Introduction to Policing and Police Powers

Leonard Jason-Lloyd

• Publisher: Routledge-Cavendish
• Year: 2013
• ISBN:
  9781135337834
• Edition: 2
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

This book provides clear and comprehensive coverage of the policing system and police powers. This second edition has been revised and updated to take account of new legislation, case law and other developments in the area.

CHAPTER 1
THE DEVELOPMENT AND FOUNDATIONS OF MODERN POLICING

INTRODUCTION

I (name) … of (place) … do solemnly and sincerely declare and affirm that I will well and truly serve the Queen in the office of constable, with fairness, integrity, diligence and impartiality, upholding fundamental human rights and according equal respect to all people; and that I will, to the best of my power, cause the peace to be kept and preserved and prevent all offences against people and property; and that while I continue to hold the said office I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.

The above constitutes the solemn declaration or oath taken by all those newly appointed to the office of constable within England and Wales, in accordance with the wording under Sched 4 to the Police Act 1996.¹ This is declared during a ceremony known as the ‘attestation’, which takes place before a justice of the peace.² On analysis, this oath provides an interesting indication as to the constitutional status of a police officer in modern times and, in essence, describes the manner in which police powers should be exercised.

Compared with many policing systems abroad, the system in England and Wales has a number of similarities and distinctions. Perhaps two of the greatest distinctions are based upon the main principle of policing in this country and the basic structure of our police service. With regard to the former, policing in this country is still fundamentally based upon the principle or concept of ‘policing by consent’. This means that the police service functions in society with the consent of the majority. This has great advantages compared with many foreign policing systems, which do not enjoy this concept to the extent that it is still evident here. Among other things, this ensures a greater level of public co-operation with the police and has also enabled our police to avoid being fully and permanently equipped with firearms throughout the 20th century and, so far, into the present millennium. Although in recent years they have been equipped with a greater range of protective weaponry, such as extendable batons and CS gas spray, these are not intended to be lethal in their effects if used correctly and, so far, we have avoided a permanent para-military police force in this country.

A further distinction between foreign policing and our own domestic system is that this function in England and Wales is currently divided between 43 individual police forces, whereas policing abroad, including Europe, is often under more centralised control. In other words, we do not have a national police service, but a network of individual police forces, responsible for policing specified counties, areas or cities. During times of emergency, these forces may be co-ordinated through a centralised mutual aid procedure, but such occasions are infrequent, one of the most well known in recent times being the miners’ dispute during the winter of 1984—85, where police officers from many parts of the country were sent to key mining areas to reinforce the local police presence there.

A BRIEF HISTORICAL OVERVIEW

The general concept of policing in this country is certainly not new; in fact, various forms of law enforcement which were in the nature of policing existed since early Saxon times. Even the term ‘constable’ originated as far back as the Norman era.

Constables were also evident during the reign of the Tudors and Stuarts but, following a period of apparent decline in the role of such constables, growing concerns during the Georgian period regarding increasing crime and disorder led, ultimately, to the formation of the famous Bow Street Runners. A fragmented system of policing gradually evolved in other parts of London but, in 1785, the London and Westminster Police Bill was introduced, designed to form a co-ordinated policing system for the capital. This was defeated due to fierce opposition and poor management of the Bill in its passage through Parliament, although a more limited version was successfully passed seven years later.³ However, crime and fears of public disorder continued to rise and, eventually, Sir Robert Peel introduced his famous Bill, which was enacted on 19 June 1829 as the Metropolitan Police Act and, subsequently, the Metropolitan Police was born. The preamble to this landmark statute reads as follows:

Whereas offences against property have, of late, increased in and near the Metropolis, and the local establishments of nightly police have been found inadequate to the prevention and detection of crime, by reason of the frequent unfitness of the individuals employed, the insufficiency of their number, the limited sphere of their authority and their want of connection and co-operation with each other. And, whereas it is expedient to substitute a new and more efficient system of police in lieu of such establishments of nightly watch and nightly police, within the limits hereinafter mentioned, and to constitute an office of police which, acting under the immediate authority of one of His Majesty's Principal Secretaries of State, shall direct and control the whole of such new system of police within those limits. Be it therefore enacted, etc …

This signalled the formation of the first modern-style professional policing system in this country and, by 1856, all of England and Wales was covered by a network of police forces. It remains a popular belief that the main driving force behind the 1829 Act was the appalling crime rate, particularly in London. Although this was undoubtedly a major factor, there was also another issue which was equal in

importance, namely the increase in the level of public disorder that had escalated in the 18th and early 19th centuries:

The prevention of crime was stressed as the first duty of the new Metropolitan Police constables and the whole system of beat patrols … was ostensibly designed with this in mind. But the uniform, the discipline and the organisation of the new force suggest that Peel had imported into London many of the policing practices developed in Ireland to deal with civil disorder.⁴

Whilst the military were used to quell rioting in London and other big cities, there were serious tactical and political disadvantages in using armed troops for this purpose. First, long delays were often experienced in transporting troops from their barracks to the scene of public disorder; subsequently, the situation was well out of hand by the time they arrived. Secondly, the only forms of weaponry available to them were potentially lethal, namely bullets or bayonets, the use of which often had drastic consequences in terms of fatal or serious injuries. In contrast, the new police were frequently able to resolve both problems by mainly using wooden truncheons to control riots and, by being deployed throughout London on regular 24 hour patrols, were able to disperse many unruly gatherings before they escalated into full scale disorder.

Although in their early days the new police were often regarded with disdain and suspicion by both general populace and even some in authority, they quickly gained the respect still found amongst the majority of the public today. Although some assert that this effect is waning, the policing system in this country is still characterised by the concept of policing by consent, which to a certain extent remains the envy of policing systems in many other parts of the world.

THE STRUCTURE OF POLICING IN ENGLAND AND WALES

As mentioned above, there are currently 43 police forces in England and Wales. This excludes those with special jurisdiction, such as the British Transport Police and the Ministry of Defence Police, who operate in various parts of the country. The 43 police areas include the two forces in London, namely the Metropolitan Police and the City of London Police. These two London forces warrant separate coverage as distinct from those outside the capital, and these will be discussed below. At this stage, it should be noted that the chief officers of police for both the London forces are commissioners rather than chief constables; it is the latter who head police forces outside the capital.

Since 1964, the Home Secretary has had the power to amalgamate police forces and this power now exists under s 32 of the Police Act 1996, where such a move can be made on grounds of efficiency and effectiveness. Prior to enacting the 1996 Act, the Conservative Government announced plans to implement such action, although, to date, this has not occurred. Although the fragmentation of police forces throughout this country lends itself to the notion that policing in England and Wales is not under centralised control, recent developments in the structure of our police service indicates an increasing movement towards this end, which will now be discussed.

In 1962, the Report of the Royal Commission on the Police⁵ rejected the concept of a national police force under direct central government control and, in response to its report, the Police Act 1964 was passed, which enshrined the principle legal rules governing the organisation of the police service up until the mid-1990s. An important consequence of this legislation is that policing in this country is governed by three points of power, namely: the Home Secretary, who represents central government and is responsible for the overall supervision of the police service, as well as being answerable to Parliament regarding the service's function; local police authorities, responsible for the overall maintenance of police forces within their jurisdiction and ensuring local accountability; and chief officers of police, responsible primarily for making operational decisions, as well as the routine management of their forces. However, it is the subject of debate as to whether there is now an equal balance of power within this tripartite structure.

The police authorities

The balance of power regarding policing in England and Wales was changed controversially through Pt I of the Police and Magistrates’ Courts Act 1994, which was later consolidated into the Police Act 1996, and these provisions, among other things, generally endeavour to make the police service function under a more ‘business management’ regime.⁶ They have also created new style police authorities, in contrast to those which existed earlier. Previously, police authorities outside London consisted of two-thirds local councillors and one-third local magistrates. These bodies varied considerably in size — at the extreme ends, from between six to over 40 members in total, although the proportion of magistrates and councillors was always the same. The Government White Paper, entitled Police Reform — A Police Service for the 21st Century, contained, inter alia, proposals that police authorities should be set to a prescribed number of 16 members. This was not itself a controversial measure, since some authorities were regarded as too small, whereas, in contrast, others had become too large and unwieldy. The main controversy was that these bodies should consist of eight local councillors, three magistrates and five persons appointed by the Home Secretary, who would also appoint the chairperson, who, in turn, would have the casting vote where necessary. These proposals were severely criticised, both within and outside Parliament, on the grounds that this would have given central government a significant increase in power over local police forces.⁷ In the end, the Government modified its original proposals, which included allowing each police authority to elect its own chairperson and increasing the size of each authority to 17 members, of which nine are local councillors, three are local magistrates and five are independent members appointed from a shortlist compiled by the Home Secretary.

There is provision under the Police Act 1996 for the Home Secretary to increase the size of police authorities where appropriate, but the outcome must result in such bodies reaching odd numbers and the proportion of councillors, magistrates and independent members approved by the Home Secretary remaining unchanged. Other aspects of these reforms included the transformation of police authorities into corporate bodies which, in turn, must have regard to any objectives determined by the Home Secretary, as well as to formulate annual local policing plans and comply with these accordingly in order to meet performance targets. Also, they must publish an annual report, which includes the extent to which the local policing plan has been complied with, as well as submit reports on relevant police matters to the Home Secretary as required by him.

Under s 40 of the Police Act 1996, the Home Secretary may direct any police authority to take remedial action if the inspectorate of constabulary report that its police force is not efficient or effective. Sections 4 and 5 of the Police Reform Act 2002 extend these provisions to include situations where the inspectorate of constabulary makes a routine or a special inspection and concludes that all or part of a police force is, or is likely to be, inefficient or ineffective. Remedial action may include the requirement to submit an action plan to the Home Secretary in conjunction with the relevant chief police officer.

Many functions of the police authorities remain as they did prior to the Police Act 1996, which include the overall duty to secure the maintenance of an effective and efficient police force by, among other things, acting as its paymaster in terms of local expenditure and controlling the police budget. Police authorities are also responsible for appointing chief constables, deputy chief constables and assistant chief constables (the latter two in consultation with the chief constable),⁸ and may suspend or require any of them to resign or retire, although these decisions can be vetoed by the Home Secretary, who can also require a police authority to suspend, retire or require the resignation of a chief officer of police on his own initiative. The power of the Home Secretary's veto was last used in 1990 and resulted in a dispute with the Derbyshire Police Authority over the appointment of the then-chief constable for Derbyshire, which lasted for several months. However, in 2004, there was a dispute between the Home Secretary and the Humberside Police Authority regarding the Home Secretary's requirement for them to suspend the then-chief constable, which initially they refused to do.

Under the Police Reform Act 2002, police authorities of their own volition may suspend chief constables who are, or are likely to be called upon, to retire or resign on grounds of efficiency. The Home Secretary must approve this decision and may require a police authority to initiate such action. These suspension rules will also apply to the Commissioner and Deputy Commissioner of Police of the Metropolis. Similar provisions exist regarding the other Association of Chief Police Officers (ACPO) ranks, namely assistant commissioners, deputy assistant commissioners and commanders in London, and deputy chief constables and assistant chief constables outside the capital, the difference being that the Home Secretary does not have the power to require a police authority to exercise its power of suspension in such cases.

Police authorities may also employ civilian staff to assist the police force maintained by it and to enable the authority to discharge its functions, although such employees are under the direction and control of the chief constable. It should be noted that u...