. We also wish to take this opportunity to highlight the difficulties police officers presently face due to the lack of authority they have to ask a person entering or leaving the UK to account for their identity. We have previously recommended the creation of legislation which would allow a constable to demand of a person proof of identity where the constable had grounds to believe that the person in question intended to enter or leave the United Kingdom. Currently officers only have the right to request to see passports. Many individuals, for example those subject to a Football Banning Order are acutely aware of this and decline. The result is that they can travel with virtual impunity. It is noteworthy that the police have the right to use the Automatic Number Plate Recognition (ANPR) system on points of entry and exit. They can in effect check the vehicles but not the passengers. We see no reason for this distinction.

Proposed additional clause:

29. We advocate that consideration be given to amending the Criminal Justice and Immigration Bill to grant police constables with the power to demand to see passports at points of entry to and exit from the UK. We are happy to assist by drafting a suitably worded clause if required.

October 2007